by Gareth Hughes
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.