Manifestly unjust? Fifth file sharing decision involves soldier serving in Afghanistan
A few things to note from the most recent decision of the Copyright Tribunal in Rianz v CAL2012-E000609  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.
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  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.)