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RIANZ withdraw one of first cases to Copyright Tribunal

Posted on October 19, 2012

The RIANZ has withdrawn one of the first three cases to go to the Copyright Tribunal.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 assistance from Susan Chalmers at InternetNZ and a very solid pro bono contribution from Kate Duckworth at Baldwins.

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.

The claims

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.

The effects

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.

The defence

The defence concentrated on three aspects:

  1. The unfairness of the account holder being penalised for someone elses alleged infringement.
  2. Technical faults with the notices (see below).
  3. Criticism of the outrageously high sum requested by RIANZ as a penalty.

You may note that there is no denial that the infringing had occurred. This was not because the defendant admitted doing it or even that one of her flatmates admitted it. It's because there is really no way to prove that the allegations are true or false.

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.

The withdrawal

The defendant sent a submission to the Copyright Tribunal along with her request for a formal hearing.

A couple of weeks later she received notice from the Tribunal that RIANZ had withdrawn their claim and the file was closed. We do not know why RIANZ chose to withdraw their claim.

The law is unjust and unfair

This case exemplifies just how unjust and unfair the law is.

If you are the account holder you will be responsible for the actions of anyone using the account. There is no way for non-technical people to monitor or control what their flatmates or other people sharing the internet connection are doing. Even IT professionals would struggle to do so with the normal tools available on a home network.

The provisions in the law allowing for an internet account to be cut off have been suspended for now. This was because it is becoming increasingly clear that an internet account is becoming critical for engaging in modern society. However, the effect of this law was still the same - the defendant panicked at these allegations and cancelled her account, cutting off her entire flat from the internet.

The law is meant to act as a deterrent to infringing copyright, but the way it is written it is actually an incentive. "Just use a connection that doesn't have your name on the account and they'll be be the one who is penalised!" The only deterrent is to becoming an internet account holder.

Protecting yourself

How can you protect yourself against this unfair and unjust law?

  1. Don't be the account holder. See if you can persuade your flatmates, family member or business to be the internet account holder so that they'll be the ones who are penalised. Of course this is just protecting yourself at the expense of someone else.
  2. Don't use peer to peer file-sharing software to download copyrighted material without permission of the copyright holder. Tell anyone sharing your connection not to do so either.
  3. If you do receive a notice, examine it very carefully to check whether it is valid. Our article about valid infringement notices might help.
  4. If you get a second, warning, notice, cancel your account with that ISP and switch to a new one. This will reset the count.
  5. If you get summonsed to the Tribunal, spend the time to write a proper submission in your defence and ask for a formal hearing.

Ultimately, the only real protection is to get the law changed.

Feel free to contact us if you have received copyright infringement notices and would like some advice or assistance.

About Thomas Beagle

Co-founder and spokesperson for Tech Liberty
Comments (33) Trackbacks (0)
  1. Err… NO…Ultimately, the only real protection is to abide with the articles recommendation #2 namely:

    Don’t use peer to peer file-sharing software to download copyrighted material without permission of the copyright holder. Tell anyone sharing your connection not to do so either.

    • How are you going to stop your flatmates or their visitors?

    • Even that isn’t necessarily enough. We don’t know enough about the detection methods being used. It’s entirely possible that you could be detected to be infringing even when you are not (there are plenty of examples of this with overseas studies).

      In this case, given that no one with access has admitted any involvement we don’t know for sure if there was infringement and there really is no way that anyone can know.

      • > It’s entirely possible that you could be detected to be infringing even when you are not

        For p2p it’s pretty easy to determine if a particular account has participated in exchange of some particular content. So, from technical point of view – it’s easy and 100% correct process.

        • Apparently it’s not as easy as you think. There are a lot of articles about detection systems getting it wrong, such as this one: http://www.audioholics.com/news/industry-news/researchers-mpaa-riaa-printer-p2p-file-sharing

          • It’s possible to fool them, yes. You can pretend you’re participating in exchange. The opposite is false though – if you didn’t forge the p2p traffic intentionally – you’re a valid participant.

          • Also – the article author talks about so called “indirect methods” which are indeed may give false positives. But, if copyright holder uses “direct” ones using the direct connection to a particular peer, downloads some chunk of data from it and provider may confirm there were correspondent connection established in the correspondent time – it’s nothing but a proof that a particular account was that peer.

            So I’m sure it’s just a matter of time when copyright holders will use the bullet proof methods. There is no anonymity in the internet, especially for regular non tech users.

