The RIANZ has withdrawn one of the first three cases to go to the Copyright Tribunal.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:
September 1st is the start of the new copyright regime, where rights-holders can send infringment notices to people they accuse of infringing their copyright.
We would like copies of those notices. This will allow us to help monitor how the law is being used, including:
- assessing the quality of the notices
- finding out who is sending them and for what sort of works
- help us detect anyone abusing the system
Please email your notices to email@example.com. Feel free to include other information including whether you deny the allegation or not. We promise to keep your name and other identifying details private.