Copyright chilling effects: NZ geounblocking edition

A few things puzzle me in the rights-holders' cease and desist letter to New Zealand ISPs offering "Global Mode" services. That's likely because I am not a lawyer.

These services make geomasking easy for broadband customers rather than requiring them to install Hola! or use Unblock-us (or any of the other alternatives).

People in New Zealand using geomasking to subscribe to US or UK-based content providers are in breach of the foreign provider's terms and conditions, which require that you be based in the US or UK. But being in breach of a foreign provider's terms and conditions is not, as I understand things, illegal. It just means that they can cease your service if they choose to catch you.

Netflix's Terms & Conditions prohibit the viewing of content anywhere other than within the country or location authorised by Netflix. When you sign up with Netflix and geomask to pretend to be in the US, you are in breach. The sole remedy provided in the T&C is in Section 8: Termination. If you are in violation of the terms, they can kick you out of the system.

So the first thing that puzzled me in Buddle Findlay's notice to the ISP was 6.c's suggestion that a breach of foreign terms and condition makes Global Mode service unlawful:

Is it really illegal to breach terms of service? Maybe you could get civil action by the firm whose terms you breached, but by a foreign third party? 

Section 35 of the 1994 Copyright Act lists how you can infringe copyright by importing a work. 

Part 1 explains that, as I read it, if you buy a bootleg DVD overseas, know or reasonably ought to know that it's bootleg, and bring it home without getting a licence, and intend to use it other than for private and domestic use, that's infringing. But you need all the "ands": other than for private and domestic use seems applicable. Further, if it were a legal DVD abroad, it wouldn't be infringing here. 

Part 2 deals with default presumptions in civil proceedings.

Part 3 says that importation of copies of films within the licensing window for other than private and domestic use is forbidden: they basically want the movie theatres to have a decent shot at airing a film here first. The only person importing Netflix from New Zealand is the end-user, not the ISP or somebody providing a geomasking service to a New Zealander. 

I just can't see how a consumer streaming Netflix into New Zealand in breach of Netflix Terms & Conditions is in breach of NZ law, nor do I see anything here saying that an ISP is liable if a customer does this. 

The only reference I can find to geographic restrictions are in terms of an exclusion to the forbidding of circumventing technological protection measures (DRM, basically). In short, it's illegal to break digital rights management. But there's a huge exclusion there carved in: 

For the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)

It is hard to read this other than as Parliament very clearly wanting Kiwi consumers to be able to use region-free DVD players for viewing of parallel-imported DVDs, whether or not foreign DVDs come with shrink-wrap licence conditions requiring only watching the discs within the zone of purchase.

It is also awfully hard to tell just what provision of the Copyright Act Buddle Findlay thinks Global Mode is breaching. They don't cite any specific provisions of the Copyright Act; they just kinda point at it. Again, IANAL: maybe it's common for lawyers to be really vague about things to avoid foreclosing options later on, but I would have thought that they'd have pointed to some bits of the law that actually make it illegal for New Zealanders to use geounblocking to watch Netflix - if Global Mode is really misrepresenting things by telling customers it's legal, wouldn't there be some part of the law they could point to saying why?

Chris Keall, whose reporting at The NBR on this file is second to none, notes that the geomasking company can't afford to fight the heavyweights in court and so will have to pull its service, but that they're going to the Commerce Commission.

If the rights holders are mad about all this, wouldn't the more logical approach be for them to talk with the folks who sold them the rights in the first place and who also sold rights to Netflix (and others) without as much geographical segmentation as the rights holders expected?

Previously:

• Copyright chilling effects
• An end-run around film parallel imports?
• In praise of Netflix

Innovations unlikely to happen here

There's just so much promise in GE research. A 2012 paper showing longevity benefits in mice subsequent to gene modification has led to experimental trials on people - in South America. They use genetically modified viruses to spread genes for longer telomeres to reduce ageing.

