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Second file sharing decision sees father fined after sons - one just 8 - download pirated music

NBR ONLINE has obtained the second decision under the new file sharing law, which is published in full for the first time below (see RAW DATA end of story).

It sees a 50-year-old father ordered to pay $557 after his sons downloaded pirated music tracks (Coldplay's Paradise and Kesha's We R Who We R).

One son is 12, the other just eight years old.

All names are suppressed.

Rianz (the Recording Industry Association of NZ, representing EMI and Sony Music in this action) had asked for $1681 in damages. The Copyright (Infringing File Sharing) Amendment Act allows for maximum damages of $15,000.

Again, NBR sees no excuse to pirate music at a time when iTunes and other services offer low-cost downloads for almost any song, and the likes of Pandora and Spotify offer New Zealanders free (ad-supported) music streaming.

But, like the first decision, the second graphically illustrates two drawbacks of the new copyright law.

One, that an the holder of an internet account is responsible for the actions of anyone who uses that account. And while it's a father, but it could equally be an employer or, say, a hotel or motel owner.

Second, the onus is on the accused to prove their innocence - a bad legal principal, and something that will lead to many a mis-matched fight as under-resourced punters go up against record labels and (if they ever get their act together) movie studios.

Multiplier argument shot down, again
In the first decision, Rianz asked the Tribunal to consider the multiplier effect. That is, that although just two songs were downloaded (one of them twice by mistake to constitute the offender's "third strike"), file sharing software meant they could also be uploaded to the internet and shared many times. The Tribunal said it could find no proof that was the case and went with lower damages than those requested by Rianz.

Again, this argument was rejected.

Computer illiteracy no defence - or is it?
Tribunal member Warwick Smith writes in the second decision that the defendant claimed there was "very little computer literacy" in the household.

However, he rebukes, "It appears there was enough at least enough computer literacy to locate and install the BitTorrent application [software used for file sharing]." The defendant was given two chances to uninstall it after receiving warning notices in November 2011 and June 2012 before the third strike warning (in August 2012) put him before the Tribunal.

Well, maybe. But some will wonder if the 12-year-old was BitTorrent-savvy, but the father was ignorant of how files were being shared. It's a messy situation, but not unexpected given many MPs displayed a poor grasp of file sharing as the legislation was debated.

Catalyst Intellectual Property partner Kate Duckworth tells NBR ONLINE she sighted the notices sent to the Telecom customer involved in the first file sharing decision. She says they were confusing.

"People don’t understand that files can be automatically uploaded from your computer if you have file sharing software installed. Some people don’t seem to know they have the software installed on their computer, and that music can be automatically uploaded by others," Ms Duckworth says.

Ideally, infringement notices would educate people. 

But the notices are sent by ISPs who are already fuming about the cost of the law and who, in Ms Duckworth's view "are doing the minimum to comply."

Why are these people being targeted?
I'm at a loss as to why the music industry's first two cases targeted people who downloaded just two songs by multi-national artists.

I'm no PR expert, but surely Rianz would be better off targeting someone who had pirated local artists en masse? 

Another mystery: if film piracy is such a problem, why has the movie industry failed to send a single infringement notice (more on that one here).

RAW DATA: Read the full decision.

ckeall@nbr.co.nz

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Comments and questions
23

Let's see how the numbers are stacking up...$250K to get a $616 fine, and presumably a like amount in this instance. At this rate RIANZ is going to have to tweak their model just a hair, 'cos they're not going to make up for the margins on volume.

I guess Rianz could argue it's money well spent for the deterrent effect from the first two cases, which both have a we'll-come-after-anyone feel. 
 
But certainly it would be easier to sell its actions to the public if it went after people who were downloading songs en masse, or ripping off Kiwi artists.
 
I'm interested what Rianz boss Chris Caddick has to say on these points, and others raised by myself and readers. NBR has a standing invitation for Mr Caddick to appear in an Ask Me Anything session, and I'm sure he'll relish the opportunity to put his case directly to readers at some point soon.
 
I don't know how much Rianz has spent, but it must be well north of $75,0000 (the cost of sending 3000+ notices during the act's first 12 months; see figures bottom of NBR's first file sharing decision story here: www.nbr.co.nz/opinion/first-music-pirate-nailed-under-new-copyright-law). 

May I also remind Warwick Smith that the installation of Bittorrent or other P2P applications does not prove intent to infringe. I use torrents whenever possible to legitimately download software distributions in a fraction of the time it would take to obtain them using client/server protocols.

Great point!

This strikes me as an opportunity for Universal Studios, etc to test this type of control over file sharing as NZ is just one big LAN. I'm no expert, but I imagine this would be impossible to 'police' in a larger country with more than one pipeline supplying internet.

This is just crazy, I thought the whole idea of this was to target those people who profited from redistributing copyrighted material, or those that were doing it en-mass...hitting up a father whose 8 and 12 year old sons downloaded something is like fining him for one of his kids taking a piece of candy from the self serve at the local supermarket. I'm surprised a little discretion wasn't used here?
If this continues I think the days of wifi being offered as a value add service to customers may become a thing of the past.

The problem is that RIANZ lacks the technical ability and resource to catch sophisticated large-scale offenders. Wider internet discussions suggest that anyone who engages in large-scale piracy has various methods available to them (sometimes involving paying for secure services) to avoid being caught. E.g. renting a secure box somewhere overseas, which they download to and then transfer the files from to their computer in New Zealand. These are the kind of offenders RIANZ would like to stop, but I doubt they can.