            • We have no information on the method used by the “copyright holder” here. Direct, indirect, random guess? We don’t know. I’m not sure if the copyright tribunal is even allowed to ask what method was used.

    • The flatmates all deny the allegations – we have seen no evidence, only an allegation. So even following your advice and not using P2P software would not enough to stop a mere allegation causing all the strife describe here.

  2. All the advices are about how to cheat better, and I haven’t seen the only **REAL** protection advice: don’t download illegally.

    “Ultimately, the only real protection is to get the law changed.” — it’s just the nonsense.

    Let’s protect car thieves then by changing the law to something that allows to steal cars.

    • The defendant hadn’t downloaded anything illegally. She’d never heard of file sharing and never installed a torrent client.

      Punishing her makes about as much sense as punishing the flatmate who had the power bill in their name, because the alleged pirate would have needed to use electricity to power their computer.

      • > The defendant hadn’t downloaded anything illegally.

        And she wasn’t punished.

        > Punishing her makes about as much sense as punishing the flatmate who had the power bill in their name, because the alleged pirate would have needed to use electricity to power their computer.

        It’s not entirely true. Internet in this case is a tool that was used to make a crime.
        Like – if someone was hit by a car and the only we know is a car plates. What would police do? Exactly, they will contact and probably punish the car owner. The same with guns (in countries where it’s allowed to have a gun).

        Makes sense?

        • > And she wasn’t punished.

          She was punished. Read the post.

          >It’s not entirely true. Internet in this case is a tool that was >used to make a crime.

          0_o

          > Like – if someone was hit by a car and the only we know is a > car plates. What would police do? Exactly, they will contact
          > and probably punish the car owner.

          Cool. Means it’s safe to steal a car if you want to murder someone. The cops will go for the registered owner, and put a taxi company for instance in the dock.

          > The same with guns (in countries where it’s allowed to have a > gun).

          Of course, because the Internet is like a gun that you have to license and which you are required by law to keep safely locked away.

          > Makes sense?

          No. Nothing you say makes sense.

          • > She was punished. Read the post.

            “A couple of weeks later she received notice from the Tribunal that RIANZ had withdrawn their claim and the file was closed. We do not know why RIANZ chose to withdraw their claim.”

            Does that mean she was punished? (due to poor english knowledge I cannot be sure I recognize it correctly, but I see that she wasn’t)

            > Cool. Means it’s safe to steal a car if you want to murder someone. The cops will go for the registered owner, and put a taxi company for instance in the dock.

            No, but the owner will be the first to explain how this happened. Exactly like in this article.

            > Of course, because the Internet is like a gun that you have to license and which you are required by law to keep safely locked away.

            It doesn’t matter. There is a law, and there is a violation. Regardless of what law was violated – the person who made the crime should be punished. And regardless of the tool used (gun or the internet).

            • “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.”

              No compensation for whatever cost she incurred during this ordeal and no apology either or any kind of explanation. It’s like they can just ruin someone’s life at will with no repercussion.

              I do hate copy/pasting a block of text just to urge someone to think a little.

            • She was not fined by the Copyright tribunal but she was punished by disruption to her life, and possibly legal costs.
              >Regardless of what law was violated – the person who made the crime should be punished.
              - Exactly. She did not break the law. She should not be punished. Whoever did download the song should be.

    • When you can download cars over the Internet, that’s when your analogy will hold. Until then, no.

      • How the ease of breaking the law justifies the violators?

        There are the laws. And you don’t have the choice other than to follow them. It doesn’t matter if you can do that by pressing a single key or something – it’s still a violation.

        > Until then, no.

        So what’s your point then? What would you propose to change in laws?

  3. As an account holder, how can you even begin to monitor this sort of thing if your ISP can’t, or won’t give you information about which websites are being accessed from your account. Telstra Clear used to provide this some years ago, then stopped. When I asked recently, they gave me some BS about the Privacy Act. Yeah, right.

    • Normal consumer grade network equipment (i.e. your wireless router) doesn’t give you the tools you need to monitor and control this sort of traffic.

      You can invest in monitoring equipment but I don’t know of any designed for the household (as different from the gear used to monitor a large business).

      • Most home-grade routers will allow you to apply simple rules which might prevent the use of P2P networks. The home routers I’ve used have all had some sort of basic firewalls capable of blocking connections on certain ports.

