The RIANZ has withdrawn one of the first three cases to go to the Copyright Tribunal.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.
The Copyright (Infringing File Sharing) Bill is a replacement for the abandoned section 92A of the Copyright Act. It provides provisions for media companies to accuse people of infringing copyright, and for those people to be fined by the Copyright Tribunal. It also includes the penalty of disconnecting their internet - but this provision will initially be suspended.
The Bill went through one round of submissions (see ours) but the second reading was done under parliamentary urgency on the 13th of April and it is expected to be passed, still under urgency, on the 14th of April.
Updates: the bill has passed its third reading and will come into effect on September 1st, 2011. The Ministry of Economic Development is consulting on the regulations that will help with the administration of the law.
The Bill has some improvements over section 92A:
- It has replaced the overly wide definition of ISP (Internet Service Provider) with the idea of an IPAP (Internet Protocol Address Provider).
- The person accused of infringing copyright now has a chance to defend themselves against the accusations.
- It doesn't make ISPs responsible for making decisions about disconnection - they just have to pass messages between the accuser and the accused.
- It better respects the privacy of account holders.
But overall it still has some major problems:
- It makes the person whose name is on the internet account liable for all actions done by any user of that connection. Flatmates will be responsible for the people they live with, businesses will be responsible for their staff, parents will be responsible for their kids, librarians will be responsible for the users of their free internet terminals. Sharing your internet connection will put you at legal risk.
- It includes the idea that the Copyright Tribunal should believe the accusation from the media companies unless the account holder can prove it to be wrong. This is even when these accusations have been proven time and time again to often be substantially inaccurate. There are no penalties for making false accusations.
- It still includes internet disconnection as a penalty. Initially this provision will be suspended but it can be reactivated at the whim of the government. We oppose disconnection.
National, Labour and the Maori Party are voting in favour of the Bill.
The Greens are voting against it.
Tech Liberty articles about the bill
- Roundup of initial reactions to the bill
- Why we shouldn't accept the media companies accusations as true
- What is an IPAP and what are the differences between IPAPs and account holders?
- Revised section 122MA is no comfort
- Guest post - letter to Simon Power re copyright
- Our submission to the Select Committee.
- Flowcharts explaining some of the processes in the bill
Other articles of note
Tech Liberty was a co-signer on this letter to Simon Power about the Copyright (Infringing File Sharing) Amendment Bill.
The three main areas covered by the letter and briefing are:
- Avoiding the possible reversal of burden of proof when people are accused of infringement (section 122MA).
- Account holder liability for shared internet connections when the account holder would have no way of controlling the users of the connection.
- Mechanism for activating the suspended "account suspension" provisions.
See our other articles about copyright issues in general and this law in particular.
Sam Fickling sent us a copy of his letter to the Commerce Minister, Simon Power, about the proposed changes to the Copyright (Infringing File Sharing Amendment) Bill. He has kindly given us permission to publish it here.
Once again I believe that, for the most part, the ongoing modifications to the Copyright (Infringing File Sharing) Amendment Bill are improving the legislation and building a fair and workable framework with which to protect both rights holders and Internet users. However, the recent recommendation by the Commerce Committee to insert section 122MA into the bill has unfortunately brought the debate around this legislation back to where it started.
Originally, the main objection I, and many other individuals and organisations, had against the Copyright (Infringing File Sharing) Amendment Bill was the concept of 'guilt upon accusation'. While this concept had been removed from more recent drafts of the bill, it has made a return with section 122MA. I must re-iterate my original objections to the concept of 'guilt upon accusation' and the fact that this is in complete contradiction to the established laws and legal principles of New Zealand where accused parties are innocent until proven guilty! Furthermore, in established legal principles, the burden of proof lies with the accuser and this should most certainly not be reversed "in recognition of uncertainty about findings of copyright infringement"!
A round-up of comments and information about the latest report on the Copyright (Infringing File Sharing) Amendment Bill.
First, the report of the Commerce Select Committee (PDF).
We found that the bill raised complex issues around the challenges faced by rights holders in an environment of rapidly-developing technologies, which are changing consumer expectations and behaviours. We have attempted to strike a balance between the rights of copyright holders to have their intellectual property rights protected, and the reality that the Internet has now allowed far greater access to copyrighted works through file sharing.
The Commerce Select Committee has reported back on the Copyright (Infringing File Sharing) Amendment Bill (PDF).
One of the problems in the drafting of such a law is how to define what an ISP is. The obvious approach is "provides internet services" but what about a cafe that gives free wireless access to customers? Or a university that provides services to staff and students? The problem is a lot harder than it looks.
The latest report suggests replacing the definition of "Internet Service Provider" with one for "Internet Protocol Address Provider" or IPAP.
This would avoid ambiguity and focus on the function of an Internet service provider that is relevant to infringing file sharing, namely the provision of Internet protocol addresses.
Of course, this does no such thing as anyone providing any form of internet service must provide an "Internet protocol address" to each person using it. It's inherent to the nature of an Internet connection and, once again, shows that Government isn't very good at technology. Edit: This may be trying to protect providers of low level services such as cabling and fibre.
However, when we look at the full definition, maybe it's not so bad:
IPAP means a person that operates a business that, other than as an incidental feature of its main business activities,
(a) offers the transmission, routing and providing of connections for digital online communications, between or mong point specified by user, or material of the user's choosing; and
(ab) allocates IP addresses to its account holders; and
(b) charges its account holders for its services; and
(c) is not primarily operated to cater for transient users.
A discussed, the inclusion of "(ab) allocates IP addresses" seems a bit unnecessary but overall the definition seems to hold up under scrutiny.
- Orcon and other ISPs would obviously be an IPAP.
- Cafenet supports both transient and account-based users. Should it be an IPAP?
- Universities and libraries would not be an IPAP because of (b) (there is no direct charging although student fees do include provision for services).
- Someone sharing a connection with their friends would not be an IPAP because of (b).
- Citylink would be an IPAP. (Should it be? See discussion in comments.)
- The local coffee shop would not be an IPAP because of (b) and (c).
- Would an Internet cafe be included? They do charge, the users vary between transient and regular.
- Mobile data from Vodafone/Telecom/2 Degrees will not be included for now, because a separate clause delays their inclusion until 1 August 2013.
How have they done? Please help.
Can you think of any cases:
- Where a person or company will be included as an IPAP that shouldn't be?
- Where a person or company that should be an IPAP won't be?
The ACTA treaty negotiation process is still going strong. The participants apparently feel pressured to finalise the agreement before the end of the year and have agreed to an extra negotiating round in Washington next week to help hurry things up.
The most recent leaked text shows that progress is being made on the details while some major disagreements (mainly around the scope of the agreement - should an anti-counterfeiting agreement also include patents and geographic indications) are yet to be resolved.
In our last summary article about ACTA we raised five issues where we thought that the treaty was a threat to justice and civil liberties.
Here we revisit them and find significant improvement in three of those issues and minor improvements in the other two.
Jonathan Penney, the Cyberlaw Fellow at Victoria University gave a public talk about the idea of "internet as a right" and whether there is any basis for this in current New Zealand law.
He started by looking at s14 of the 1990 Bill of Rights Act. This is about freedom of expression:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Chris Esther has created some useful flowcharts that help explain some of the processes included in the new Copyright (Infringing File Sharing) Bill. He has very kindly allowed us to repost them here.