Gareth Hughes
Skynet strikes: $616.57 for three songs

The Copyright Tribunal have handed down the first penalties for copyright infringement under the so-called Skynet three-strikes law.

The case was won by the Recording Industry Association of New Zealand (RIANZ) against an unnamed female Telecom customer who had downloaded a Rihanna song ‘Man Down’ and has ordered her to pay $616.57.

Leaving aside the question of whether it was smart for RIANZ to focus on downloading a Rihanna song in ‘defence’ of Kiwi artists or the music taste of the Telecom customer this first case raises a number of questions.

Reading the Tribunal’s decision the first thing that jumps out is the acknowledgment that there is insufficient evidence for the tribunal to make detailed findings on her defence but that the Act creates a statutory presumption that an infringement notice constitutes an infringement of the rights holders work. This ‘guilty until proven innocent’ approach written in the legislation along with Internet termination as a remedy was one of the main reasons the law was so derided. At least it wasn’t the $15,000 maximum penalty and her Internet account wasn’t terminated!

The Telecom customer’s defence was that she didn’t realise downloading the ‘Man Down’ song was illegal, the second song ‘Tonight, Tonight’ wasn’t downloaded by her or anyone she knew, and that the file downloading software possibly continued downloading ‘Man Down’ automatically leading to the subsequent ‘strike’ because she couldn’t remove the software. She accepts responsibility for the first song, deleted it and apologised.

It looks like she is being punished for not being able to uninstall the software and possibly for having an unsecured wireless account or anonymous file-downloading house-guest.

Chillingly, the Tribunal notes the use of downloading software was ‘a deliberate act’ while this is so, as the Megaupload case has highlighted these types of file sharing sites can  be used for legitimate lawful purposes and shouldn’t automatically be considered proof of online copyright infringement.

While this Telecom customer is now $616.57 poorer and RIANZ have a successful ruling from the Tribunal under their belt it’s hard to argue the Skynet law has been effective at reducing infringing or supporting artists. It’s still obviously still occurring and savvy infringers are either masking their IP address or moving away from file-sharing platforms like BitTorrent to other sources. A number of cases have been dropped to date over confusion who actually downloaded files and for incorrect processes and the movie industry has been reluctant to issue notices.

I support Kiwi artists and think legal forms of access like Spotify (which was the highlight of my summer) and Quickflix will be more effective at reducing online infringement than punitive laws like this.

With the growth of these legal sources, and a looming copyright review I think it’s time to terminate Skynet and think about smarter ways to reduce copyright infringement.

 

15 thoughts on “Skynet strikes: $616.57 for three songs

  1. Did you see the way TVNZ News reported this?

    They heralded it as a major victory… strategically placed as directly before Tim Berners-Lee’s warning about corporate interests taking over the web (and then they quickly crossed over to sports).

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  2. I’d favour a $10 optional levy on monthly ISP charges, which would give immunity from non-commercial copying and sharing. The proceeds would go to artists (not record companies) on a collecting society model (much like the fees bars and radio stations pay).

    People could opt out, but they’d lose immunity and could be sued.

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  3. If she was stealing someone else’s property it’s great that she has to pay a fine. Trouble is, the NZ copyright laws fail to properly take into account the laws of contract. What exactly IS the contract between the artist who records a song, and the person who hears it? What exactly IS the contract that exists at the moment you purchase a CD?? When I buy a CD I believe I am purchasing the right to play that music any time I want, wherever I want, and do so forever (which justifies me making a backup recording in case the original CD fails to live up to it’s expected longevity). When I hear a new song on the radio, I believe that artist wants me to record it, replay it, and make my family aware of it. NZ copyright laws screw up that contractual relationship.

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  4. I agree with the sentiment of your comments Gareth. Not only that epocketbthe email I got had no smart quotes, yay.

    The only people laws like this catch are either the innocent or the ignorant. Not only that, but, as was rightly pointed out, the recording industry isn’t defending the poor artist, but their pockets

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  5. It was all going so well; Gareth didn’t use the term “fine”. Yay.

    And then… “guilty until proven innocent”…

    One step forward, one step back…

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  6. Hmmmm… perhaps just a little bit out of proportion for a $2-$3 song. Myself I always think of what Neil Gaiman says when people ask him how he feels about people pirating his work. He asks everyone in the room who has a favourite author, one [or indeed many-my insert] whom they buy all of their books and dream of the next one coming out, to raise their hand. Most people in the room will do so. Then he asks how many people discovered that author through being loaned the book by a friend, from a second hand book store, or a library, the internet or some other source that the author receives no income from. Only a few hands go down. Then he says… “There’s your answer.”

    As an interesting aside. When libraries were first started the publishing industry had the same concerns about lost revenue that the entertainment industry has now… they were quite caught by surprise when their sales actually increased. It would be interesting to do a comparison between industry sales & income (adjusted for inflation of course) in say the 80′s (pre www.) and the present.

