Category: Law

New Zealand Post’s Lifestyle Survey

Posted on by Matt Taylor 4 Comments

New Zealand PostShop DevonportToday in the post we received New Zealand Post’s “lifestyle survey”, a controversial data collecting tool that’s recently been in the news because the information collected is used to market your address to other companies. The survey is sent to 800,000 households by post and 125,000 by email and asks 56 questions about various things, split into sections on your interests, vehicles, home, finances, shopping habits and travel. New Zealand Post sells names and addresses of respondents, “but not the information they provided in the survey”, for companies to use once. Information is also used to furnish New Zealand Post’s direct marketing tool named Genius which says it helps clients “gain deeper insights and understanding into your customers, particularly around wealth, life stage and lifestyle”.

2009 version

Reports ordered by the Privacy Commissioner concluded that the 2009 version breached privacy principles and violated marketing industry standards for not providing “adequate, non-misleading information about the survey’s (primary) nature and/or purpose” and asking respondents to answer questions about their partners”. Professor Malcolm Wright, head of communications, journalism and marketing at Massey University say that it shouldn’t be called a survey but “an opportunity to join a direct mail database”. Auckland University former marketing lecturer Linda Hollebeek says that a lot of people won’t be aware that New Zealand Post is shifting into a more commercial strategic direction including the compiling of databases for on-selling to marketers.

Wave around a chocolate bar (or $15k) to get what you want

Privacy Commissioner, Marie Shroff argues that people are often dazzled by competitions and giveaways and might foolishly give away personal information. I think this has been shown to be true by numerous research projects where people are happy to hand over their passwords for a chocolate bar, pen or for the chance to win a trip overseas. Close Up in conjunction with NetSafe offered a Moro bar up for grabs for anyone on Auckland’s Queen Street who was willing to answer a short survey, of which the first question was “what is your password?”. 59% of people gave their password (about half of people use the same password everywhere) and those conducting the survey said that the answers to other questions suggested the majority of passwords were legitimate. You can watch the full video here (apologies if it’s blocked in your country). The shorts for tonight’s episode of Fair Go (22nd June 2011) shows a man on the street asking people personal questions, which I’m guessing most people answered. If you’re interested in the New Zealand Post survey it will probably be interesting to watch.

New Zealand Post thinks they’re being clear

John Tulloch, New Zealand Post’s communication manager said the survey states numerous times that it’s optional and the information “could be used by other companies”. I call bullshit.

New Zealand Post Lifestyle Survey 2011 Cover

(I’ve uploaded the full version of the survey here (pdf).)

Spot where New Zealand Post states “numerous times” that the information could be used by other companies. Hint, about once.

The top paragraph states: “New Zealand Post wants to help you receive more relevant mail. We invite you to complete this voluntary survey and tell us about you and your household, so we can help tailor the messages that you receive. These messages will be from companies with products and services related to your interests” (emphasis is theirs).

I’m not counting this one because I don’t think this is clear that companies will actually be given your information. For example, Fly Buys forwards material on behalf of places you’ve shopped at, but the shops never see your personal information. Nor am I counting the text at the bottom of the page: “in addition to receiving selected offers addressed to you through the mail…” as this doesn’t state at all that those offers won’t be from New Zealand Post.

The one time I’m counting (and only other time in the whole form sharing of information is mentioned) is the fourth small print bullet point under “Here’s how it all works” which states:

Privacy: If you participate in The New Zealand Lifestyle Survey, your name, address and other information you supply (including your email and telephone numbers if you tick the boxes below), may be provided to companies and other organizations from New Zealand and overseas to enable them to provide you and/or your household with information about products and services relevant to your responses to this survey. New Zealand Post may also use that information for the same purpose.

Sure I’ll give them that they’ve made it clear that the survey is voluntary (mentioned about four times on the front page). But they only say that information may be provided to other companies, even though that’s the primary purpose of the survey. There is no mention of the information being sold in the whole form.

Blinded

So it’s still true that you need better eyesight to find out that your information is going to be shared than to learn of the cash, television sets and travel packages on offer for participants (if you happened to not be blinded by them, they’re shown in the massive images that take up a third of the first page).

Engaging in direct marketing services is part of New Zealand Post’s job according to the State Enterprises Act. Maybe we need a law change.

Would you fill out this survey? Do you care that New Zealand Post is selling names and addresses?

Image credit: Chatani

Posted in Law, New Zealand
Man fixing tie

Don’t Trust a Doctor Wearing a Tie

Posted on by Matt Taylor Leave a comment

Man fixing tieSome people in New York want people in the healthcare industry to be banned from wearing ties and jewelry after research has shown that neckties worn by doctors and other medical personnel are carrying infection-causing bacteria.

