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

Failures

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.

Filed Under: liability, new zealand, three strikes
Companies: rianz