Can someone please try to correct the title on this. The Giggs issue was NOT a superinjunction. It was just a normal injunction preventing disclosure of information about a person pending a full trial.
Injunctions sometimes serve a useful purpose, especially in defamation or privacy cases. Although they should be used sparingly they do protect the ideals that you are innocent until proven guilty and mud sticks.
Superinjunctions are normally really, really bad things. They actual prevent the reporting the fact an injunction has even been granted. Normally you can report a "footballer" has an injunction which allows the Giggs effect to work its magic. If this was a superinjunction we'd never even know it existed...
Please dont confuse the two. We should have the debate on superinjunctions but calling normal ones super makes the debate meaningless!
So if I apply the same logic to traditional media we could be saying that the courts should not be able to prevent publication of defamatory newspaper articles as long as the information is not written by the newspaper. If they are just the publisher then they should have zero liability and able to print anything they want?
I don't for a moment think this is what we're saying but you perhaps see the legal problem for the courts? Even if they create an exception for on-line indexes of information it could create a problematic rule which may prevent limited but legitimate censorship - something most people agree is a necessary element of free and fair society (eg, defamation, limited privacy, etc...).
I dont think the answer to any of this is censoring the suggested search feature - I think that's a technically illiterate answer. But I do think there needs to be a remedy and Google, as a company that makes a lot of money based on providing content to people, needs to take some responsibility for that content - albeit in a reactionary and limited way (as in only after they are made aware of a problem and following due process with legitimate defence for truth or public concerns, etc...).
Probably should point out the law doesn't actually let them shut down your access on three accusations.
I'm no expert in the new law yet but it would still take a conviction in court for them to do that (or at least once they implement the part of the law which lets them kick you off, which they havent yet).
In court an unchallenged accusation is to be assumed to be evidence of guilt - thats the crappy part you're referring to. What's not clear to me is whether to remove that burden of assumed guilt you just have to challenge the accusation or actually disprove it.
My gut feeling is the court will be reluctant to interpret it in a way which overly prejudices the defendants long standing rights to presumption of innocence. But a good law should never be this unclear.
That's the narrow view that I am concerned about. As soon as you say "the only" it's evident you have a conclusion and are not willing to look at the broader contexts.
There are multiple justifications for copyright. One that jumps to mind is the economic one. By making what should be an infinite good scare you can create a market for it. This promotes commerce and leads to industries around it. Now you can argue if this is a good thing, or whether the detriment caused by granting a monopoly is greater than the benefit. But its still a justification and one that should be more openly discussed.
There are others too. The concept of moral desert is common in academic circles as an IP justification, as are other concepts around property and ownership of unowned things. All are justifications with pro and con sides worth debating.
Personally if the debate was less partisan and more reasoned I think we'd end up closer to something we'd all be happy with. My opinion is the main justification in the modern world for copyright is that without it lots of people would lose a lot of money. Is this a good justification? That's something society should decide through a reasoned and balanced argument.
Proof is needed. The problem is that the law reverses the burden of proof.
What I mean is that under the law an unchallenged accusation is a presumption of guilt. It's unclear to me whether a challenged accusation would be something less than a presumption of guilt or not. Its just a badly thought out law.
Mike, I think you've framed the question incorrectly and too narrowly.
It entirely ignores any other justification for copyright as being irrelevant, but its not clear on what grounds you justify dismissing other arguments. Other than, of course, the grounds that copyright in the US was created to promote advancement of science (or words to that effect).
A more sensible debate would be, what is the justification for copyright in todays world. What is the real justification for the expansion of copyright and is it really justified in a free and democratic society.
I do not for a second accept that almost any of the changes in copyright since it was first formally enshrined in 1709 have been about its original stated purpose (yes, that's right, copyright did not originate in the USA but was adopted by them based on British laws, which stated a similar purpose). The fact for me is that copyright was created for one purpose and then over the next 300 years has developed an entirely new purpose.
To ignore what it is and means today and try to have a debate about it framed so narrowly is a bit like expecting to be able to interpret the US Constitution only in terms of what was meant at the time it was written and ignore the changes in society that have happened since - a position I am sure most of us would criticise.
What needs to happen is to get all the arguments on the table, for us all to understand the wide variety of justifications and be able to balance them off against each other.
Perhaps you are just trying to make that point? Perhaps you are really just trying to draw peoples attention to the fact the stated objective of copyright is not being met and we should be more honest about it. If so wahoo to you. But I would still like to see a real debate and have people understand that it is not a simple argument with only one position.