In 2004 researchers at the New York Hospital Medical Center of Queens found that nearly half (47.6%) of neckties worn by clinicians harbored “potential disease-causing bacteria”. Clinicians included physicians, physician assistants and medical students at the teaching hospital. For comparison they also tested neckties worn by security personnel. The odds were 8 times greater that a clinician’s tie would be harboring bacteria compared to the security personnels’ ties.

The researchers said that there’s no direct evidence that neckties transmit infections to patients, however a health center in St. Louis “saw a 50 percent drop in reduction in infections when a hygienic dress code was provided” (which I am assuming included other rules, including the banning of ties). A hospital in Indiana has had no reported instances of hospital-acquired infection because of their hygienic dress code.

Patients who get MRSA, which is a huge problem in hospitals, have average stays that cost almost twice as much and are for almost twice as long compared to non-infected patients. New York’s cost of medical malpractice insurance continues to rise as a result of awards paid out because of “preventable medical mistakes”, which includes infections acquired in the hospital. Senator Diane Savino says that “adopting a hygienic dress code for medical professionals means less infections, less lawsuits, lower medical malpractice premiums and more lives saved.”

Apparently this is too nanny state for some people even though the benefits for patients, hospitals and insurers could be significant and dress codes are already enforced in hospitals and elsewhere.

Do you think this is going too far?

Image credit: Daniel Zedda

Posted in Law, Worldwide

The Best or Worst Flowchart Ever

Posted on by Matt Taylor 1 Comment

Depending on whether you want MMP to stay or go.
2011 Referendum Election Flowchart2011 Referendum Election Flowchart
(Click for larger versions)

Alongside the general election this year on November 26th, voters will also be voting on whether they support the MMP voting system or would prefer to change to another system. There will be two parts to the referendum (both are optional, so someone could vote for neither parts, both parts, just the first part or just the second part):

  • Should New Zealand keep the Mixed Member Proportional (MMP) voting system?
    • I vote to keep the MMP voting system
    • I vote to change to another voting system
  • If New Zealand were to change to another voting system, which voting system would you choose?
    • I would choose the First Past the Post system (FPP)
    • I would choose the Preferential Voting system (PV)
    • I would choose the Single Transferable Vote system (STV)
    • I would choose the Supplementary Member system (SM)

If at least half of the voters vote to keep MMP, there will still be an Electoral Commission review of it in 2012. If at least half of the voters vote to change the voting system, Parliament will decide if there’s another referendum in 2014 (Stuff has reported it as 2016, but it’s 2014 on the Elections 2011 website) to choose between the most popular alternative (according to the second part of this referendum) or MMP.

STV is probably the only other roughly proportional voting system, with the number of MPs elected reflecting the total share of the party’s votes across the country. However some people might feel their STV vote is useless because if they are in an electorate that predominantly supports, say, National, their vote for a, say, Green MP won’t “count” towards the Green party at all unless the Green MP wins that electorate. MMP is still the best system and results in a proportional and representative Parliament.

It’s arguable that few people actually know how our current or past election systems work(ed), even after having them in place for years. No information explaining the different systems was included in the flowchart’s mail out, except saying that more information will be, I assume mailed out (what about the trees?!@11@), closer to election day and that information is also available on the Elections website. However, most people are inherently lazy and are unlikely to seek out additional information themselves. This will probably benefit the status quo.

Tweeting on election day

The Electoral Act prohibits “electioneering” on election day (midnight-7pm), meaning it’s illegal to distribute statements likely to influence voting decisions. The fine for electioneering on election day is up to $20,000. Chief Electoral Officer Robert Peden says that social networks (Twitter, Facebook…) are covered by the ban and will be checked on election day for influencing material. He says “For a long time, the law has allowed for campaign-free election days, and my sense is that New Zealanders like it that way and so it’s not really in people’s interest to do things like tweet and breach the rules.”

This is stupid.

Amanda Palmer quite accurately compares Twitter to a bar. It can be great and you can find some really interesting people using it, or sometimes you can have inane conversations about nothing. The bar analogy also works for how tweets are shared. Tweets are only “sent” to users that “opt in” to receiving them, just like someone opts in to a conversation in a bar. Maybe they overhear part of a conversation, or are aware of it because their friends are involved, but they can choose to ignore it or join in themselves. This is just like Twitter: you could be aware of a conversation or tweet because of search, through someone you’re following on Twitter, or looking at profiles, but you’re able to ignore the tweet, unfollow or block the users involved if you don’t like it.

