Third copyright strike for 3strikesnz

POSTED BY Rick Shera
20 February 2013

posted in l@w.geek.nz | Intellectual Property | Copyright

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The third decision of the New Zealand Copyright Tribunal under our graduated response, infringing file sharing, "3 strikes", regime has just been issued. Copy below.
It's consistent with the first two decisions, which will not make RIANZ happy I wouldn't think:

  • Clear affirmation that file sharing networks, of themselves, are not illegal. Note however that the Tribunal implies that "much of the content" on such networks is infringing (although without referencing any evidence for that statement).
  • RIANZ's attempt to again seek damages based on there being multiple infringements every time a file is made available via a P2P network, is rejected, just as it was in the first two decisions.  Noting that RIANZ had provided no evidence of actual numbers of downloads, the Tribunal refers to the submission as "guesswork" (para [23]).  As an aside, this conclusion is consistent with Cowdroy J's judgment at first instance in the leading Australian case, iiNet (see paras [279-300]), which decision was eventually upheld in the High Court of Australia.  So, only provable loss is acceptable and, on that basis, RIANZ is awarded $7.17 ($2.39 per track) under this head.
  • An applicant to the Tribunal does not get all the fees it has paid back.  The Tribunal regards the first two infringement notices sent to an account holder as educative and therefore creates a sliding scale of cost recovery.  So, instead of getting the $75 (3 x $25) cost of its 3 notices back, RIANZ receives $50.
  • RIANZ's attempted analogies to other penalty regimes both in New Zealand and overseas (e.g. driving offences) are rejected.
  • More pleasing to RIANZ however, in considering the necessity for a deterrent award, the Tribunal does take into account the fact that availability for download by others may impact the market for legitimate purchases, that the account holder had 97 other tracks being made available at the same IP address and that there are an increasing number of legitimate music services available in New Zealand.
  • But, as the Tribunal points out, it is hard to attribute much in terms of flagrancy when every account holder who makes it as far as the Tribunal and is found to have infringed, will have done so on at least 3 occasions.  In other words, this alone does not justify a deterrent award for "flagrancy".
As with the first two decisions, the Tribunal is left with what appears to be a gut feel assessment of what deterrent penalty should be awarded. In this case, it lands on $180 per infringement (i.e. per track) as an appropriate deterrent amount, giving a grand total award of $797.17.  That compares with the award in the first decision of $616.57 and in the second of $557.17. 
Note that each decision has been issued by a different Tribunal member and there is no explicit reference to earlier decisions being taken into consideration in terms of penalty calculation. 
We therefore cannot yet predict what might happen in future cases and, in particular, whether deterrent penalties will increase as the enforcement end of the regime becomes more widely publicised. That would not be surprising though.

See Attached.


 
 
 
 
 

POSTED BY Rick Shera
20 February 2013

posted in l@w.geek.nzIntellectual PropertyCopyright

VIEWED 5694 TIMES

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