First music pirate nailed under new copyright law

Rihanna

KeallHauled

Chris Keall

The Copyright Tribunal has made its first decision under the new file sharing law, siding with the record industry.

RAW DATA - Read the decision (PDF)

According to a decision dated January 29 and released this afternoon, an un-named customer of Telecom's internet service has been ordered to pay damages of $616.57 - $200 of which was reimbursement of application fees paid by Rianz and a deterrent sum of $360.

Rianz (the Recording Industry Association of NZ) took action on behalf of two of its members, Sony Music and Universal Music.It initially sent an infringement notice to Telecom on November 24, 2011.

The law allows for fines of up to $15,000, and in one action (ultimately dropped) Rianz sought $4675 for 11 songs it said were illegally downloaded.

In this case, the much lower penalty seems warranted. Only three songs were involved in the action - one per detection under the so-called three warnings or "three strikes" regime over an eight-month period.

In a letter from the defendant included with the decision, she says she accepts responsibility for downloading the first song, Rihanna's "Man Down" via a BitTorrent client (file sharing programme) called utorrent - although she had not been aware her actions were illegal at the time.

She did not know how another song, "Tonight, Tonight" by Hot Chelle Rae, came to be downloaded over he connection. "It was not done by myself or anyone in this household," she wrote. (An interesting detail, but not one relevant to her case give the file sharing law holds an account holder soley responsible, regardless.) 

The defendant subsequently had trouble deleting utorrent, which let to an inadvertent repeat download of "Man Down" - which constituted her third strike.

Rianz' loses "multiplier effect" argument
Notably, Rianz lost a "multiplier effect" argument - in essence, that because BitTorrent is a service for sharing files, so many more people among the 700,000 or New Zealanders it alleges use file sharing software could subsequently download the songs, compounding the financial damage (with the millions using file sharing, anyone who wants to access pirate content has no shortage of illegal avenues). The Tribunal ruled it simply could not be established how many downloads "if any" were enabled by the defendant's uploads (file sharing software being a two-way street).

Telecommunications Users Association head Paul Brislen told NBR he was glad the Tribunal had nixed the multiplier effect argument. There was no excuse to pirate music in today's market. But by the same token, he did not believe the download numbers put forward by Rianz, or the amount it claimed had been lost to the music industry (which now seems to be on the up

Rianz says a further 11 cases are in front of the Tribunal.

No sympathy for music pirates, but a bad law
NBR has no sympathy for people who steal music (movies and TV series are another matter - which is perhaps why NZFACT, representing the major Hollywood studios - has so far proved shy of sending any detection notices to ISPs).

Once upon a time, a moral argument could be made that many tracks were not available for commercial download. But today, iTunes NZ and other commercial avenues (including free streaming services Spotify and Pandora) offer New Zealanders.

But that does not mean every prosecution under the new legislation is just, or straightforward.

The file sharing or "Skynet" law - officially the  the Copyright (Infringing File Sharing) Amendment Act came into force in November 2011. It was introduced by Labour and passed by National. Despite the so-called "ultimate sanction" of internet disconnection being dropped*, it has has key flaws.

One is that it puts the onus of proof on the defendant. Apart from being a questionable principle itself, that also makes for an uneven fight. Rights holders will typically be far better resourced (although InternetNZ and Tech Liberty have swung in to help early defendants, aided by pro bono work from Baldwins). 

Another is that it holds an internet account holder solely responsible for any alleged piracy via their account - regardless of the account holder's level of technical competency or knowledge of who is using an account. That puts employers, leaseholders and parents in the gun for the actions of staff, flatmates and kids. Wi-fi network operators are another can of worms.

Confusion over who actually downloaded from a Wellington flat's internet account let to an earlier claim being dropped.

ckeall@nbr.co.nz

* Bar by an Order in Council - that is, a cabinet directive signed by the Governor-General


An interesting footnote: The new file sharing provision of our copyright law requires IPAPs (essentially, ISPs) to publish annual reports on their websites detailing their compliance. The first was due Dec 31 last year.

Tech Liberty has been surveying major ISPs and has so far found:

  • Maxnet - no complaints received and a very minimal report (bottom of page).
  • Orcon - received  234 complaints, sent 198 notices, received 16 challenges.
  • Slingshot (PDF) - received 473 complaints, sent 398 notices, received 14 challenges.
  • Telecom - takes a very minimal approach, just states it has complied. Telecom holds around 50% of the retail market. A briefing paper to cabinet in September last year said it had received 1238 notices.
  • TelstraClear (now owned by Vodafone) - received 818 complaints, issued 540 notices, received 25 challenges.
  • Vodafone - received 538 complaints, issued 350 notices, received 21 challenges.