Social networks are clearly different to someone erecting an election sign in their front yard and tweeting to a relatively small number of users who have opted in to receiving your tweets shouldn’t be considered ‘seeking to influence the public’ even if it is about who you’re supporting in the election.

In Canada, Twitter users are unhappy about a law that bans the premature transmission of election results—mentioning election results in Montreal in the east before the booths have closed in Vancouver in the west, with a fine of up to $25,000. Users of social networks realized that this applied to them and for their May 2nd election protested against the rule by tweeting the results of the election using the hashtag #tweettheresults.

It would be awesome if something like that happened here (but I obviously wouldn’t condone it).

Posted in Free Speech, Law, New Zealand, Worldwide
Alone

Secret Abortions!

Posted on by Matt Taylor 1 Comment

You might want to skip this post (about abortion). Need help? In New Zealand, you can call Lifeline on 0800 543 354 or Youthline on 0800 37 66 33.

AloneA Tauranga schoolgirl had an abortion “arranged” by a school counselor without her parents’ knowledge. Her mum, angry at not being informed, spoke to the media. This promoted calls for girls under 16 to require parental consent to go through with an abortion. Under the Care of Children Act there is no age restriction to give consent to an abortion. In 2004, then opposition MP Judith Collins tried to change this, but it didn’t pass.

Youthline rightly says that everyone should have access to confidential health services regardless of their age. They say that it can’t be assumed that the family home is a safe and loving place. They stress the importance of youth having a strong support network, which may include a counselor who they can talk to in confidence. There’s a risk that vulnerable youth won’t reach out if they fear that their parents will be told. Talking with a counselor about a pregnancy doesn’t mean that a girl won’t talk with her parents about it, she might just need some reassurance first. Not wanting her parents involved doesn’t mean a girl is going it alone. Maybe she feels more comfortable talking with a friend’s mother, the father’s parents or other extended family and that should be okay.

Deborah Coddington says:

“I’ve been on a board of trustees of a large Auckland school and I’ve seen how some girls were treated by their parents when it was thought they had brought shame on the family. They were physically punished, sometimes to the extent CYFS had to be notified.”

Maybe those calling for this change have a bigger target in mind—discouraging abortions all together. If the parents are informed, maybe the hope is that they will put a stop to the abortion.

Garth George cites a dubious study by Dr Priscilla Coleman that claims there is a link between abortion and mental health:

…a thoroughly scientific study in 2006 by Dr Priscilla Coleman, a research psychologist at Bowling Green State University in Ohio, refuted a long-standing contention that teenagers are better able to handle an abortion than dealing with an unplanned pregnancy.

The study found that adolescent girls who had an abortion were five times more likely to seek help for psychological and emotional problems than those who kept their babies.

The study also found that teenagers who had abortions instead of carrying the pregnancy to term were also more than three times more likely to report subsequent trouble sleeping, and nine times more likely to report subsequent drug use.

Dr Coleman pointed out that, while having a child as a teen might be problematic, “the risks of terminating seem to be even more pronounced”.

“The scientific evidence is now strong and compelling. Abortion poses more risks to women than giving birth.”

Trying to replicate Dr Coleman’s results, researchers concluded:

Because of the potential for confounding, published research claiming to find relations between abortion and poor mental health indicators should be subjected to scrutiny and reanalysis. Using the same data and conducting the same analyses as CCSR (2009), we found that their results were not replicable, nor did our numbers approach theirs in the case of 15 mental health disorders. Moreover, we found little support for the abortion-as-trauma framework. Instead, our findings suggest that structural, psychological, and sociodemographic risk factors associated with both having an abortion and having poor mental health drive a relationship between abortion and mental health. Therefore, policy, practice, and research should focus on addressing the correlates of having mental health problems, such as violence and prior mental health problems.

“We were unable to reproduce the most basic tabulations of Coleman and colleagues,” Steinberg said in a statement released with the paper. “Moreover, their findings were logically inconsistent with other published research — for example, they found higher rates of depression in the last month than other studies found during respondents’ entire lifetimes. This suggests that the results were substantially inflated.” (via)

“…the TFMHA [Task Force on Mental Health and Abortion] reviewed no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.” (via)

What life will an unwanted baby have? What is its future? What is the mother’s future? How likely is it that a cycle of teen pregnancy will start?

It’s up to parents to keep lines of nonjudgmental communication open with their children, to be involved with them and to talk with them, but parents should be grateful that their children don’t have to rely on their peers for advice and that there are professionals accessible to their children that they can talk with about things that they don’t feel like they can talk with their parents about.