Seems to me you have a giant assumption that copyright has always been there to promote progress. Not sure this would stand up to historical analysis. I'm no expert but my reading of copyright history, particularly in the 18th Century shows quite a groundswell of support in behind the concept of the "romantic author" - the idea that someone is creating something for the express pleasure of others yet gets nothing for it. Seems like a pretty moral argument.
I think a lot of the public pronouncement has been about using copyright as a tool to encourage progress - but to ignore the moral side of it I think is being a bit myopic.
A meaningful argument about whether or not there is a moral or social basis for copyright, and if so what does that entail, I think would be healthy. Rather than just ignore it.
I dont mean to split hairs but isnt this just a normal injunction? Isn't the whole point of a super-injunction that the fact there is an injunction at all is supressed, if this were so the guardian would be in breach of it with their article...
Whether or not there should be the ability to injunct someone based on information that has already been published or not is one question.
Whether or not you should be able to stop someone saying there is even an injunction is another discussion...
Making creative decisions by committee work ... For my next trick I will end world hunger, bring about everlasting world peace, turn water into wine and make this flock of pigs land gracefully on the tip of the empire state building; all with merely a wiggle of my rose coloured glasses.
The reasons for outsourcing are very complicated, but if you boil it down its driven partly be a need to continually grow and partly by the need to stay in business by keeping up with (or ahead of) your competition. Basically if I can offer more features at a lower cost I'll kick your butt.
Rather than try to define how much profit is enough, or how big is big enough (both of which are entirely subjective), perhaps we'd be better off in redefining how we measure success. The answer isn't in telling people they cant be more successful than they are now, but redefining how we success - letting people be more successful in a more ways.
Personally I think its more a cultural development than a legal one. Sure the law allows people to do it, but the driver in behind the law is the cultural change.
Way back when the US economy was a production heavy one. It made physical stuff and that stuff was sold. The culture was you made money by executing on good ideas.
Then, recently, as a result of massive competition and a 'I need' consumer mentality, production moved to other economies. The US became a primarily consumption driven economy. The problem here is you could no longer make money off executing good ideas.
So you sit back and either accept you can no longer make lots of money (which has a seriously bad impact if you want to keep consuming stuff) or you look for new ways to make money.
The obvious choice is to change your focus from making money on the execution of ideas to the actual ideas themselves. Its a cultural shift driven by an increasingly free global market. It causes all sorts of problems, but if ideas are free then (internationally speaking) you are highly exposed.
If a country has no concept of an "executive agreement" then it would be impossible for them to call it one. In many states there are many definitions and types of "treaty", the same word is used to mean more than one thing. So what someone in Europe may call a treaty someone in the USA may call an "executive agreement" and it wont change a thing.
Each infringement seems to relate to "a work" which means sharing an album of 20 songs would technically be 20 infringements.
You would have to share a substantial part of each song for it to count though.
But here's the deliberate loophole... you cannot get a second strike until you have been notified of your first strike. You can't get a second strike until after you receive the first letter. So you can share 100 songs a day for a month and that will be 3000 infringements but only one strike.
Interestingly I could read the proposed law to say that to get a second strike you have to share the same song that you got warned about the first time, it doesnt seem to say the strikes relate to general offending, just offending against that particular work...
From what I can see the only proof required is an unchallenged accusation.
So rights holder just has to accuse someone (or technically accuse an IP address) and you get a letter. You can challenge it and if the rights holder doesn't reassert their claim its assumed you are innocent of that strike. But if they disagree with you its presumed you are guilty... although the fact you challenged it and the grounds you challenged it on would become a question of fact for a court to decide (ie, you are still 'guilty' of that strike, but you may get off in a court case if the rights holder can't prove you infringed).
Rose has a right to feel safe and secure in her home.
Google has a right to take a photo of her house and post it on the internet.
Google asserting their right infringes Rose's right. One must give way to the other. Does Rose's right trump simply because she is a natural person? That would be a slippery slope I think fraught with danger. To get around it it would be simple for an individual who took the photo's to assert their right, independent of Google.
So whose right gives way? There is simply no correct answer, simply someone must make a choice which guaranteed to piss someone off.
The proposal is simply that the Court cant suspend an account yet. But at some point in the future the Minister may grant the courts this power without having to go back through the law making machine. Once granted this power would apply to every application to the court, not on a case by case basis.
Also after your third strike you go to Court (or the Tribunal). Infringement notices are considered proof of offending, despite there not having to be any proof you offended for one to be issued. That's bad.
What's good is you can challenge an offence notice. This may not change anything other than your objection is considered by the Tribunal (or Court). If you didnt object when you got it though that may count against you. Regardless its a reversal of the burden of proof which I think is crap. Even if you object its still prima facie offending if the rights holder says it is so.
