Busted as bro…First ruling under NZ’s ‘three strikes’ copyright infringement laws

Busted as bro… First ruling under NZ’s ‘three strikes’ copyright infringement laws

A New Zealand Rihanna fan has the dubious honour of being one of the first people to have an enforcement action brought against her for breach of copyright under the Copyright (Infringing File Sharing) Amendment Act 2011 (NZ), the most recent addition to New Zealand’s copyright laws.  These provisions add New Zealand to the list of countries, including France, South Korea, and Ireland, that have introduced ‘graduated response’ schemes in an attempt to reduce internet-facilitated copyright infringement.

Although the international schemes vary, they are all based on a series of notices being issued to ISP customers, culminating in fines/compensation, or the user’s internet access being suspended or terminated. This New Zealand scheme requires the ISPs to identify the relevant account holder and send them infringement warning notices.

In this New Zealand case, the woman, whose name is not disclosed, was found liable for making two sound recordings, Rihanna’s “Man Down” and Hot Chelle Rae’s “Tonight Tonight,” available for downloading by other people via the file sharing software, uTorrent.  Although the provisions came into effect in September 2011, this is the first report of someone being ordered to pay compensation to a copyright owner since that time.

The New Zealand graduated response scheme allows any copyright owner, or their agent (as was the case here) who claims their works have been infringed via file sharing software, to apply for an order from the New Zealand Copyright Tribunal for compensation of up to $15,000 and/or an order from a District Court requiring the “IPAP” (internet protocol address provider or ISP) to suspend the account holder’s internet access for up to six months.

This order is available as a remedy to a copyright owner after the account holder has received three warning notices from their IPAP (called Detection, Warning and Enforcement notices respectively), as follows:

  1. The copyright owner detects the copyright infringement.
  2. The copyright owner has 21 days to alert the IPAP to the infringement.
  3. The IPAP must issue a Detection notice to the account holder within 7 days after being notified by the copyright owner.  The Detection notice expires 9 months after its issue date.
  4. The account holder has 14 days to challenge the notice.
  5. If the account holder challenges the notice, the copyright owner must respond to the challenge within 28 days of the date of the notice, or the challenge is deemed to be accepted.
  6. If the account holder successfully challenges the notice the process ends, but if the recipient infringes again at least 28 days after the notice is issued but prior to its expiry date, the Warning notice can be issued.
  7. If the individual infringers a third time, an Enforcement notice is issued.
  8. Once the Enforcement notice has been issued (and assuming it is not successfully challenged), the copyright owner can elect to proceed to the enforcement stage.

No evidence of the infringing conduct is required from the copyright owner, thus the scheme assumes that if a notice was issued, an infringing act has occurred, unless the alleged infringer challenges this in the time frame available.

This process is separate and distinct from a copyright owner relying on the existing civil and criminal provisions of the Copyright Act 1994 (NZ) to pursue persons for copyright infringement.  The process of having a matter heard before the Copyright Tribunal using these new provisions is faster and more streamlined, however damages and costs (compensation) are subject to a maximum cap of NZ$15,000.

In this case, the woman admitted to downloading the Rihanna sound recording (albeit not the Hot Chelle Rae sound recording), but the infringement notices were for making the songs available to others via uTorrent (i.e. uploading the songs).  This is a basic premise of BitTorrent peer-to-peer file sharing software – if you are downloading songs via uTorrent, then you are likely going to be uploading them as well – the software was designed to work most efficiently when uploading and downloading is occurring simultaneously.  Further, it was found to be irrelevant that the infringer only intended to download, and not upload the songs in question.

The Tribunal ordered the woman to pay a total of NZ$616.57 (approx. AU$500).  This constituted $50 as a contribution toward the fees paid by the copyright owner to the IPAP, $200 to reimburse the copyright owner’s enforcement costs, $6.57 (being the cost of legitimately buying the two sound recordings from iTunes) and $360 (being $120 for each infringing act) for deterrence.

Assessing the effectiveness of such schemes is difficult.  For example, in the French scheme, there is a huge difference in the numbers of people issued a first notice versus a third notice: does this mean that the scheme is working and getting people to change their behaviour?  Or does it mean it is actually really hard to identify and pursue repeat infringers, particularly if they have the technical skills or desire to avoid detection?

Australia does not have an equivalent scheme under the Australian Copyright Act for copyright owners to take such an action against infringers via their ISPs and the Copyright Tribunal.