File sharing law: Three Telecom customers face penalties up to $15K

The Copyright Tribunal is set to hear its first cases under the new file sharing law.

Three people are accused of downloading pirated music. Each faces a penalty of up to $15,000.

A Ministry of Justice spokesman confirmed Rianz (the Recording Industry Association of NZ) lodged three separate claims with the Tribunal under the Copyright (Infringing File Sharing) Amendment Act (2011).

Telecom told NBR it had been told by Rianz that the three people involved were all Telecom customers.

A spokeswoman also flagged on the key issues with the Act - that an account holder, such as a parent or employer, is responsible for the actions of whoever uses their internet connection.

“This is a relatively new regime, and for customers proving just who has infringed copyright via file sharing networks within a household can be a challenge,” spokesperson Jo Jalfon says.

“Often the account holder is a parent but the person using the file sharing technology to upload or download material illegally is a child or even a guest. We are conscious of the need to educate all internet users and will be reminding customers of their legal obligations as well as offering to support the three customers in question.”

Making an example - but it won't work says InternetNZ
"What Rianz is doing is par for their course. The film and music industries have a long-standing pattern of 'making examples' of downloaders in the hopes that other users will modify their behaviour," InternetNZ policy lead Susan Chalmers told NBR.

"It never works."

Far larger fines than $15,000 have failed to modify behaviour.

"Take the example of Jammie Thomas-Rasset, a woman from Minnesota who at one point, in 2009, faced $1.92 million in damages for copyright infringement, payable to the Recording Industry Association of America, for having downloaded 24 songs. This did not deter downloaders," Ms Chalmers said.

InternetNZ does not condone piracy, but the new law introduced a lot of negatives into the internet ecosystem in Ms Chalmers' view "with very little to show for it, even for the rightsholders that successfully lobbied for the law."

What was downloaded? Rianz isn't saying
The applications follows a series of three infringement and warning notices under the so-called “three strikes” law.

A spokesman for Rianz said the group would make no comment ahead of the Tribunal hearings. Rianz represents both multinational and local record labels.

The spokesman declined to comment whether local or international artists were involved. The first round of infringement notices issued by Rianz (in November last year) involved downloads of music by US-based artists Lady Gaga and Rihanna - seen in some quarters as a public relations misstep.

A Ministry of Justice spokesman told NBR there was no time frame for the Tribunal to hear the first case.

The Tribunal was waiting for direction from its chairwoman, Victoria University law professor Susy Frankel. Ms Frankel did not immediately respond to a request for comment. 

The Justice spokesman said Ms Frankel's first step would be to work with the ISPs involved (or, as it turns out, just Telecom) to verify details of the three alleged sets of offences.

"Telecom’s takes the issue very seriously and will continue to work with both the Ministry of Justice and Rianz to comply with its obligations under the law," Ms Jalfron said.

Setting precedents
Thomas Beagle, head of lobby group Tech Liberty, which has been monitoring infringement notices, told NBR, “We're looking forward to seeing what happens at the Copyright Tribunal.

“We're hoping that we get some clear direction from them around admissibility of evidence and the level of proof required.

“It will also be very interesting to see what the awards will be.”

Lowndes Jordan partner Rick Shera said the penalty would depend on factors such as whether illegally content was available locally, and the frequency of offending.

Lobbying by InternetNZ, Tuanz and others saw internet disconnection withdrawn from the list of sanctions available to the Tribunal (although it remains a possibility if an Order in Council is signed off by the Governor General).

However, a second controversial element of the legislation – that the onus of proof is on the accused pirate – made it to the final version of the law. The three internet users about to face the Tribunal now face the sharp end of that decision.