First 'Three Strikes' Case In NZ Dropped After It Becomes Clear Accused Didn't File Share

from the why-you-don't-base-things-on-accusations dept

One of our biggest problems with the various "three strikes" or similar programs is the fact that they're all based entirely on accusations not convictions. You would think, in this day and age of bogus copyright claims, that people would realize why that might be a problem. Down in New Zealand, where they implemented a three strikes plan not too long ago, the local version of the RIAA (the RIANZ) has been pushing to bring "music pirates" to the copyright tribunal to pay for their supposed infringement. However, as expected, it's looking like all that's happening is the record labels are being left with egg on their face yet again.

That's because RIANZ had to hastily drop one of the cases after it became clear that the person they were accusing of file sharing... didn't even know what file sharing was. Nice job, record labels! There were multiple problems with 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.
In other words, a complete disaster, top to bottom. And for this, the RIANZ demanded $2669.25 in penalties. How'd they get that number?
  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.

While the student in question ended up cancelling the internet account for the entire flat -- making life difficult for everyone there -- she eventually worked with Tech Liberty New Zealand to defend her. After Tech Liberty highlighted the multiple problems with the case, RIANZ -- realizing that it had screwed up royally -- decided to just drop it.

It would be funny to look at how often they make accusations, only to walk away when they realize they're going to lose. That is, it would be funny if it didn't seriously mess with people's lives. You'd think, given how often false accusations are levied, that lawmakers would know better than to pass a law that allows for such actions to be taken based entirely on accusations without real evidence.

As Tech Liberty notes:

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 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.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Oct 19th, 2012 @ 7:55am

    That's that I-told-you-so moment we've all been waiting. Now we can share a big virtual facepalm and wait for the ensuing clueless troll activity that always comes attached with this kind of article.

    Ladies and Gentleman, grab your popcorns.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 9:53am

    How do they expect people to pay those "damages"? Thats ridiculous.

     

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  3.  
    identicon
    Michael, Oct 19th, 2012 @ 9:59am

    Increase in spending?

    I would be really curious if someone could do a very small study of the flat-mates involved.

    I am mostly curious about how much money they spent on music purchases (online and offline) before and after "the student in question ended up cancelling the internet account for the entire flat"

    Somehow, I am thinking that their iTunes purchases have dropped off a bit.

     

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  4.  
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    Forest_GS (profile), Oct 19th, 2012 @ 9:59am

    Re:

    Fresh homemade skillet popcorn, with dab of oil and finely ground salt, ready~

     

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  5.  
    identicon
    Scott, Oct 19th, 2012 @ 10:01am

    Can't wait to see this happen in US,I wonder how long it take for something like this happen and for those dinosaurs to realize they're fighting in a losing battle no matter what.

     

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  6.  
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    Anonymous Coward, Oct 19th, 2012 @ 10:03am

    And why, exactly, isn't RIANZ liable for the person's legal costs and associated expenses/losses AND a very hefty 'deterrent fee'??

     

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  7.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 10:05am

    Re: 'hefty'

    Like, 'hefty' as in 'reasonable times 90'?

     

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  8.  
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    Michael Long (profile), Oct 19th, 2012 @ 10:07am

    The "times 90" bit is absurd. If you're going go after people for downloading music, that's one thing. But those other 90 people? Go after them.

    It would be like getting stopped for speeding and instead of getting a ticket for $100 you got one for $10,000 in order to pay for the other 100 speeders the officer failed to catch while he was dealing with you.

     

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  9.  
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    Ninja (profile), Oct 19th, 2012 @ 10:11am

    Re:

    Not to mention that ppl seldom seed after 2.0 ratio... so A proper value would be to double the market price.

     

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  10.  
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    DannyB (profile), Oct 19th, 2012 @ 10:14am

    Re:

    I believe there was an incident where a college student had to pay the RIAA (not the RIANZ) all of their college savings. That's how they expect people to pay.

     

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  11.  
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    That Anonymous Coward (profile), Oct 19th, 2012 @ 10:14am

    Re:

    but 6 strikes is much more fair and will work much better...

