Copyright Tribunal case withdrawn

October 22nd, 2012 at 9:00 am by David Farrar

blogs:

The has withdrawn one of the first three cases to go to the Tribunal. The withdrawal happened after all submissions had been made but before the formal hearing at the Tribunal.

Tech Liberty helped the defendant with her submission along with pro bono assistance from lawyers and Susan Chalmers at InternetNZ.

The case

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:

  1. $1075.50 as the cost of the music.
  2. $373.75 to repay the cost of the notices and tribunal fee.
  3. $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.

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17 Responses to “Copyright Tribunal case withdrawn”

  1. niggly (816 comments) says:

    Why on earth would someone in a flat, download 5 tunes “probably” 90 times each? Also seems like RIANZ didn’t know for sure when they use words like “probably”, but even still “90” times? I think RIANZ need to get their heads out of their collective arses especially as there was “no basis in the Copyright Act or Tribunal regulations for this claim”.

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  2. MD (62 comments) says:

    The 90 times relates to the use of file sharing programs, i.e. they not only downloaded the songs, but made them available for others to then download from them. It’s an unsubstantiated estimate of damage, that should have no place in a legal proceeding. It will be interesting to see how the tribunal rules on this aspect as the cases progress. Notably this is the sort of calculation used to support the multi-million dollar judgements against file-sharers overseas.
    http://en.wikipedia.org/wiki/Sony_BMG_v._Tenenbaum

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  3. niggly (816 comments) says:

    Thanks, also was it proven that one of the flatmates was using a file sharing programme? And if so, couldn’t Telecom then isolate i.e prove which one was the offending file sharing computer (eg via IP address or mac address), seeing they were going to all this effort to prosecute?

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  4. labrator (1,893 comments) says:

    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.

    That’s just not practicable. Most service providers will not divy up an account between multiple account holders so the accounts usually get allocated to a flattie each. If you don’t trust other people with the internet the only way to get more than one internet connection would be with additional phone line which is again unworkable. Your only other option would be individual mobile data accounts.

    What other service providers can put you into liability for the use of their product without knowing who used the product illegally? The account owner doesn’t get taken to court if someone uses their electricity for torture, the torturer gets taken to court for torture. Since RIANZ didn’t know who was downloading the songs, how did they know the recipient didn’t actually own the CDs? I’ve downloaded songs before as it was quicker than ripping them as they were in storage.

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  5. Viking2 (11,348 comments) says:

    And was the young ladt compensated in any way for the wrongful issue of notices, the legal and time costs that she incurred.
    I can just bet without looking that there is no clause in the ACT that requires that kind of recompense. (Just like most laws in NZ.) All law should have that bulit in. Would stop the constant use of the Law to penalize kiwi’s. The police are good at it you will recall.

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  6. Archer (200 comments) says:

    Could be a case here that whoever had a shared internet account in their name should be installing a program to log what data is going to each computer, then it can be pin pointed which flatmate (or whatever) is responsible. Wouldn’t work if everyone shared one computer though.

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  7. davidp (3,574 comments) says:

    I used to receive infringement notices for the Aussie state government I used to work for, since my name and e-mail address was listed as the contact for the state government IP address ranges we owned. In my experience, the badly presented “evidence” described here is about typical for the recording industry. We had infringements with IP addresses that weren’t allocated to any device, IP addresses that traced to computers that didn’t have P2P software installed, dates that were ambiguous because they might have been in US mm-dd-yy format, contact addresses and telephone numbers that might have been in the US but committed the country and country code, and references to US legislation.

    The purpose of these infringements seemed to be to harass. That was no problem for me, since I had a state government standing behind me and I could even afford to take the piss with some of my replies, asking for instance why they thought US legislation applied to a .gov.au organisation. But this harassment seems to have forced the young women in the article out of her home and caused her some degree of stress. In an ideal world, she would sue RIANZ for the damage that they have caused. There needs to be some penalty for malicious prosecution, because in my experience most prosecutions under this act will be dodgy and malicious.

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  8. thor42 (971 comments) says:

    I agree with Viking2 and davidp.
    Penalties for malicious prosecution AND (when a defendant is found “not guilty”), recompense for the inconvenience and stress caused (and I’ll bet there was a sh*tload of both in this case.).

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  9. Viking2 (11,348 comments) says:

    yep, another case of legislated power without reponsibility.

    and you could ask what compensation RIANZ paid the NZ taxpayer for the time and costs we incurred.

    Another continuem of this case is it not.

    Entrepreneur tells party guests about his extradition battle and vows to win it.
    Kim Dotcom speaks to guests at the party at his mansion. Photo / Supplied
    Expand
    Kim Dotcom speaks to guests at the party at his mansion. Photo / Supplied

    Kim Dotcom has held the first party at his mansion since his arrest, telling 100 entrepreneurs that the case against him was hurting New Zealand’s economic success.

    In a half-hour speech, Dotcom spoke of his fight against extradition to the United States on charges of criminal copyright violation and his business plans for the future.

