Early Lessons From New Zealand's 'Three Strikes' Punishments

from the you-call-that-justice? dept

New Zealand has the unhappy distinction of being in the vanguard of using the "three strikes" approach of punishment for people accused of sharing unauthorized copies online. As in France and the UK, this was brought in without any preparatory research to ascertain its effectiveness, and without any real thought about the practical implications. That makes a post by Susan Chalmers on the blog of InternetNZ, a "non-profit open membership organisation dedicated to protecting and promoting the Internet in New Zealand", particularly valuable.

It's entitled "Early Lessons from the Copyright Tribunal", and looks at the first two cases that have come before the New Zealand body responsible for implementing the three strikes law (recently, a third one has been added.)

It's full of fascinating details, and is well-worth reading for the insights it gives into the realities of the three-strike approach in New Zealand. Take the following, for example:

Both were caught illegally uploading songs. The specific "wrong" here according to the Copyright Act is that only the copyright owner can "communicate the work to the public". The law appears to presume that when your BitTorrent client allows other P2P users to download from you, then you are communicating that work to the public, even though that “public” could in fact be one person
That might seem a mere technicality, but as Chalmers points out, it isn't:
The written decisions showed that the account holders had a limited understanding of the technology they had been punished for using. Neither account holder seems to have understood that when you download a file, the client will automatically start uploading it to peers who request it. This goes to suggest that the account holders didn't know what their computer was doing was wrong (though they may have understood that downloading was wrong).
Again, this isn't a minor detail, because of perhaps the most problematic aspect of the three-strikes approach:
The law inverts the age-old principle (you know, that one that's essential to due process and a democratic society) that a person is "innocent until proven guilty". In a normal copyright infringement case that occurs in a court of law, the burden is on the copyright owner to prove that the alleged infringer infringed.

Under Skynet, the burden is on the alleged infringer/account holder to prove that they did not infringe. Specifically, they have to contest each of the three infringements listed on the notices.
Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined. With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.

As Chalmers emphasizes:

We have to be immensely careful that in developing novel legal standards and processes to protect copyright owners in the online environment, we do not gloss over the basic safeguards that should be provided to people under a fair legal system.
On the basis of these early cases, and the clear bewilderment and helplessness of those accused, it would seem that this is simply not happening. It will be interesting to read a similar analysis once more people have been processed by the system.

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Filed Under: early lessons, new zealand, three strikes

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  1. identicon
    special interesting, 25 Feb 2013 @ 11:24am

    Besides the suppression of local culture by copyright time limits beyond the lifespan of the audience...
    Corwin above better stated my opinion. I no longer believe in copyright as a viable concept anymore and will be suspicious of any replacement because of lack of trust in the current politicians in office. The competence they claim escapes me. Better to strike it down and worry about controversy later at least it will be legal. You can call it bullshit or whatever. I don't care at this stage. Do you feel damaged by it? -apathy- Think thats wrong? Too bad. I think your wrong too.

    If you think i'm unjustified in this conclusion you can pick up on my logic trail here: http://www.techdirt.com/articles/20130222/14191722072/six-strikes-officially-begins-monday.shtml#c25 58 (the reasons are culturally based)

    It occurs to me that the 3 or 6 strike 'plans' are just ways to squeeze money off of the unwary public in massive amounts. Adam Chandler said it; “follow the money”. Since the stink is enough, we don't need hounds to follow it...

    I used to hear the phrase “inadmissible evidence” very often but even in the courtroom it seems a vanished concept never mentioned. The word “disallowed” seems to be currently in vogue like the judge actually has a choice or something like that.

    At one time there were strict rules for evidence like not being to admit anything as evidence that was not on the search warrant. More strict are the first person witness rules and hearsay. The law written these days is so vague and uninterpretable that the (totally outrageous) phrase, of self justification, “intent of the law” is used in locally interpreted and implemented law. (yes the law in East Texas seems interpreted and implemented differently than elsewhere)

    the fact that the IP and download evidence gathered so far by anyone is hearsay is a fact. The laxity of the ISPs and involved copyright associations classifies as ignorance. For reasons of completeness you'd have to download an entire file from the accused person just to prove it was not a corrupted file. (thanks #16 your nick is sooo long)

    Ignorance of the law (is no excuse) goes both ways. Its one of the most abused phrases of false justification right along with (sic) “you should have thought of that before you...” (did that). Both phrases presuppose guilt without substantiation. Only a first person evidenced based (no hearsay) trial gives legitimacy and even then the above phrases is like a verbal water boarding regardless of guilt. The voluminous incomprehensibility of current law (thanks Monkey) reminds me of the founders intention that the constitution would be re-ratified every 50 years or so. (but the current crop of boneheads... -worry, worry-)

    Two lawyers and a copyright maximalist enter a bar. The first lawyer asks the bartender for the plagiarized shaken not stirred martini. The second lawyer picks out the copyrighted nefarious Bluu-Rei brandy and the copyright maximalist requests the trademarked BatBoy beer. The bartender replies “that'll be two Strikes and a DCMA take-down notice”.


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