What is also good is the notices expire relatively quickly (4-5 weeks) so its not like you'll have this over your head for years.
What could be good is that you need to infringe three times on the same infringement for it to get ugly. What an infringement is isnt clear. Likely the courts will rule its an infringement against a single rights holder of any of their works, but they could rule its on a single work. I need to read that bit in more detail to know for sure. This technicality will likely be a big focus.
(p.s., there is no guarantee the Bill will pass into law as recommended, its entirely possible for it to revert back to something draconian between now and when it passes)
I've only had a cursory look at the Bill but here's my take on it.
1. Copyright holders must complain about a user, don't appear to have to prove anything.
2. User gets "notification" that they were caught if first offence. No further action. Strike 1.
3. If offending continues user gets "warning" that continuing to offend will be a bad thing. Strike 2.
4. If offending still continues user gets "infringement" notice. Strike 3.
The effect of the infringement is now the offender goes to court. They can face a fine of up to NZ$15,000 (about US$10,000) but they can't have their internet cut off.
... unless ...
Its possible for the Minister to deem its serious enough to have them cut off. Note that for a Cabinet Minister to get directly involved in a copyright dispute means it must be a doozey of one.
If the Minister decides they should be cut off (for a maximum of 6 months) it goes back to Court. The Court then decides if cutting the person off is justified, if its disproportionate then nothing happens.
So on the surface its not as bad as first proposed. But I'm still pretty concerned about the lack of due process in the initial warning notices. It seems the rights holder doesn't have to prove anything until they get to court, but I guess that's no different to today really.
So all in all its relatively weak which is good. Although they have left the door open to introduce the disconnect as a penalty at a later stage, I cant see it being anything other than something the Court could order, so at least preserves a semblance of due process.
On a slightly positive note the committee considering the Bill agreed that any disconnection would do nothing to stop illegal activity. It's simply a punitive action and its only benefit would be to get people to think twice before downloading.
As an aside it is rumoured the last minute removal of the disconnect from the bill was an attempt to keep US officials happy for as long as possible. (trade negotiations)
Some here are thinking the intention was to leave that in there until after the visit by Hillary Clinton (today), which is rumoured to include a discussion on better cooperation in protecting IP internationally. Perhaps another example of the US using its economic muscle to influence other countries domestic policy... conspiracy theory... hmmm... you be the judge :)
Part of the problem is that there is no universally accepted definition of privacy. So it's impossible to answer your question, "is it really protecting anyone's actual privacy", unless we know what privacy is...
The best definition I have seen is: Privacy is what people believe they have lost when they complain about their privacy being infringed.
So in that sense, yes this blurring would be better protecting those peoples privacy.
In another sense, just because you inherently cant hide something from a very small group of people (those walking down my street) does not make it ok for millions of people to see it (everyone on the internet). Allowing less people to see it is making it more private, if not entirely private. Therefore better protecting my privacy.
Ahh... Daryl hate to be the one to point this out but Mike was quoting the article he links to, thats the whole point of this piece that the survey doesn't necessarily support the headline...
Maybe you might like to read the article again, and, well you know the rest of it...
This wasnt a superinjunction
Injunctions sometimes serve a useful purpose, especially in defamation or privacy cases. Although they should be used sparingly they do protect the ideals that you are innocent until proven guilty and mud sticks.
Superinjunctions are normally really, really bad things. They actual prevent the reporting the fact an injunction has even been granted. Normally you can report a "footballer" has an injunction which allows the Giggs effect to work its magic. If this was a superinjunction we'd never even know it existed...
Please dont confuse the two. We should have the debate on superinjunctions but calling normal ones super makes the debate meaningless!
Whats the difference
I don't for a moment think this is what we're saying but you perhaps see the legal problem for the courts? Even if they create an exception for on-line indexes of information it could create a problematic rule which may prevent limited but legitimate censorship - something most people agree is a necessary element of free and fair society (eg, defamation, limited privacy, etc...).
I dont think the answer to any of this is censoring the suggested search feature - I think that's a technically illiterate answer. But I do think there needs to be a remedy and Google, as a company that makes a lot of money based on providing content to people, needs to take some responsibility for that content - albeit in a reactionary and limited way (as in only after they are made aware of a problem and following due process with legitimate defence for truth or public concerns, etc...).
(untitled comment)
I'm no expert in the new law yet but it would still take a conviction in court for them to do that (or at least once they implement the part of the law which lets them kick you off, which they havent yet).
