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Kiwi Three Strikes Tribunal Fines Soldier Who Was Serving In Afghanistan When Infringement Happened

Mike Masnick — Wed, 20 Mar 2013 08:34:25 PDT

G Thompson was the first of a few of you to send in this story about the latest "three strikes" Tribunal hearing in New Zealand, in which the Tribunal ruled against a guy, despite the fact that he was a soldier in the NZ Armed Forces and deployed in Afghanistan at the time the various accusations of infringement occurred. Upon getting the third strike, having just returned from his tour of duty, he sent the tribunal a letter, noting that it was impossible for him to determine who had actually infringed, as he was away fighting for the country and there had been a number of flatmates in the place during the time of the accusations, such that it could have been any one (or multiple ones) of them downloading infringing material. Still, he agreed to "accept responsibility" because it was his account. That's an honorable thing to do, though it's simply ridiculous that he should have to do that, since he is clearly not at fault.

I have just returned from deployment overseas [in] Afghanistan and was not aware of music being downloaded. It is very difficult to determine who in the household is responsible for downloading music as flatmates are currently deployed around NZ.

However I understand entirely that I am the person who is held liable for these actions. I have spoken to the pers [sic] who have access to my internet IP address, and between 8 pers, we cannot determine who is fully responsible.

I ask that this notice be a lesson to those in my household as they now understand how severe the consequences may be for committing such an act. I do not wish this situation to grow any more than it needs to be. I am currently going through transitioning from military life in Afghanistan to life back home in NZ, and I'm not fit to tackle this allegation made against me.

However, I take full responsibility for the acts committed under my IP address and wish for this to be resolved asap. I am willing to co-operate by any means required of me.

And yet... the Tribunal still made him pay $255.97, despite not doing anything. The breakdown was $200 to reimburse the RIANZ for the application against him, $50 in fees, and another $5.97 for the "price" of the 3 songs on iTunes. Of course, since he wasn't the one who downloaded the songs in the first place, it seems ridiculous that he should have to pay for those songs, let alone the various other fees.

As Rick Shera points out in the link above, the Tribunal even acknowledged that it could override the automatic fine by claiming such a ruling would be "manifestly unjust," but bizarrely chose not to. Shera questions under what circumstances the Tribunal would ever use that ability if it didn't use it in this case:

So, it was open to the Tribunal to decide in these circumstances - soldier overseas, no way of knowing who infringed and therefore no ability to recover any award, admitted responsibility - that to make an award was manifestly unjust. Remember that it is unjustness to the account holder (the soldier in this instance) that is relevant not any unjustness to or cost incurred by the copyright owner. Difficult for the Tribunal though without any argument on the point being presented by the Respondent.

I have said before that trying to show manifest unjustness will be extremely hard, especially given the presumption of guilt in section 122N and the fact that an account holder is liable for all actions taken using its account. I think this case underlines that. I find it hard now to imagine any circumstance that will invoke this protection for an account holder.

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NZ Copyright Tribunal: Accusations Are Presumed Infringement, Despite Denials

Mike Masnick — Wed, 30 Jan 2013 03:27:00 PST

A few weeks ago, we noted that the first "three strikes" case of infringement in New Zealand was set to go to the Copyright Tribunal (an earlier case was dropped after the recording industry (RIANZ) realized it had screwed up). The Tribunal has now issued its first ruling, demanding that the accused pay a grand total of $616.57 NZ (about $515 US). The person was accused of downloading and sharing Rihanna's Man Down twice, and Hot Chelle Rae's Tonight Tonight once. The tribunal noted that the first song retailed for $2.39 and the latter at $1.79, so it doubled the first one, and started with $6.57 (all NZ dollars). Then it added $50 to pay for infringement notices being sent out. Another $200 covers the fee that RIANZ paid to bring the case, and then it tacked on a "deterrent sum" of $360 -- or $120 per song. Add it all up and you've got $616.57.

The full ruling is a bit odd, but highlights the ridiculousness of NZ's three strikes law. The Tribunal notes that, since this is the first such ruling, it was going to explain each point carefully, and it did. But the really crazy stuff is that it notes that, under the law, it basically has to assume that the accusations mean guilt. The accused responded by admitting only to downloading Man Down a single time, and guessing that the second time had to do with a problem with uTorrent. She denies entirely that she or anyone in her household downloaded the other song.

"The letter outlines three separate infringements recorded on an internet connection in my name. The first song downloaded was a song called man down by rihanna. I accept responsibility for this. I downloaded this song unaware that in doing so from this site was illegal. When this song was downloaded to my computer; a whole utorrent program downloaded onto my computer [W]hen I turned my computer on it said that the song was still downloading and maybe that caused the song to register twice as it being downloaded? l'm unsure if this is possible or not but don't know why it shows that I would try to download the same song twice.

l kept receiving a pop up notice saying it seems like utorrent is already running but not responding, please close all utorrent processes and try again ... I figured out how to delete the song that was still trying to download but still couldn't figure out how to delete the whole program until just recently when I got someone to look at it as after I received the letter, i assumed having this program on my computer was causing the warning regarding downloading?