     

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  12.  
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    DannyB (profile), Oct 19th, 2012 @ 10:16am

    Three Strikes should work both ways

    Three Strikes should work both ways. And on the RIANZ's third strike, there should be a significant penalty, as a deterrent, of course.

    Maybe a good penalty would be that you lose all of your copyrights, as a deterrent.

     

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  13.  
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    Chris Brand (profile), Oct 19th, 2012 @ 10:17am

    Interesting insight

    I like the fact that the cited article points out that these kind of laws really send the wrong message - not "don't infringe", but "don't have an Internet account" (what was the result here - we know that the account-holder cancelled her account. Do you think the actual infringers stopped infringing ?). The simple fact is that there's no way to guarantee that your internet account can't be used by somebody to infringe copyright, so the only way to be sure to avoid these kind of things is not to have such an account.

    Want to bet that the NZ government also has a policy to "bridge the digital divide", or "get more people online" or something similar ?

     

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  14.  
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    That Anonymous Coward (profile), Oct 19th, 2012 @ 10:21am

    Re: Re:

    what is this seeding you speak of?

     

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  15.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 10:39am

    Re: Three Strikes should work both ways

    That will not work as RIANZ only represent the copyright holders.

     

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  16.  
    identicon
    Scott, Oct 19th, 2012 @ 10:42am

    Re: Three Strikes should work both ways

    They would blow that real fast.

     

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  17.  
    identicon
    MrWilson, Oct 19th, 2012 @ 10:47am

    Re: Re:

    [insert troll remark about the wild west days of the internet being over here]

     

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  18.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 11:07am

    Re: Interesting insight

    The usual suspects, RIAA and pals do not want the Internet, and it scares governments as it allow citizens to talk to each other and organize and maybe found new political parties.

     

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  19.  
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    DannyB (profile), Oct 19th, 2012 @ 11:07am

    Re: Re: Three Strikes should work both ways

    It would work. If they represent the copyright holders, and are doing this on behalf of the copyright holders, then the copyright holders should lose their copyrights.

    If they are not acting on behalf of the copyright holders, then they must be breaking a law for suing or threatening to sue people without having proper legal standing to sue. In this case, then throw them in jail. (And patent the key.)

     

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  20.  
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    DannyB (profile), Oct 19th, 2012 @ 11:09am

    Re: Re: Three Strikes should work both ways

    Then they should be a whole lot more careful before making accusations. Just because they would blow 3 strikes really fast doesn't mean that it is a bad idea.

    They would argue the same in reverse. If Jane Pirate said that they should not get to have a 3 strikes law because she would blow through that really fast, they wouldn't suddenly change their minds and think 3 strikes is a bad idea.

    Sauce for the goose, etc.

     

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  21.  
    identicon
    Lord Binky, Oct 19th, 2012 @ 11:10am

    This is a fine example of a mysterious someone who already learned the lesson the recording industry has been trying to educate people on all along:

    -=- Don't use YOUR internet to file share -=-

     

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  22.  
    identicon
    Scott, Oct 19th, 2012 @ 11:38am

    Re:

    What about VPNs or Proxy

     

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  23.  
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    fb39ca4 (profile), Oct 19th, 2012 @ 11:42am

    Stupid MAFIANZ...

     

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  24.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 11:43am

    i wonder how long it would be before the ISPs started moaning about lost business or even failing business because the 'deterrent' encouraged people who already had one to cancel their account and those that were considering getting one, didn't bother. the entertainment industries wouldn't give a toss about any other business failing but by Christ would they be the first to moan if things were reversed. perhaps the road to take is for ISPs to sue the entertainment industries for anti competitive behaviour, forcing them to lose more money having them back them over the '3 strikes regime'

     

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  25.  
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    Ninja (profile), Oct 19th, 2012 @ 11:45am

    Re: Re:

    “Insanity is doing the same thing, over and over again, but expecting different results.”

    ― Albert Einstein

     

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  26.  
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    Ninja (profile), Oct 19th, 2012 @ 12:05pm

    Re: Re: Re:

    Now that u mention, I doubt any of the stooges there know wtf they are talking about.

     

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  27.  
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    The eejit (profile), Oct 19th, 2012 @ 12:44pm

    Re: Re: Re:

    Well, there's an app for that, you know.

