Three brief items about the Copyright Act and the Copyright Tribunal:
1. RIANZ withdraws from another defended hearing
Another defended hearing was scheduled to go to the Copyright Tribunal this month but RIANZ has withdrawn the complaint (info from phone call to Copyright Tribunal). No further details of the case are known, so was it another fatally flawed case like the first withdrawn case or is RIANZ just not prepared to fly down to Christchurch to appear before the Tribunal?
2. Second Copyright Tribunal Decision
A second decision has been made with the Copyright Tribunal ordering a 50 year old father to pay $557 to RIANZ for sharing two songs (one twice). As in the last judgement, the evidence would appear to show that the defendant did not really understand the process nor what they had been accused of - rather it seems likely that their 8 and 12 year old sons might have done it. There is also evidence to show that they didn't understand the first two notices they received enough to be able to take action to prevent the third enforcement notice.
3. Copyright Act working as intended - kind of
Finally we come to a case where the Copyright Act did work as intended - but only after the intervention of Tech Liberty. We received a communication from someone who had received an initial detection notice.
Just got this and as a 52 year old single mum I can't understand what they mean about that the alleged infringed song has been communicated to the public? Is the infringement about the song being downloaded of shared publicly or both? I'm horribly confused. My teenage daughter says she can't stand the song and I don't even know the song. Perhaps my older 2 adult children or my boarders have done this? Any advice would be very much appreciated.
Her confusion is quite understandable when you look at the notice (identifying details removed):
Notice Number: xxxxxxxxx
Infringement Notice Date: xxxxxx
Notice Type: Detection Notice
Infringing IP Address: xxx.xxx.xxx.xxx
Infringing Date: xx/xx/xx
Name of the file: Chris Brown - Beautiful People.mp3
Unique identity of the file:
Copyright Owner: Sony Music Entertainment Incorporated
Type of Copyright Work: Sound recording (14(1)(b))
Restricted Act: Copyright has been infringed by this account holder communicating the work to the public (16(1)(f))
File Sharing Application: Azureus 220.127.116.11
What is this meant to mean to someone who doesn't understand what file sharing is? The information included by Slingshot may have explained the law but made a very poor effort at explaining what she was accused of. We rewrote it for her:
They're saying that someone at your house has installed a piece of software called Azureus (also called Vuze) and they've used that to download a song called Beautiful People by Chris Brown. The Azureus software not only downloads the song, it also uploads it to other people who want it (this is why it's called peer to peer file sharing). Sony/RIANZ have detected this upload and have made a complaint to Slingshot who have passed it on to you.
The response came quickly:
Thank you so much for getting back to me and for taking the time and all the information, very much appreciated. :) I have found out that one of my son's friends has done this and he says he won't do it again. He is a good family friend so thats fine. I will get the guys to delete the Azurus or Vuse and to check for any other peer to peer programs.
Surely a good outcome for RIANZ with a junior copyright infringer stopped after the first warning.
But it seems that the current format of the notices is not good enough. Non-technical people don't understand what they're accused of and have no idea what they should do to stop it happening again. And, after all, it's often the non-technical people who are the account holders while someone else sharing the same account may be the one doing the infringing.
It seems clear from these first few cases that the notices need to be improved so that they do a better job of explaining both the accusation and what they need to do to stop it happening again.
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 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.
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.)
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.
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.
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.
However, this case once again demonstrates two of the key weaknesses of the law:
- 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.
- 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.
We recently wrote about RIANZ withdrawing one of the first cases to go to the Copyright Tribunal. We made some reference to RIANZ's claims and their attempts to rewrite the law and regulations to justify a claim based on the number of times the works might have been downloaded.
We've now made RIANZ's submission to the Copyright Tribunal available for download (PDF, 8.5MB).
Some points of interest include:
- RIANZ admitting in footnote 25 that it might not be the account holder who downloaded the works but someone else sharing the connection.
- The attempted rewrite of the NZ Copyright Act and regulations in para 30 to enable RIANZ to claim for each potential download.
- The argument that the lack of challenges to the notices and the continuing file sharing showed that the infringer was flagrantly breaching the law, rather than being completely clueless about it.
- The justification for asking for $1250 worth of deterrent penalties.
- That RIANZ use Mark Monitor to track file sharing activity, a system that only downloads part of the work from the person they're accusing.
Feel free to add a comment with anything else interesting you find.
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 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.
RIANZ claimed a total of $2669.25 in penalties. This was made up as follows:
- $1075.50 as the cost of the music.
- $373.75 to repay the cost of the notices and tribunal fee.
- $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.
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 concentrated on three aspects:
- The unfairness of the account holder being penalised for someone elses alleged infringement.
- Technical faults with the notices (see below).
- 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 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.
How can you protect yourself against this unfair and unjust law?
- 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.
- 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.
- If you do receive a notice, examine it very carefully to check whether it is valid. Our article about valid infringement notices might help.