Image credit: Tanya Little

Posted in Law, Mental Health, New Zealand

Employment Law and Criminal Procedure Changes

Posted on by Matt Taylor 2 Comments

United States Supreme Court90-day trial

The 90-day trial period that was previously limited to employers with 20 employees or less now applies to all businesses. Despite all the commotion about it, it is unlikely to actually negatively affect most people. Employers are not going to start hiring people for 80 days just to fire them then rehire for the position and retrain someone new. They’re still going to try to get the best person for the job and get it right the first time. Some employers are purposely not using 90-day trials because they think it will create lax recruitment procedures, but that doesn’t seem likely. New Zealand Institute of Economic Research’s study seems to show that smaller businesses using the 90-day trial had increased hiring activity.

In the Stokes Valley Pharmacy case (pdf) among other recommendations is that the employer gives feedback in a structured way during the trial. Successfully navigating the 90-day trial process isn’t exactly straightforward for businesses and a number of employers won’t try to use it for fear that they’ll stuff it up.

Medical certificates after one day of sick leave

Brought in with the 90-day trial period is the ability for employers to ask for a medical certificate after an employee is off work for one day. It doesn’t seem like employers will start asking for medical certificates without reason. Most are reasonable and realize that a visit to the doctor that day, if at all, is not always possible. This will probably only affect people if their employer is suspicious of their sick day use.

Union access to workplaces

Union representatives now have to request access to workplaces instead of just rocking up and going in. Businesses have one day to respond to a request for access and another to provide a reason if they refuse access. This seems a long time to just get an answer for two simple questions “can we have access?” and “why?”.

A lot of union members work in the public sector—PSA represents public sector workers and is the largest trade union in New Zealand. Union access won’t become an issue in those workplaces. This will mainly affect workplaces like supermarkets and hospitality related workplaces. However it seems like a lot of the time a visit might not be necessary—newsletters can always be posted or emailed out to union members.

Two arguments put forward by employers were that union visits will affect workers’ productivity and that by allowing access to union representatives workplace security is affected. Neither seem like very good reasons. Union representatives are likely to be responsible and union visits are unlikely to be the only distraction throughout the day. Other third parties like the water guy, the photocopier girl and the cleaners are given access to the workplace, and representatives can always be escorted.

The majority of employers are going to allow visits so this change also seems unlikely to affect most people.

Jury trial threshold

New Zealand’s jury trial threshold at three months or more imprisonment is one of the lowest in the western world. Other countries are up there at a charge having to have a penalty of five years imprisonment or more before the accused can elect trial by jury.

The Criminal Procedure (Reform and Modernisation) Bill plans to change the jury threshold from three months to three years—an offence would have to carry a penalty or three years or more for the accused to elect trial by jury—in an effort to speed up trials and save money.

Juries are an important part of the justice system. Statistically a jury is more likely to acquit than a judge is. This isn’t a bad thing. Juries force lawyers and judges to speak in plain English. The jury stands between the state, the accuser and the accused. Common sense ordinary New Zealanders are able to decide when it would be wrong to convict someone of a crime. They “round off the harshness of the justice system”. Money would be saved for an uncertain outcome. Judges will be busier and will have to provide careful written decisions. There will be delays because of reserved judgements. Other countries that have higher jury thresholds have more judges than New Zealand does. A change of the jury threshold from three months to three years requires public input and discussion.

If three months is an arbitrary number, three years is too. As a community there needs to be discussion and we need to ask ourselves at what point do we think an offence or prison sentence becomes serious enough to warrant trial by jury.

Legal aid

Changes planning to be phased in from October include making single people who earn over $22k a year and an adult with two dependants who earns over $50,934 a year ineligible for legal aid for “less serious criminal cases, most of which cost less than $650.00.” People who earn more can still get legal aid if they prove that they can’t pay for their lawyer or that their case is likely to be expensive.

If someone proves that they need the money they can still get legal aid so that change isn’t a huge deal. A more worrying change happened last year, when legal aid clients lost their right to choose a lawyer for charges that carry a prison sentence of less than 10 years.

Can I choose my legal aid lawyer?
The Agency will choose your lawyer for category 1 and 2 cases (these cases include criminal charges that carry a possible prison sentence of less than 10 years)

Depending on income and assets, clients can be required to pay back some of the legal aid money, making it more like a loan than a grant. The Criminal Bar Association said “If a client is required to repay a loan it is only fair that they should be able to choose their lawyer.” A woman might prefer a female lawyer and others might want to choose a lawyer who speaks their first language. Personal choice is removed. Some people might not mind who their lawyer is, but some people have a lawyer who they have rapport with and who they trust. Their lawyer understands them and their issues.