     

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  28.  
    identicon
    Scott, Oct 19th, 2012 @ 1:26pm

    I wonder where's AJ?

     

    reply to this | link to this | view in thread ]

  29.  
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    John Fenderson (profile), Oct 19th, 2012 @ 2:14pm

    Re: Re: Interesting insight

    But they do want the internet. They just want it to be like broadcast mediums, and they want to make sure that only Authorized Parties can transmit over it.

     

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  30.  
    identicon
    Davey, Oct 19th, 2012 @ 2:30pm

    Re: Re: Three Strikes should work both ways

    So, with enough million$ penalties, there won't be a RIANZ or RIAA or MPAA to do the "protecting". Then the alleged copyright holders can decide how much they want to pay to keep the game going.

     

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  31.  
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    Duke (profile), Oct 19th, 2012 @ 2:32pm

    Re:

    Worse than the troll activity is the reaction we can expect from the enforcement lobby. I'm predicting either conveniently forgetting about it at all, blaming the government/ISP who was responsible for sending the messages which got messed up, or simply saying this was a fluke, one-off event that could never happen again.

    The sad thing is, they will be able to convince their paymasters the latter is true. If past experience is anything to go by, it will take more than one ridiculous (near-)injustice for them to stop.

    *sigh*

     

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  32.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 2:33pm

    Re: Re:

    outlierdirt.com

     

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  33.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 2:56pm

    A three-strikes scheme in France concludes their first case with the authorities nabbing the person who didn't do it.

    A three-strikes scheme in New Zealand concludes their first case with the authorities nabbing the person who didn't do it.

    Is anyone else seeing a pattern, or is it just me?

     

    reply to this | link to this | view in thread ]

  34.  
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    MahaliaShere (profile), Oct 19th, 2012 @ 3:10pm

    Re:

    The pattern is that they just want somebody punished. It doesn't really matter who. Somebody must pay.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Scott, Oct 19th, 2012 @ 3:11pm

    Re:

    I do

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Scott, Oct 19th, 2012 @ 3:41pm

    Re: Re:

    Not to mention how content owners could be "shot first,ask questions later" mentality.

     

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  37.  
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    Chargone (profile), Oct 19th, 2012 @ 5:06pm

    Re: Re:

    worth noting that the 'average New Zealander's HOUSEHOLD (not the individual) is highly unlikely to have over 2000 NZD in savings at any given time (and likely plenty of debts) college savings? nope. tertiary education is funded mostly by Loans and government allowances. mortgages and various other debts tend to eat the money that would otherwise be saved.

     

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  38.  
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    Chargone (profile), Oct 19th, 2012 @ 5:09pm

    Re:

    Tribunals are a bit weird. they're not entirely adversarial and are more about dispute resolution than anything. basically, if the RIANZ dropped it, and the other party isn't making a fuss, the dispute is resolved so the issue's over. (on the other hand, if a tribunal makes a ruling on the actions to be taken to resolve a dispute and one party or the other fails to follow that ruling they then end up in court facing, as i understand it, the Crown, for failure to comply. appeals can also be lodged and go through the normal court process.)

     

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  39.  
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    Chargone (profile), Oct 19th, 2012 @ 5:12pm

    Re: Interesting insight

    possibly, though not that i know of.
    they Are putting effort into upgrading the infrastructure though... and making it easier and easier to deal with them online, and more and more of a pain in the arse to do a lot of things any other way. ... which is why the possibility of losing your internet connection over this was deemed non-viable, as i understand it.

     

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  40.  
    identicon
    Anonymous Coward, Oct 19th, 2012 @ 5:51pm

    Re: Re:

    I believe that came from one case where the student pointed out that she didn't have that much money to begin with. The RIAA pretty much told her "too damn bad, our artists are starving, go fuck yourself".

    Seriously, if the industry is dying and they have so many starving artists, why doesn't the RIAA just interview them? It'd still be propaganda, but it might actually WORK at convincing people that the non-existent damage actually exists.

    Or maybe the reason that they haven't done so, is because they CAN'T find any. After all their industry has been dying ever since the player piano was invented.

