Manifestly unjust? Fifth file sharing decision involves soldier serving in Afghanistan

Rick Shera

A few things to note from the most recent decision of the Copyright Tribunal in Rianz v CAL2012-E000609 [2013] NZCOP 5 , issued on 7 March 2013 (read it here).

The case involved a soldier who submitted he was overseas serving in Afghanistan when the infringements took place (one involving the song S&M by Rihanna and two infringements of the same song, "I like it like that" by Hot Chelle Ray). 

The soldier accepted responsibility noting that he was unable to determine who had used his account to infringe.

First, in respect of the tracks themselves. New Zealand is a party to Berne and should therefore accord overseas rights holders the same protection as is accorded to New Zealand ones.  However, Rianz (the Recording Industry Association of NZ) does have a choice as to whose rights it prioritises. 

It is strange therefore that it uses resources derived primarily from New Zealand music sales to protect major international rights holders, particularly when it justified the need for the "skynet" legislation by reference to the damage being done to New Zealand artists.

The other odd thing is that if memory serves this is the second or third time the same song has been the subject of two separate infringement notices in the same proceeding.  It is hard to know why this should be the case other than Mark Monitor (DeTecNet) taking the easy course by noting the account holder IP address and re-visiting it a month later to see if the same song is being shared.  Rianz and NZFACT have submitted that there are hundreds of thousands of infringements being detected each month so the odds of randomly achieving this result must be low. 

From a legal perspective though, could it not be argued that the lost sale for which the Tribunal awards compensation is only of one song?  After all, it is not as if the account holder would buy the same song twice.  At 2 x $1.79 vs 1 x $1.79 maybe not worth arguing over. In total, the soldier was fined $255.97.

Next point - RIANZ again fails in its attempt to persuade the Tribunal that higher compensation should be awarded on the basis that the songs are available for upload to numerous peers in the P2P swarm.  Interesting to note the Tribunal is already starting to rely on precedent by quoting from a previous decision on this point (issued by a different Tribunal member).

Finally, and I think of most interest, while the Tribunal refers in passing to manifest unjustness under section 122O(5) of the Copyright Act 1994 (see para [16] of the decision), it does not then consider the issue at all.  Section 122O(5) states:

... the Tribunal may decline to make the order required by [subsection (1)] if, in the circumstances of the case, the Tribunal is satisfied that making the order would be manifestly unjust to the account holder.

This section overrides the other provisions of the Act and regulations setting out factors the Tribunal must take into account in setting an award.  So, it was open to the Tribunal to decide in these circumstances - soldier overseas, no way of knowing who infringed and therefore no ability to recover any award, admitted responsibility - that to make an award was manifestly unjust.  Remember that it is unjustness to the account holder (the soldier in this instance) that is relevant not any unjustness to or cost incurred by the copyright owner.  Difficult for the Tribunal though without any argument on the point being presented by the Respondent.

I have said before that trying to show manifest unjustness will be extremely hard, especially given the presumption of guilt in section 122N and the fact that an account holder is liable for all actions taken using its account.  I think this case underlines that.  I find it hard now to imagine any circumstance that will invoke this protection for an account holder.

Rick Shera is a partner at Lowndes Jordan, where he has clients on both sides of the copyright debate, and is one of several lawyers advising Kim Dotcom's new file sharing service Mega. He posts at Lojo.co.nz

(NBR requested comment from Rianz. None was forthcoming by the end of Thursday - CK.)

This article is tagged with the following keywords. Find out more about My Tags

Post Comment

16 Comments & Questions

Commenter icon key: Subscriber Verified

I think every case has involved someone downloading the same song twice. Are people actually downloading it twice or is it picking up instances of upload?

Reply
Share

Harvey,

I think you're right re same songs being tagged in each case, so even less chance that this is random.

A person using a P2P application will generally have the file available for upload by anyone in the swarm. Detection agents act just like any other peer so will be seeing the file available for upload at the account holder's IP address. RIANZ characterises these infringements as a breach of section 16(1)(f of the Act (a breach of the copyright owner's exclusive right to "commuincate" the work), so yes it is focussing on upload.

