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File sharing law: Three Telecom customers face penalties up to $15K

The Copyright Tribunal is set to hear its first cases under the new file sharing law.

Three people are accused of downloading pirated music. Each faces a penalty of up to $15,000.

A Ministry of Justice spokesman confirmed Rianz (the Recording Industry Association of NZ) lodged three separate claims with the Tribunal under the Copyright (Infringing File Sharing) Amendment Act (2011).

Telecom told NBR it had been told by Rianz that the three people involved were all Telecom customers.

A spokeswoman also flagged on the key issues with the Act - that an account holder, such as a parent or employer, is responsible for the actions of whoever uses their internet connection.

“This is a relatively new regime, and for customers proving just who has infringed copyright via file sharing networks within a household can be a challenge,” spokesperson Jo Jalfon says.

“Often the account holder is a parent but the person using the file sharing technology to upload or download material illegally is a child or even a guest. We are conscious of the need to educate all internet users and will be reminding customers of their legal obligations as well as offering to support the three customers in question.”

Making an example - but it won't work says InternetNZ
"What Rianz is doing is par for their course. The film and music industries have a long-standing pattern of 'making examples' of downloaders in the hopes that other users will modify their behaviour," InternetNZ policy lead Susan Chalmers told NBR.

"It never works."

Far larger fines than $15,000 have failed to modify behaviour.

"Take the example of Jammie Thomas-Rasset, a woman from Minnesota who at one point, in 2009, faced $1.92 million in damages for copyright infringement, payable to the Recording Industry Association of America, for having downloaded 24 songs. This did not deter downloaders," Ms Chalmers said.

InternetNZ does not condone piracy, but the new law introduced a lot of negatives into the internet ecosystem in Ms Chalmers' view "with very little to show for it, even for the rightsholders that successfully lobbied for the law."

What was downloaded? Rianz isn't saying
The applications follows a series of three infringement and warning notices under the so-called “three strikes” law.

A spokesman for Rianz said the group would make no comment ahead of the Tribunal hearings. Rianz represents both multinational and local record labels.

The spokesman declined to comment whether local or international artists were involved. The first round of infringement notices issued by Rianz (in November last year) involved downloads of music by US-based artists Lady Gaga and Rihanna - seen in some quarters as a public relations misstep.

A Ministry of Justice spokesman told NBR there was no time frame for the Tribunal to hear the first case.

The Tribunal was waiting for direction from its chairwoman, Victoria University law professor Susy Frankel. Ms Frankel did not immediately respond to a request for comment. 

The Justice spokesman said Ms Frankel's first step would be to work with the ISPs involved (or, as it turns out, just Telecom) to verify details of the three alleged sets of offences.

"Telecom’s takes the issue very seriously and will continue to work with both the Ministry of Justice and Rianz to comply with its obligations under the law," Ms Jalfron said.

Setting precedents
Thomas Beagle, head of lobby group Tech Liberty, which has been monitoring infringement notices, told NBR, “We're looking forward to seeing what happens at the Copyright Tribunal.

“We're hoping that we get some clear direction from them around admissibility of evidence and the level of proof required.

“It will also be very interesting to see what the awards will be.”

Lowndes Jordan partner Rick Shera said the penalty would depend on factors such as whether illegally content was available locally, and the frequency of offending.

Lobbying by InternetNZ, Tuanz and others saw internet disconnection withdrawn from the list of sanctions available to the Tribunal (although it remains a possibility if an Order in Council is signed off by the Governor General).

However, a second controversial element of the legislation – that the onus of proof is on the accused pirate – made it to the final version of the law. The three internet users about to face the Tribunal now face the sharp end of that decision.

More by Chris Keall

Comments and questions
17

Hollwood and the CIA

Aim higher. Hollywood and the White House.

Who is the 3rd?

FBI silly

Guilty until proven innocent! That's a great NZ law right there!

A law to protect an old business model and foreign record labels. Where is Minto when you need him.

Our thoughts and prayers are with these three, during this difficult times of their lives.

The recording industry internationally has been ripping us off for years, with records and LPs, then CDs and DVDs. Padding out tired old tracks with a few new ones, for the "Best of Whatshisname", "Whatshisname's Golden Hits", etc, etc
I understand that the artists themselves are happy with revenues earned from i-Tunes . . . and even Dotcom.
The methods and tricks the White House is using to pursue and extradite both Messrs Wiki Leaks and Dotcom are scaringly similar.

It should, and I believe it is, illegal to take and use other peoples property without the owners permission.

DOH What part of 'theft' don't you people understand?

John I do agree that copyright infringement is theft. But as simple as that may sound, there are other sub-issues that make things far more complex such as the complete lack of legit options and the sometimes bizarre licensing terms and fine print around digital downloads that push people to commit piracy as it a pirated file isnt bogged down with Digital Rights Management, nor are they encumbered with onerous legals..... then there's the sad state of NZ TV which is little more than a steaming pile of poo.

The trouble is that the genie is out of the bottle now and there is nothing that that the copywrong police can do to stop it. Fines etc have not made one iota of difference. Unfortunately it is the age old story of technology moving faster than the beauracrats who are tenaciously clinging to old business models out of fear and ignorance

Two problems:

1) the onus is on the accused to prove their innocence

2) an account holder (who could be a parent, the head of a flat, a wi-fi network operator or an employer) is held responsible for the actions of people who use their internet connection.

John
very simple. in the past we were able to tape record from LPs, tapes or radio. radio even promoted the time they were going to play music withoit breaks with no ads for people to have their record player ready. if I bought a CD, I could lend it to a friend to copy it into their computer or another CD. People used to lend their music purchases to friends. so tell me why this should change, just because someone who has bought music, and decide to put it online to share with otehr people?

Sounds like just another reason not to be a Telecom Broadband customer.

If you are online - everything you can do can be traced.

Look it even effects Bruce Willis - who recently found out that it is illegal to hand your "paid" itunes collection to your children. Turns out you only have some sort of a personal lease on a music track - under iTunes.

What is needed is proper end to end encryption facilities - where there is no way to intercept or read a given download - unless you are the intended/given recipient.

Totally possible - but more expensive - as more bandwidth intensive - so free ad supported services possibly won't function as a business model.

The Bruce Willis example has been found to be a hoax.

noobs

Also look to the US, where Eminem has sued his label. He was told the iTunes downloads were "sales" which had a lesser royalty owed, rather than "licenses for use" which had a higher royalty. However, the purchasers of those downloads were told they were "licenses for use" rather than "sales". He won his case, to have them recognised as "licenses for use", the label is, I believe, appealing, but charged their legal costs against his account as an expense before paying out to him (which they haven't yet!)!

Any wonder why people pirate digital copies. Also don't forget, John, that in this case, the original owner of the property isn't deprived of the use of the property and numerous studies have shown that
a. pirated copies are NOT usually a lost sale (i.e. the pirate was never going to purchase in the first place)
b. the right price point reduces the amount of piracy (but not all, given a.)