        In theory, you could “white list” the ports which are commonly used for internet browsing (80 and 443). This would prevent most users from connecting to most P2P networks, but (1) it’s not a guarantee and (2) most people will have no clue what I’m talking about, so how would they be able to implement it properly? Plus there’s all the other downsides of not being able to access the full port range (games, etc etc).

        The “port 80 and 443 only” rule is generally applied anywhere that there’s free wi-fi as it goes somewhat to protect the people offering the free connection.

        If I was moving into a flat with people I didn’t know and I ended up being the account holder, I would likely block non-web traffic. It’s just not worth the risk of going through something like this.

  4. > how can you even begin to monitor this sort of thing

    Technically it’s possible. If you’re the only consumer – install some software to do that, otherwise – set up a router, which can do so.

  5. >install some software to do that, otherwise – set up a router, which can do so.

    You seem to know all about this, which is awesome because everyone else here says that’s not possible. Can you provide us with the name of the software that’ll do that?

    Cheers,

    Steve

    • Uhm, any personal firewall can monitor your current connections and collect some statistics about that.

      Let’s say Outpost Firewall or Comodo (if you’re windows user)

      But the correct setup may require extensive knowledge (which is not the case here – we’re discussing about possibility).

      Or, if you use linux as a desktop machine – it’s even easier to do that, as long as there are number of possible solutions (but I sure the linux people wouldn’t ask that)

      • So you will need an IT degree in linux administration or a business grade router (up to $10,000) to properly monitor your shared internet connection? I suspect that is not realistic for any home user.

  6. What a few people here seem to be forgetting is that p2p software is an extremely powerful tool that has many useful applications, and if you must use the car analogy, you can use a car to visit family and friends much faster then walking, or you could use one to run someone over, just like p2p can be used for very legitimate purposes (I use them mainly to transfer large audio session files for mixing/mastering etc easily) it can also be used to download illegally, the question is does the law need to be changed so that you are not denying people the technology that can help culture and commerce etc simply to protect a company that has vested interests in retaining control over a particular song/movie etc, all the while remembering the sole purpose of copyright is to provide a temporary incentive to creators in order to ‘promote science and the useful arts’. Copyright is NOT a system put in place to perpetually allow creators (or in most cases these days copyright holders who are often not the creators) to retain unlimited market control, encouraging innovation is about balancing between having a healthy public domain and allowing a creator to earn a living off a work for a limited amount of time

    • If the part about car was a reference to me – then seems I was misunderstood.

      I’m not against p2p – it’s a wonderful technology. My spotify player currently uses it to stream the licensed content. My skype IM also uses to stream voice and video.

      What I wanted to say is that instead of giving advice like “Just don’t steal and everything will be ok” the article ends with something like “Continue stealing but just use another technologies”.

      • The article ends with this line:
        >Ultimately, the only real protection is to get the law changed.

        This says nothing about continuing to copy or using other technologies. Nor are other technologies mentioned anywhere in the article.

  7. Ivan your analogy is wrong. Copyright infringement is nothing like stealing a car. If you want an accurate analogy instead of one that can’t even legally be defined as the same thing. One is a civil business matter the other is theft. Think about Lars Ulrich waking up in the morning and noticing one of his lamborghini’s is missing, compared to Lars waking up and finding out someone out there has covered his song on a ukulele in a divey bar in South Auckland. I agree these laws were drawn up to protect artists and to up hold their rights, fair enough, but don’t compare people circumventing copyright to thieves. It’s incorrect technically, morally and even in correct to the spirit of copyright.

    • I agree the current law is far from ideal. But still it is a bad justification for the violation. Fair or not – it’s a law and we have to respect it. And until the new one is published – we have no other ways other than just follow the current ones.

      • It is equally a moral duty of the citizen to oppose unjust laws and protest to get them changed. Respecting the law doesn’t mean you have to agree with it.

  8. Here’s the part of the Copyright Act that talks about the bringing of unjustified proceedings http://www.legislation.govt.nz/act/public/1994/0143/latest/DLM346600.html . Does she now have a right to apply for an order for payment for damages? (assuming she’s suffered an identifiable financial loss).

  9. > I do hate copy/pasting a block of text just to urge someone to think a little.

    Dude, it wasn’t polite. If someone isn’t enough proficient in english (which I mentioned explicitly) – it’s not a reason to be such a jerk.

    But anyway – if she wants – she might sue them.


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