Reply
Share

Does a person need to be caught the same song to reach 2nd or 3rd strikes? or can it be a mixture of things?

e.g. Person A downloads a song then downloads a video game a month afterwards.

Also how does RIANZ get involved in all of this?

Reply
Share

It can be different works but each of the three "strikes" has to be initiated by the same copyright owner, so will usually be for the same type of work. Since RIANZ is currently the only organisation using the system, they will all be songs.

RIANZ is involved as an agent for the ultimate holders of the copyright in the songs. The legislation allows it to aggregate infringements of songs in which copyright is owned by different recording companies.

Reply
Share

From past cases, RIANZ has dropped any that were confident enough by applying for a tribunal hearing. Does that mean catching uploads is not impeccable evidence to justify in front of a judge? Or are RIANZ just picking a random IP address every day and hoping the person will admit to copyright infringement some time in their life?

Reply
Share

Harvey,
I don't think people are downloading the same song twice. There may be a flaw in the detection.

Reply
Share

Rick,

A few points on your post:
1. You're assuming that because NZ artists are not being picked up that RIANZ are not searching for them. Did it occur that maybe a larger proportion of people are sharing international music titles, and not local ones. You assume (badly) lot of statistics and come to a conclusion that RiANZ must not be prioritising - but you actually have no evidence of this. So lets scrub this part of your piece and see what's left.

2.The part about DTecNet and 'randomly' finding the same song twice in two different months. You should know how the process works - aren't you on the board of IPSafe? A company with the exact same business model? How would you do it for your client - would you want to find the most popular songs that are being shared and send notices to them - or would you look for obscure songs that only on person is sharing? At $25/notice, I know what I'd be doing as a rights holder. How would you advise clients coming to IPSafe? So stop speculating, start fronting up. Let's scrub that paragraph as well, as you're scare mongering.

3. The last section on manifestly unjust. Laughable. You've already indicated that the respondent accepted liability. How could it then be determined as 'manifestly unjust'. If you accept liability for what goes on on your connection, you therefore lose the ability to argue that point. The whole discussion is moot. Let's scrub that out to.

So what we're left with is a small paragraph outlining how RIANZ cannot persuade the tribunal of more vicarious liability on the part of those found infringing, despite them sharing the same title for well over a month. Despite protests from those on the payroll of Kim Dotcom of how awfully biased this law is in favour of Rights Holders - lets front up with some facts from the judgements: They cannot recoup the costs of even sending the notices to the ISP for each case, they cannot recoup the cost of detecting the infringements by their vendor (How much would IPSafe charge per detection by the way??). This legislation is so biased on the side of ISPs/infringers, it is hilarious.

On a side note - what content owner would want to use IPSafe knowing that their board members are legal advisors for Dotcom??

Reply
Share

So in point one you admit that NZ music really isn't that important to RIANZ and that they're just acting as patsies for overseas rightsholders too lazy to do the work themselves.

Point two I don't care.

And in point three you say that accepting liability makes it just. How exactly? All it does is confirm that the law as written makes the respondant liable. Liable for something that they weren't there to prevent.

Reply
Share

Among others, Warner Music and Universal Music are represented by RIANZ and they have the rights to US artists as well. Maybe RIANZ is looking out for their full paying members.

You should. Rick is simultaneously criticising a law for which he is actively selling a solution to as a board member for IPSafe. Then he is a legal adviser for Kim Dotcom. Talk about selling yourself to the highest bidder.

Manifestly unjust was terminology under the Act. If someone accepts liability they automatically make themselves unavailable to the argument of 'manifestly unjust'. The law does not make them liable, they accepted liability. That renders the argument moot. Rick knows this - but is making the point because he is on Kim Dotcom's payroll - he is painting copyright on the whole as just one big unjust movement for one big benefactor.

Reply
Share

(NBR requested comment from Rianz. None was forthcoming by the end of Thursday - CK.)

Maybe you should make your comments a little more official via the proper channels.

