Analysis: First music pirate nailed under new copyright law

The Copyright Tribunal has made its first decision under the new file sharing law, siding with the record industry.

RAW DATA - Read the decision (PDF)

According to a decision dated January 29 and released this afternoon, an un-named customer of Telecom's internet service has been ordered to pay damages of $616.57 - $200 of which was reimbursement of application fees paid by Rianz and a deterrent sum of $360.

Rianz (the Recording Industry Association of NZ) took action on behalf of two of its members, Sony Music and Universal Music.It initially sent an infringement notice to Telecom on November 24, 2011.

The law allows for fines of up to $15,000, and in one action (ultimately dropped) Rianz sought $4675 for 11 songs it said were illegally downloaded.

In this case, the much lower penalty seems warranted. Only three songs were involved in the action - one per detection under the so-called three warnings or "three strikes" regime over an eight-month period.

In a letter from the defendant included with the decision, she says she accepts responsibility for downloading the first song, Rihanna's "Man Down" via a BitTorrent client (file sharing programme) called utorrent - although she had not been aware her actions were illegal at the time.

She did not know how another song, "Tonight, Tonight" by Hot Chelle Rae, came to be downloaded over he connection. "It was not done by myself or anyone in this household," she wrote. (An interesting detail, but not one relevant to her case give the file sharing law holds an account holder soley responsible, regardless.) 

The defendant subsequently had trouble deleting utorrent, which let to an inadvertent repeat download of "Man Down" - which constituted her third strike.

Rianz' loses "multiplier effect" argument
Notably, Rianz lost a "multiplier effect" argument - in essence, that because BitTorrent is a service for sharing files, so many more people among the 700,000 or New Zealanders it alleges use file sharing software could subsequently download the songs, compounding the financial damage (with the millions using file sharing, anyone who wants to access pirate content has no shortage of illegal avenues). The Tribunal ruled it simply could not be established how many downloads "if any" were enabled by the defendant's uploads (file sharing software being a two-way street).

Telecommunications Users Association head Paul Brislen told NBR he was glad the Tribunal had nixed the multiplier effect argument. There was no excuse to pirate music in today's market. But by the same token, he did not believe the download numbers put forward by Rianz, or the amount it claimed had been lost to the music industry (which now seems to be on the up

Rianz says a further 11 cases are in front of the Tribunal.

No sympathy for music pirates, but a bad law
NBR has no sympathy for people who steal music (movies and TV series are another matter - which is perhaps why NZFACT, representing the major Hollywood studios - has so far proved shy of sending any detection notices to ISPs).

Once upon a time, a moral argument could be made that many tracks were not available for commercial download. But today, iTunes NZ and other commercial avenues (including free streaming services Spotify and Pandora) offer New Zealanders.

But that does not mean every prosecution under the new legislation is just, or straightforward.

The file sharing or "Skynet" law - officially the  the Copyright (Infringing File Sharing) Amendment Act came into force in November 2011. It was introduced by Labour and passed by National. Despite the so-called "ultimate sanction" of internet disconnection being dropped*, it has has key flaws.

One is that it puts the onus of proof on the defendant. Apart from being a questionable principle itself, that also makes for an uneven fight. Rights holders will typically be far better resourced (although InternetNZ and Tech Liberty have swung in to help early defendants, aided by pro bono work from Baldwins). 

Another is that it holds an internet account holder solely responsible for any alleged piracy via their account - regardless of the account holder's level of technical competency or knowledge of who is using an account. That puts employers, leaseholders and parents in the gun for the actions of staff, flatmates and kids. Wi-fi network operators are another can of worms.

Confusion over who actually downloaded from a Wellington flat's internet account let to an earlier claim being dropped.

ckeall@nbr.co.nz

* Bar by an Order in Council - that is, a cabinet directive signed by the Governor-General


An interesting footnote: The new file sharing provision of our copyright law requires IPAPs (essentially, ISPs) to publish annual reports on their websites detailing their compliance. The first was due Dec 31 last year.

Tech Liberty has been surveying major ISPs and has so far found:

  • Maxnet - no complaints received and a very minimal report (bottom of page).
  • Orcon - received  234 complaints, sent 198 notices, received 16 challenges.
  • Slingshot (PDF) - received 473 complaints, sent 398 notices, received 14 challenges.
  • Telecom - takes a very minimal approach, just states it has complied. Telecom holds around 50% of the retail market. A briefing paper to cabinet in September last year said it had received 1238 notices.
  • TelstraClear (now owned by Vodafone) - received 818 complaints, issued 540 notices, received 25 challenges.
  • Vodafone - received 538 complaints, issued 350 notices, received 21 challenges.

As far as NBR is aware, all the infringement notices have been sent by Rianz. NZFACT told NBR it has sent zero notices - read: The number of infringement notices sent by the movie industry? None. Not a sausage.

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