Australia’s free trade agreement with the United States has prompted The Business Software Alliance, the software vendor anti-piracy organisation, to try to gain legal rights to force ISPs on the other side of the Tasman to take down copyright-infringing online content.
The BSA’s regional director, Jeffrey Hardee, says “strengthening ISP liability" is very important as piracy over the internet is increasing due to users having cheaper access to high-bandwidth connections.
While the anti-piracy campaign is in full swing elsewhere — press reports quote Hardee saying the BSA is sending out 3,000 copyright infringement notices to ISPs in the Asia–Pacific region — New Zealand seems not to have been targeted yet, according to local ISP sources.
Part of the reason for this could be the BSA simply not being active in New Zealand.
Pru Quinlan of Einstenz Communications, the agency that handles the BSA’s public relations, has confirmed that the anti-piracy organisation “does not have an office or representative in New Zealand or indeed anyone specifically dealing with NZ issues at all at this stage.”
However, there are also legal uncertainties surrounding infringement notifications sent out by foreign organisations to New Zealand ISPs. Maxnet network manager Alastair Johnson says that the Auckland ISP has “received some takedown notices from RIAA [Recording Industry Association of America] and MPAA [Motion Pictures Association of America] which don’t comply with NZ laws”.
Johnson says Maxnet’s terms and conditions for its customers require them to “follow various obligations such as not breaking copyright” and adds that the ISP cooperates “fully with law enforcement agencies when they approach us.” Should the BSA contact Maxnet, Johnson says the ISP would notify the user in question. However, should the BSA want to take the matter further, Maxnet would require a subpoena or a warrant for information on the user, he says.
The country’s largest ISP, Xtra, is watching the developments in Australia with interest, according to Chris Thompson, Xtra's head of broadband and internet.
However, Thompson says the “situation is unlikely to apply to NZ” as “it appears the BSA is relying solely on an untested interpretation of the US Free Trade Agreement Implementation Bill (2004).” This bill does not apply to New Zealand, he says.
Asked in general if ISPs should police customers’ traffic, Thompson says: "We don’t consider it appropriate for [an ISP] to be liable for third party content transmitted across its network.” Such an approach would “impose an onerous or unjustifiable burden on ISPs,” he says, adding that Telecom Xtra does not allow — and would oppose any move to allow — third party access to customer data or traffic without appropriate legal authority.
Thompson’s sentiments are echoed by Johnson, who describes the BSA’s push for access to user information and traffic as “a very bad thing”.
Maxnet is particularly worried about ISPs being held responsible for users’ activities, says Johnson. He claims it's akin to the police holding a taxi company responsible for people taking cabs to reach places where they commit crimes.