Rick has always been the authority on copyright in NZ and is quite respected in that regard, i dont believe his contribution with Dotcom compromises that in any way. If anything, it allows him to ensure that mega.co.nz is operating in a more legal manner than the proceeding business.

Reply
Share

RickRolling "he is painting copyright on the whole as just one big unjust movement for one big benefactor."
Pardon me, but in the general scheme of things , how is this statement inaccurate.
It's 2013:
Music companies are giving musicians a bad name,
Many good musicians are now giving away their music online making revenue from tours instead.
You tube accounts are getting shut down because they have accidental background music. Even accounts with creative commons music are getting infringement notices, so many that account administrators are literally overwhelmed.
Where does this end. should the NZ public just stop using the internet, would that make RIANZ happy.
The one hope left for the world is the internet is actually breeding "sharing" and caring like smaller communities still have today. Sadly much of this activity is diametrically opposed to the concept of "old" business so perhaps these little short term greed tantrums are natural, but see them for what they are.

Reply
Share

Of course it's unjust because RIANZ and the Copyright Tribunal both accepted that the person paying the penalty didn't do it.

What sort of system is it where everyone agrees that a person was innocent and couldn't have known what was happening or stopped it - but we still penalise them anyway? I can't think of anything more "manifestly unjust" than that.

The person saying they "accepted liability" doesn't really come into it as a) under the law they didn't really have any choice, b) I suspect they just wanted the whole problem to go away. I suspect they should have got some legal advice.

Penalising the internet account holder makes about as much sense as penalising the person whose name is on the power bill - after all, this terrible crime couldn't have been committed without electricity too!

Reply
Share

Of course they had a choice - that's what the tribunal was for. They could have argued it was manifestly unjust at that point and not accepted liability. That's where the opportunity arises.

Maybe they should have gotten legal advice, that's where they could have argued in point a. That aside, the penalties have been so low that they probably thought they'd cop the fine, because the cost of hiring Rick for more than 18 minutes would exceed the cost of any fine imposed so far.

Also, on your electricity argument. Weakest analogy ever. It's about direct control. Electricity companies, post services etc etc exercise indirect control. An account holder exercises direct control over those who use their internet connection. Back to school on your analogies.

Reply
Share

I'm not going to blame the victim for not understanding the law well enough to make the best argument. It's up to the Tribunal to make the decision and I think they made a very bad one.

As for direct control, that's part of the point. People don't have direct control over shared internet. There is no way to control an internet connection so that people can only use torrenting for files that don't infringe copyright. Even if they wanted to stop all torrenting of files (infringing and non-infringing) that's well beyond the abilities of most people and standard domestic routers.

Reply
Share

How much was he/the household fined?

Reply
Share

The account holder was ordered to pay Rianz $255.97 (see link to decision in story above; technically it's not a fine as this is the Copyright Tribunal, not a court).

Reply
Share

Post New comment or question

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.

NZ Market Snapshot

Forex

Sym Price Change
USD 0.7842 -0.0078 -0.98%
AUD 0.8914 -0.0023 -0.26%
EUR 0.6203 -0.0015 -0.24%
GBP 0.4896 -0.0010 -0.20%
HKD 6.0810 -0.0622 -1.01%
JPY 85.2860 -0.3520 -0.41%

Commods

Commodity Price Change Time
Gold Index 1229.0 2.000 2014-10-28T00:
Oil Brent 86.0 -0.650 2014-10-28T00:
Oil Nymex 81.4 0.410 2014-10-28T00:
Silver Index 17.2 0.065 2014-10-28T00:

Indices

Symbol Open High Last %
NZX 50 5338.3 5367.6 5338.3 0.33%
NASDAQ 4551.4 4564.4 4564.3 -0.33%
DAX 9139.0 9157.6 9068.2 0.16%
DJI 17005.1 17065.5 17005.8 -0.18%
FTSE 6402.2 6475.4 6402.2 0.81%
HKSE 23704.0 23855.7 23520.4 1.27%
NI225 15442.4 15595.3 15329.9 1.46%