Google has waded into the worldwide debate over disconnecting file-sharers after repeated copyright infringement. Responding to a New Zealand draft of "graduated response" principles, Google lawyers don't reject the idea of graduated response, but they do take issue with the proposed penalty of disconnection—"a remedy that is disproportionate to the harm of copyright infringement online."

Google makes clear in its comments that it supports copyright and the ability of rightsholders to stop infringement, but it has serious concerns about the process, especially when no judge is involved in disconnection proceedings. "Mere allegations of copyright infringement should not trump users' rights," says the filing. "Copyright law is often complex and context sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. Indeed, in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders."

This last bit seems like a direct shot at New Zealand's major labels, which said in a filing of their own that "the evidence that the recording industry provides to ISPs is highly reliable, well-tested and has been accepted in countries around the world as the basis of criminal and civil legal actions."

The process of drafting a code for implementing graduated response is taking place at the Telecommunications Carriers' Forum, a private forum that is trying to come up with industry-wide rules that will satisfy the requirements of New Zealand's new copyright law. Section 92a of that law requires ISPs to disconnect repeat infringers, though it provides no guidance on how and when to do so. After a public outcry, the government extended the implementation deadline until the end of March, but the comments suggest that wide disagreement on how to do graduated response remains.

One ISP, TelstraClear, has already indicated that it cannot accept the Code, even with revisions, which means that TCF won't be able to get the unanimous consent it had been hoping for. TeltraClear's comments on the draft Code note that "Internet users (our customers) have protested considerably against the Act and its implementation."

"In TelstraClear's view, any industry code would simply be an attempt to tidy up poorly drafted legislation," says the company.

Some groups—including the major music labels, Sky TV, and a New Zealand betting organization—were broadly supportive of the draft and in fact wanted it tightened up. But many of the comments were negative, including several filed by private citizens.

David Harvey, a judge on a New Zealand district court, offered his personal opinion that the Code might cause problems under New Zealand contract law.

The Code "suggests that an Internet service provider must develop a policy to cancel an existing contract as a result of copyright infringement," he says, but "the reality of the matter is that the cancellation or termination of the contract arises at the behest, not of the Internet service provider, but of copyright owners. Without significant justification in normal circumstances this could amount to an interference with economic relations and raises significant issues about the sanctity of contract."

Dr. Peter Gainsford-Submission, a professor at Victoria University, went much further, calling section 92a "about as draconian and undemocratic a law as any nation could fear to have. It makes the USA's policy of having 'free speech zones' look liberal in comparison."

Even Radio New Zealand, which is itself a rightsholder, has some real problems with the current proposal. For instance, it says that only a court should order disconnections; it says that the Code needs rules for reinstating users; and it wants "clear warnings to copyright holders" who send misleading or deceptive notices.

The Irish question

The recording industry in Ireland is pushing a similar graduated response plan, but one without an industry drafting process; instead, the major music labels have essentially threatened ISPs with legal action if they don't capitulate to label demands.

The Internet Service Providers Association of Ireland has issued a strong position statement (PDF) on the matter, saying that any legal action against ISPs is "spurious and there is no evidence of wrong-doing by Internet Service Providers." If rightsholders want to stop copyright infringement—and they certainly have the right to do so—"Irish copyright law provides an avenue for the pursuit of people breaching copyright through the courts."

The movie and music industries have been touting graduated response for several years as the answer to their troubles, the best solution to dealing with Internet copyright problems. It certainly could be a decent solution, one far preferable to mass lawsuits or ISP filtering, but the music business in particular just can't seem to stop itself from a maximalist, confrontational approach to dealing with ISPs around the world.

As the New Zealand and Irish examples show, that sort of treatment is stirring up profound opposition from both ISPs and Internet users, opposition that soon threatens to become a real movement. If copyright holders truly want this approach to work, they need to acknowledge legitimate worries about court oversight, proportionality, and standards of evidence, or they risk a backlash they might threaten the entire graduated response paradigm.

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