This change supports the expansion of the Public Defence Service which is run by the Legal Services Agency who also assign legal aid cases. They’ll be able to run at their full capacity of 33% of legal aid cases because of these changes.

John Anderson from the Criminal Bar Association said that expanding the PDS will cost more money, that “The Public Defence Service is more expensive than independent lawyers. In 2010, the PDS cost $1612 per criminal legal aid case, whereas lawyers as a whole cost $1343 per case.”

Some legal aid lawyers were taking on too many cases and this is meant to solve that. The Legal Services Agency are able to look at each lawyers legal aid caseload and could have made a decision as to whether someone was taking on too many cases without having to make changes to lawyer choice.

About six months ago anyone on criminal legal aid could specify their lawyer. Now that’s been removed for category one and two offences. Where will we be in six more months?

If 10 years of your freedom was on the line, would you like to be able to choose the person defending you? I would.

Image credit: Phil Roeder

Posted in Law, New Zealand

The Remedy To Be Applied Is More Speech, Not Enforced Silence

Posted on by Matt Taylor Leave a comment

Christchurchquake.netHRC pressures King & Spalding to drop case defending the Defense of Marriage Act

King & Spalding, the law firm hired by House Republican leaders to defend the Defense of Marriage Act (DOMA) dropped the case. The U.S. Defense of Marriage Act aims to “define and protect the institution of marriage”. It says that no state etc. is required to recognize a relationship that is considered a same-sex marriage in another state.

It’s concerning when lawyers bow to pressure to not take a case on (or to drop one, in this case) because of public opinion. A similar argument could apply to people accused of rape, murder etc.—that lawyers are horrible people for representing them.

The Human Rights Campaign pressured K&S to drop the case. The cost is capped at $500k and a lot of Americans would rather the focus be on other issues—“when read statements for and against defending DOMA in court, 54 percent of voters oppose the House Republicans’ intervention, while only 32 percent support it.…”.

K&S has a high rating on HRC’s Corporate Equality Index, meaning they hire without discrimination. Just because they were going to defend this viewpoint doesn’t mean they supported it.

The pressure should be targeted at the House Republican leaders and not at the people doing their jobs.

Earthquake moon man silenced

Mr Ring said he also feared he would be prosecuted for inciting a riot following his quake prediction.

“I’ve been virtually told by [ACC minister] Dr Nick Smith and Sir Peter Gluckman [the prime minister’s scientific advisor] that I’m not qualified to put statements out about earthquakes. They will have me legally if I do that.

“Until they reverse that, I’m completely bound to silence. I don’t want to go to jail.

“They said it was like calling out fire in a crowded theatre and that’s against the law — it’s called the riot act, and inciting riot.” –Stuff.co.nz

The Crimes Act defines a riot as “…a group of 6 or more persons who, acting together, are using violence against persons or property…”. It also seems like the Riot Act (or at least the reading of the Riot Act?) was repealed.

To my unqualified eye this seems like a questionable interpretation of the law and a questionable use of status to silence someone.

Website blaming earthquake on gays taken down by host

A website was put up shortly after the Christchurch earthquake at christchurchquake.net (now suspended), blaming the quake on the gay community, and the people supporting it. It was widely covered, including by the Sydney Morning Herald. Bluehost received many complaints about it (in the thousands, according to a source) and said they’d only act if they received a court order to do so (I asked and they said they would accept a New Zealand one), but eventually pulled it down because of a copyright complaint.

People or corporations using copyright complaints to get content taken down that they don’t agree with or would rather not have up isn’t uncommon. In this case a whole site was taken down because of one image.

The complaints used Bluehost’s terms of service, section 9.14 as the reason:

Obscene, Defamatory, Abusive or Threatening Language. Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.

Several people have pointed out that web hosts shouldn’t have to decide whether something is legal or not. Bluehost refused to decide and asked for a court order. This reasoning would have been better received by complainers if Bluehost didn’t include clauses in their terms of service that say they will take down a site if it contains x. However I am sure Bluehost isn’t the only host that does this.

The site reportedly suffered a DDoS attack as well, which affected other customers on the same server.

This is a change of tune from what I said immediately after I heard about the website, but I support this decision by Bluehost. The site was in bad taste, however should still be protected as free speech until potentially being deemed illegal by a court. If this had been a pro-gay website and anti-gay people had pressured the host to take it down then succeeded because of a copyright complaint, these same people against this site would be angered.

