The first three copyright infringing cases
September 4th, 2012 at 9:00 am by David FarrarTom Pullar-Strecker reports:
Record companies have asked for three Kiwi internet users to be hauled in front of the Copyright Tribunal and fined under the controversial “Skynet” copyright law for allegedly pirating music.
Previously the Recording Industry Association (Rianz) had limited itself to sending more than 2700 warnings to people it believed it had caught illegally sharing music through peer-to-peer networks.
There was surprise in July when it emerged the association had chosen not to take action against any of the first three internet users who had received third and final “enforcement notices” under the three-strikes regime.
But Justice Ministry spokesman Nathan Green confirmed that Rianz, which represents big labels, including EMI, Sony, Universal and Warner, had now bared its teeth by making an example of three others who had received their final notices.
“Three applications for an order requiring payment to a rights owner under Section 122(O) of the Copyright Act 1994 have been received from the Recording Industry Association of New Zealand,” he said.
From a policy point of view, I’m glad we now have some cases going to the Tribunal. It means we may learn what the Tribunal will regard as sufficient proof of infringement, what they regard as an acceptable defence (if one is offered), and what they regard as an appropriate penalty (within the legislation).
Related posts:
- No action for copyright tribunal
- Section 92a after six months
- The first copyright third strike
- The third copyright decision
September 4th, 2012 at 9:23 am
What saddens me most about copyright infringement is that the actions are brought by the record companies (or their representatives). The general claim is, of course, that there is IP that needs to be protected. It is not, unfortunately, about the struggling kiwi artist’s intellectual talent, but rather the record company’s bottom line. If anyone in the know has a clue as to what percentage of sales – that is, money sought to be protected by this very action – goes to the actual artist, I’d be keen to hear it. I bet it is absolutely miniscule.
Vote:September 4th, 2012 at 9:40 am
he he , dpf’s been hanging out for the first case.
Interesting , this comes on the same day it is reported Bruce Willis is thinking about suing apple who won’t let him pass his extensive music collection to his children when he dies.
You never ‘buy’ music from itunes, just the right to use. The right to use expires when you die.
Gone are the days of passing your music collection to your kids.
These music companies are as abusive as the pirates they accuse.
Vote:September 4th, 2012 at 9:41 am
What a fucking farce, government regulation being used to preserve an archaic and derelict business model.
Where is John Galt?
Vote:September 4th, 2012 at 9:45 am
Fixed
Vote:September 4th, 2012 at 9:48 am
Wreck1080:
My CDs will never get old or wear out, and when I die I am absolutely free to leave my John Eliot Gardner Beethoven 9th and my Jerusalem Quartet Shostakovich 8th to either my son, or my stepdaughter, or anyone else who I think would appreciate having them. They are physical things, and they are mine and I own them.
No-one’s forcing you to use iTunes
Vote:September 4th, 2012 at 9:54 am
RRM, a wise man indeed.
Vote:September 4th, 2012 at 10:06 am
There are property rights and there are “intellectual” property rights.
The former is a concrete concept that forms the basis of our society. It was there before there were governments.
The latter is an ephemeral concept that causes those who wish to promote it to seek the favour of governments and ask for special legislation that attacks citizens and puts them in front of kangaroo courts.
The internet has destroyed the recording industry just like cars destroyed the cart horse industry.
That is how commerce traditionally works.
These prosecutions are just the worst kind of government abuse, being as they are selective in their actions and who they prosecute. This is how tyrants operate.
If thousands have broken the law then thousands should be prosecuted.
Otherwise, the legislation is just being used to bully.
Vote:September 4th, 2012 at 10:15 am
Redbaiter,
I’m puzzled at the John Galt reference. Ayn Rand was for intellectual property rights as such rights, in her view, reflected value which was a product of the mind. Rand, after all, considered all wealth to ultimately derive from mental efforts rather than mindless physical exertion.
Vote:September 4th, 2012 at 10:16 am
Who listens (effectively downloading) to live or internet radio music daily? Millions and millions I’d say.
