One of the outstanding issues of the changes to the Copyright Act has been whether rights holders would issue notices that comply with the law. Since our regulations outline a number of detailed requirements for notices, rights holders cannot simply pass on whatever they send in other countries.
The first few issued notices are starting to leak out and it appears that they do not comply.
An Orcon user posted to the 3strikes forum copies of the notices they received. Comparing the information provided on those notices to the law and regulations, we noted the following problems:
- There is no description of the type of work as per 14(1) of the Copyright Act. (Regulations 4(2)c(iii).)
- The nature of the breach (as described by 15(1) of the Copyright Act) is not specified. (Regulations 4(2)c(iv).) The notice only says a breach has taken place, not the nature of it.
- The date and time given on the first notice is not specified to the second. (Regulations, 4(2)c(v).)
- The file sharing application or network is not specified. (Regulations, 4(2)c(vi).)
- The notice number does not include information that identifies the type of notice or the IPAP that sent it. (Regulations 5(2)(b) & (c).)
These details matter because the account holder needs to understand what they are accused of so that they can properly defend themselves.
Account suspension
We are also deeply concerned that the notice makes the claim that your Internet connection can be suspended by the District Court for up to six months. This part of the law has not yet been activated, and it is alarming that notices are already misleading users on possible penalties. Orcon should not be making such claims.
Concluding questions
The notices as posted do not comply with the requirements of the law and regulations.
Does this mean that they are invalid and can be challenged (or ignored) as such?
Will the Copyright Tribunal accept them as valid or not?
Does this mean that all notices sent through Orcon are invalid?
and …. it appears to be Orcon who stuffed up the notice, not the accuser (for all we know)..
So where does that leave us?
It’s an interesting question – does Orcon have the responsibility to pass on incorrect notices? I’d say that they don’t.
I have forwarded the article to Orcon and asked them for comment.
As for the possibility that the correct notice was in the attachment. It doesn’t seem likely to me and it would still leave them with an incorrect identifier and the woefully incorrect statement about account suspension.
It reads as if orcon composed most of the email, especially the incorrect advice about 6 months, rather than passing on the accusations verbatim. I’d like to know how the law applies if the ISP’s actions alter the notice sufficiently to make it no longer adhere to regulations. There are likely to be far worse examples of incorrect notices coming amongst other false accusations.
maybe the correct notice was in an attachment.
Hi Brenda
The only attachment was a form to assist the challenge process, I’ve pasted the details on the 3strikes forum.
Your downloading ‘Linkin Park’ for that reason alone you don’t deserve the internet. For fuck sake people!
I’m not seeing 4(1)(b) on there either, or am I blind?
Section 5 of the regulations cover what a notice to end users must consist of. 5(1)(a) only requires the information in 4(2) to be provided to end users. Rights Holders making an allegation do need to provide 4(1) to your IPAP, but this is not passed on to end users.
So when is the law regarding account suspension to be activated? Section 122R states the Order in Council will set the date but I have not yet found anything suggesting they have done so.
Correct. It has not been activated and therefore Orcon were wrong to say that it was a possible penalty.