'Flight of the Conchords' star Rhys Darby's recently-announced involvement in a publicity campaign for the new Copyright (Infringing File Sharing) Amendment Act 2011 (Amendment) has caused yet another stir around the controversial new legislation. Although his well-known 'Conchords' character, Murray, is likely to have stronger feelings about sheep shearing than file sharing, the New Zealand Federation Against Copyright Theft (NZFACT) has selected the comedian to provide a more 'hip' and modern face for the new law. But perhaps the real joke, then, is that the law itself may be on its way to becoming out-dated before it even comes into force.

Contrary to widespread belief, the Amendment does not create any new prohibited acts in relation to copyright, but instead aims to curb online piracy by streamlining the enforcement process for rights-owners. However, it may be that the infringement method it targets is already becoming out-dated. Faster download speeds and lower data-hosting costs have resulted in a sharp rise in services that allow users to store content online and make it available to other people - either by downloading to their device or "streaming" through their internet browser (eg. YouTube). These services have been providing increasing numbers of infringers with a more efficient alternative to the complex and bandwidth-thirsty peer-to-peer file sharing networks. The shift towards streaming in online piracy has even been officially acknowledged by the US Government, which has recently indicated a desire to introduce stronger legislation to tackle the issue.

However, due to practical limitations and the particular drafting of the Amendment, it is unlikely that this more modern method of infringement is covered by New Zealand's new comprehensive enforcement regime. The Amendment may therefore leave copyright owners unsatisfied with the results of the two-year-long rethink of the earlier section 92A provision.

Legal Limitations

The activity around which the new enforcement regime is built is that of "file sharing" and is defined in the Amendment as follows:

"file sharing is where -

"(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and

"(b) uploading and downloading may, but need not, occur at the same time."

At first glance, part (a) of the definition appears to describe peer-to-peer file sharing (P2P), where participants connect to each other using a network (via a "client" or simple software application) and jointly transfer files in small segments. P2P file sharing has a number of different implementations, including classic P2P software applications like now-discontinued favourites Napster and LimeWire, and the BitTorrent protocol. Classic P2P applications search for files on other devices connected to the network, while BitTorrent clients use .torrent index files and "trackers" to connect file sharers. In all types of P2P, the "sharing" tends to be "simultaneous", as the data travels directly from one or more uploaders to each downloader without being stored by an intermediary.

If pressed, though, a broader interpretation of part (a) can be found. For example, if the internet itself is considered to be a "network that enables the simultaneous sharing of material...", then any up/downloading using the internet could conceivably be covered (although this would rely on the somewhat bizarre reference to material that is up/downloaded "from the Internet using the internet"). Similarly, the user interfaces of sites like YouTube could technically be described as web-based "applications". In the latter case, the meaning of "simultaneous sharing" would also need to be stretched to refer to the simultaneous downloading of previously-uploaded material by more than one person, which does not appear consistent with the wording about enabling "simultaneous sharing...between multiple users". Overall, these broader interpretations are probably too great a stretch, and appear to be inconsistent with background materials for the Amendment (discussed below).

Part (b) of the definition is also not clear cut. One interpretation might be that (b) is intended to clarify and support the broad latter interpretation of part (a), namely that the definition covers situations where data is completely uploaded to an intermediary by one party and later downloaded by others (as would be the case for streaming and file-hosting services).

From a review of the materials considered by the Commerce Select Committee, which recommended changes to the Amendment during the parliamentary process, it appears instead that part (b) was added to clarify that an act of file sharing by a person does not need to involve simultaneous uploading and downloading by that same person (as is common in P2P file sharing systems). This clarification is only necessary for P2P systems, and could be seen as indicating that such systems are the focus of the definition, and thus the Amendment.

Indeed, the Select Committee's materials, many of which were prepared by the Ministry of Economic Development, contain explicit statements that the Amendment is not intended to cover streaming or file-hosting services, and indicate that it was designed to apply only to P2P file sharing. This view is also consistent with the addition by the Select Committee of the reference to "networks or applications" in the file sharing definition. As stated in the Explanatory Note to the then Bill, this addition was intended to "avoid inadvertently capturing activities such as emailing or downloading that did not involve file sharing".

Based on these secondary materials, and the degree of stretching required to interpret the definition as covering more than P2P file sharing, it is likely that the Amendment does not apply to infringement via streaming and file-hosting services. Nevertheless, the final wording of the file sharing definition is inherently ambiguous and will need to be tested before there is complete certainty over the scope of the regime.

Practical Limitations

Practical issues may provide a more significant limitation to effective implementation than the legal scope of the Amendment. In order to take advantage of the new regime, rights-owners must provide internet service providers (or "IPAPs" under the Amendment) with details of each infringement, including the internet protocol address (or IP address) of the infringer.

Because P2P networks are "decentralised", rights-owners (or the investigators they hire) can only obtain IP addresses of P2P infringers by actually participating in the "swarm" (the network of connections between various uploaders and downloaders of a particular file) and collecting the IP addresses of the participants.

Conversely, there do not currently appear to be any (legal) technical methods for obtaining information about infringers who stream content or download files from websites. The websites themselves may retain information about the users, but are unlikely to hand it over to rights-owners without a court order, and often take steps to prevent this from happening (such as placing their servers in countries with more-favourable laws or enforcement regimes). Seeking such an order would therefore require an initial (and likely complex) legal challenge by the rights-owner, thus defeating the purpose of the new streamlined regime.

Even if the Amendment is not limited to P2P infringement, these practical limitations may prevent the Amendment from being utilised effectively against the most current infringement methods. Nevertheless, a practical limitation that exists at the time of drafting should not have been a reason to limit the overall scope of the legislation, particularly when the legislation is intended to create a modern enforcement regime.

Implications

If the definition of file sharing in the Amendment is, as it appears to be, limited to P2P activities, the regime will provide no additional assistance to rights-owners in relation to the steadily-increasing practice of streaming or downloading infringing content from online file repositories. The Copyright Act 1994 does provide some partially-relevant provisions in section 92C, but these merely provide website operators with a "safe harbour" from liability if they remove the infringing content from their sites. The Act does not currently provide any additional practical remedies against file-hosting or streaming sites or their users, meaning rights-owners are limited to the standard (and often complex) process for copyright claims in the Courts.

From the other perspective, the main implication for everyday New Zealanders is that the Amendment, which has been somewhat demonised in the media, will either in scope or practice apply to only a small proportion of hardened infringers who use specialist P2P software. It will not, then, inadvertently catch teenage girls who watch fan-generated YouTube videos featuring Twilight movie clips with unauthorised Katy Perry soundtracks.

Overall, even though it is flawed and limited, the Amendment is a step in the right direction and will provide some additional enforcement options for content owners. However, the nature of online copyright infringement has shifted since the original section 92A was put on hold two years ago, and rights-owners may soon be asking themselves if Parliament's efforts to replace the broad s92A with a detailed regime were worth the wait. Perhaps Murray finally has a decent reason to call one of his famous "emergency band meetings".