Early Lessons From New Zealand's 'Three Strikes' Punishments
from the you-call-that-justice? dept
New Zealand has the unhappy distinction of being in the vanguard of using the "three strikes" approach of punishment for people accused of sharing unauthorized copies online. As in France and the UK, this was brought in without any preparatory research to ascertain its effectiveness, and without any real thought about the practical implications. That makes a post by Susan Chalmers on the blog of InternetNZ, a "non-profit open membership organisation dedicated to protecting and promoting the Internet in New Zealand", particularly valuable.
It's entitled "Early Lessons from the Copyright Tribunal", and looks at the first two cases that have come before the New Zealand body responsible for implementing the three strikes law (recently, a third one has been added.)
It's full of fascinating details, and is well-worth reading for the insights it gives into the realities of the three-strike approach in New Zealand. Take the following, for example:
Both were caught illegally uploading songs. The specific "wrong" here according to the Copyright Act is that only the copyright owner can "communicate the work to the public". The law appears to presume that when your BitTorrent client allows other P2P users to download from you, then you are communicating that work to the public, even though that “public” could in fact be one person
That might seem a mere technicality, but as Chalmers points out, it isn't:
The written decisions showed that the account holders had a limited understanding of the technology they had been punished for using. Neither account holder seems to have understood that when you download a file, the client will automatically start uploading it to peers who request it. This goes to suggest that the account holders didn't know what their computer was doing was wrong (though they may have understood that downloading was wrong).
Again, this isn't a minor detail, because of perhaps the most problematic aspect of the three-strikes approach:
The law inverts the age-old principle (you know, that one that's essential to due process and a democratic society) that a person is "innocent until proven guilty". In a normal copyright infringement case that occurs in a court of law, the burden is on the copyright owner to prove that the alleged infringer infringed.
Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined. With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.
Under Skynet, the burden is on the alleged infringer/account holder to prove that they did not infringe. Specifically, they have to contest each of the three infringements listed on the notices.
As Chalmers emphasizes:
We have to be immensely careful that in developing novel legal standards and processes to protect copyright owners in the online environment, we do not gloss over the basic safeguards that should be provided to people under a fair legal system.
On the basis of these early cases, and the clear bewilderment and helplessness of those accused, it would seem that this is simply not happening. It will be interesting to read a similar analysis once more people have been processed by the system.
Follow me @glynmoody on Twitter or identi.ca, and on Google+
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: early lessons, new zealand, three strikes
Reader Comments
Subscribe: RSS
View by: Time | Thread
I'm eager to see some heavy statistics here. What was the impact in the legal market? Did the sales skyrocket? Is it promoting MORE creations at the local level? How is the usage of other types of file sharing platforms (ie cyberlockers)? How is the usage of VPNs or other methods that can be used to conceal file sharing activities?
I'm fairly sure numbers will be trumpeted as if the system works flawlessly without any regard to proper methodology and evidence... Sadly.
[ link to this | view in chronology ]
Re:
Exactly. The average person isn't really the problem but they are the ones they are catching. They built a trap that only the stupid mice get caught it - meanwhile the smart ones are shitting in their cereal.
[ link to this | view in chronology ]
Re:
> Where are the hardcore pirates eh?
Clueless average joes seem to run rampant freely here.
[ link to this | view in chronology ]
So, the fundamental principles of the Western legal system and sense of equity are now acceptable collateral damage in defense of copyright.
Basically, copyright will be defended, no matter how much of a police state is required to do it.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
So unlawfully appropriating and distributing the creative output of another is "communicating"? What bullshit.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
It communicates my interest in that creative output.
It publishes one more redundant copy on the distribution network from which I get it.
It lets the artists show me their work.
It raises my awareness of the content, ideas, whatever.
It lets people talented enough to re-use it in their creative endeavors do so.
I give it my attention. There is a limit of about 18 man-hours per day of it that I can spend on enjoying art. There is a limit of about 7 billion times that much attention in the world. So that's an advantage for the creator, in mind-share.