    The story – from teenage hacking exploits to current struggles – earned applause from guests asked to sign confidentiality agreements. Guests included Slingshot founder Annette Presley, bankrupt property developer Andrew Krukziener, “botox queen” Dr Cat Stone, and socialite and marketeer Gilda Kirkpatrick. Dotcom invited the Herald to attend.

    The party was organised by the New Zealand chapter of the international Entrepreneurs’ Organisation.

    The mansion at Coatesville, north of Auckland, estimated to be worth $30 million, has not hosted a party since police raided it in January to arrest Dotcom at the request of the FBI.

    Dotcom has forged relationships in the business and society communities, mentoring small business projects through knowledge and networks.

    He spoke of his early entry to computer hacking after getting his first computer aged 11.

    “It gave me an enormous kick. It became very addictive to go into these places and learn things you’re not meant to learn.”

    He detailed his hacking-related arrest and subsequent insider trading charge – convictions which were wiped under Germany’s “clean slate” law – before talking about how Megaupload came to be created.

    He said the backdrop to the January raid was Hollywood’s lack of success in getting laws passed which would have unreasonably interfered with the freedom on the internet.

    http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10842063

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  10. dion (95 comments) says:

    We have Simon Power to thank for this. It’s his legacy.

    [DPF: Simon put through this much watered down version. A far far more oppressive version was passed in 2007]

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  11. OECD rank 22 kiwi (2,829 comments) says:

    Was this Judith Tizard’s original love child?

    Persecuting everyday New Zealanders is totally worth it though because we got that free trade agreement with the USA right? :roll:

    Two thumbs up from Kim Dotcom!!

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  12. Pauleastbay (5,035 comments) says:

    If you like older music rather than the latest stuff released last week in some cases its cheaper now to buy the CD at a store.

    Yesterday at JB Hi Fi I purchased a pack of three “Little Feat” albums for $14.95 – There was another pack there of 5 Radiohead albums for $16.95. There were other selections there that werent me but if you have time to wander at Groovey or JB etc music is bloody cheap and by buying the CD you get all the bits that you miss on compressed versions.

    The music industry will never ever catch up with the file sharing because its run by dinosaurs who are there for the money and not the music or the artist

    The sooner artists start releasing more directly to the consumer and cutting out the corporate the better it will be for everyone.

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  13. tristanb (1,133 comments) says:

    Archer (44) Says:

    Could be a case here that whoever had a shared internet account in their name should be installing a program to log what data is going to each computer, then it can be pin pointed which flatmate (or whatever) is responsible.

    No fucking way. Why should anyone have to install software on their computer to monitor what their flatmates do?

    No-one should have to worry about defending personal use of pirated MP3s, except for the recording companies. Why is this suddenly our problem? Why are our taxes, our police and judicial time being wasted on MP3 downloaders.

    It’s disgusting that this government implemented this, under urgency, in the shadow of the Christchurch earthquake. It’s slightly watered down from Labour’s version, but still it was unnecessary. We need to get rid of this law.

    Those responsible for implementing it need to know what the public think of it.

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  14. Redbaiter (8,306 comments) says:

    What is the actual offence here?

    People are sharing files. So what? If I buy a CD or a Video or a DVD that item then belongs to me and I can do with it as I wish.

    I’m not in favour of using government legislation to protect the oversized pay cheques of the bunch of (mostly) Obama loving propagandizing Marxist scum we saw in this list yesterday-

    http://www.kiwiblog.co.nz/2012/10/the_highest_paid_tv_actors.html

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  15. labrator (1,893 comments) says:

    The sooner artists start releasing more directly to the consumer and cutting out the corporate the better it will be for everyone.

    Bingo.

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  16. dion (95 comments) says:

    > [DPF: Simon put through this much watered down version.]

    True. But that doesn’t change the fact that a National justice minister (a centre-right party that stands for individual freedom and choice) passed a law that allows private companies to haul a law-abiding person in front of a tribunal for activities that supposedly took place on her home network. A process in which she’s considered guilty until proven innocent.

    The fact that the Tizzard iteration was worse isn’t an excuse – increasing the size and power of government is one of Labour’s stated goals. Last time I looked it wasn’t one of National’s.

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  17. thomasbeagle (78 comments) says:

    Niggly – one of her flatmates did admit to have a P2P file sharing program installed but still denied it was her. However, Telecom can’t see what’s happening behind the internet router – i.e. they can’t differentiate between the users in the flat. This is because domestic internet connections use NAT (network address translation) which means everyone uses the same internet IP address.

    labrator – RIANZ accused her of sharing files available to others, not downloading them in the first place. Of course, this tends to be the default setting of any file sharing software (to both upload and download).

    viking2 – RIANZ withdrew the complaint but that doesn’t mean that someone in the flat didn’t do it. There’s just no way to tell if RIANZ are correct/telling the truth or not in their accusations.

    archer – I don’t know of any monitoring software that can tell the difference between one flatmate sharing a legal Linux ISO and another sharing a copyright infringing song.

    davidp – at least the law/regulations in NZ do specify a reasonably good set of data that must be included in the notice (and the format it must be in). Of course, none of the notices I’ve seen have fully complied with the law yet…

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