First alleged pirate walks the plank – lands in shallow water

Friday 1st February 2013
Article written by: Thomas Huthwaite

The first of at least 11 infringing file sharing cases before the Copyright Tribunal has now been decided.  The Tribunal’s decision is largely a positive one for the Recording Industry Association of New Zealand (RIANZ), the authorised representative for various rights holders in the music industry, with the accused found to have infringed the File Sharing legislation and fined. This article discusses some of the interesting implications of the case for internet users and rights holders.

Three strikes and you’re out? 

Despite the wide publicity and controversy caused by the Infringing File Sharing legislation, there still appears to be a fair amount of confusion over what conduct is illegal.  This case is a clear example of this.  The accused account holder in the present case only admitted to having downloaded a single song by Rihanna (“Man Down”).  But the legislation requires at least 3 file sharing infringements, each occurring approximately one month apart, before any penalty can be awarded.

So, how did the accused become unstuck?

First of all, file sharing by its very nature allows for the simultaneous uploading and downloading of material by several users.  Any time that file sharing software (such as BitTorrent or uTorrent) is used, the user is likely to be both downloading and uploading the material in question.

The accused in the present case chose to illegally download a single song using file sharing software.  However, by file sharing, not only was she downloading the song – she was also making it available for others to download.  RIANZ happened to be monitoring that particular song, which meant that the accused’s initial infringement led to a warning notice.  One month later, the accused was still sharing the same song, and was therefore liable for a second notice in respect of that song.

Secondly, it is the account holder who is held liable for any infringement that occurs on his or her internet account.  In this case, a third infringement occurred when the accused illegally shared the song, “Tonight Tonight” by Hot Chelle Rae.  Even though the accused claimed that she did not illegally share this song herself, and someone else must have done so, the accused was held responsible for any other person accessing her internet account to file share that song.

Two counts of sharing “Man Down” and one count of (vicariously) sharing “Tonight Tonight” meant that the accused had committed three strikes and was liable for a fine of up to $15,000.

A real deterrent?

In this case, the accused was fined a meagre $616.57.  Of this, $250 was calculated to reimburse RIANZ for sending its infringement notices, for applying to have the case heard, and for making its submissions.

The Tribunal held that a total of $360 ($120 per infringement) was an appropriate deterrent in this case – a far cry from the several thousand typically sought by RIANZ in file sharing cases.  Of course, in this case, the accused only admitted to illegally file sharing one song, so some might say that an award of several thousand was not warranted.  But consider for a moment a case heard in late 2012, where a Minnesota woman was fined US$222,000 by an American Federal Court for illegally sharing 24 songs.

In our view, the Tribunal must look to increase its fines considerably (in appropriate cases) for the File Sharing legislation to have any real bite and deterrent effect.  There are many copyright owners who will otherwise decide that the cost to them will be far too prohibitive, and the rewards far too little, to justify sending infringement notices to infringing file sharers.

As an aside, $6.57 is the amount that the three songs would have cost to purchase for download legally, for example, through the iTunes store.

What can you do to protect yourself?

  1. Educate yourself.  In most cases, it is clear what the law allows you to do.  Unless the copyright owner has licenced or authorised you to do so, copying or communicating any copyrighted material may amount to copyright infringement.  This includes copying text, photos, music and videos; it includes sharing material with others that does not belong to you.  The Infringing File Sharing legislation simply provides copyright owners with an easier way to find and prosecute people who illegally share material using file sharing software.
  2. Protect your internet network, especially if you are operating a wireless network.  Password protection is an easy starting point.  Educate those who will be using your network.  Adopt strict software rules.  Further measures, such as port blocking, can also be used to prevent unauthorised use of certain software.
  3. If in doubt, buy your digital content through legitimate and licenced sources, such as iTunes– it’s inexpensive, it’s accessible, it has a huge library of high quality content, and most of all, you know it’s legal.  There are even legitimate free alternatives to iTunes, such as Spotify, which allow users to stream music for free.
  4. Ask for help.

For more information or assistance in copyright matters, we are happy to help both account holders and copyright owners.  Please feel free to contact Brigette Shone and Thomas Huthwaite.

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