It lets me show it to other people in person.
It lets me show it to other people on the other side of the world, just by sharing the link.
Who are you to prevent humans from telling jokes to one another? What if I hear a great joke and print it on a billboard to make lots of people laugh? What if I compile all the jokes I heard in a file and distribute that? SEEDING DISCOGRAPHIES IS THE SAME THING BUT MORE EFFICIENT.
ALL movies have to make their COST back in EARNINGS in TWO DAYS and EVERY one that got a sequel DID SO. Thus, there is no reason to protect them with copyright.
Music? GO PLAY LIVE, GET PAID. Images? Well, a really nice printout of your digital painting, hand-signed and well-framed, is exactly as valuable as the same image painted on canvas. Thus, it's worth your name value divided by the order or magnitude of the amount of copies you print in that form. Which means, more copies mean more name recognition mean more value to your official, signed works mean MORE MONEY FOR YOU.
Everything that tries to block human communication is a crime against humanity, and counter-productive.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
It's not so new after all.
That was something that was considered by the US founding fathers over 200 years ago when they were writing the constitution. They realized may of the perils of a "virtual land grab" even then.
People like to pretend that old ideas in a new context are somehow inventive. This isn't just a problem with patent examiners.
[ link to this | view in chronology ]
Real Pirates
I wonder when the silicon sniffing dogs will make the scene?
[ link to this | view in chronology ]
Re: Real Pirates
[ link to this | view in chronology ]
Re: Real Pirates
[ link to this | view in chronology ]
even in this situation, it is assumed that the accused can afford to hire a lawyer who knows not only the law in general but the laws concerning file sharing in particular
[ link to this | view in chronology ]
You seem to like quoting "guilty until proven innocent" but you seem to overlook "ignorance of the law is no excuse".
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
You should cancel your service then.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
The idea that a citizen of pretty much any country these days could be knowledgeable of all the laws they might be breaking is completely and utterly insane, given how many laws, both current and old-but-still-on-the-books there are.
As an entertaining example, spot the fake law from the following list:
1. It is illegal to leave baggage unattended.
2. No cows may be driven down the roadway between 10 AM and 7 PM unless there is prior approval from the Commissioner of Police.
3. An ashtray is considered to be a deadly weapon.
4. It is illegal to repaint a house without a painting license and the government’s permission.
5. You may not take a picture of a rabbit from January to April without an official permit.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Still, I should thank you, you proved the point quite well in demonstrating just how insanely easy it is for someone to break a law.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Simple math (as i know your a simple soul, and we will use America as the focus point):
50 states with (for the sake of argument) with 50 cities in each, plus the dictates at the federal level. That would equal 2501 seperate legal entities capiable of making a law. Now this doesnt count all the counties, municipalities, towns, bergs, and others but gives us a number to start with. And it doesnt count treaties, other nations (as the interwebs hits them all).
So 2501 lawmaking bodies, if each started with 100 laws (and we know they greatly exceed that by a fair number): you now have 250,100 laws (civil/criminal and the like) if each makes a new law a month (average) that would equal 2501 new laws per month (30,012 per year). in 25 years you would exceed 1 million laws (if the rates stayed the same). America is ~ 200 years old so you could have ~8,000,000 laws
No human on the planet could reasonable expect Judges/Lawyers/Police/Lawmakers to keep track of all of this and its their job. Yet you purupose the average citizen to know it all as well... if you have not found your fault/answer yet, i can not further assist you as your head is planted way to far up someones rectum.
[ link to this | view in chronology ]
The anonymous Mr Pot.
Despite the fascination that some people have with "crime and punishment", we don't have the equivalent of Sharia or medieval law in modern civilized countries.
[ link to this | view in chronology ]
Re: The anonymous Mr Pot.
You might want to pay a bit more attention to the DoJ...