Vote:Go for it then all you recording studios, put your money where your mouth is.
September 4th, 2012 at 10:20 am
Copyright is older than audio recording and digital media. And it is one of the legal ownership rights that made it possible for people like Beethoven to earn a living and do his work in the first place; knowing that he could sell his writing to a publisher who wanted to pay money for the exclusive rights to print it (including the right to sue those who attempted to rip these works off.)
[I'm not so sure how I.P. worked for Shostakovich writing music under Stalin's rule... but the communists provided the oppression and misery that inspired him to do what he did; tough luck for him, but a windfall for us.]
The only problem we have today with copyright and I.P. is what people want to pay and what the record labels want to sell. Not the concept of copyright itself.
Vote:September 4th, 2012 at 10:42 am
RRM,
But what is the “concept” of copyright? Is it maximizing profits for media conglomerates or maximizing creative talent for the benefit of society?
Arguably technology has altered the dynamic in terms of how artists can be rewarded to give incentive to their efforts. Distribution is so cheap that illegitimate consumers take it upon themselves to distribute these works, albeit illegally. There is no need for the record shop. There is no need to ship physical recordable devices around the world.
Even production has become cheaper with very powerful virtual studios existing inside a desktop computer.
So what is the primary function of a “recording company” except to market creative talent? In this regard is it not conceivable that artists could earn a living simply through advertising attached to their product or a very small fee?
And if they can’t earn a living through that framework would anyone realistically expect their works to be widely shared illegally, or would anyone realistically expect large numbers of CDs to be otherwise purchased?
Vote:September 4th, 2012 at 10:52 am
Weihana- “I’m puzzled at the John Galt reference.”
Exactly why I made it.
I don’t agree with Rand, who I consider to have been mentally ill.
So called intellectual property rights are just convoluted bullshit, and attempts to protect them (through massive amounts of government legislation) result in serious limitations on people’s freedoms.
Just to remind you, that’s the basis on which you (Libertarians) object to the “war on drugs”.
Vote:September 4th, 2012 at 11:30 am
Redbaiter,
I disagree they are “convoluted bullshit”. Unfortunately copyright has come to be synonymous with a right for media conglomerates to make a profit, rather than as a mechanism to provide incentive to creative talent. The profits should be considered only as a means to an end, not an end unto itself and where those profits demand incursions into individual liberty and fair and reasonable access to content then the rights from which those profits derive should be reigned in.
Vote:September 4th, 2012 at 11:56 am
But why should they? A lot of artists want to make money out of their work, I don’t blame them.
Beethoven wrote his music, then being the good entrepreneur he was he organised a gala concert for the premiere, and hoped that ticket revenue would return him some profit after he had hired the hall and paying the orchestra.
THEN he sold the publication rights to the sheet music to a publisher, granting them the exclusive rights to print and distribute the printed manuscript in return for either (a) a one-off purchase price or (b) some form of royalty arrangement.
Strike out
“Beethoven”and replace with the 20th / 21st century outfit of your choice. Then strike out“publisher”and replace with “record company” and notice how the picture really hasn’t changed much in 200 years.Artists want someone they can sell their product to. Often a record company is a good someone they can sell their product to.
Vote:September 4th, 2012 at 11:59 am
Weihana, why don’t you address my comparison with your argument against the war on drugs?
Vote:September 4th, 2012 at 12:05 pm
Redbaiter,
I’m not sure of the comparison you are making in terms of the war on drugs. You’ll need to be a little more specific with your analogy.
Vote:September 4th, 2012 at 12:13 pm
RRM,
Why should society commit its resources to defending so-called “rights” that are not advantageous to society? That is my point. Society’s interests are in maximizing access to creative talent. Profits to artists (or rather to media conglomerates) are a means to that end, not an end in and of itself.
Agreed. But I think the current regime grants far too much power to those record companies which control the market at the expense of both the artist and consumer. Their business models are inefficient and require constant regulatory attention to limit individual freedom in a hopeless effort to make them work.
Vote:September 4th, 2012 at 12:31 pm
That’s a frightening attitude.
