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Recorded Music NZ reanimates its war on piracy with 11 new cases — but also shows a reasonable side

Last year, we saw waves of cases brought by the music industry under the new file sharing law.

18 people were hauled infront of the Copyright Tribunal, where they faced fines of up to $15,000 under The Copyright (Infringing File Sharing) Amendment Act.

Then ... nothing. Months went by without Recorded Music NZ (the successor to Rianz in a music industry body rejig) pressing any new third-strike cases under the Act's graduated warning regime (remarkably, the NZ Screen Association — formerly NZ FACT — which represents the major Hollywood studios, has never taken a case to the Tribunal. It says the $25 warning notice fee is too high, and wants the legislation reformed so ISPs are forced to install monitoring software).

Recorded Music NZ general counsel Kristin Bowman tells NBR six cases have now been submitted to the Tribunal under a new wave of action (none have been heard by the panel so far; in most responses are still being sought from the accused in preparation for the hearing).

Five more will be filed over the next fortnight.

Why the big pause?

“As the legislation had been in play for over a year, as at September 2013, we thought it appropriate to review. During our review, we held back any new filings,” says Ms Bowman (cases already in the works kept the Tribunal busy, and publishing new decisions, up to January 2013).

Recorded Music NZ (or at least its precursor Rianz) got some bad press for focusing on petty offending with its first wave of 18 cases (reflected in penalties that were typically in the $200 to $400 range; a fraction of what the industry group had sought). The case successfully brought against a soldier in Afghanistan who wasn't even in the country when a handful of songs were downloaded on his internet account was a showcase for everything bad about the law.

During its review, Recorded Music decided a key goal should be to identify the biggest offenders. However, it ran up against the Privacy Act. Fishing expeditions through ISPs' logs were not going to happen.

Two cases settled
It's notable that of the six new cases so far pending, Recorded Music has settled two. 

Ms Bowman says one was withdrawn after there was confusion over whether a father had received notices, and he agreed to removed peer-to-peer file software and educate family members.

A second was withdrawn after a parent agreed to pay costs and agreed to remove P2P software and educate family members.

It's good to see Recorded Music seems to be taking a more reasonable approach, and that it's dangling carrots as well as the stick, promoting legal download services (via — an area where, after a slow start, the music industry has made great progress. Between free streaming services like Spotify and Pandora, and the low-cost likes of Apple iTunes and Google Play, there's no excuse to pirate.

Law needs reforming, but TPP in the way
But I've still got issues with the The Copyright (Infringing File Sharing) Amendment Act.

One is that under section 122N of the Act – or the "presumption of guilt section" as Lowndes Jordan partner Rick Shera and other critics call it – there's no requirement for a rights holder to even prove the defendant actually even received the notices 

The other is that an internet account holder is responsible for the offending of anyone who uses their account – which seems a bit on the nose for the head of a family, an employer, a school principal or a hotel owner, to give a few examples. If, say, an offending staff member has been educated, and is disciplined or even fired, that still doesn't let the employer off the hook. That's costly and unfair. Ms Bowman uses the analogy of a household or flat where someone uses tons of power or racks up a big toll bill, where we take it for granted that the account holder is responsible. I think it should be more like getting caught on camera with a traffic violation, where you get the chance to prove you weren't driving your car at the time.

If there's one thing entertainment industry groups and consumer advocates like Tech Liberty can agree on, it's that the new(ish) file sharing law needs some tweaks.

However, the government says a substantive review of the file sharing law — and copyright law as a whole — won't take place until the controversial Trans-Pacific Partnership Agreement is signed. Negotiations for the controversial TPPA will take months or even years to reach their conclusion. Leaks from the secret negotiations reveal the US is pushing for a ban parallel importing and tighter geographic restrictions on online downloads (among many other provisions). The Americans are isolated in their position, but if they prevail, and NZ signs up, the government is quite correct to say our Copyright Act will need a major rewirte.

See more on this issue in "The War on Piracy Reboots" in today's print edition of NBR.

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Comments and questions

The war on internet piracy will be much like the war on drugs. The more you try and stop it the more you popularize it. Just look at what happened to The Pirate Bay - sure its founders got jailed and fined but the amount of people accessing the site (which apparently cannot be shut down due to it being easily cloned) now has gone up beyond all measure thanks to the court case.

The argument for piracy prosecution is a pretty weak one imho and really one rooted in a pre-21st century understanding of ownership.

Does piracy actually reduce the production or quality of content generally?

Is content being produced and consumed in record amounts despite piracy or because of sharing?

Anecdotally, if Avatar is the highest grossing movie of all time, and is also the most pirated movie of all time, is there actually a positive correlation between piracy and profit? Could it be causal?

Does piracy deprive content producers of anything they own?

Do (or should) content producers actually own the right to hypothetical sales that might've occurred had their content not been pirated?

Are industry estimated damages from piracy just wild guesses that would never materialise if piracy was actually stopped?

Can piracy be stopped practically?

Is a (foreign) content producers right to copyright protection more important than my right to privacy?