As far as NBR is aware, all the infringement notices have been sent by Rianz. NZFACT told NBR it has sent zero notices - read: The number of infringement notices sent by the movie industry? None. Not a sausage.

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24 Comments & Questions

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NBR reporting live from local farmers market:
"NBR is in support of people from areas without farmers markets coming and taking produce without paying. After all those farmers really should distribute where customers are, and if they dont, well the NBR supports people just taking produce because after all , why should customers wait and pay when they could take now for free."
NBR - ?New Business Rhetoric
NBR - ?Need Better Review
NBR - ?Not Business Reality

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Three points here: 1) It's copying, not theft. I'm not saying that makes it right - it doesn't - but that's different in a legal sense.

2). The file sharing law poorly crafted in terms of making an account holder responsible for anyone who uses a connection. This has lead to confusion over enforcement, and a couple of the early cases being dropped. It's also unfair and onerous on employers, and others.

3) With movies and especially TV series, a lot of content simply isn't available for commercial download here. Old fashioned regional distribution monopolies are being protected rather than copyright. I choose to pay for all the movie and TV content I pay for (albeit not from NZ, see the "Auckland Man buys Game of Thrones from iTunes Australia" link in story above). But I can see how others get frustrated, and it would be good to see the industry provide a bit of carrot, too, and realise they can't be at war with their own customers as the way people consume media changes.

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and here it is, available free online in sound AND video.
http://www.youtube.com/watch?v=sEhy-RXkNo0

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Absolutely, lots of free ways to enjoy music online (and music videos) and Google's YouTube giving artists and record labels a modest cut of ad revenue.

My problems with the file sharing law is that its messy, confusing and onerous to hold an account holder responsible for whatever child, staff member, flat mate or hotel guest uses their account. And it's just wrong to put the onus of proof on the defendant.

Movie and TV series rights holders should increase commercial download options in NZ as more and more of their customers choose to access content via internet. In many cases there's simply no street-legal download option.

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In fact, making the account holder responsible only mirrors the responsibility they take on with the service provider anyway. Who do you think is responsible for paying the account? You seem to have lost straight forward perspective here.

The fact that there is no street-legal supply of product x in sector y does not legitimise its taking from sector z against the agreement of its suppliers.

If we undermine this principal of trade by agreement we will undermine many critical aspects of efficiency which allow us to trade with the leverage we have enjoyed.

On a lighter note, try muttering "Business Gunmen Style' to Psis 'Gangnam Style'

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But Chris, you just wrote that you have "no sympathy for people who steal music"…

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Chris, it appears you are half way there in recognising copying isn't theft. Perhaps you'd recognise that the 'law' here isn't just procedurally flawed but the substantial content in making copying unlawful amounts to a malum prohibitum offence.

The whole concept of copyright is made out of whole cloth by legislation. It is not natural law.

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Aren't all our laws legislated rather than 'natural law'?

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Thanks for asking. Your question illustrates the misconception about the law that is common in the legislative age.

Our legal and cultural heritage is based not on legislation but customary law. The English common law is based on customary law, and includes a variety of pre-existing sources, including Lex mercatoria (the law developed by European merchants). As such, our legal heritage is not judge-made law, either. Judges primarily found law, rather than made it, in deciding cases. The early common law was primarily procedural, addressing the fact-finding and resolution finding aspect, while the substantial law remained (and remains) customary to a large extent.

Customary law means that the norms and practices used and accepted in the community is used to resolve disputes. For example, the contract law is based on the practice of offering and accepting contracts, and that contracts offered and accepted are considered binding.
So, when common law states that a contract is made by offer and acceptance it is not a judge deciding how people should conduct their affairs and setting a precedent. Instead, law of contracts is founded on commercial practice. In the same way, other commercial and social practices that are recognised as legitimate and civilised form the basis of legal rights and wrongs, and are the ultimate and original source of our law.

The royal common law courts were competing with the non-royal tribunals and even with each other for the service of hearing cases, finding facts and resulting in a settlement. Competition between and among tribunals only makes sense when the base of the legal system is the common customs found throughout the community (or in particular communities the parties belong to).

Sadly, this heritage has been perverted by the encroachment of the Royal courts, forcing out other kinds of commercial and social tribunals. The Crown's domination of the judiciary and of society through it has been reinforced by the organisation of the Royal courts into a rational hierarchy (eliminating competition among the royal courts) and making the law rigid with the stare decisis precedent doctrine.
The people are required to use the Crown's judges, and the Crown's judges have to tow the royal line even if it's unjust or works injustice in the particular case they have in front of them.
The progressive increase in legislation replaces community standards with directives and controls from the state. The law has been perverted from social and community standards and norms, expressed through practice and acceptance in the community, into a power play of the state over society. The law has now become in a substantial part, a tool of domination and central control rather than an instrument of peace and community control.

