French copyright holders are sending 50,000 notices per day. What does that mean for us?

POSTED BY Rick Shera
17 December 2010

posted in l@w.geek.nz | Intellectual Property | Copyright

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Techdirt reports that copyright holders (not necessarily original creators; more likely rights owning organisations like RIAA and MPA) are angry that HADOPI, the French Government clearing house for copyright infringement claims, is only sending on to alleged infringers a small percentage of the 50,000 notices it receives every day.

50,000 every day!

This is what you get when you set up a system with no checks and balances, no real penalty for filing false or misleading notices and, importantly, no cost to the copyright holder to submit an allegation.

If this were to happen in New Zealand (or Australia, UK, Canada or Ireland for that matter), this would be the result:

Stats based on Hadopi 50,000 notices per day~
 Population*NoticesPer person/
France64,768,38950,0000.28
NZ4,252,2773,2830.28
Australia21,515,75416,6100.28
UK62,348,44748,1320.28
Canada33,759,74226,0620.28
Ireland4,622,9173,5690.28
 
*Population figures from https://www.cia.gov/library/publications/the-world-factbook
~as reported by Techdirt Dec 2010 http://dlvr.it/BY0xF

So, if copyright holders like RIANZ and NZFACT (the New Zealand arms of the RIAA and MPA respectively) did likewise, New Zealand ISPs would expect to receive over 3,200 notices per day!

There are four things I think we can learn from this in New Zealand as we finalise the Copyright (Infringing File Sharing) Amendment Bill and move towards implementation:

  1. No New Zealand ISP will be able to cater for that level of notices. If HADOPI, a French Government agency, is able to process only 4% of the notices it receives, then ISPs can be expected to be able to process far less than that.  That is consistent with the difficulties expressed by US ISP Time Warner, which reportedly had a US Court reduce its notice processing obligation down from 1,000s per month to only an extra 28. That's per month not per day!
  2. It again emphasises the lack of any due process or cost recovery in section 92C, New Zealand's DMCA cloned notice and takedown section (which is worse than the DMCA because it doesn't even have a counter-notice procedure). Even a year ago, anecdotal reports suggested that infringement activity was moving from p2p to hosted services so we can therefore expect a HADOPI-like flood of notices under this section in New Zealand.
  3. The per notice fee in New Zealand is important not just to ensure full cost recovery by ISPs but also to prevent robot generated notices and encourage those generating notices to consider carefully whether or not a notice is justified.
  4. To that should be added penalties for false or misleading notices and a requirement for all notices to be sworn (since, ultimately, they will form the basis of any claim heard by the Copyright Tribunal). After all, even at $50 or so, it is going to be well worth someone claiming copyright they don't own or an infringement they could never prove in Court on the off chance they can frighten a competitor or silence a critic.

By the way, with Parliament having now ceased sitting for 2010 and the Bill languishing at no 29 on the latest order paper (PDF), I would be surprised to see it passed in the first quarter of 2011.  Regulations, which will drive the all important implementation of the Bill, cannot really be started until then, which makes a mockery of the 6 month transition period during which ISPs were supposed to be able to design and bed in their systems. Parliament should extend the proposed July 2011 enactment date.

POSTED BY Rick Shera
17 December 2010

posted in l@w.geek.nzIntellectual PropertyCopyright

VIEWED 4741 TIMES

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