Meanwhile, in New Zealand, the Greens' Steffan Browning is angry that some schools are ordering a $354 biochemistry set that lets them run small in-class GE experiments: introducing a bioluminescence gene from jellyfish into bacteria. From the product website:

Genetic engineering is the process of manipulating the genetic material of an organism — often to include the DNA from a foreign organism. Using the classic pGLO Bacterial Transformation Kit, students transform bacteria by introducing a gene from the bioluminescent jellyfish Aequorea victoria. The same procedure has been used to create "designer proteins" which have led to the explosion of new health treatments, agricultural applications, and environmental solutions.

Features and Benefits

• Aligns with AP Biology Big Idea 3, Lab 8
• Transforms bacteria with a jellyfish gene
• Turns the gene on and off for the study of gene regulation

I wonder how many fewer chemists we'd have if we'd banned chemistry sets. While the set here isn't banned, using it looks to be:

According to Bio-Rad's website, the kits allow students to transform bacteria by introducing a gene from the bioluminescent jellyfish, Aequorea victoria, making them glow fluorescent green under ultra-violet light.

"The same procedure has been used to create 'designer proteins' which have led to the explosion of new health treatments, agricultural applications, and environmental solutions," the United States-based company says.

According to MPI's investigation, there was nothing wrong with importing the kits.

But they contained materials that, when put together correctly, produced a modified strain of E coli.

This counted as new organism under New Zealand's Hazardous Substances and New Organisms Act, MPI said.

It was illegal to produce a new organism without a containment facility and approvals from MPI and the Environmental Protection Agency (EPA).

We have endless handwringing from government about how the economy isn't as diversified as they'd like and how there isn't enough R&D relative to somebody's preferred amount of it. Then the government makes it too hard to do IT research in New Zealand that might require GCSB approval under TICS, and requires MPI approval for any new organism, hindering GE research.

But Otago University microbiology and immunology professor Clive Ronson said the base E coli strain involved was "very benign" and even scientists would find it impossible to create a dangerous strain with the kits.

New Zealand was out of step with the rest of the world because it insisted that anything altered through DNA manipulation was a new organism and needed approval.

According to the EPA, all known kits were traced and destroyed.

"It is unlikely that such a lab-adapted strain would be able to survive outside laboratory conditions."

MPI wouldn't name the educational institutes that had "inadvertently" broken the law.

They hunted down and destroyed classroom chemistry sets. And Kiwis make fun of Kansas classroom creationists.

It really doesn't bother me if Steffan Browning doesn't want the life-extension therapy. I'm young enough (for now) to be able to wait a bit to see how the South American trials pan out. If I were in my 70s, I'd be a lot angrier about policies blocking this kind of research.

Update: See Siouxsie about the kits, and with further discussion of NZ's absurdities, here:

If an organism is not on any database or listed in a paper as showing it was present in NZ before 29 July 1998, its considered a new organism. I’m told the first time NZ researchers sequenced the gut microbiome of a person in NZ, they came across a whole heap of microbes that according to the law didn’t exist in NZ. Seriously. The flip side to this of course, is that each time anyone comes here from overseas, be it a holiday-maker or NZ resident returning from a trip, they are likely bringing in a whole heap of new (micro)organisms in or on their person. And there’s not much the government can do about that!

Flat tax

Alberta's abandoning its flat provincial income tax. Here's Bill Watson's requiem for it:

Everyone’s assumption is that flat-rate taxes can’t be progressive. That presumably bothers Alberta’s Conservatives, who, unlike Ottawa’s, are still at least nominally Progressive. But the assumption isn’t true, at least not in terms of average taxes. If some minimum amount of income is exempt from taxation — and in Alberta it can be over $18,000 — then the average rate of tax rises with income. For example, at a 10% rate the first $10 of income above $18,000 generates a $1 tax liability, which produces an average tax rate of $1/$18,010 or just 0.006%, a rate that rises — progressively — with every extra dollar of income and approaches, even if it never quite reaches 10%.

Some studies done by perfectly reputable economists, i.e., not “far-right” nutbars, suggest the best rate structure, even taking the interests of poor people into account, may by an umbrella, in which rates rise for a while but then, for the super-mobile highest earners, actually decline—though try selling that in the current inequality-obsessed political environment!

