The third Copyright Tribunal file sharing decision, released late yesterday, traces similar themes to the first two - despite each case being heard by a different Tribunal member, and none of the decisions referencing each other.
RAW DATA: Read the decision
The Recording Industry Association of NZ (Rianz) sought $3931.55 from a person it said pirated two songs from two EMI* acts: Cold Play's Mylo Xyloto and Elton John's Daniel (as in the first two cases, only two songs were involved, with one downloaded twice).
But as with the first two awards, the Tribunal ordered a much lower amount be paid: $797.17.
And, again, most of that some was in the form of deterrent penalties; in this case, $180 per track.
On his company blog, Lowndes Jordan partner and intellectual property specialist Rick Shera wrote, "As with the first two decisions, the Tribunal is left with what appears to be a gut feel assessment of what deterrent penalty should be awarded."
No multiplier affect
Another constant: as with the first two decisions, the Tribunal rejected Rainz' argument that a multiplier effect is in play. That is that file sharing software also allows for songs to be uploaded multiple times, compounding damage to rights holders. Again, the Tribunal said there was no evidence this had taken place.
File sharing legal as of itself
A final common theme: Mr Shera notes the decision is a "Clear affirmation that file sharing networks, of themselves, are not illegal."
As a member of the small army of lawyers drafted to scrutinise Kim Dotcom's new service Mega, it's not surprising Mr Shera picks up on this point (he points out he has clients on both sides of the copyright debate).
Still, it's a point worth making. Employers are responsible for the actions of their employees under the Copyright (Infringing File Sharing) Amendment Act. And while a blanket workplace ban on file sharing software might appeal, it's also not practical at a time when cloud services like Dropbox are are runaway success with business, and the likes of Intel alumnus Andy Grove are touting peer-to-peer file sharing's corporate potential.
One difference: no response from defendant
Speaking to NBR ONLINE, Mr Shera did note one difference in the third decision: The accused didn't respond to any of the three notices.
Under Section 122N of the Act - the "presumption of guilt section" as Mr Shera and other legal critics call it - there's no requirement for a rights holder to even prove the defendant actually even received the notices.
Mr Shera notes the section's language implies quite a low threshold for shifting the onus of proof onto the rights holder.
However, we've yet to see a precedent-setting decision on this front.
Tech Liberty's Thomas Beagle notes Rianz - which dropped a case where his lobby group, InternetNZ and lawyer Kate Duckworth (then with Baldwins, now with Catalyst Intellectual Property) swung in to help a defendant. Mr Beagle says the music industry group doesn't appear to have a taste for defended hearings.
"Will not make Rianz happy"
All up, Shera reckons the decision "will not make Rianz happy I wouldn't think."
A rep for Rianz said the industry group had no detailed statement on the decision.
But he did tell NBR ONLINE, "We think the decision is a good one and sends a message that if you illegally share files and are caught you can expect a fine. This particular fine would have bought the respondent five years of Spotify premium service. Why bother to illegally share music?"
NBR agrees, though also notes Spotify only launched in NZ after the offending started; rival Pandora launched locally in December.
* EMI was bought by Universal Music in September last year
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