Tech Liberty NZ Defending civil liberties in the digital age

First Copyright Tribunal case demonstrates flaws in the law

Posted on January 31, 2013

The first decision from the Copyright Tribunal has now been announced and RIANZ has been successful in getting a penalty of $616.57 awarded to them. Read the text of the decision linked from this NBR article.

Facts of the Case

The respondent admits to downloading one of the tracks using uTorrent but seems confused as to how she could have received two notices for downloading it twice (she's actually been accused of uploading it). She also acknowledges that she was in the wrong and goes on to say that she had deleted the track and removed the software from her computer.

The respondent also denies having downloaded the second track and says that she also doesn't think anyone else in her household would have done it.

The decision

The respondent has been ordered to pay $616.57 to RIANZ (the applicant) calculated as:

  • $6.57 as the cost of buying the three tracks on iTunes.
  • $50 towards the $75 cost of the three notices.
  • $200 to reimburse the Copyright Tribunal fee.
  • $360 ($120 per track) as a deterrent.

Commentary

The respondent's perspective

From reading the quotes from the respondent's submission, as far as they're concerned they got penalised $616.57 for downloading a single song. (They got two notices for that song because it was being uploaded as well, and they deny ever downloading or sharing the song mentioned in the final notice.)

Anonymity

The Copyright Tribunal does not publish the name of the respondent accused of copyright infringement. This will be a relief to the other 11 people waiting for their decisions.

Ignorance about filesharing

It seems clear from the quoted part of the respondent's submission that they have no real idea about how file sharing via bittorrent works. RIANZ and the Tribunal both also seem somewhat blind to the reality that a default uTorrent installation will set itselt to automatically restart whenever the computer is restarted, and will thus keep sharing until stopped.

Can't prove a negative

The Tribunal basically ignores the respondent denying that they downloaded the second track, saying that the law presumes that the notices are correct and that the respondent must show evidence that this is not true. The great difficulty involved in trying to prove that something didn't happen is not touched on by the Tribunal.

Quality of notices

The decision includes no discussion of the quality of the notices. This is disappointing as all of the notices we have seen to date have been flawed in one or more ways.

We also note that the second notice was sent on 19th June while the third notice was sent on 30th July. This means that the infringement would have had to have occurred between the 19th of July and the 30th of July to not have occurred during the stand down period. The timing looks a bit tight but the date of the infringement is not given in the decision.

Tribunal rejects RIANZ creative maths

The Tribunal rejected RIANZ's attempt to rewrite the law by making up numbers about how many times the tracks might been uploaded and then arguing that the respondent should have to pay that many times for each track. However, the Tribunal did allow that uploading might be taken into account when calculating the deterrent penalty.

Tribunal rejects RIANZ arguments re flagrancy

RIANZ claimed that a) installing uTorrent, b) infringing over 8 months, c) repeated infringement, indicated flagrancy and therefore a heavy penalty. The Tribunal noted that these will be common to nearly all cases appearing before the Tribunal and therefore the behaviour could not be seen to be particularly flagrant.

Tribunal ignores apology and efforts to stop file sharing

While the Tribunal notes that the respondent acknowledged wrongdoing, apologised and attempted to stop file sharing (possibly being defeated by lack of technical understanding), they do not seem to acknowledge this when setting the deterrent penalty.

Deterrent penalty

The Tribunal seems to have made up the principle that the deterrent penalty should be higher than the part of the penalty concerned with reimbursement, and therefore arbitrarily adds on another $360 ($120 per infringement). There is no acknowledgement that for many people a penalty of $256 is already a significant punishment.

Do they now have a license?

The decision does not establish whether the respondent now has a license to possess the music in question after paying the cost of buying it in iTunes as part of the penalty.

Conclusion

On the face of it this decision isn't too bad. The respondent admits they copied some music and the guilty judgement has apeared with minimum fuss and legal expenses. There was no possibility of their internet connection being disconnected - although we suspect that the respondent will be very reluctant to have their name on an internet account in the future.

This decision sets a benchmark penalty of approximately $600 for a typical infringing file-sharing case appearing before the Tribunal. While low compared to the ludicrous sums awarded by US courts (e.g. US$12,500 per track award awarded against Tenenbaum for a total of US$675,000) it seems high compared to penalties for some other NZ offences. Accordingly we think that this amount is still too high for what is infringement on a very small scale with someone who admits guilt, apologises and tries to stop file sharing.

Flawed law

However, this case once again demonstrates two of the key weaknesses of the law:

  1. There is no way to prove your innocence. No one in New Zealand keeps the kind of detailed network logs that would be necessary to prove that you hadn't done what you were accused of. All you can do is assert that you didn't do it and the Tribunal has just shown that they will ignore this.
  2. The responsibility falls on the account holder, not the people using the internet to infringe copyright. In this case the respondent admitted she had downloaded the first track, apologised and had taken steps to stop it happening again. She denied downloading the third track that triggered off the penalty and suggested that someone else might have done it. Obviously we can't know if she was telling the truth, but the reality is that most internet connections are shared and this could easily happen.

These two points are going to come up again and again. It seems certain that in many cases justice will not be done, with the account holder taking the fall for sloppy detective work on the part of RIANZ and the ISP, or the actions of other people sharing their internet account (see another case involving shared internet use).

We believe the law is unjust and needs to be dropped before too many people are punished for things that they didn't do.