When I received the letter warning me of the download and consequences and that it was illegal, I didn't challenge the letter as I took responsibility for my actions and realised I was in the wrong and took it as a warning and didn't do it again.

I would never intentionally do anything illegal and you can see this from my criminal record as it is clean. I didn't realise that it was illegal and I apologise sincerely for this mistake and have removed it from my computer.

In regards to the song 'tonight tonight' by Hot Chelle Rae being downloaded, I can't claim responsibility for this as it wasn't done by myself or anyone in this household but if I find the person responsible for downloading this through my internet then I will definitely enforce the consequences behind doing so."

So, basically, of the three strikes, she admits to one, suggests the other one, if done, was completely by accident, and vehemently denies the final download. The Tribunal basically ignores all that and says that, under the law, an accusation is as good as guilt unless you provide evidence of innocence -- and then says she failed to do so. Think about that for a second. You need to prove a negative here -- which seems close to impossible, but that's what the law apparently requires.

The Act creates a presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement of the right owner's copyright in the work identified. An account holder may submit evidence that this presumption does not apply, or give reasons why it should not apply. In this case, the Respondent has not provided any evidence that the presumption should not apply. In fact, she acknowledges that at least some manner of infringement has taken place and has apologised for this.

You would think that admitting honestly to that single download might make the Tribunal wonder if perhaps the other two accusations were inaccurate, but instead it take it as proof that "some manner of infringement" has taken place, so it can assume that the accusations were all accurate. The Tribunal basically throws up its hands and says that since there is "insufficient evidence" it just assumes "guilty."

There is insufficient evidence before the Tribunal for it to make detailed findings on these factual issues. That is the nature of a decision being made on the papers. On the basis of the information available to it, however, together with the statutory presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement of the right owner's copyright in the work, the Tribunal is satisfied that file sharing took place via the Respondent's internet account as alleged.

In the normal world, "insufficient evidence" means that you're presumed innocent, not guilty. But this is copyright law we're talking about, where the normal rules don't apply.

If there's any silver lining to the ruling, it's that the Tribunal did not go as far as RIANZ wanted. It had argued that the accused should have to pay a lot more than the cost of purchasing the track for that initial cost, because (it argued) any upload could be shared multiple times. The Tribunal rejects that idea, saying that it is "not relevant" to the cost issue, though it may be relevant concerning deterrence. On the issue of deterrence, the Tribunal more or less sticks its finger in the air and picks $120.

RIANZ tried to argue that the deterrence fee should be high, because it insisted the downloading of three songs (really only two songs) was clearly "flagrant." Why? Well, because she used uTorrent! Therefore, she must be a serial infringer.

The fact that the account holder had BitTorrent protocol (uTorrent version 2.2.0) software installed on her computer. It notes that the locating downloading, installing and configuring of such software is a deliberate act and does not occur without direct action on behalf of a computer user.

The fact that uTorrent is perfectly legal and has significant non-infringing uses is not something that the RIANZ cares to concede. RIANZ also claimed that three whole downloads proves "flagrancy." Oh, and they insist that she "took no action to alter her behavior" -- again as an argument for flagrancy. Of course, the woman argues that she did, in fact, change her behavior. Either way the Tribunal notes that these arguments have nothing to do with flagrancy, since they'll automatically apply to just about anyone who shows up in front of the panel.

On the whole, it seems doubtful that this is going to suddenly make people start buying music again, but why let that get in the way of shaking down some music fans?

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First Three Strikes Case In New Zealand Goes To Hearing

Mike Masnick — Tue, 15 Jan 2013 13:30:44 PST

Back in 2011, we wrote about New Zealand's rush to put in place a three strikes law that involved punishment for people accused -- not convicted -- of copyright infringement online. Having gone into effect, it looks like the Copyright Tribunal set up to deal with such cases is now about to have its first hearing concerning someone who got a third strike. As the report notes, the big labels, represented by RIANZ (the New Zealand version of the RIAA -- representing the same labels), has sought action against 17 people who got three strikes. Six cases were dropped (reason unknown, but probably because they paid large sums of money to RIANZ -- or because RIANZ realized they were about to be completely embarrassed by someone who had done nothing wrong.), and another 10 sought to have the Tribunal make its decision based on written submissions alone. Only one person sought to have a full hearing which is getting underway soon.

Unlike the US's six strikes effort, the NZ one is a lot more draconian, with significant fines likely, even in cases of incidental and minimal sharing:

The tribunal can make awards of up to $15,000 against pirates, and Rianz had sought awards of several thousand dollars in at least two of the dropped cases.

In one, Rianz sought about $2700 from a Wellington student whose internet account was allegedly used without her knowledge to download five songs valued at $11.75. That case also seemed destined for a formal hearing.

Yes, RIAA/RIANZ, that's exactly how to rally the public to your cause. Demand $2,700 for someone who had an internet account on which someone else downloaded $11.75 worth of songs. And you wonder why people think all of these "piracy" efforts are insane... Here's a tip to the RIAA/MPAA and all related groups: if you want to be taken more seriously, stop attacking your fans and try to figure out how to better serve them.

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

Mike Masnick — Fri, 19 Oct 2012 09:42:14 PDT

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?

$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.

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.

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