Music Biz Dumps First Contested Copyright Case After Botched 3 Strikes Procedure

RIANZ, New Zealand's answer to the RIAA, have withdrawn their case against an individual they said should have been punished under the country's "3 strikes" anti-filesharing regime. The decision follows a procedure beset by problems, including delivery of erroneous infringement notices and a claim for financial punishments that was not only unsupported by the law, but appears to have been reached via guesswork on the part of rightsholders.

The Copyright (Infringing File Sharing) Amendment Act was implemented in New Zealand last year. Its aim is to reduce illicit file-sharing by sending out warnings and ultimately punishing copyright infringers.

RIANZ, the Recording Industry Association of New Zealand, sent out just 2,766 notices between October 2011 and April 2012. Earlier this month it was revealed that eight individuals would face the country’s Copyright Tribunal and the possibility of fines after receiving their third strike.

All eight individuals were targeted by RIANZ, the Recording Industry Association of New Zealand. Seven of the accused asked the Copyright Tribunal to consider their cases on paper-based evidence alone. An eighth took up the opportunity to appear before the Tribunal in person. However, despite signaling their intention to defend, that is no longer required.

According to information provided by Tech Liberty, the Internet rights group that has been supporting the individual, RIANZ have dropped their case without explanation. The background does however provide some clues.

The alleged infringer, a student in shared accommodation, was the person with responsibility for paying the flat’s Internet account and as such her name was on the bill. She insists she has carried out no file-sharing and doesn’t even know how – Tech Liberty say they had to explain to her how it all works.

The first step on the strikes ladder is when an alleged infringer receives a warning notice from their ISP saying they have been detected file-sharing. That notice, the student insists, never arrived.

The second notice did. This was shown to the student’s flatmates who all protested innocence. The flat’s wireless network was checked for security.

Then a third and final warning arrived but it was addressed to the wrong person. Eventually the ISP (Telecom) withdrew the notice and re-issued it with the correct name. This was followed up by a Ministry of Justice letter informing the student of RIANZ’s claim against her.

The recording group asked for just over NZ $370 (US $303) to cover the costs of the notices and copyright tribunal hearing, plus NZ $1,250 (US $1,024) as a deterrent. However, eyebrows were certainly raised when it came to their claim for the music involved in the case.

The infringements were alleged to have taken place on five tracks with the cost of each measured against their value in the iTunes store, a total of NZ $11.95 (US $9.79). This sounds reasonable enough, but RIANZ were actually claiming for $1075.50 (US $880.96).

“RIANZ decided, based on some self-serving research, that each track had probably been downloaded 90 times and therefore the cost should be multiplied by 90,” says Tech Liberty co-founder Thomas Beagle. “There is no basis in the Copyright Act or Tribunal regulations for this claim.”

When monitoring peer-to-peer networks it is indeed possible for anti-piracy companies to connect an alleged infringement with an IP address. However, it is not possible for them to accurately measure how many other file-sharers an alleged infringer has directly shared material with, over and above their single distribution to the monitoring anti-piracy company.

In addition, other problems remained. Regulations require that the second and third notices specify which notices they carry on from – they didn’t. Furthermore, the error-corrected third notice had additional problems.

“The corrected third and final enforcement notice was sent for an infringement that happened within the 28 day stand down period after the warning notice, which means it was not a valid enforcement notice,” Beagle explains.

With these issues in mind, the student – with Tech Liberty’s help – decided to attend the Copyright Tribunal in person to fight the accusations. But just after she was informed that RIANZ had withdrawn their claim and her case had been closed.

The recording label group gave no reason for their withdrawal but given the outline of the case – and the fact that they had an adversary willing to fight – one might come to the conclusion that they were not prepared to take risks with their very first contested case.

Their lack of transparency will do little to quieten critics of the scheme, who say the process is heavily biased towards rightsholders.

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