First NZ three-strikes case falls through

The Recording Industry Association of New Zealand (RIANZ) today withdrew one of the first cases of alleged illegal filesharing to be heard by the Copyright Tribunal.

RIANZ did not disclose its reasons for withdrawing the case, which involved the alleged downloading of five songs.

The defendant was a student who shared a flat with others. She was supported pro bono by civil rights lobby group Tech Liberty NZ and lawyers.

Thomas Beagle of Tech Liberty NZ told iTnews that the defendant was the account holder. She denied having engaged in illegal filesharing and believed that one of her flatmates was to blame.

New Zealand's copyright law, enacted last year, allows rights holders to haul alleged filesharers in front of the Copyright Tribunal after issuing three warnings or enforcement notices.

The Copyright Tribunal can award damages of up to $NZ15,000 ($A11,850), although former NZ minister of justice Simon Power called for smaller penalties of NZ$375 – to cover fees.

Beagle said RIANZ asked for a total of NZ$2699.25 in penalties. While the value of the five songs was calculated as $NZ11.95, RIANZ wanted an additional $NZ1075.50 to cover its illegal sharing.

"This is based on RIANZ's notion that each track had probably been downloaded 90 times," he told iTnews. "There is nothing in the Copyright Act or the regulations for it that allow for this.”

Beagle said the deterrent penalty of $NZ1250 was also surprisingly high. "It amounts to an attempt at US-style statutory damages, which we do not have in New Zealand."

He said the student, with the help of lawyers, wrote a letter to RIANZ, outlining her case and offering to settle it for the cost of the fees.

She initially received a “very aggressive” refusal, Beagle said. But after the student filed her submission to the Copyright Tribunal, she received a letter from RIANZ stating that the case had been withdrawn.

The student was terrified by the whole process, Beagle said.

"She cancelled her internet connection after receiving the summons from the Ministry of Justice and refuses to be an account holder again," he said.

"The relationship within the flat soured due to the infringement case, and the student had to move out; it caused her significant distress and worry, and preparing a defence interrupted her studies and part time job.”

Beagle also criticised the student's ISP, Telecom New Zealand, for being unhelpful.

"They made such a balls-up of the third and final notice that it had to be reissued," he said.

"I haven't seen a single infringement notice that is correct, not from any ISP,” he added.

The student claimed that she had never received the first notice and was unable to obtain a copy from Telecom. She had to obtain it from the Copyright Tribunal instead.

A spokesperson for Telecom New Zealand said the telco could not comment on the specifics of individual cases for privacy reasons.

"We have however been meeting regularly with RIANZ and have made improvements to our warning notice letters and supporting communications to ensure they are aware that it may not be the account owner who is illegally downloading music; it could be others in the home," the spokesperson said.

To date, RIANZ has reportedly filed eight claims to the Copyright Tribunal and withdrawn two. There is no timetable to hear the remaining six in the first wave of claims to be filed.