Tuesday, October 23, 2012

Three strikes and not out

Close-up of painted musical note on woodThe Citizens Advice Bureau has been providing access to legal information, assistance and advice to New Zealanders for many years. I expect that a few of these New Zealanders are students.

Speaking from experience, there are many opportunities for disputes to arise between students living in shared accommodation. There is the person who signs the tenancy agreement. The one who is responsible for the shared bank account. The person who has to pay those unclaimed long distance phone calls because they are the account holder. All of these scenarios rely on the other flatmates keeping up their end of the bargain. Sometimes that is too much to ask.

The Citizens Advice Bureau has now encountered (probably for the first time) a student who is in the gun for unlawful downloading carried out by one or more of her flatmates. I guess it was only a matter of time.

The background

According to TechLiberty post RIANZ withdraw one of first cases to Copyright Tribunal, a student was flatting with a few others. She was the account holder for the flat's shared internet account. She claims that she has never used file sharing software. The unlawful downloading must have been carried out by one of her flatmates.

This is the second most common excuse identified by RIANZ. I cover this in my earlier post No change to copyright notice fee. I cover the main features of the system in an earlier post The show goes on.

The Recording Industry Association of New Zealand (RIANZ) claims to have sent a detection notice under New Zealand's three notice regime. The flatmates claim not to have received the detection notice. Then the warning notice arrived. The defendant showed it her flatmates who denied any wrongdoing. She checked the password  on the wireless network to make sure that others outside the flat were not using it. Then came the enforcement notice and the prospect of a Copyright Tribunal Hearing.

The outcome

RIANZ appears to have withdrawn the case and did not proceed to the Copyright Tribunal. This is a great result for the defendant. She would have been the first defendant to appear before the Copyright Tribunal under the new law.  Publication of her name would have assured her a kind of notoriety. This would probably have affected her job prospects, at least in the private sector.

There are some lessons for us here. And some questions still left hanging.


RIANZ claims that 5 songs were unlawfully downloaded and that an award of $2669.25 is appropriate. So how was this amount calculated? Here's how they worked out the amount:
  • $1075.50 in lost sales of the music
  • $373.75 to reimburse RIANZ for cost of the notices and tribunal fee
  • $1250 as a deterrent

The lost sales component is interesting. The cost of each track on the iTunes store is NZ$2.39. Ordinarily the damages would be the lost sales of those five tracks. If the defendant (or her flatmates) had not downloaded the music unlawfully then they would have paid $11.95 for the music. So the rights owner missed out on $11.95.

However, peer-to-peer file sharing networks being what they are, the music was shared with others during and after the downloading process. So the rights owner missed out on more than just one sale of each track. RIANZ apparently produced evidence suggesting that each track had probably been downloaded 90 times and therefore the cost should be multiplied by 90. Hence the total of $1075.50 rather than $11.95.

The case didn't make it to the Copyright Tribunal so this calculation of damages was never tested.


So what can we learn out of all this?

The obvious one is don't be the account holder. If you are a student living in shared accommodation - don't provide a wireless network for your flatmates. Let them organise their own internet access with an internet service provider.

This case also serves as a further reminder that the account holder is liable for unlawful downloading carried out on the network they signed up for. It's not an excuse to say it was someone else's fault. A landlord, bank or telco wouldn't buy that one. Why would a rights holder be any different?

Photo courtesy of author The-Lane-Team under Creative Commons licence.

1 comment:

  1. The lost sales component is alarming. It's a retaliation against a cohort, without proof, just some estimate that was (if I understand correctly) provided by the plaintiff. With that sort of reasoning, we could end up with a vigilante beating one tagger to death, in his indignation over all the other taggers who haven't been caught. Oh, wait, that did happen.


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