Third file sharing decision sees another small damages award

Elton John

KeallHauled

Chris Keall

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.

"Gut assessment"
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

ckeall@nbr.co.nz

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12 Comments & Questions

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This is getting ridiculous. When will someone wake up and give these poor foolish and clearly ignorant victims a decent legal heads up and maybe a bit of pro bono so rianz can be given the well deserved smacking the smart alecs deserve.
Justice - bah !

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Dear Anonymous - it seems that RIANZ will withdraw from any case where someone tries to defend themselves and asks for a hearing.

I also question Chris's description of a $797 penalty as being small. Yes, it's not as insane as the US style penalties are, but I'd say nearly $800 is actually a pretty hefty penalty for many many people.

You could also ask how it compares with real crimes - one where you've actually got a hope of defending yourself.

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Hi Thomas,

Agree $797 is a lot of money to most people, and many will see it as a still penalty for downloading two songs.

The context for the "small" description is that $797 damages was much smaller than the $4K Rianz sought.

CK

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Copyright infringement is a 'real crime'.

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Pirating music is wrong; more so when there are so many low-cost commercial services like iTunes, and free streaming services like Spotify and Pandora.

But this is a bad law.

Presumption of guilt is a bad legal principle at any time. It's particularly poor in the case of the file sharing law, where you've got under-resourced, poorly informed defendants up against the well-oiled Rianz (or NZFACT, representing the Hollywood studios, should it ever abandon its stubborn no infringement notice stance).

And holding an internet account holder responsible for the actions of anyone who uses their connection (family members, flat mates, employees, random hotel guests) is a bad principle, unjust and impractical. How many small business have the time and money to actively monitor security software, and every gadget that connects to their network? (A blanket ban on file sharing being senseless in the age of internet computing)

The almost surreal level of technical ignorance displayed by most politicians during Parliamentary debate over this law (introduced by Labour and passed much modified form by National) meant it was always going to be a poor piece of legislation, and it is.

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Superb summary

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Chris, I agree with everything you have written. Sadly, however, some people do not consider pirating music as wrong. Labeling it as not a 'real crime' seeks to denigrate the significance of the offending. (I would guess it is not technically a 'crime' - more of a civil offence like a parking violation.)

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Interesting that that you infer this copyright stuff should be compared to real crimes ... where a person can represent themselves or have a representative in an open court (usually) and face the accuser, introduce evidence, have it examined, etc.

Whereas in this instance the identify of the infringer is totally unknown, he/she/they can sit in their home in complete anonymity and enable the *upload* of copyright protected music to other users in the "swarm" with little recourse by the rights holder ... until now.

This does not even take into account how many games, movies, TV shows, books, pieces of business software may have been infringed also by this same unknown person.

It is against the law ... end of story.

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The quality of songs that comes out these days who would want to download them let alone listen to them.
There has been a lost generation of good music because of underperforming music executives

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Intrigued at how RIANZ manages to detect the downloads. Are the tracks involved in these prosecutions bait that were uploaded by music company interests in the first place?

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All this makes Kim.Com look the pillar of innocence! Extradition ?? No chance!

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Oh, the irony of "stealing" from Cold Play who hate the capitalist system but are quite content to live off the benefits they get from it.

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