In court an unchallenged accusation is to be assumed to be evidence of guilt - thats the crappy part you're referring to. What's not clear to me is whether to remove that burden of assumed guilt you just have to challenge the accusation or actually disprove it.
My gut feeling is the court will be reluctant to interpret it in a way which overly prejudices the defendants long standing rights to presumption of innocence. But a good law should never be this unclear.
Re: Re:
There are multiple justifications for copyright. One that jumps to mind is the economic one. By making what should be an infinite good scare you can create a market for it. This promotes commerce and leads to industries around it. Now you can argue if this is a good thing, or whether the detriment caused by granting a monopoly is greater than the benefit. But its still a justification and one that should be more openly discussed.
There are others too. The concept of moral desert is common in academic circles as an IP justification, as are other concepts around property and ownership of unowned things. All are justifications with pro and con sides worth debating.
Personally if the debate was less partisan and more reasoned I think we'd end up closer to something we'd all be happy with. My opinion is the main justification in the modern world for copyright is that without it lots of people would lose a lot of money. Is this a good justification? That's something society should decide through a reasoned and balanced argument.
Re: No proof
What I mean is that under the law an unchallenged accusation is a presumption of guilt. It's unclear to me whether a challenged accusation would be something less than a presumption of guilt or not. Its just a badly thought out law.
(untitled comment)
It entirely ignores any other justification for copyright as being irrelevant, but its not clear on what grounds you justify dismissing other arguments. Other than, of course, the grounds that copyright in the US was created to promote advancement of science (or words to that effect).
A more sensible debate would be, what is the justification for copyright in todays world. What is the real justification for the expansion of copyright and is it really justified in a free and democratic society.
I do not for a second accept that almost any of the changes in copyright since it was first formally enshrined in 1709 have been about its original stated purpose (yes, that's right, copyright did not originate in the USA but was adopted by them based on British laws, which stated a similar purpose). The fact for me is that copyright was created for one purpose and then over the next 300 years has developed an entirely new purpose.
To ignore what it is and means today and try to have a debate about it framed so narrowly is a bit like expecting to be able to interpret the US Constitution only in terms of what was meant at the time it was written and ignore the changes in society that have happened since - a position I am sure most of us would criticise.
What needs to happen is to get all the arguments on the table, for us all to understand the wide variety of justifications and be able to balance them off against each other.
Perhaps you are just trying to make that point? Perhaps you are really just trying to draw peoples attention to the fact the stated objective of copyright is not being met and we should be more honest about it. If so wahoo to you. But I would still like to see a real debate and have people understand that it is not a simple argument with only one position.
(untitled comment)
I think a lot of the public pronouncement has been about using copyright as a tool to encourage progress - but to ignore the moral side of it I think is being a bit myopic.
A meaningful argument about whether or not there is a moral or social basis for copyright, and if so what does that entail, I think would be healthy. Rather than just ignore it.
(untitled comment)
Whether or not there should be the ability to injunct someone based on information that has already been published or not is one question.
Whether or not you should be able to stop someone saying there is even an injunction is another discussion...
(untitled comment)
Re: Re:
Rather than try to define how much profit is enough, or how big is big enough (both of which are entirely subjective), perhaps we'd be better off in redefining how we measure success. The answer isn't in telling people they cant be more successful than they are now, but redefining how we success - letting people be more successful in a more ways.
(untitled comment)
Way back when the US economy was a production heavy one. It made physical stuff and that stuff was sold. The culture was you made money by executing on good ideas.
Then, recently, as a result of massive competition and a 'I need' consumer mentality, production moved to other economies. The US became a primarily consumption driven economy. The problem here is you could no longer make money off executing good ideas.
So you sit back and either accept you can no longer make lots of money (which has a seriously bad impact if you want to keep consuming stuff) or you look for new ways to make money.
The obvious choice is to change your focus from making money on the execution of ideas to the actual ideas themselves. Its a cultural shift driven by an increasingly free global market. It causes all sorts of problems, but if ideas are free then (internationally speaking) you are highly exposed.
(untitled comment)
Re:
You would have to share a substantial part of each song for it to count though.
But here's the deliberate loophole... you cannot get a second strike until you have been notified of your first strike. You can't get a second strike until after you receive the first letter. So you can share 100 songs a day for a month and that will be 3000 infringements but only one strike.
Interestingly I could read the proposed law to say that to get a second strike you have to share the same song that you got warned about the first time, it doesnt seem to say the strikes relate to general offending, just offending against that particular work...