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There's nothing to stop people setting up private organisations to find facts and resolve disputes. Arbitrators do this. I think you are describing the early stages in the deelopment of our legal system, when legislation didn't cover everything. Customary practice now has pretty little relevance really. There are still alternatives to the royal courts.

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Small mercies, we can and do use arbitration and alternatives to the royal courts, and these alternatives are growing as the state's service levels and results continue to disappoint while the competitors enhance their services. But these have their limits.

Arbitration is not much help when the problem is central planning of land use, price controls, state-sanctioned private monopolies/cartels (including copyright, patents, and modern day occupational guilds), taxes, jury duty, conscription, immigration restrictions, restrictions on anonymity, restrictions on possession of the means of self-defence, prohibition of your favourite herb, jacking up the price of tobacco, etc. These affronts are substantive 'laws' that embody the will of some being imposed on the rest. Such are unnatural and are alien to customary law. Procedural freedom to negotiate settlements of civil claims are inadequate to redress these issues.

Perhaps the state has moved on from indirect domination through monopolisation of the tribunals to direct domination through substantive laws. But to restore and enhance our cultural and legal heritage of peace we need to undo both steps.

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What a pathetic waste of time.

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Yes, I agree. Dealing with people with break the law is a pathetic waste of time. The law breakers are pathetic and it amounts to a great waste of society's time to have to tell them why (after warning them three times).

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Easier than prosecuting DotCom, or sending him to America where he could plead his innocence.

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"...or sending him to America where he could plead his innocence".

You mean, "spend months to years incarcerated while the trial is stalled and strung out by various means"? Also see "Bradley Manning" and "Aaron Swartz" for the way the USA goes after or mistreats those involved in information sharing cases.

If Dotcom had simply run a bank and grossly misused funds / misled investors, he'd obviously be quite safe to go to the USA, but sharing information is a completely different matter!

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Theft requires the owner to have been deprived of their property.
Here they still have their property. What is infringed (but not stolen) is their legal right to prevent people making copies without their permission.
Calling it theft is a rhetorical device, no more.

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A fine (sorry "deterrent sum") of $360 is actually quite large. For example, compare that to a fine of $450-$600 for a first-time drink driver.

Some might think that's fine, but just wait until councils, parking buildings, stadiums and government agencies start pressing for the ability to get their "deterrent sums" without the protections of the criminal system.

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I hope she doesn't pay it.

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It's a shame that the first reported case is on the papers and involves what appears to be (based on her quoted letter) an unsophisticated and apparently unrepresented/unassisted defendant.

I doubt it's a coincidence though - it looks like RIANZ dropped every case where the defendant either had help from Tech Liberty and/or opted for a hearing. I suppose they wanted the precedent decision to be as much of a gimme as possible.

Good on Ms Glover for rejecting the RIANZ view on what "flagrant" means though - the RIANZ argument that:

"doing it three times",
"not stopping after the warning",
"having bittorrent installed", and
"doing it over 8 months",

amount to a "flagrant" breach is particularly specious, given that these are all preconditions of getting in front of the tribunal in the first place, and would result in _every_ breach being a "flagrant" breach.

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RIANZ should just focus on ways to make money for its artists while it still has some. The average NZ album release I believe now sells 200 copies in any format.

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I hope they realise that this is what this anon group are hacking government sites for. They said they wouldn't stand for this is New Zealand. All you have done is started a war with some really angry internet geeks. Good work.

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Isn't there a bit of double jeopardy here - can you steal something twice.

I know that isn't how the legislation is written but it is a very bad example for the first case/fine.

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If your property is broken into the police will tell you it is probably a good idea to improve your security (alarm, deadbolts, more locks). If you are unable to do this yourself you would pay for professional assistance. As an account holder you should be ultimately responsible for securing your connection. I agree that people should be given due warning and time to remedy the situation, but three times in eight months seems reasonable to me.

(The break-in/security is not meant as a complete analogy before the internet heroes start the steal/copy irrelevance.)

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What a nonsense. RIANZ have done themselves and everyone involved a disservice by targeting a case at this end of the spectrum. If they want the populace to believe it is a real issue (and the arguments are not clear) then they should demonstrate it with a properly flagrant case of copyright infringement and theft. The only winner here, funnily enough, is Rihanna.

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