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One of the first 'third strike' notices withdrawn; no movie notices sent

In a twist that may hearten those who fear the new 'three strikes' file sharing law Draconian, Telecom has gone into bat for a customer sent an enforcement notice (a notice that sits third in the 'three strike' warning process, and leads directly to a date with the Copyright Tribunal and a possible $15,000 fine if unchallenged).

“To date Telecom has issued one enforcement notice to a customer," spokesman Desmond Nash told Telecom.

"This notice was rescinded after Telecom supported the customer in understanding the process and making a valid challenge under the regime, which based on this customers circumstances, was then accepted by the rights holder involved.”

Telecom would not name the rights holder, or provide any details about the customer or their alleged offence.

Vodafone and TelstraClear have also sent their first third-strike enforcement notices this week. 

The notices were on behalf of Rianz (the Recording Industry Association of NZ), which represents major record labels.

Meanwhile, Orcon has said a comment by CEO Scott Bartlett at the TelCon 12 conference was "based on incorrect information."

The state-owned ISP has not sent any third-strike notices.

Second enforcement notice issued under 'three strikes' law, $15K fine looms

UPDATE April 19: Vodafone tells NBR it has also sent its first enforcement or 'third strike' notice under the new internet file sharing law.

The telco would only confirm the notice was issued on behalf of Rianz (the Recording Industry Association of New Zealand).

A spokeswoman said that (like TelstraClear, below) it had had sent zero notices on behalf of NZFACT, which represents the major Hollywood studios.

Wed April 18: A TelstraClear customer has become the first person to receive an enforcement notice under the "three strikes" internet file sharing law.

He, or she, now faces a possible date in front of the Copyright Tribunal and a fine of up to $15,000.

TelstraClear would not identify the alleged pirate, other than to say they were a residential customer, and that the notice was sent on April 12.

The enforcement notice was issued on behalf of Rianz (the Recording Industry Association of New Zealand).

It refused to tell NBR who the artist or record label behind the complaint.

The industry group copped flack in November when the first wave of detection notices were issued on behalf of Rihanna, Lady Gaga and other US-based artists.

The head of one of the big five ISPs told NBR it was a major PR blunder not to issue notices for infringement of a local artist.

No movie notices
The ISP boss said his organisation had been issuing around 15 notices a week on behalf of Rianz. He guesstimated Telecom (which holds around half the retail market) would be getting around 100 per week.

It had received none from NZFACT, the local lobby group representing the major Hollywood film studios.

TelstraClear confirmed to NBR today that it  had also issued no notices on behalf of movie studios.

It also declined official comment on whether notices have been sent, or not. NZ Fact has said the file sharing law’s $25 per notice fee for rights holders is too high.

The fee is now under review after its first six months, a provision of the new law.

One industry insider, who did not want to be named, told NBR the Hollywood studios were just not motivated to issue notices in what, for them, is a tiny market.

For whatever reason, it seems movie downloaders are not being actively targeted.

It’s a situation that saves the industry from a problematic public relations issue.

Telecommunications Users Association CEO Paul Brislen earlier told NBR he had “not an ounce of sympathy” for anyone who pirated music, as most tracks are available through commercial download services such as iTunes.

Movies and TV shows were more problematic, he said.

With many not available in New Zealand on disc or broadcast TV, or geo-blocked on line, some users morally justified it to themselves that they could source an illegal download.

Isn't it ironic?
As New Zealand's second-largest ISP, TelstraClear was always going to get its fair share of notices under the new law.

But some industry observers will find situational irony in the fact that TelstraClear CEO Allan Freeth is an outspoken opponent of the act - not to mention a proponent of Sky TV, and other broadcasters, working with rather than against new online media trends.

The three strikes process
The Copyright (Infringing File Sharing) Amendment Act – aka “the Sky Net Law” or “Three Strikes Act” – came into force in September last year.

It provides for a rights holder, such as a record label or movie studio, to complain to a person’s internet service provider if they suspect piracy.

The ISP then reviews the suspected person’s internet records before sending a detection notice (which can be disputed by the customer).

See an example of a detection notice here.

If the person is suspected of reoffending, a warning notice is sent.

If they are suspected of offending a third time, an enforcement notice is sent – as TelstraClear has done.

Once the enforcement notice is sent, the rights holder has five weeks to decide whether to take the case to the Copyright Tribunal.

If it upholds the rights holder’s case – and the onus is on the accused to prove their innocence – then the tribunal can levy a fine of up to $15,000, based on the damage it thinks has been caused to the rights holder.

Rights holders can also take separate civil action against an alleged offender.

More by Chris Keall

Comments and questions

Sounds like the movie industry are busy with the Ministry of Economic Development to force through the removal of the fee.

How is 25$ too expensive for a company funding 200million dollar movies, but a local supporter of US music industry (RIANZ ... false name really, they do not care for NZ music) is capable of spending thousands on notices?

Because the RIANZ, through the labels it represents, can probably charge that cost directly to the artists.

To be fair, good on RIANZ for not taking blind advantage of the presumption of guilt embedded in the file sharing legislation. Whether it's a realistic assessment of their chances at the Tribunal or recognition that for the $75 they've spent on notices, they've already got fantastic PR bang for buck (no need to increase notice costs), I don't know, but it's good to see.

Whoops that should say no need to DECREASE notice costs!!

You may think you got away this time, but just wait... the Internet packets are being inspected, and my nose will twitch when they go to a pirate.

Rest assured, you shall all be gutted alive afore the Tribunal!

For those that have not heard yet,

go to freeproxies ( search google) then cut and paste any one of them into you Internet connection settings (use proxy server) and the entertainment industry can run around in Mongolia or where ever serving notices.

What a complete waste of time, I can't believe we pay politicians to make a law for something they can never ever understand or control