Re:
Re: Re:
So rights holder just has to accuse someone (or technically accuse an IP address) and you get a letter. You can challenge it and if the rights holder doesn't reassert their claim its assumed you are innocent of that strike. But if they disagree with you its presumed you are guilty... although the fact you challenged it and the grounds you challenged it on would become a question of fact for a court to decide (ie, you are still 'guilty' of that strike, but you may get off in a court case if the rights holder can't prove you infringed).
Re: Re: Other's reasons are not for *you* to judge.
Rose has a right to feel safe and secure in her home.
Google has a right to take a photo of her house and post it on the internet.
Google asserting their right infringes Rose's right. One must give way to the other. Does Rose's right trump simply because she is a natural person? That would be a slippery slope I think fraught with danger. To get around it it would be simple for an individual who took the photo's to assert their right, independent of Google.
So whose right gives way? There is simply no correct answer, simply someone must make a choice which guaranteed to piss someone off.
Re:
The proposal is simply that the Court cant suspend an account yet. But at some point in the future the Minister may grant the courts this power without having to go back through the law making machine. Once granted this power would apply to every application to the court, not on a case by case basis.
Also after your third strike you go to Court (or the Tribunal). Infringement notices are considered proof of offending, despite there not having to be any proof you offended for one to be issued. That's bad.
What's good is you can challenge an offence notice. This may not change anything other than your objection is considered by the Tribunal (or Court). If you didnt object when you got it though that may count against you. Regardless its a reversal of the burden of proof which I think is crap. Even if you object its still prima facie offending if the rights holder says it is so.
What is also good is the notices expire relatively quickly (4-5 weeks) so its not like you'll have this over your head for years.
What could be good is that you need to infringe three times on the same infringement for it to get ugly. What an infringement is isnt clear. Likely the courts will rule its an infringement against a single rights holder of any of their works, but they could rule its on a single work. I need to read that bit in more detail to know for sure. This technicality will likely be a big focus.
In case anyone else cares the full report is here: http://www.parliament.nz/NR/rdonlyres/47ED3168-0231-42D9-9245-F82EEAD38575/164872/DBSCH_SCR_4901_Cop yrightInfringingFileSharingAmend.pdf
(p.s., there is no guarantee the Bill will pass into law as recommended, its entirely possible for it to revert back to something draconian between now and when it passes)
(untitled comment)
1. Copyright holders must complain about a user, don't appear to have to prove anything.
2. User gets "notification" that they were caught if first offence. No further action. Strike 1.
3. If offending continues user gets "warning" that continuing to offend will be a bad thing. Strike 2.
4. If offending still continues user gets "infringement" notice. Strike 3.
The effect of the infringement is now the offender goes to court. They can face a fine of up to NZ$15,000 (about US$10,000) but they can't have their internet cut off.
... unless ...
Its possible for the Minister to deem its serious enough to have them cut off. Note that for a Cabinet Minister to get directly involved in a copyright dispute means it must be a doozey of one.
If the Minister decides they should be cut off (for a maximum of 6 months) it goes back to Court. The Court then decides if cutting the person off is justified, if its disproportionate then nothing happens.
So on the surface its not as bad as first proposed. But I'm still pretty concerned about the lack of due process in the initial warning notices. It seems the rights holder doesn't have to prove anything until they get to court, but I guess that's no different to today really.
So all in all its relatively weak which is good. Although they have left the door open to introduce the disconnect as a penalty at a later stage, I cant see it being anything other than something the Court could order, so at least preserves a semblance of due process.
On a slightly positive note the committee considering the Bill agreed that any disconnection would do nothing to stop illegal activity. It's simply a punitive action and its only benefit would be to get people to think twice before downloading.
As an aside it is rumoured the last minute removal of the disconnect from the bill was an attempt to keep US officials happy for as long as possible. (trade negotiations)
Some here are thinking the intention was to leave that in there until after the visit by Hillary Clinton (today), which is rumoured to include a discussion on better cooperation in protecting IP internationally. Perhaps another example of the US using its economic muscle to influence other countries domestic policy... conspiracy theory... hmmm... you be the judge :)
(untitled comment)
The best definition I have seen is: Privacy is what people believe they have lost when they complain about their privacy being infringed.
So in that sense, yes this blurring would be better protecting those peoples privacy.
In another sense, just because you inherently cant hide something from a very small group of people (those walking down my street) does not make it ok for millions of people to see it (everyone on the internet). Allowing less people to see it is making it more private, if not entirely private. Therefore better protecting my privacy.
Re: PORTIONS --- know what that means Mike ?? anyone ??
Maybe you might like to read the article again, and, well you know the rest of it...
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