This highlights yet another problem with the Skynet law: it is ineffectual against large scale offenders, leaving only the small fry to go after and intimidate. That being the case, what's the point RIANZ?

iTunes is very popular, as are other services such as Spotify etc. Why waste money prosecuting small fry for peanuts when that money could be used on marketing and education campaigns promoting available music services, or bundling initiatives (with ISPs) looking at unmetered locally-hosted streaming music services (i.e. a NZ music internet radio station).

"...is like fining him for one of his kids taking a piece of candy from the self serve at the local supermarket".

But you would expect the father to explain why taking the candy was wrong wouldn't you? If you then went back to the supermarket and the child did it again you'd expect the father to warn the child again that it was wrong? What if the supermarket saw it happen both times and on both occasions reminded you that it was against the law to take things without paying for them. When it happened a third time you'd probably understand the supermarket taking its own remedial action in light of the fact that the father seems unable (or unwilling?) to control his children.

Good point, but we also have to come back to the practical problems with the law. How do you know what what everybody in your family/flat/workplace/hotel is doing with their internet connection? And remember that file sharing software is not illegal in itself, and has legitimate uses.

I agree the law needs refining but I don't think it's necessarily a case having to know what people are doing with your internet connection. It's more a case of agreeing with the people using your connection what is acceptable to you as the account holder. In the case of children you can't know what they are doing all the time (on or off the internet). However you can influence how likely they are to be doing something of which you find unacceptable. Similarly you can't know your flatmate is not stealing from your room every time you go out but you assume this to some certainty because of a shared set of values (unless they are a scumbag obviously). The law as it stands has the default position of the account holder being responsible for the connection. Whatever your view on this, the first thing I would do on receiving a notice would be to talk to everyone who had access and explain I would not tolerate a second notice (with explanation of subsequent consequences). In the case of hotels/public wifi it may be more of a case of registering to access it and the law changing to reflect a user by user infringement. This happens if you get a speeding ticket when hiring a car - the hire company are not liable. I can't see why the strikes cannot be held against an individual in these cases.

I wonder if it would be any different if after the first or second notice, he could prove he had the offending software removed and his kid reinstalled it without his knowledge.

Claiming ignorance is fine but with 2 notices, he should have showed he had taken some action. Hard to be blamed for others actions if you take reasonable steps.

It would not have made any difference. Technical ignorance is no excuse. Neither is ignorance of how your staff/family/guests are behaving - for example, by reinstaling file-sharing software without your knowledge.

And bear in mind that blocking file sharing services costs employers time and money, and can also block Dropbox and other legitimate cloud computing services used to share files.

I didn't know how to stop other people from installing software on my computer. I do now. It took me less than a minute to find out (and in laypersons language).

Perhaps RIANZ will replace Telecom as the most hated NZ brand?

Not if Rianz managing director Chris Caddick fronts up for an NBR Ask Me Anything session, and explains his industry's position to readers.

OK, the law is dumb. On that everyone can agree.

But even if you are not computer literate, it is not hard at all to find ways to restrict your tweens from installing stuff on your computer.

Any sane parent would have given the kids a stern warning after the first notice. After the second notice computer access priviledges removed except when supervised and, having read some of the many articles written in laymen's language about the law, torrent software found and removed.

Problem solved. No third notice.

Just smacks of laziness on the part of the parent rather than ignorance.

Are the notices emailed or posted by snail-mail? Would it be possible for a parent to not be aware the notices had been served? There's enough kids keeping their year-end reports so hidden the parents don't know about them, so is there anything to stop a savvy tween from similarly hiding this sort of notice?
Just wondering...

Anyone who listens to Kesha should be fined...

After reading the decision, I don’t understand why this article has a negative tone. At paragraph [18] of the decision, it states that the father acknowledges he should have tried to stop the infringement after receiving the first or second infringement notice:

“The Respondent went on to say that he has removed BitTorrent from his computer, and does not now have any file sharing application on it. He said that he now realised that he should have done that after either the first or second infringement notice had been received, and that he was sorry for not having done so.”

It therefore looks like the father turned a blind eye to the first two infringement notices and paid a penalty for doing so.

So the image of laid-back friendly Kiwis isn't a true one.
Is it a country were you pursue and fine miner file sharers on the internet?
Keep it up, it might catch up with you one day.
Tourism will drop and kiwifruit won't be called kiwis again.

NZ lover

Chris,

Thanks for the detailed coverage that you have been giving to this issue, including providing links to the actial decisions. Much appreciated.

Mr Keall. Your summary and comments are entirely reasonable.
This second case is again an injustice. I have little interest in the music industry but it seems from afar that it is a corrupt and hugely profitable business that uses bully boy tactics to dominate their rorts and greed. EMI and Sony will be brands I will remember to avoid from now on.

It should be pointed out that one of the major excuses given for the creation and passage of the bill/law was to act as an informative and educative process to the public on copyright generally and the legality/morality of illegal filesharing/downloading specifically and provision of info on how to check and harden your systems to remove the possibility of being charged for unknown and consequent infringement...
This was supposed to be provided both publicly and with each infringement notice...
Can't see any sign of that happening either generally or in a effective manner alongside each notice...
Instead, as indicated in submissions, it's used to persecute minor infringement edge case folks who don't know any better...
Women and children in these two cases.
RIANZ and the tribunal members must be very proud of themselves...

New Zealand has become a nanny state, over burdened with ill-conceived legislation that punished good people.

Anit-smacking, legalised prostitution, anit-file sharing, flatulence tax on farmers. All ridiculous side shows. Please deal with the big social issues NZ government, (child abuse, family violence, child poverty) not this trivia.