The Recording Industry Association of New Zealand (RIANZ) had
its first victory on Tuesday 29 January 2013 under the new file
sharing provisions of the New Zealand Copyright Act, with an award
of $617.59 being made against an internet account holder.
The process New Zealand has adopted involves ISPs sending out
notices to its internet account holders on instructions (and
payment) from rights holders. After three notices within a defined
period the rights holder can instigate proceedings before the
Copyright Tribunal seeking an order for up to $15,000 and before
the District Court seeking an order that the account holder's
internet account be suspended for six months.
The notices on which RIANZ's action was based in this case
related to the uploading of three songs by the account holder. The
account holder, who was clearly not represented, admitted to having
downloaded BitTorrent and one of the two tracks at issue (although
downloading was not really relevant as the three notices related to
uploading) but she claimed to have been unaware that the BitTorrent
programme subsequently shared the songs at issue with others on the
three occasions alleged. The Tribunal acknowledged that she may
only have intended to download the songs, but intention and even
knowledge are irrelevant under the Act.
The decision is unlikely to sit particularly well with the New
Zealand public. While legally culpable, it's hard to see how
this account holder was the type of offender Parliament had in mind
when it passed the relevant legislation. And while an award of
$617.59 might not sound like much to a corporate, it's not an
insignificant amount for the average New Zealand family.
Having said that, the decision is not likely to be warmly
received by rights holders either. The award will not have come
close to covering RIANZ's costs.
Of particular note is the fact the Tribunal rejected RIANZ
argument that damages should take into account the ripple effect of
the free upload of the three songs by the account holder. Instead,
the Tribunal pegged the damages at the cost of the songs on iTunes,
which at $6.57 is less than the price of two coffees.
If there is one issue with the decision it is that the Tribunal
did not explain how it calculated the $120 per offence
"deterrent against future infringement" portion of the
total award granted to RIANZ. Neither side will be happy with that
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