New Zealand's first attempt at passing a "three strikes" law fell apart as rights holders and Internet service providers were unable to agree on a voluntary code of practice. One of the biggest concerns was the lack of due process; how could New Zealand avoid presuming that the accused were guilty yet still develop a means of judging accusations that was cheaper and faster than the country's High Court?

Given the rancorous debate over the subject, the government scrapped its law earlier this year and went back to the drawing board. It convened a working group of "intellectual property and Internet law experts" to advise it on a fair solution to the problem of repeated online copyright infringement. That group has now concluded its work, and New Zealand's Ministry of Economic Development yesterday issued its policy proposal (PDF) for public comment.

More due process

The document shows that government officials clearly recognize the key problems, though whether the proposed solutions adequately address them remains a matter for debate. "The main concern was that this could have led to the disconnection of the subscriber's Internet account without due process," notes the new report. "Concern was also raised as to whether Internet disconnection was a proportional response to copyright infringement." (Google says it is not.)

Under the government's new plan, Internet disconnection remains on the table, as do fines. But the plan also gives those accused of infringement more power to contest the claims, to use mediation, and to (possibly) appeal penalties to the regular legal system.

The chart below shows a diagram of the proposed process. It sure looks complicated, but the general outline isn't hard to grasp.

When rights holders first detect online copyright infringement, they must send a notice to an Internet service provider. This notice must be forwarded by the ISP to the proper subscriber.

If infringement continues to take place, rights holders may then send a "cease and desist notice" through the ISP (throughout this process, the rights holder still has no idea about the identity of the individual hidden behind the IP address). The accused can contest these notices, and the ISP will make a judgment on whether they have merit.

If infringement continues after a cease-and-desist notice, rights holders can then go to the new Copyright Tribunal and request the identifying information for the subscriber in question. (This process takes the place of filing a copyright infringement lawsuit and seeking a subpoena from the court.)

At this point, the rights holder can contact alleged infringers directly, notifying them that an allegation of "repeat copyright infringement" has been filed with the Tribunal. The accused can then request mediation, if desired; otherwise, the Copyright Tribunal will rule and can impose fines or cut off Internet access.

The proposal remains in the draft stages, and the government is seeking comment through August 7 (submissions can go to copyrightact@med.govt.nz). It particularly wants to know what sort of remedies the Tribunal should be allowed to impose, how long disconnections might last, and whether the accused should be entitled to appeal their case into the court system.

The Creative Freedom Foundation, founded last year in response to this issue, praised the concern with due process, but continues to have problems with overall scheme. CFF Director Bronwyn Holloway-Smith said in a statement, "It's unfortunate to see NZ not following international trends by holding on to internet termination as a punishment. As artists, we don't want people's internet taken away to protect our copyright. This is too severe a punishment, and many consider it to be a breach of human rights."