RIANZ sought $4,675 for 11 songs

December 3rd, 2012 at 10:00 am by David Farrar

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.


Copyright Tribunal case withdrawn

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

Tech Liberty blogs:

The RIANZ has withdrawn one of the first three cases to go to the Copyright 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.

Campbell Smith on s92A

March 9th, 2009 at 6:33 am by David Farrar

Campbell Smith of RIANZ has a column in favour of s92A in the NZ Herald:

New Zealand was at the forefront of tackling the issue with a law that had received bipartisan backing.

Indeed. The Select Committee unamiously agreed to take s92A out of the bill, and then it was inserted back in supported by all parties bar the Greens and Maori Party. And since then every party in Parliament has backed to some degree away from the law calling it flawed.

The recording industry has transformed its business models, making music available online and on mobile through a variety of different partners. Yet the widespread availability of unlicensed music on the internet acts as a disincentive to those considering setting up legal services.

Things have got better. I remember the days when it was illegal to use an iPod in NZ, because format shifting was illegal and iTunes was not available here.

I think there is still some way to go. A monthly subscription fee to be able to legally download popular music seems to me to be part of the future.

The recorded music industry has been working hard to find proportionate and reasonable solutions to tackling online copyright infringement. In some countries, labels have taken legal action against users who have uploaded infringing music to the internet without permission for millions to download without payment. We believe section 92A is a better solution for everyone.

It isn’t a binary choice.

Some people have suggested the new law would mean people keeping tabs on what internet sites people visit or monitoring people’s email. That is not true.

I suppose it is possible some people have said this. But it is a bit of a red herring. I’m never heard anyone seriously suggesting this – certainly not any of the key groups or individuals opposing s92A.

Others suggest that under the draft code of conduct designed to implement the law people will be summarily thrown off the internet for downloading a couple of unlicensed files. That is also not true.

This is right – it needs at least four files.

What would happen is simple. Right holders could log on to public file-sharing sites, just as anyone can, and note which IP addresses are being used to upload pre-release music or films or large amounts of copyright-infringing material.

They would then prepare evidence, complete with details of the names of the copyrighted files being uploaded, exact timestamps and the protocol used, and send it to the relevant ISP. They would never see the personal details of the person behind that IP address.

The ISP would then contact its user and warn them that they were breaking the law, advise them not to do it again and provide details of where to enjoy music legally online.

If the user kept breaking the law the ISP could close the internet account.

It is not a matter of “could” as “must”. And the problem is Campbell sees copyright as only being about music files.

I’ve just quoted most of his column here, so I can respond to it. It is arguable I have breached the copyright of the NZ Herald and/or Campbell. I have a defence of fair dealing, but you know I don’t want my blog to face closure because my ISP has to decide whether or not the amount of text I quoted was “fair”.

I agree with the proposition that users should be able to flag to an independent adjudicator anything they regard as mistaken evidence. This is no sledgehammer. On the contrary, it is a reasonable and much preferable alternative to the lawsuits we’ve seen in other countries.

And this stance is welcome. I must point out that their previous stance was RIANZ itself would adjudicate any disputes, where RIANZ is the complainant. That is what so many people were against.

Recording Industry Plans

June 11th, 2008 at 2:55 pm by David Farrar

I got sent this press release today, which I thought deserved a wider audience.

RIANZ Discloses Future PlansWELLINGTON. Recording Industry Association of New Zealand (RIANZ), the organisation representing major and independent record producers, distributors and recording artists throughout New Zealand works to protect the rights and interests of a broad spectrum of creative people involved in the New Zealand recording industry. Their spokesperson, Mark McCall made some startling announcements today which may have a significant impact on life as we know it.

McCall, who is Inspector-in-Chief of the RIANZ Anti-Piracy squad, said the recent US based case against Napster has encouraged his squad to enter into more litigation with a variety of parties. “Sure, there’s tons of money to be made in selling over-priced CDs,” said McCall. “But litigation… ah, that’s where the real money is.” McCall claimed that if the proposed lawsuits in New Zealand are as successful as the Napster case, the recording industry will no longer need to “waste their time making records.” He refused to elaborate.

First on the list is Microsoft Corporation. According to McCall, “Our research shows that most of the criminals who use Napster and other peer to peer software do so on a computer that uses a Microsoft operating system. If it weren’t for Microsoft, these thugs wouldn’t be using computers. If these lawbreaking pirates didn’t use computers, music theft using peer-to-peer would not be an issue.” Microsoft, which is no stranger to litigation, is said to be organizing a legal team to address the issue. Microsoft refused to comment, and did not return our calls.

Another target is the telecommunications industry. “This is a no-brainer,” said McCall. People use phone lines, broadband and God knows what else to access the Internet.” McCall described how these services contribute to copyright violations, and drew a comparison with the firearms industry. “If there were no guns, people wouldn’t get shot and the world would be a better place. If we can effectively shut down the telecommunications industry, copyright violations would be reduced, and everyone would lead a more productive life.”

When asked about the future of selling music online, McCall told us, “The internet is just a haven for criminals. At some point, it will be outlawed. We vastly prefer to sell music in stores. That’s the way we’ve always done it and we see no reason to change.”

McCall also described an alarming trend among New Zealanders. “It has come to our attention that many people like to sing in the shower, and in virtually every case the song is copyrighted.” McCall estimates that, last year alone, singing in the shower amounted to more than $545,000,000 in lost revenue. “This is out and out theft, and must stop,” he said.
RIANZ lobbyists are currently working closely with the Ministry of Intellectual Property on amendments to the Copyright Act that, if approved, would require a cochlear implant in all citizens. This wireless transmitter, which is currently being developed, would monitor all sounds heard by each individual, and their credit card account would be debited on a per-song basis.

“This is really what we’ve been striving for all along,” boasted McCall. Upon further questioning, recording industry officials did concede that the cochlear implant requirement would be waived for deaf citizens, but only if they are certified by at least two doctors and one specialist as being “profoundly deaf”.