I’ve been supplied a copy of the submission made by RIANZ seeking $4,675 from a woman for file-sharing 11 songs!! This is $425 a song.
RIANZ dropped the prosecution after the woman’s lawyer pointed out she had never received any of the three notices required under the Copyright Act (detection, warning, or enforcement). None of these were sent to her billing address – the ISP (Slingshot) just sent them to the e-mail address that was established with her account (which she had never used or accessed or has a password for). So the first she knew of the issue was when she received the tribunal proceedings seeking $4,675, which is $425 a song.
It is good RIANZ dropped the prosecution when they become aware that she had never received the notices. Of course, they risked losing the case if they had proceeded. But regardless what is concerning is the amount of damages they were seeking.
The cost of each song is $2.39 and the Copyright Act says that should be what damages are based on. RIANZ however construct a hypothetical scenario saying they think each song would have been downloaded by 90 other people, while she made it available for upload (note she didn’t even know that bittorrent software made it available for upload – she thought it was just a downloading tool) and hence she should be fined for the estimated 90 copies other people may have uploaded. I’d be very unimpressed if the Copyright Tribunal starts handing out penalties on the basis of hypothetical ratios of possible uploading – rather than on the actual evidence of any infringing. Her lawyer says this would be penalising her on the basis of assumed or hypothetical activity, rather than established fact.
RIANZ use their hypothetical maths to say she should pay $1,175 for the songs, but then claims that is not a sufficient deterrent! They seek an extra $3,500 on top of that.
The lawyer for the woman pointed out that $425 per song compares to the following:
- $500 + $133 court costs for the average first time drink driver (20% over)
- $500 + court costs for the average driving while disqualified
- $500 + court costs for the average common assault
- Diversion and a $200 donation to charity for first time cannabis use
The lawyer submitted that an appropriate fine, if she was found to have infringed is $315 which is $30 a song approx. This would cover the filing costs for RIANZ and the cost of the songs if purchased.
This case was dropped, but eventually RIANZ will manage to find a case which isn’t so flawed that they have to drop it. It will be interesting to see how the Tribunal rules on their heroic attempts to seek punitive damages based on hypothetical additional infringing.
The RIANZ submission is below.