Bluehost let themselves down by taking down the website because of one copyrighted image. I am curious as to whether the customer behind the website was given a chance to respond to the copyright complaint. They received lots of complaints and bad press about this. This would’ve been a perfect topic for the CEO’s blog on why they weren’t going to take action without a court order.

However this event brings up an interesting idea: that the Internet has unwritten rules and if something or someone goes against those rules, people come together over forums or social media etc. to try fight it. This has happened before with child and animal abuse (the perpetrators tracked down), fights for democracy (help with the spread of information to citizens) and corporations with questionable business practices (unfortunate documents released) and because of the nature of the Internet will continue to happen.

Image credit: Christchurchquake/DomainTools

Posted in Free Speech, Law, New Zealand, Worldwide

What About The Children?

Posted on by Matt Taylor 2 Comments

TVNZ won a High Court appeal against the Broadcasting Standards Authority who had ruled a sex scene (the horror!!) in Hung, a show about a male prostitute, airing after 10pm violated the standards of good taste and decency.

TV One Billboard Ad for Hung - Underwear

TV One Billboard Ad for Hung “He's got a big one”

Hung airs late at night, in this case at 9.50pm, is rated AO and as the title and advertising suggests an average episode would contain sexual content. Anyone who chooses to watch realizes this and shouldn’t be outraged at sex scenes being included.

The BSA Chair, Peter Radich was the sensible minority and “…consider[ed] that the scene complained about was acceptable in the context in which it appeared: in an AO-classified programme targeted at an informed adult audience”.

The High Court said it was “plainly wrong” to rule against it and Justice Asher said that sex “plays an inevitable part of the narrative”.

We’re all capable of choosing not to watch something and that needs to be reflected in BSA decisions.

Update 26/05/2011:

Here’s the judge’s perceptive analysis:

Hung’s protagonist is a down and out former teacher who turns to providing sexual companionship to women for pay. Sex plays an inevitable part of the narrative. No viewer could be surprised at a scene with some strong sexual content. The scene formed a natural part of the storyline both of the episode and the series. In its immediate context the scene shows a reversal of the traditional role where sexual exploitation is by men of women, and in a mildly humorous way. In terms of the initiation of sexual contact and payment traditional gender expectations are turned on their head. The themes of role reversal and the exploitation of a male for sexual purposes are reflected in the scene. It is the only sex scene in the particular episode. It demonstrates a modest victory for Lenore in her battle with Tanya for control of Ray. For Ray, it is another dollar. He performs a sexual service for a woman he does not like. It fits naturally into the episode’s storyline. It was not the case, as the majority decided, that the scene was designed “solely to titillate”.

Posted in Law, New Zealand

Fuck the Police

Posted on by Matt Taylor Leave a comment

Fuck tha police
Comin straight from the underground
Young nigga got it bad cuz I’m brown

Police carSinger Tiki Taane was arrested earlier this month after singing lyrics from the rap group N.W.A after the police entered a venue he was performing at. The police left and apparently there was no intention to arrest him on return, but he “refused to co-operate” and “he was completely out of control”. The promoter and the DJ were also arrested, I’m not sure what for, however they seem to have been released without charge. Taane was charged with disorderly behavior likely to cause violence.

Association president Greg O’Connor’s account on Close Up was muddled but I think his point was that Taane wasn’t arrested because of the lyrics, rather for his behavior after police returned an hour later to talk to him. Taane says that the officer may have thought that he was being uncooperative and giving a fake name (his birthname—Nathan Glen Taane Tinorau) and a vague address (“At the moment I live in Papamoa and I live in Woodhill and I’m staying at a hotel”). I think what O’Connor is saying contradicts Taane’s lawyer reportedly saying that “he would enter a not guilty plea to the charge tomorrow on the basis his client was not acting in a disorderly way and was excercising [sic] freedom of speech”.

Unless there’s something that O’Connor and Taane are both holding back (which O’Connor says is the case: “…he said that “any right-thinking New Zealander will understand and will be fully supportive of police actions” when the facts emerge”) it doesn’t seem like singing those lyrics were a legitimate reason for arrest—and O’Connor says that wasn’t the reason. But I’m also unsure how allegedly being uncooperative about personal details was inciting violence.

O’Connor talks about an incident occurring at the bar, but between patrons, not involving the police.

It seems to me that the charge, the promoter and DJ being arrested too and the defence Taane’s lawyer is taking about all point to Taane being arrested because of the N.W.A lyrics. Fuck Tha Police is a song protesting against police racism towards black youth and just because it has inflammatory lyrics doesn’t mean that it shouldn’t be protected as free speech.

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. – Redmond-Bate v Director of Public Prosecutions

Image credit: Nick CP

Posted in Law, New Zealand

Shutting Down Skynet: The Copyright (Infringing File Sharing) Bill

Posted on by Matt Taylor 3 Comments

Home taping is killing music and it's illegalYesterday the Copyright (Infringing File Sharing) Bill was unexpectedly rushed through Parliament during an urgent session brought about because of the Christchurch earthquake. This morning it was passed and will come into force on September 1st.

Watching the session was frustrating as few contributors truly understood file sharing and the Internet. Gareth Hughes is one of the few who actually gets it. See him talking here, here and here. He brought up a number of good points including:

  • Access to the Internet is vital.
  • Termination not being enacted straight away is just a delay.
  • Many downloads are because content is not even available legally in New Zealand.

@thomaslebas on Gareth Hughes using real tweets in Copyright (Infringing Filesharing) Bill Parliament debate(via)

The Green Party opposed the Bill because the disconnection provision was still included. Labour didn’t like the disconnection provision either, however still supported the Bill. As Labour MP Clare Curran explains on the Red Alert blog:

Account suspension remains in the bill and could theoretically be used in the future, but any Minister who implements termination will have to wear the consequences. It won’t be a Labour Minister.

This happened many times throughout the night: great points against this Bill were brought up (like disconnection; the fact it’s being rushed; that the MPs themselves don’t know what their children are downloading from the Internet, keep in mind that the MP as the probable account holder will be responsible for their children’s downloading), but then the person finished with their overall support of the Bill. Someone (I think on Twitter, sorry I lost the source) summed it up nicely: “they’re fundamentally opposed to something, yet they vote for it”.

Without this legislation copyright holders could still send warning notices, but this legislation is intended to make the process faster and cheaper. Another side effect is that the process will favor copyright holders. After receiving a warning notice from a copyright holder, it is up to the Internet account customer to prove their innocence (reversing the usual burden of proof). This basically assumes that users who have been sent notices are infringers. It is unclear (to me at least) how someone will prove that they haven’t downloaded or uploaded a file. This is concerning because copyright owners seem to get it wrong regularly. For example a University Of Washington study found they could get a copyright warning sent to a printer that wasn’t uploading or downloading copyrighted files. They say:

Q: I’m a network operator working at an ISP. Should I be suspicious of DMCA takedown notices?

Yes. Our results show that some methods used to generate DMCA takedown notices in BitTorrent are not conclusive and may misidentify users. This may also be true for other P2P networks.

A U.S. study found 57% of DMCA notices sent to Google for removal of material were sent by business targeting competitors and 37% of notices were not valid copyright claims. (Source: J Urban & L Quilter, ‘Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act’, http://static.chillingeffects.org/Urban-Quilter-512-summary.pdf (mirror))

In addition to the maximum $15k fine that the Copyright Tribunal can impose on someone who has received three warnings, there is a provision in the legislation to allow the Commerce Minister to introduce a six month Internet account suspension penalty applied by a District Court. In the United Nations Conference on Trade and Development Information Economy Report, UNCTAD/SDTE/ECB/2006/1, Nov 2006, broadband is recognized as an essential utility for individuals. Disconnection from the internet is a disproportional punishment compared with the effects of illegal file sharing.

The legislation makes the Internet account holder responsible for all Internet use through that connection, treating all content downloaded/uploaded by different people through a connection as one. This may mean that a family member, flatmate or landlord is responsible for other people’s illegal file sharing. This also means that account holders could get the blame for things that people they don’t even live in the house do. The account holders would be responsible for random people accessing poorly protected wireless networks, for example.

Is pirating content really that bad?

The U.S. Government Accountability Office says in a report (via):

U.S. government and industry claims that piracy damages the economy to the tune of billions of dollars “cannot be substantiated due to the absence of underlying studies.”

and

“Some experts we interviewed and literature we reviewed identified potential positive economic effects of counterfeiting and piracy. Some consumers may knowingly purchase a counterfeit or pirated product because it is less expensive than the genuine good or because the genuine good is unavailable, and they may experience positive effects from such purchases. Consumers may use pirated goods to ‘sample’ music, movies, software, or electronic games before purchasing legitimate copies. (This) may lead to increased sales of legitimate goods.”

From a TorrentFreak article:

Although IFPI refused to share the entire research report with TorrentFreak, we can conclude the following from the two pages that were published online (pdf).

Compared to music buyers, music sharers (pirates) are…

* 31% more likely to buy single tracks online.
* 33% more likely to buy music albums online.
* 100% more likely to pay for music subscription services.
* 60% more likely to pay for music on mobile phone.

and

[Mark Mulligan, Vice President and Research Director at Forrester Research who conducted the study for IFPI (who “represents the recording industry worldwide”] has his hands tied and couldn’t say much about the findings without IFPI’s approval, but we managed to get confirmation that paying file-sharers are the music industry’s best customers. “A significant share of music buyers are file sharers also. These music buyers tend to be higher spending music buyers,” Mulligan told TorrentFreak.

TorrentFreak on artists actually profiting from piracy:

A study by Blackburn (2004), a PhD student from Harvard, found that the 75% of the [artists] actually profit from piracy. Blackburn reports that the most popular [artists] (top 25%) sell less records. However, the remaining 75% of all artists actually profit from [file sharing]. The same pattern was found by Pedersen (2006, see graph), who analyzed the change in royalties paid by the Nordisk Copyright Bureau between 2001 and 2005.

Michael Geist on a study of music purchasing habits commissioned by Industry Canada:

When assessing the P2P downloading population, there was “a strong positive relationship between P2P file sharing and CD purchasing.  That is, among Canadians actually engaged in it, P2P file sharing increases CD purchases.” The study estimates that 12 additional P2P downloads per month increases music purchasing by 0.44 CDs per year.

When viewed in the [aggregate] (ie. the entire Canadian population), there is no direct relationship between P2P file sharing and CD purchases in Canada.  According to the study authors, “the analysis of the entire Canadian population does not uncover either a positive or negative relationship between the number of files downloaded from P2P networks and CDs purchased. That is, we find no direct evidence to suggest that the net effect of P2P file sharing on CD purchasing is either positive or negative for Canada as a whole.”

Additionally, downloading doesn’t equal lost sales, some people are trying before they buy. And some people are downloading because they can’t get the content legally.

Labour MP Jacinda Ardern talked about illegal downloading of music hurting small artists, but it’s only the big record companies that you ever hear complaining. Big companies have bigger voices, but small artists are the ones embracing downloads by putting songs up for free on their websites.

A statistic was brought up last night that 90% of people say they will stop downloading illegally after two warnings. There’s a difference between saying and doing and I doubt there’ll be a change.

Will this make those pirates start buying again, or will they just go find the same stuff elsewhere? (via)

Update 17/04/2011: On the InternetNZ blog they point to Amanda Palmer at Webstock 2011 talking about music and giving it away for free. The relevant part starts at 25:00 but her whole talk is worth watching.

Update 19/04/2011: Jonathan Hunt tweeted a link to an episode of This Way Up on Radio NZ. Paul Brislen (from the Telecommunications Users Association Of New Zealand) and Peter Griffin (the Herald’s technology blogger) do a role play of what the notice process could be like, it starts around a third of the way in. You can listen here (MP3).

Some good points brought up:

  • Generally no legal representation is allowed at the Copyright Tribunal. There will be mums and dads who have no idea what is going on, trying to prove their innocence. There will be ignoring of notices out of confusion.
  • This could end up costing IPAPs (defined in the Bill as traditional ISPs; not universities, libraries, and businesses) who estimate costs as $14 to $56 per notice. It is noted in the Bill “that the United Kingdom has recently decided on a cost-sharing approach between rights holders and Internet service providers, at a ratio of 75:25 respectively”. ISPs overseas receive a huge number of these notices each day.
  • If you have a business with 5000 employees, how do you track down whose actions resulted in a copyright warning being sent?
  • If an Internet account is suspended, is the suspension meant to apply to all ISPs? If yes, is there going to be a database of offenders (potential privacy concerns). If no, couldn’t someone call another ISP and sign up with them?
  • This is only targeting P2P file sharing. If someone illegally downloads directly from a website, they’re unlikely to be tracked down unless website logs are kept and are requested by rights holders through the courts.
  • The regime won’t apply to mobile networks until August 2013. It is even easier to “sign up” for a new account; go down to the supermarket and buy another SIM card.

Update 4/06/2011: The United Nations has released a significant report (PDF) relating to freedom of expression on the Internet. A couple of paragraphs are extremely relevant to this post:

49. …he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three-strikes-law” in France34 and the Digital Economy Act 2010 of the United Kingdom.35

78. …cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
79. …the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.

Image credit: Gary Denham

Posted in Law, New Zealand