The full article is embedded below, in an ingenious setup that Canada's National Post is using. When I selected the text to copy, I had a pop-up asking if I'd like a licence. I said yes, then saw I could embed the full article so long as I also embedded the paper's ads with it. And so it is below. Instead of yelling about bloggers being content thieves (while scraping their scoops without or with little attribution), the Post's making it easy. I like it.

William Watson: Requiem for the flat tax

By ending its flat tax rate Alberta is snuffing out an important policy beacon for all Canadians To conservatives everywhere, a sad part of the latest Alberta budget was the extinguishing of the province's flat tax, which Ralph Klein introduced in 2001. Albertans with taxable income have been paying 10% on any and all additions to…

Debating the case for economic growth

If you're in Wellington on 16 April, do join us for a fun evening. Chris Bishop, David Clark and James Shaw will be debating the Case for Economic Growth. I'll lead off with a brief discussion of the report, then we'll find out what the politicians make of it.

Please do register here if you're planning on attending.

It's taxpayer-funded lobby groups, all the way down

“Today we have lodged an application to receive funding from Treasury to become a taxpayer-funded lobby group to oppose the other taxpayer-funded lobby groups, who in turn lobby taxpayer-funded bureaucrats, politicians and themselves.”

Jordan Williams, in a Taxpayers' Union April 1 press release.

Hooton on Sports Econ 101

Matthew Hooton nails this one, with some help from Andrew Zimbalist:

I do know that the Cricket World Cup has been an outstanding success: Christchurch’s return as an international venue; the destruction of England at Wellington; the Auckland nail-biter against Australia; Ireland’s triumph over the West Indies at Nelson; Martin Guptill topping the batting with his 237 not out and Tim Southee the bowling with 7/33. The International Cricket Council must be bonkers to stick to its plan to cut the number of teams from 14 to 10 for 2019.

I also know we will soon be inundated with “studies” that the tournament has delivered a huge boost to the economy. The Ministry of Business, Innovation and Employment will be at the forefront. But what has been obvious anecdotally for a long while has been confirmed more systematically by Professor Andrew Zimbalist in his new book Circus Maximus, reviewed in the Economist a couple of weeks ago: it’s all crap.

He shows that perhaps the one thing economists have proven beyond any doubt over the past hundred years is that major events never deliver any but the most fleeting economic benefits, if any at all. The overwhelming majority of events are a drain on GDP. The same is true of sports teams and new stadiums: none has ever delivered an improvement to employment or GDP. It would be remarkable were it any different for concerts, arts exhibitions, sculpture walks and the rest.

Oh, yes, there are plenty of analyses that show otherwise: those commissioned by the sports or arts associations who want the honour of hosting the event, the politicians and bureaucrats who want the front-row seats and tourism lobbyists who perceive they will gain financially, but even they’re usually wrong too.

Hooton later echoes a line I've often heard from Seamus Hogan, but that I'm not sure he's blogged [Update: here]: if you're going to run these things, justify them on the basis of their being a fun party and nothing more. Maybe the party is worthwhile; maybe it isn't. But don't pretend that it has big economic benefits.

Iwi, Kiwi, Canuck

John Ansell's reach is long: the billboard campaign he ran for Don Brash has been picked up in Canada.

Here's Ansell's 2005 billboard:

There were a series of others, always with the very simple 'Tax / Cut' or 'Waste / Not' framing. [Update: they're all here!]

Peter McCaffrey retweeted the latest Canadian incarnation, from Alberta's Wildrose spinoff of the Alberta Progressive Conservative Party:

This apparently isn't the first appropriation of a great billboard idea. A few others were sent me by an email correspondent. I'm not sure if these were actually used in the 2006 Canadian election, or if they were mocked up by party activists.

All of these kept the very simple contrast.

The NDP's version (again - I don't know whether it was from activists or the party proper) was a bit ... cluttered.

It reminds me of Homer's attempt to chime in during "Who needs the Kwik-E-Mart".

Boris Johnson's even been in on the theme, but with the appropriate style.

Kiwi electoral ingenuity, taking over the world. And Alan Bollard thinks we're bad at marketing. On the other hand, I doubt anybody paid royalties to Ansell...