Ignoring individual rights because doing so supposedly benefits a lot of other people is really not a good way to be, and it doesn’t lead to a very nice society. Ask any Soviet musician painter or writer…
If society isn’t interested in defending someone’s rights to own the copyright to work they’ve written (or work they’ve paid good money to buy the copyright to) then why should we for instance be interested when a big employer like a Mill gets behind in paying wages to its workers? Why should we defend anyone’s rights at all?
Vote:September 4th, 2012 at 2:05 pm
RRM,
This argument is about what rights people (artists in particular) have. You are engaging in pointless circular discussion by presupposing the conclusion you should be attempting to justify.
I put it to you that “rights” are only valid if they are in the interests of society to uphold them. If they are not, then there is no rational basis for society to defend them.
I’m not arguing that there is no such thing as rights which attach to property, whether tangible or intangible. I am merely asserting that for such rights to be valid then it must necessarily be in the interests of society to uphold those rights. If upholding so-called “rights” is an exercise in self-flagellation then they are not “rights” to begin with. Soviet Russia failed because it failed to uphold rights which were in society’s interests.
Vote:September 4th, 2012 at 2:39 pm
RRM,
Just to be a little more specific, the types of things I would advocate are:
1. Downloading copyrighted material not for profit should not be considered an infringement. This is already the de-facto situation we are faced with as copyrights can be ignored easily with almost no fear of consequence. Profits are nevertheless still realized and would presumably continue to be so where official distributors have fair pricing, easy availability and guaranteed quality.
2. Duration of copyrights should be shorter than they are. The duration of copyright only needs to provide a realistic vehicle for investment. Profits 50 years later do not seem necessary.
3. The “inducement” theory should be abolished. The inducement theory discourages commercial development of technology that may be used for sharing information.
I believe this approach would reward artists, maximize availability, reduce prices and would assist the development of emerging technologies such as peer-to-peer networks and cloud storage which have so far been restricted by legal action.
Vote:September 4th, 2012 at 5:51 pm
Bet the three are TelstraClear cable customers. It is like shooting fish in a barrel when alleged illegal downloaders have static IP addresses.
Vote:September 4th, 2012 at 6:37 pm
peterwn – all three are Telecom customers. Last time I checked was not that easy to get a static IP on Xtra.
Also, static IP when shared amoungst many (say a student flat), would be hard to prove which individual downloaded the material. It may not be the account holder.
Vote:September 4th, 2012 at 7:59 pm
“If anyone in the know has a clue as to what percentage of sales – that is, money sought to be protected by this very action – goes to the actual artist, I’d be keen to hear it. I bet it is absolutely miniscule.”
I believe the artist receives about US10c per song per CD sold, and the executive producer gets the same. I’m not sure how it works with I-tunes etc, but the distribution costs would be mostly eliminated. Production and promotion costs would be about the same, one would think.
The reason that a CD is so expensive to buy in the shops is that the fixed costs are the same for a commercial CD release that sells millions and one that sells no copies at all, which is most of them. The few successes pay for the cost of the many failures.
The real money for a rock & roll artist is in packing out stadiums, NOT in CD sales. A distribution company executive (If I remember correctly) once remarked that a CD is nothing more than a business card you are lucky enough to be able to sell.
Bill.
Vote:September 5th, 2012 at 8:17 am
coventry – Yes, I saw that after I posted. A student flat sharing a TelstraClear cable modem would have one static IP address and one account holder ie the person whose name the account is in. It is that person who is on the sharp end of any action even if he personally did not download any infringing stuff. And there cannot be stray modems as the cable hub only recognises TelstraClear owned modems whose MAC codes are on the database.
Vote:September 5th, 2012 at 2:43 pm
When you download something illegally, be it for personal use only, you still make a small profit, it being the money you would have had to otherwise spend to acquire a legitimate copy. This could grow to a considerable profit if you were to download a large number of items. Of course, there is the argument that, even had you not been able to download these items, you would not have purchased them legitimately. Which is irrelevant. Theft is theft.
Vote: