Content owners and internet service providers in New Zealand are close to agreeing how new laws in the country that introduce the infamous three-strike rule to combat P2P file sharing might actually work on a day-to-day basis; though it remains to be seen if the moves satisfy those who have been staging an online campaign against the new laws. I suspect not.
As previously reported, the three-strike rule will mean net users who continue to access illegal sources of content online despite receiving two (or in New Zealand's case, I think, three) warnings that what they are doing is against the law will have their internet connections cut off. And in theory cut off infringers will not be able to buy the services of a rival ISP.
The system is being introduced in France, and has been discussed elsewhere, including here in the UK, though it is not part of our government's current proposals regarding policing online piracy, and IP Minister David Lammy has gone on record as saying he doesn't see such a system working. But the New Zealand government has sneaked the measure passed its parliament, and the new laws that introduce the three-strike system are due to go into effect next month.
Unlike in France, where a new government agency will police the three-strike system, it seems that in New Zealand it's been left to the ISPs to sort out how it will all work. Their trade body has put together a draft code for their members to follow in order for them to be in line with the new laws.
The big issue is what happens if and when those accused of file sharing deny they have, in fact, accessed illegal sources of content.
In reality, when record labels have in the past targeted individuals over their file sharing, the vast majority fess up straight away, though the process for monitoring file sharing is not an exact science and mistakes have occurred.
Plus there's the grey area of what happens when the file sharing isn't actually done by the owner of an internet connection (ie it's done by a family member, flat mate or someone stealing their WiFi connection).
Those who oppose the new laws in New Zealand argue that because the three strike system in theory allows disconnection without an individual's case actually going to court (the whole point of the system, of course, is to provide copyright owners protection without them having to go to court), users could lose their internet connection without having the opportunity to properly dispute the allegations made against them - ie it's a system which potentially assumes guilt rather than innocence by default.
Of course the scale of that problem depends on how those who receive warning letters are able to dispute file sharing allegations made against them. In the original draft of their code, the NZ Telecommunication Carriers Forum, possibly in a bid to placate the aforementioned protestors, though more likely keen to create a system which results in minimum disconnections, recommended that disconnection notices would only be issued after "three undisputed warnings" had been issued.
But the content companies weren't happy with that proposal, because they said it completely watered down the power of the new laws, because all someone has to do to avoid disconnection is deny they file share. Assuming the average file sharer is willing to lie, no one would be disconnected.
To that end, it looks like the TCF will now propose the creation of an independent mediation service which will get involved whenever an accused filesharer denies the allegations made against them. Said mediation service will then make a decision as to whether the filesharer is or is not guilty of file sharing and therefore whether they deserve disconnection. It seems likely the content companies, including the record labels and music publishers, will back those proposals.
Whether those campaigning against the new laws will be placated by the introduction of an independent third party to police the three-strike system remains to be seen. I'm not sure who will fund the independent body, but if the net firms and record companies (reluctantly, probably) agree to fund it, some campaigners are sure to question its independence.
Though the existence of such a body - which would presumably be similar to the government body that will police the system in France - should, in theory, reduce the risk of innocent web users falsely accused of file sharing from being cut off without being given a fair hearing.