#Blackout Tetris

Like some kind of ghastly bubonic Tetris, Twitter feeds in New Zealand were last night raining little black boxes. Hundreds of Twitter users had painted their profile pictures black to protest at the Copyright (Infringing File Sharing) Amendment Bill, which was pushed through parliament overnight under urgency. This “blackout” protest is a re-run of last year’s campaign to stop the 92A amendment, which was subsequently binned.

The latest amendment, which went through with support from Labour this morning, incorporates a handful of compromises, including, crucially, the provision that an internet connection cannot be unplugged without regulator sign-off – in effect delegating that task to the independent Copyright Tribunal. It was this concession that led to Labour backing the amendment; its communications spokesperson Clare Curran said this removed the risk of installing a guilty-until-proven-innocent benchmark.

In a blog today, Curran claims that, thanks to Labour’s intervention “no New Zealander can be disconnected from the internet for illegal file sharing” – but scroll down a few paragraphs and there is the whiff of contradiction: “Account suspension remains in the bill and could theoretically be used in the future, but any Minister who implements termination will have to wear the consequences.”

The problems that remain in the legislation, according to Tech Liberty NZ’s useful summary, are these:

• It makes the person whose name is on the internet account liable for all actions done by any user of that connection. Flatmates will be responsible for the people they live with, businesses will be responsible for their staff, parents will be responsible for their kids. Sharing your internet connection will put you at legal risk.
• It includes the idea that the Copyright Tribunal should believe the accusation from the media companies unless the account holder can prove it to be wrong. This is even when these accusations have been proven time and time again to often be substantially inaccurate. There are no penalties for making false accusations.
• It still includes internet disconnection as a penalty. Initially this provision will be suspended but it can be reactivated at the whim of the government. We oppose disconnection.

For No Right Turn the guilt-by-accusation problem had barely been tickled: “An SOP from the government softens the language here a bit, so that an infringement notice now merely creates a presumption of guilt rather than being conclusive evidence of it, but that’s not much better. It also makes little sense.” Hear, hear, said R0B at the Standard: “Labour’s original Bill on this was a pig. Now the Nats have stuck some lipstick on it and made it their own. But sure enough it’s still a pig.”

The coverage wasn’t limited to New Zealand. At BoingBoing – one of the world’s best-read blogs – Canadian author and enemy of copyright Cory Doctrow fulminated:

When it comes into effect, it means that the livelihoods, civic engagement, education, social mobility, political engagement, and other online activities will be subject to suspension without trial or evidence for anyone accused of copyright infringement.

Using the tragedy in Christchurch as a means to advance the corporate agenda of offshore entertainment giants is shameful, to say the least. It’s hard to imagine the depravity at work in the mind of the big content lobbyist who decided that hitching a ride on emergency legislation to address the horrific consequences of the Christchurch quake was a good idea.

Legal blogger Imperator Fish was less angered by a bill that was “much watered down”:

Users can have their internet connections terminated, but only by order of a court, and only after a third strike, and only for six months, and only then if an Order in Council has been enacting enabling this power. On top of that lot, a court will still have discretion to determine whether or not to suspend. The likelihood is that there won’t be a lot of suspensions …

While I couldn’t get angry at the content of the bill, it does bother me that urgency was used to pass this piece of legislation. I don’t know why, and I can only come up with two possibilities. One is that the passing of the legislation was a necessary gesture by the New Zealand government under the secret TPP negotiations. The other is that this government is so addicted to the use of urgency and has such a fundamental disdain towards democracy that they thought nothing of it.

That view was shared by David Farrar at Kiwiblog; the government had shot itself in the foot by expediting a much-improved bill in the manner it did:

Up until this week, the Government had followed pretty much a model policy process in rewriting S92A, but the decision to pass it through the remaining stages under urgency has led to the backlash, and has in fact over-shadowed the many positive changes the bill makes to the current law. It is, to be blunt, an own goal …

I’m quite understanding the Government has a big legislative agenda and needs to use urgency to clear the order paper before the election. But in this case they could have avoided unnecessairly alarming people by not having included the third reading of the law in the urgency motion, and having that debated the following sitting week.

Over at Public Address, Russell Brown was of a similar mind. This was “an inadequate piece of law”, passed in “vile circumstances”, but nevertheless “markedly better than what it was designed to replace”. Brown concluded:

This isn’t a great law – and the circumstances of its passing are odious – but it’s considerably better than it might have been. And frankly, if you want to get really angry and alarmed, you’d be better advised to get that way about the changes to the legal aid system announced yesterday, which will directly affect the right to justice of many thousands of people a year – especially those on low incomes. The copyright bill is sub-optimal. The legal aid changes are plain dangerous.

The liveliest debate about the bill, by a mile or two, took place on Twitter. National MP and the creditably eager tweeter Tau Henare was taken to task by his nephew, Keri, a self-decribed “gamer and web development geek”. It went like this:

Keri Henare “Guilty until proven innocent” law being passed as part of Chch urgency is disgusting

Tau Henare not even eaow u listen too much to your dear mum. Which in itself is great that you do. #imjustsaying

Keri Henare I argue with her on as many points as I argue with you. Urgency should be saved for urgent things, not to hide unpopular laws.

Tau Henare it’s not used to hide anything. We are behind because we lost 1.5 weeks due to the earthquake.

Keri Henare so it’s just coincidence that such an unpopular law came up at this time?

Tau Henare it’s not coincidence it’s actually getting things done. There will be debate on it. I read the report just now. can’t c yr worry

Keri Henare Guilty until proven innocent and a termination of internet access are big problems.

Tau Henare it’s actually about property rights. I’m sure you wouldn’t want your property either stolen or shared without your say so.

Juha Saarinen Tau: STFU until you know what you’re talking about. Trust me, you really don’t.

Tau Henare Hey boy you STFU

Keri Henare are you even there?

Tau Henare don’t be silly now. Where else wld I be.

Keri Henare It’s a pretty empty room. You going to talk on the point?

Tau Henare nope. Been down there tonight on another bill.

More? Oh all right. The engagement resumed this morning:

Keri Henare National MPs kept saying that file sharing is illegal which is completely bullshit and shows no understanding.

Tau Henare So why would they say that? Because they believed it is true and they would have received advice to say it was illegal.

Keri Henare So they’re passing law on incorrect advice. How can you pass law when you don’t even understand the basics.

Tau Henare No No, there are lawyers around that say it is illegal. By August it will be illegal. Or whenever the bill is passed.

Keri Henare It’s not illegal, but depending on the wording of this bill it may become illegal. This bill is just one big fuck up.

Tau Henare So uploading movies and sounds from kazza and limewire and other file sharing wasnt illegal?

Keri Henare That’s not illegal unless the content is under copyright. That’s like saying photocopying is illegal.

Tau Henare but most stuff ie songs and movies and games IS copyright and they are the largest items to be downloaded?

Keri Henare That doesn’t make the whole process illegal. Copyright law already exists to cover copyright infringement, why not just update it

Tau Henare Your argument sounds very weak at the mo nephew

Keri Henare My argument is well informed. Can’t say that about 99% of Parliament on this bill.

Believe me, that debate is more illuminating than anything you would have got from watching the eye-bleeding coverage of parliament last night.

One punter rather cruelly posted a clip intercutting the Katrina Shanks’ speech in the house with a beauty queen’s platitudes.  But the truth is that the MP’s incoherent ramblings are funnier – and more terrifying – without adornment. The spectacle of Shanks alongside efforts by fellow bumbling MPs Jonathan Young (“Skynet” guy) and Melissa Lee is enough to mortify even the most optimistic cheerleader for a
“knowledge economy”.