By Sim Ahmed,
Update: The Recording Industry Association of New Zealand (RIANZ) is pleased with the $616.57 fine handed to an unnamed New Zealand internet account holder for illegally downloading and sharing two songs, says Greg Hay, who works for RIANZ's PR company Pead Pr.
Asked whether the size of the fine was what RIANZ was seeking, Hay says it's less about the money and more about deterring others from sharing music illegally in the future.
Hay says RIANZ is unfairly criticised by the media and public for its actions in seeking damages against file sharers, adding that with sources of content like iTunes and Spotify, there should be no reason for New Zealanders to download music illegally.
In its application to the Tribunal, RIANZ says the cumulative effect of illegal downloading is "devastating" to the music industry, and that 700,000 people in New Zealand have access to file sharing services (which in itself isn't illegal).
RIANZ argues that while the downloading may only see rights holders deprived of a few dollars, the uploading and further sharing of those files is detrimental to the market.
"People mistakenly think [the account holder] only downloaded two songs. The entire time during the infringement period the files were being uploaded and shared," says Hay.
In the decision document, the account holder says she didn't realise her torrenting program (uTorrent) was downloading files after the first infringement notice. She doesn't make any mention of uploading files, and from her written testimony, the Tribunal acknowledges that she might have been unaware any uploading was taking place.
Thomas Beagle, head of civil liberty group Tech Liberty NZ, says the three strikes law is fundamentally flawed because it assumes the account holder is guilty when he or she might not have any knowledge of the infringement.
"The person admitted copying the first track, but didn't quite understand how torrenting works and that the tracks were being uploaded automatically," says Thomas.
"She completely denied downloading the third track. How can she prove she didn't? How is she meant to prove a negative?"
Beagle says the account holder could be lying, but it's just as likely that someone used her network without her knowledge.
The $616.57 infringement fine is pennies compared to the millions sought by record labels against file sharers in the States, but Beagle says this is still a lot of money for the average New Zealander.
He criticizes the Tribunal for the arbitrary figure of $120 per infringement as a deterrent, but commends it for rejecting some of RIANZ's "dramatic" requests - such as implying the files could have been shared multiple times.
"This person is not personally destroying the music industry, and they shouldn't be held responsible for something of that scale," says Beagle.
The Tribunal says RIANZ did not provide any proof, nor could it, of how many times the infringing files were uploaded.
Beagle says he was disappointed the decision document didn't discuss the infringement notices themselves, and points out some previous notices have been sent out with missing data and even the wrong account holder names.
He says the warning notices should do more to educate account holders, but he doesn't believe this is the responsibility of the copyright holder.
The first decision under New Zealand's three strikes copyright law has been made, with the Copyright Tribunal bringing down the hammer (albeit lightly) with a $616.57 fine against an unnamed internet account holder.
According to a decision document released to Idealog by the Ministry of Justice, the action was brought against the account holder by the Recording Industry Association of New Zealand (RIANZ), for illegally downloading two songs.
The fine is considerably lower than the maximum of $15,000 that can be awarded under the amended Copyright Act of 2011. Of the sum total, $350 has been prescribed by the Tribunal as a deterrent, and $200 goes towards the non-refundable application fee RIANZ paid bring its claim before the Tribunal. The rest go towards paying for the three songs infringed, and further fees.
The Tribunal says the first detection notice was sent to the account holder by its ISP, Telecom, on 24 November 2011. This was followed by a further infringement notice for the same song (Man Down by Rihanna) in June 2012.
An enforcement notice (on the third strike) was sent on 30 July, after the internet account was used to download Tonight Tonight by Hot Chelle Ray, a month after which RIANZ filed its application to the Tribunal.
In September, the account holder responded to the Tribunal with her side of the story. She says she accepts responsibility for downloading the first song, but says the second song was downloaded accidentally. The account holder says her file sharing program, uTorrent, downloaded the same song twice without her knowledge and she didn't have the technical knowledge to stop this.
She says she isn't sure how the third infringement came about, but it wasn't downloaded anyone in her household.
"When I received the letter warning me of the download and consequences and that it was illegal, I didn't challenge the letter as I took responsibility for my actions and realised I was in the wrong and took it as a warning and didn't do it again," she says.
Opponents of the three strikes law say it's fundamentally flawed because it assumes the account holder is guilty when he or she might not have any knowledge of the infringement - exactly what the respondent in this case claims.
RIANZ has brought a total of 17 cases of alleged piracy to the Tribunal, of which six have been dropped, including a Wellington student who was being asked to pay more than $2000 for allegedly sharing five songs. Eleven of these cases, including this one, are "on the papers"- meaning they are heard by the Tribunal though paperwork evidence provided by both parties.
Earlier this month, we reported that the first case to be heard in front of the Tribunal will be held in February.