     

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  41.  
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    That One Guy (profile), Oct 19th, 2012 @ 6:01pm

    Re:

    You say that as if they actually care whether or not their actions could totally ruin someone. As long as the extortion agency itself isn't being negatively affected, they could not care less what damage their actions cause to other people.

     

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  42.  
    identicon
    Scott, Oct 19th, 2012 @ 6:05pm

    Re: Re: Re:

    I mentioned the other day on here that I saw one of those public service announcements,I thought that "indie artist" was just an actress paid to say that sorta shit.

     

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  43.  
    identicon
    abc gum, Oct 19th, 2012 @ 6:33pm

    I guess the trolls haven't been for their services.

     

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  44.  
    identicon
    Scott, Oct 19th, 2012 @ 6:36pm

    Re:

    You mean MAFIAA paid trolls j/k

     

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  45.  
    identicon
    Justin Olbrantz (Quantam), Oct 19th, 2012 @ 7:35pm

    This Is Why

    This is exactly why it's imperative that the accused not be given a chance to defend themselves. If they can defend themselves, they can exonerate themselves and make the entire ordeal a huge waste of everyone's time and money. Nobody wants a huge waste of time and money, right?

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    abc gum, Oct 19th, 2012 @ 10:08pm

    Re: Re:

    someone didn't get paid

     

    reply to this | link to this | view in thread ]

  47.  
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    That Anonymous Coward (profile), Oct 20th, 2012 @ 1:18am

    Re: Re: Re:

    The sad thing is they keep getting laws chipping away at citizen rights to keep them happy passed. They are getting more and more control.

    6 strikes is an evolution of what they have been doing worldwide in these cases.
    6 strikes is full on corporations creating laws to benefit themselves, and the Government is giving it their blessing.

    They know they will not stop "piracy", but it lets them get closer to being able to have even more control over content and reduce your rights.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Oct 20th, 2012 @ 3:20am

    They just want to terrorise people into only getting music by buying CD's, or possibly going to Itunes.

     

    reply to this | link to this | view in thread ]

  49.  
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    PaulT (profile), Oct 20th, 2012 @ 3:30am

    Erm, this probably provides a great example of why this sort of thing will always be doomed to failure:

    "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."

    Yeah... if you've been hacked that means they have your password, so such a check is irrelevant. Depending on the encryption you're using, they can hack a new password in minutes if you change it. The novice user will never know, not until they get the nastygram in the mail. This user took due diligence in making sure her connection was secured, but the only way to completely secure your network is to take it offline.

    As I've said before, if these programs were to become widespread and successful, the only thing it will really encourage is learning how to hack your neighbour's wireless so you don't get the takedown notices.

    Oh, and I wonder how much money was lost to the local economy as a result of her removing her internet (removing customers from not only the ISP and legal digital services but also online banks, travel sites, shopping, etc.)? Almost certainly more real money than was ever lost by whoever was doing the sharing.

     

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  50.  
    identicon
    Marvin, Oct 20th, 2012 @ 4:23am

    >>> $1250 as a deterrent.

    You didn't mention the deterrent fee RIANZ will have to pay to disencourage future accusations without sufficient evidence.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Scott, Oct 20th, 2012 @ 5:12pm

    Re:

    Itunes isn't the only one. There's Amazon,Zune/Xbox Music,7Digital,Rhapsody.

     

    reply to this | link to this | view in thread ]

  52.  
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    PaulT (profile), Oct 21st, 2012 @ 3:40am

    Re: Re:

    Not in New Zealand...

     

    reply to this | link to this | view in thread ]

  53.  
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    Chargone (profile), Oct 22nd, 2012 @ 6:50am

    Re:

    is there one? because that would be a good thing. though it's probably pathetically low for anyone likely to incur it.

     

    reply to this | link to this | view in thread ]

  54.  
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    Marsha J (profile), Jan 30th, 2013 @ 12:39am

    Wow Mr Masnick, luckily we only believe a fraction of what we read. The case was NOT dropped because it was 'clear the accused didn't file share'. Far from the truth. I don't know where you heard that crap, but utter crap it is!!! If you heard that from 'her' then that certain "innocent" someone has been telling you big fat porkies...

     

    reply to this | link to this | view in thread ]


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