Tech Liberty helped the defendant with her submission along with pro bono assistance from lawyers and Susan Chalmers at InternetNZ.
The defendant was a student in a flatting situation and was the account holder for the flat’s shared internet account. She has never used file sharing software and we had to explain to her what it was and how it worked. It seems likely that one of her flatmates had it installed.
The flat never received the first detection notice and they didn’t really understand the second warning notice. She did show it to her flatmates and asked them to stop doing anything they were doing. They denied doing anything, so she checked to make sure that their wireless network was properly protected by a password in case they had been hacked. The third notice was a mess – addressed to the wrong person, Telecom eventually withdrew it and replaced it with another one.
Then came the notice from the Ministry of Justice that action was being taken against the account holder. The defendant was very upset and worried, and contacted her local Citizen’s Advice Bureau for help, who put her on to us.
This sounds like a great example of an innocent person being caught up in the law – which I suspect is why RIANZ dropped the case – it would have made for a very bad poster child.
I don’t advocate that saying “My flatmate did it” should be an absolute get out of jail card, as the law would be pretty ineffective if you could just dodge liability that way. But I do think it should be a factor the Tribunal can take into account.
RIANZ claimed a total of $2669.25 in penalties. This was made up as follows:
- $1075.50 as the cost of the music.
- $373.75 to repay the cost of the notices and tribunal fee.
- $1250 as a deterrent.
The cost of the music was calculated as being five tracks (total number of notices) multiplied by the $2.39 cost of each track on the iTunes store. The observant may notice that this works out to $11.95 rather than $1075.50. RIANZ decided, based on some self-serving research, that each track had probably been downloaded 90 times and therefore the cost should be multipled by 90. There is no basis in the Copyright Act or Tribunal regulations for this claim.
A lot of us will be very interested in what fines are levied. For my 2c I think it should be something along the lines of twice the cost of the music plus the cost of the notices and tribunal fee for routine cases.
When we met the defendant she was very worried about the case and what it would mean for her. It caused her significant distress and preparing a defence interrupted both her studies and her part time job. The thought of a $2669 penalty weighed heavily on her and her plans for the future.
She immediately cancelled the flat’s internet account and her and her flatmates were from that point without an internet connection at home. Obviously this was not good for their studies, social lives or personal business (e.g. online banking).
The flatmates refused to acknowledge any responsibility or offer to pay any money towards the penalty. Relationships in the flat broke down and the defendant left the flat soon after.
There’s a lesson here. Don’t be the account holder for your flat unless you trust your flatmates not to do stuff which could make you liable.
The notices from Telecom had a number of technical faults, of which the main ones were:
- Telecom sent out an incorrect notice then withdrew it and sent out another. Even the corrected notice had some errors and used different infringement numbers and the whole situation was very confusing.
- The second and third notices did not specify which first and second notices they were following on from, as required by the regulations. This made working out the timelines very difficult.
- The corrected third and final enforcement notice was sent for an infringement that happened within the 28 day stand down period after the warning notice, which means it was not a valid enforcement notice.
The defendant did ask the Copyright Tribunal for a formal hearing which she intended to attend.
It is disturbing that a third strike was issued based on an invalid notice. You would think for the initial cases, RIANZ would be triple-checking the notices.