New Zealands Three Strikes Law was Pushed, Bought and Paid for by the US – Wikileaks Drew Wilson | May 1, 2011 The slow trickle of leaked diplomatic cables from Wikileaks may not be in the headlines as much as it was when it started, but revelations keep pouring out of the website. Recently, new diplomatic cables published on the site revealed just how, not only influential the US was, but just how much control the US had over the passage of the three strikes law in New Zealand. Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes If there wasn’t any anti-American sentiment before in New Zealand, there certainly will be for some after new diplomatic cables were published revealing the role the US had in pushing for a three strikes law in New Zealand. The New Zealand’s new three strikes law was the most controversial copyright laws in the country and one of the most controversial in the world. While the law was being proposed, debate was fierce. The law sparked repeated blackout protests where websites would black out their website logo’s in protest of the law since it is widely seen as a censorship law more than a copyright enforcement law. Last month, in spite of major opposition and protests, New Zealand passed the law anyway to the dismay of the New Zealand population. Now, thanks to Wikileaks, we can see just how far back the United States was pushing New Zealand to pass that law in the first place. A diplomatic cable that was sent clear back in 2005 shows that the US was offering up money to put in new copyright laws. The cable was very detailed about the budget cost at the time: Total costs: NZ $533,000 (US $386,158) Start-up costs: NZ $78,000 (US $56,510) Salaries: NZ $215,000 (US $155,768) Operating costs: NZ $240,000 (US $173,880) Start-up costs (NZ dollars): Furnishings $25,000 IT costs (equipment) $45,000 Sundries $8,000 Salaries (NZ dollars): Unit head $90,000 Intelligence and policy development $60,000 Licensing and enforcement officer $40,000 Administrative support $25,000 Operating costs (NZ dollars): Accommodations (rental, utilities) $55,000 IT support $15,000 Legal costs (investigation, prosecution)$75,000 Training (internet piracy, law) $50,000 Travel costs $35,000 Employer liabilities $10,000 NOTE: In U.S. dollars, legal costs would be $54,338 and training costs would be $36,225. In another cable in 2005, we see the US saying that establishing fair use type laws being a bad idea: The New Zealand government has proposed amendments to the Copyright Act 1994 that would allow format-shifting, or the duplication of sound recordings to another format for a purchaser’s private use without the copyright owner’s permission. The amendments also would extend to all communication works a provision in the Copyright Act that permits time-shifting, or the recording of a broadcast or cable program for private use solely for the purpose of viewing or listening to the recording at a more convenient time or for making a complaint. The amendments were proposed and released as a cabinet paper in June 2003, after a review of how digital technology had affected the country’s copyright law (see Paragraph 13). Legislation incorporating the amendments is being drafted and is expected to be introduced in Parliament in April. (ref D) As the International Intellectual Property Alliance noted in its Special 301 submission, these exceptions to copyright protection would send the wrong message to consumers and undermine efforts to curb unauthorized copying of CDs in New Zealand. They would cost the industry in revenue and profits and discourage innovation. However, Associate Minister of Commerce Judith Tizard still is discussing the issue with the music industry and has expressed a desire for a solution that satisfies all parties, although the format-shifting and time-shifting exceptions remain for now as proposed in the cabinet paper. We will continue to work with the government and industry on this issue. In the meantime, with discussions ongoing, we believe a Special 301 listing over this issue would not be helpful. It’s ironic that they would view fair use provisions like this as something that would discourage innovation since fair use in the US brings in billions to the economy. The only innovation that comes out of restricting these types of activities are ways of skirting the laws more than anything else. The question the New Zealand government is this: Should the government be passing laws that encourages innovation for future law breakers or should the government be passing laws that encourage innovation for people who contribute to society legally? That’s ultimately the choice the New Zealand government faces when considering broader exceptions to copyright. In 2008, there was another diplomatic cable which showed the US considering how they would apply pressure to New Zealand: Post recommends that New Zealand (GNZ) not/not be placed on the Special 301 List in 2008. The country’s overall commitment to the protection of intellectual property (IPR) is relatively high as compared to most countries cited in the Special 301 review. Despite the slower than anticipated pace of legislative progress, the government remains committed to updating its intellectual property laws to ensure compliance with international standards, with planned revisions of the Patents Bill and the Copyright Amendments Bill (“New Technologies and Performers’ Rights Bill”) progressing through the legislative queue. Some momentum has been lost over the past year due to slowdown in the legislative agenda as the Government shifts its attention to upcoming elections in 2008. Though New Zealand generally provides adequate and effective protection of intellectual property rights (IP) under current law, Post will continue to engage Members of Parliament, the Ministry of Economic Development and local IP industry in order to press our concerns that pending legislation reflects international IP standards and passage occurs in a timely fashion. To date issues raised about the draft Copyright Bill by IP industry are being considered by the government and will be monitored by Post. It’s reasonable to anticipate a renewed commitment to the passage of IP legislation by the GNZ post election cycle. Placing New Zealand on the Special 301 list at this stage may prove to be counter-productive as it likely will result in a defensive rather than consultative exchange. Michael Geist, recognizing the similarities between Canada/US relations and New Zealand/US relations in this case, commented, “That recommendation is striking when compared to the regular placement of Canada on the list, despite very similar laws.” Later, in March, 2009, there was discussion specifically about the section of the copyright bill related to the three strikes law: On February 23, five days prior to the full implementation of the ISP provisions (sections 92 a and c) in the new Copyright Bill, Minister of Commerce Simon Power suspended the ISP sections of the law from coming into full force for 30 days (end of March 2009). The Minister’s action will give the IP rights holders represented by the Recording Industry Association of New Zealand (RIANZ) and the Australasian Performing Rights Association (APRA) additional time to negotiate with the ISP trade association, the Telecommunication Carriers Forum (TCF) a mutually agreeable code of practice for terminating the internet access of users accused of infringing copyrights. Once the code of practice is adopted, the government will monitor its efficacy during the first six months after the law’s enactment. A month later, a diplomatic cable was sent noting the fierce rise in opposition to the three strikes law: The Copyright (New Technologies) Amendment Act 2008 was originally scheduled to go into full force on February 28, 2009 but in the weeks leading up to the deadline, public interest groups raised a chorus of concerns claiming that the law’s requirement to terminate internet subscribers who allegedly “pirated” digital copyrighted materials over the internet would infringe on due process, freedom of speech and the public’s right to access information. The negative publicity led to demonstrations staged in front of Parliament, organized by a group called the Creative Freedom Foundation. The publicity drew the attention of some minority party politicians who hoped to ride a new populist wave. The United Future Party’s leader Peter Dunne wanted Parliament to strike section 92A entirely from the new copyright bill through an arcane legal maneuver which would have required the Governor General to quash the provision. ACT Party leader Rodney Hyde also joined in the chorus calling for repeal of the section while he castigated the previous Labour government for its “poor” drafting of the Bill. Both United and ACT are current members of the National led coalition government. In reaction, a core panel was formed within the Cabinet consisting of the Commerce Minister Simon Power, Communications/IT Minister Steven Joyce, Broadcasting Minister Jonathan Coleman and Attorney General Chris Finlayson to develop a game plan and dampen the negative publicity. Meanwhile, Dunne had been asked by Simon Power to consider reformulating the provision in language more acceptable to the ISPs instead of stripping the law entirely of its content. The response developed by the four ministers and announced by Simon Power as lead was to suspend section 92A for 30 days during which time the IP rights holders would hammer out a code of practice with the Telecommunication Carriers Forum (TCF – industry association representing NZ’s major ISPs – Telecom, Telstra, Vodafone, Kordia and Callplus) which would serve as the regulatory foundation for section 92A. The law would then go into force at the end of March and after 90 days it would be reviewed as to its appropriate application. In response to the uprising for drafting such a poorly conceived law, the cable goes on to make the following recommendations: Throughout the final stages of the law’s (near) implementation, the Embassy continued to met with IPR stakeholders and GNZ officials to ascertain progress and encourage resolution. To determine how a “workable” section 92A provision can be secured, Econoff met with Rory McLeod, Director at Ministry of Economic Development (MED) with responsibility for IPR within GNZ along with Paula Wilson, Deputy Director for Trade Negotiations at MFAT, and was given assurance that the government remains committed to redrafting Section 92A. Embassy will continue to stress with GNZ officials the need for a shorter rather than protracted timeline for the redraft and will ascertain the details of a notice and comment period for public submissions once released by GNZ. During this hiatus we’ve proposed holding DVC(s) between NZ and U.S. interlocutors to possibly help with drafting and as a public diplomacy tool to dispel public misperceptions about proper role of IPR protection. U.S. agencies have the benefit of 10 years worth of experience in enforcing the U.S. Digital Millennium Copyright Act that may serve useful to New Zealand officials in their effort to implement section 92A. What’s most hilarious about this is the fact that the embassy is citing the DMCA as a ten year success. Bruce Lehman, the architect of the DMCA, acknowledged as far back as 2007 that the DMCA was a failure where blame solely rests on the shoulders of the RIAA for failing to adapt to a modern marketplace. It’s very unnerving the idea that not only was the US basically lobbying New Zealand to implement very bad laws, but also citing unrelated examples and casting failed policy as success stories. It defies logic. By May, another cable showed that the US was working with the MPA and other players to try and force the issue of passing a three strikes law: Econoff learned from Tony Eaton of the NZ Motion Picture Association (MPA) that Minister Power met on May 12 with Eaton, Campbell Smith, CEO of the Recording Industry of NZ (RIANZ), Brett Cottle, CEO Australian Performing Rights Association NZ and lawyers from the Copyright Division of the Ministry of Economic Development (MED) to discuss Power’s three-step plan to re-draft and enact section 92A by end of 2009. Apparently, the three step plan was already hammers out. The first step would be to put together a preselected panel of copyright law experts they deem worthy of redrafting the law. The second step “will be a consultative period among MED, the IPR rights holders and the NZ telecommunication firms (i.e., the NZ internet service providers – ISPs) to be concluded no later than September 2009.” The third step would be to implement the recommended content to 92A. In essence, it sounds like they wanted to stage something that seems impartial so as to make the process seem more legitimate. Would government officials implement different policy if somehow the policy recommended was different than the three strikes law? Doesn’t sound like it: Minister Power has made it clear to MED officials and to industry reps that the GNZ has no intention of going back on its commitment to strengthen NZ’s copyright regime. He expressed privately that he wants to avoid some of the hysterical public reaction that accompanied the last attempt to revise S92A. His plan looks to be well thought out and with the input from a panel of top IPR experts the new provision will avoid the earlier criticism of poor draftsmanship. The Embassy in the meantime has repeated its offer of assistance to GNZ officials to offer consultations with USG copyright experts through a DVC. In short, if you criticized the three strikes law, you were simply being hysterical. Overall, if you opposed the law, you seemed to be looked upon as merely an opposition force. The good news is, the citizens of New Zealand were not alone with receiving this kind of attitude from their own government. Just look at the attitude given to Canadians when they discovered that they didn’t like what they saw in the copyright laws being pushed by American interests. Overall, I think it is infuriating the way the US has conducted themselves on copyright on the international stage. In New Zealand, they are even pushing the country to implement laws even the US wouldn’t dare pass themselves because of it’s over-restrictiveness. I think Americans would be equally offended if, say, Chinese diplomats went to the US and dictated what laws should be passed on, say, internet laws for instance. If the US government wants to know why there is so much resentment directed to the US, maybe they should look at how the US is dictating law-making in other countries as one example why people in other countries are so fed up with American influence in the first place. With revelations like this, you’d think that governments all over the world exist only to pander to US interests at the expense of their local populations. I think, for many people in countries outside of the US, it should be shocking how little governments utilize their sovereign rights to control what goes on in their own countries. I’ll be blunt on this matter. If the US waltzes in to your country and demands the country implement a three strikes law, do yourselves a favour, grow a spine and tell the US to “[insert adjective here] off”. [Special thanks to Michael Geist for gathering these cables] Drew Wilson on Twitter: @icecube85 and Google+.