- If you get a second, warning, notice, cancel your account with that ISP and switch to a new one. This will reset the count.
- 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.
Recently we examined some of the first copyright infringement notices sent by Orcon and noticed that they did not comply with the regulations.
The omissions are significant and make it harder for the accounts holder to challenge the notice on the facts, but we believe there are excellent grounds for challenging the notice because the notice itself is invalid. The rights holders may or may not accept this but ultimately it will be up to the Copyright Tribunal to make the final decision.
So, what are the requirements for a valid infringement notice? They're spelt out in two places - the Copyright Act (mainly section 122) and the associated Copyright (Infringing File Sharing) Regulations. We'll only be looking at the requirements for the notices from the ISP (internet service provider) to the account holder (the person paying for the internet connection).
A detection notice must include:
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.
- 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.
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.
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?
[This article has been corrected. Please see explanatory note at the end.]
Liability under the new copyright law
One of the issues that we and many others have with the new copyright law is that it unfairly penalises people for the actions of others. You're either an IPAP (a very tight definition of ISP) or an account holder, and if you're an account holder you're liable for the actions of anyone using that internet account.
This means that hotels will be liable for the actions of their guests, universities for the actions of students, the person paying the bill will be liable for their flatmates, and you'd be better be careful about which of your guests you let use your internet while they visit your house.
Ministry of Economic Development advises differently
However, it seems that the Ministry of Economic Development has a different interpretation of the law. The owner of a homestay, concerned that as the account holder he would be liable for his guests, recently contacted the Ministry of Development.
The advice he received from the Ministry was that if he is providing internet services but does not meet the requirements to be an IPAP under section 122, then he must be an ISP and would be safe from liability according to section 92B.
Furthermore, if he received an infringement notice he just had to respond and say that he ran a homestay and that would be the end of it. As he observed, "What's to stop anyone claiming that their house is a homestay?"
We don't find this interpretation particularly convincing (nor did we find it convincing when the NZCS made a very similar argument in their submission (PDF) to the MED).
The intent of the Copyright (Infringing File Sharing) Act seems to be to catch everyone. If we accept the MED interpretation, the definition of ISP in the Copyright Act is so wide that anyone who shared their internet connection with another would thereby be able to claim immunity under it. The law would be fatally undermined.
While we think that this wouldn't be a bad thing, as it would remove liability from account holders who shared their internet and thus avoid the problem of punishing people for the actions of others, it seems clear that this is not the intention of the law makers.
Ultimately this argument will be tested at the Copyright Tribunal and possibly in court, but for now we caution against relying on this advice from the Ministry of Economic Dvelopment. This means that you should assume that the account holder will be liable for any infringing file sharing performed over their internet connection.
[Correction: The article as originally posted said that the advice was from the Ministry of Justice. The MoJ contacted us to deny giving advice to anyone. We followed up with our original source and managed to establish that the advice was actually from the Ministry of Economic Development. We apologise for the error.]
Parliament has passed the Copyright (Infringing File Sharing) Act.
Here's 10 things that you need to know about it:
- What: Infringing file sharing is the act of downloading or uploading copyrighted content without permission. This can apply to any content, e.g. movies, TV shows, music, pictures, books, games or software.
- When. The new law comes into effect from September 1st 2011. You can receive a notice for infringing file sharing that took place from any time from August 10th (21 days before Sept 1st). Mobile phones are excluded until 30 September 2013.
- Who. The account holder (the person who pays for the internet conection) is the one who is legally responsible for any infringing file sharing occurring over that connection. You are not legally liable if you use someone else's internet connection, although they won't be very happy about it and may be able to come after you.
- Getting caught. You are most likely to get caught if you use peer-to-peer file-sharing software (e.g. BitTorrent, emule, etc). This is because peer to peer works by you sharing the file with a whole lot of other people - if one of them works for the copyright-holders they can get enough information to make a complaint.
- Not getting caught. You are not likely to get caught if you copy files from friends, download from file-sharing websites (that don't use torrent software), or watch videos on YouTube or similar sites.
- Notices. If caught infringing, you will initially receive a Detection Notice, followed by a Warning Notice, then an Enforcement Notice. There must be at least three weeks between notices. (Each copyright-holder making complaints will follow the same progression - you could have a Warning Notice from one and a Detection Notice from another).
- Challenging notices. You can respond with a challenge to any notice. The copyright-holder gets to decide whether your challenge will be accepted or not. There are no agreed grounds for challenges yet.
- Personal details. The copyright-holder will not be given your name, address and other contact details. All communication is handled by your internet provider.
- Copyright Tribunal. Once you have received an Enforcement Notice the matter will go to the Copyright Tribunal. They can levy of a penalty of up to $15,000 that has to be paid to the copyright-holder. They will normally make decisions based on written submissions, but either party can request a hearing. Lawyers are not allowed at the hearing.
- Account suspension. The provision in the law allowing for an internet account to be cut-off is currently suspended.