[LINK] After delay, Kiwis to get kinder, gentler "3 strikes" policy

[Roger Clarke]

After delay, Kiwis to get kinder, gentler "3 strikes" policy

The government scrapped a botched graduated response plan back in 
March, but it has returned with a much-improved version of the scheme 
that puts judges in charge of disconnections and removes "guilt by 
accusation."

By Nate Anderson
December 16, 2009 12:06 PM
http://arstechnica.com/tech-policy/news/2009/12/after-delay-kiwis-to-get-kinder-gentler-3-strikes-policy.ars

New Zealand has introduced a rewrite of copyright law's Section 
92a-the infamous bit of legalese that was to bring "three-strikes" 
rules and Internet disconnections to the Kiwis. The new rules remove 
"guilt by accusation" and make it more difficult for rightsholders to 
fine or disconnect suspected file-swappers.

The original Section 92a was scrapped back in March after widespread 
opposition. Users and ISPs were most concerned that the rules would 
apparently disconnect even huge businesses after a few employees 
downloaded illicit files. A high-profile judge raised concerns that 
the procedure could run afoul of contract law in New Zealand. ISPs 
weren't keen on disconnecting their own customers for the benefit of 
one set of industries, and they couldn't believe the law provided no 
indemnification from lawsuits; the ISP could be sued both by users 
and rightsholders if they didn't like the way it was handling the 
three-strikes program. And users wanted some form of third-party or 
judicial arbitration before any Internet disconnection.

To its credit, the government pulled its proposal, took more than 
half a year to work on it, and has revised the process. Under the new 
rules, rightsholders can now notify ISPs about alleged infringement, 
and ISPs will forward those notices to subscribers (called 
notice-and-notice). After three such letters, rightsholders can 
choose to go to a special Copyright Tribunal to seek a fine or go to 
court to seek a disconnection of up to six months.

The plan removes ISPs from the role of playing Internet cop, and it 
also provides for counternotices, appeals, and some sort of judicial 
oversight of sanctions. InternetNZ, which runs the .nz domain system, 
said today that it was pleased with the revisions.

The law will be introduced early in 2010.


-- 
Roger Clarke                                 http://www.rogerclarke.com/
			            
Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University