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New Zealand's longest-running online daily news and commentary publication, now in its 19th year. The opinion pieces presented here are not purported to be fact but reasonable effort is made to ensure accuracy.

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Idiots get their first copyright notice

2 November 2011

According to media reports, the first notices under the "three strikes" copyright law have been handed to ISPs who are now obliged to pass them on to the customers who have allegedly infringed.

Now you might think that I would be jumping up and down, decrying the injustice of this awful law but I'm not -- at least not yet.

The reality is that any idiot who is stupid enough to download a contemporary pop song from a P2P network deserves all the trouble they find themselves in.

People with such a low IQ ought not even be allowed within spitting distance of a net-connected computer. They are nothing but fools.

Firstly, we were told that P2P networks would be targeted by the music and movie industry in their attempts to catch illegal downloaders.

Secondly, if you want to listen to Rhianna (and God knows why anyone would), either record the tracks you want from FM radio (an old but effective technique) then convert to MP3, download the relevant video from YouTube and strip out the audio, or just spend a couple of bucks and buy it from iTunes.

To download such stuff from a P2P network at a time when you know the recording studios are hunting such actions is utter stupidity worthy of a strike or two.

However, let's look at how this law is evil...

Copyright was a mechanism enacted to protect those who make a living by producing "creative works" such as music, video, movies, books etc. Without such a law, there'd be nothing to stop potential customers from simply copying anything they wanted, without compensation to the original creator. Let's be honest and admit that such a situation would hardly be fair.

So copyright is designed to protect the creator against actual losses that would occur when people simply copied stuff instead of purchasing it.

From where I stand therefore, nobody ought to be able to claim copyright protection unless they are prepared to offer the protected work for sale at a fair market price.

So, no -- you can't download Rhianna's latest tunes -- because the publishers offer them for sale via a plethora of retail outlets both online and in the high-street.

However, what happens when you want a track that is no longer available for sale?

What happens when, no matter how hard you try, you can't find anywhere that is willing to sell you your favourite old movie or music album?

In that case -- there ought to be no copyright protection for the work concerned. If the creator can't or won't sell you a copy of their work then they lose nothing when that work is simply copied.

Copyright ought not be seen as a way of restricting the distribution of a work, only of protecting the owner from actual losses that might occur when a work is copied rather than purchased.

We need to ensure that our lawmakers understand this important fact. Until they do, a clever person could use copyright to extort a wholly unreasonable amount of money out of the market...

Let's say that Rihanna sings a new song and it gets some airplay -- to the extent that it becomes very popular and people are keen to buy. If her publisher then chooses not to release the song, people will start illegally sharing the track. At this point, Rihanna's publishers could potentially make far more money by suing those infringers than they might have by actually offering the track for sale -- since they would not only be entitled to actual losses but also punitive damages that can be several orders of magnitude greater than the value of the work itself.

Copyright law ought not offer the owner a legal right to extort -- as it presently does.

Let's return to NZ's law however...

It is flawed. It is flawed insomuch as the "strikes" apply not to the offender but to the account which was used to commit the offense. This means that those who are caught performing illegal downloads need only wait until they have received two strikes then swap ISPs -- whereupon their strike-count is returned to zero. Given that there is still a reasonable number of ISPs in NZ, a savvy offender could probably rack up a dozen or more strikes without ever facing a sanction. By that time, the original ISP would probably welcome them back and time would have reset their original counter to zero.

So in effect -- this law is a joke.

It's a joke because only idiots will get caught.

It's a joke because smart people will use YouTube, FM radio, swapped USB drives or other ways to get their music without paying.

It's a joke because in some cases it allows publishers to recover losses they never suffered in the first place because the material downloaded simply is not available for purchase here in or from NZ.

If any of NZ's lawmakers are listening (and I'm sure they are) -- do not pass go, do not collect $200, go directly to jail for foisting such a travesty on NZ's net users.

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