    Not to mention how much the industry loses because of their delayed release policy. Amanda Palmer commented that she got her wake-up call the first time she toured Australia and, when she was signing autographs after the show people kept trying to give her $10 & $20 notes because they had downloaded her music off the internet earlier, before it was available for purchase down here. She commented that, in her experience most people are happy to pay for music or movies if they think it’s worth it and if they don’t think they’re being ripped off. She’s since dumped the music label and sells her own music available as downloads from her site at about $2-$5 a CD (recorded with full professional recording facilities same as before she dumped the industry label) and, as she said… “No one could say I was poor”.

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  7. Hmmmm… perhaps just a little bit out of proportion for a $2-$3 song

    Can I remind you that for the works she was charged $6.57, and these are the prices the works are on iTunes, this being in the range of your “$2-$3″.

    Seems exactly in proportion to me.

    The surprise was that the Commissioner did not order the payment of the full charges paid by Rights Holder to the ISP; I’d have thought that was a slam dunk.

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  8. Interestingly it cost RIANZ $250,000 to recover the $616.57 for three songs. Now someone is making a heckuva lot of coin out of this. . . might pay to change my occupational status to lawyer.

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  9. This consumer only has herself to blame – for not understanding how to get around the law. In the interests of education I provide the following:

    1) Freecorder, windows only. The Freecorder history will hold a copy of anything that streams so no need to download songs or videos. Handy convert to MP3 function. Free version available. STREAMING IS NOT ILLEGAL!!

    2) YouTube-mp3.org (copy and paste the URL of the YT vid into this and it will convert to mp3 for you).

    3) http://www.hddownloader.com/ (copy and paste as in #2)

    etc…etc…etc…

    So congratulations RIANZ on your big win!! You managed to catch yourself a socially isolated technophobe, probably in their 40′s or 50′s who may not even be guilty. Phew, that was a couple of hundred grand well spent.

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  10. STREAMING IS NOT ILLEGAL!!

    That may or may not be true.

    It is true that streaming legal content and viewing it within the terms of the licence attached to that viewing is legal.

    Capturing a stream may not violate the provisions of the Infringing File Sharing provisions of the Copyright Act, but there are dozens more pages of the Act, and you may be infringing upon provisions in them.

    So is capturing a stream legal? Maybe yes, sometimes, but generally, probably not. Are you likely to get busted for doing this? Almost certainly not. To do so would require a “full” Copyright Act action in the civil court, costing huge amounts of money. And this is the entire reason the Infringing File Sharing legislation was introduced; to provide a workable alternative to the full process for a specific class of infringing activity.

    The advice remains: if you get a first notice, change ISP immediately. Why? Because the process operates through each individual ISP, and you can only progress to second and third notices through the same ISP. Change ISP, and you’re back to a clean slate.

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  11. Interestingly it cost RIANZ $250,000 to recover the $616.57 for three songs.

    Have you got a source for that?

    Now someone is making a heckuva lot of coin out of this

    Coin that ultimately will be paid by the music buying public. And the internet using public, as ISPs costs are not fully covered by the payments they receive from the Rights Holders.

    might pay to change my occupational status to lawyer

    I don’t think its lawyers. The whole process (including the tribunal) is designed to be lawyer-free. Even if the case is heard in person (which this one wasn’t) lawyers are not allowed on either side.

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  12. Since September 2011 the Recording Industry Association of New Zealand has spent $250,000 hunting down copyright violators. In this time RIANZ has managed to catch 11 offenders red handed, with only 1 successful outcome of $616.57.

    RIANZ has issued 6000 notices to suspected account holders, which incurs a $25.00 fee for sending the infringement notices to respective internet protocol address providers [ IPAP's ].

    Regarding the Copyright (Infringing File Sharing) Regulations 2011, Simon Power said:

    “. . .This legislation will discourage illegal file sharing and provide more effective measures to help our creative industries enforce their copyright.”

    That remains to be seen Simon – seems to me a bit of a paradox has evolved. With all good intentions by Simon Power et al. to set a $25.00 fee for each notice to prevent wholesale witch-hunts by over zealous rights holders, RIANZ are crying foul at such a high fee. They feel somewhat de-fanged insisting that a $2.00 fee would be more appropriate. . . well they would, wouldn’t they =))))

    dbuckley asked: “Have you got a source for that?”

    Music pirates: $250k reaps $616.57
    http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10862707

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  13. Thanks for the source, Vaughan M, a good read.

    And now the next one, article from Stuff, Kids take blame for illegal download

    The Coldplay song Paradise and Kesha’s We R Who We R have cost a 50-year-old man $557 as he became the second offender punished under new laws banning illegal online music sharing. … The offender … blamed his 12 and 8-year-old sons for downloading bitTorrent, a programme which allows computer users to illegal download and upload music files.

    And then here’s the kicker:

    He said he didn’t believe he was the type of offender the new law was intended for…

    Doh!… He’s exactly the kind of infringer (not offender) that the law is designed to go after: the account holder who does not ensure that infringing file sharing does not take place on the account he is responsible for.

    Although the judgement has not yet surfaced, the total award is apparently $557.71, with $7.17 being the cost of the music concerned, so on the face of it it looks pretty similar to the last case, so on a sample size of two, this looks like what we’re in for.

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