[ link to this | view in chronology ]
Piracy STILL wrong despite corporate abuses!
Anyhoo, been over that ground, yet you pirates still go on making excuses for taking someone else's work, and also giving it away to others, and for Megaupload sleaze-balls getting money for what they didn't create, and so on. You're on the wrong side of the moral question, so can only try petty legalisms.
And here, Mike is down to claiming that ignorance of common knowledge is some excuse. Well, it ain't. If one doesn't know how torrenting works yet still engages in it, then it IS justice to be taught harshly.
Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where Mike sez: uploader + file host + links site + downloader = perfectly "legal" symbiotic piracy.
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
Until then it's pretty obvious you're fellating corporate cock, and heavily at that.
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
Is it your low level of intellect, your unfathomable anti-Mike obsession or a pay packet that's making you so stupid?
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
Anyway, think you people would do far better to focus on the CORPORATIZED LAW aspects of this rather than try to legitimize piracy.
[ link to this | view in chronology ]
Re: Re: Piracy STILL wrong despite corporate abuses!
[ link to this | view in chronology ]
Re: Re: Piracy STILL wrong despite corporate abuses!
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
[ link to this | view in chronology ]
Re: Re: Piracy STILL wrong despite corporate abuses!
Right, it was Charlie McCarthy. Happy now?
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
Here's a hint, you won't find any. There is no moral question.
[ link to this | view in chronology ]
Re: Piracy STILL wrong despite corporate abuses!
Copyright is allowed by the Constitution, nothing more, supposedly under strict limitations which have been all but ignored by lawmakers. This is a point Mike has had to make countless times when clowns like you incorrectly claim it's a Constitutional right. That you would accuse Mike of trying to "erase" it is extraordinary, and shows how you'll desperately stoop to lying when you feel the need.
"No one but the creator has a right to distribute the works, not even when euphemized as "sharing"."
Tens of thousands of years of human culture disagree with you. Copyright has only very recently tried to artificially block this very natural human behaviour, under the premise of the greater good. Experience has shown the opposite effect.
"It derives from the creation, and the law is only recognition of right to keep one's own work, and solely to profit from it."
It's not "recognition" of anything, it's a purely artificial construct.
"You're on the wrong side of the moral question, so can only try petty legalisms."
Morals are completely subjective, and the massive number of people all around the world who knowingly or unknowingly engage in copyright infringement demonstrate the that the "moral question" does not have a simple answer and is nowhere near as clear cut as you think it is.
[ link to this | view in chronology ]
It's also asking to prove a negative, which is impossible. If I get falsely accused of piracy, I can say I didn't do it, I can provide details of the thousands of songs I legally own, I can provide my hardware and show that the song isn't on there, and provide forensic data to show that it never was.
However, none of this will provide that I didn't download that song, and it's doubly troublesome if uploading is the accusation (if you have that song but have never used file sharing software to upload it, how do you prove that?). Therein lies the problem. You're not only being forced to defend against an accusation on the presumption of guilt, you're placed into a situation where it's virtually impossible to prove that you didn't do it.
That's why this is so problematic. The evidence is shaky, has been shown to be mistaken, flawed or even falsified before, attacks the owner of an account (who may have no knowledgeable of the uploaded, may have been hacked, etc.). For that to be then used in a situation where a truly innocent party has no chance to defend themselves is unjust to say the least.
[ link to this | view in chronology ]
Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?
NOW, in the GIVEN ACTUAL cases, where those fools admitted to, hmm, neutral term, "torrenting", where that FACT is acknowledged, where do you stand? Wrong or not? -- And since I don't see how you can avoid calling it "wrong" (though I'm pretty sure that you will), then doesn't SOME punishment follow?
(I'm not for harsh corporatized law where fools are dragged in and inquisited, threatened, and unduly punished beyond the actual value of the tunes -- that'd be about three bucks per thousand, maybe -- nonetheless, the principle of WRONG to COPY someone else's work must stand. It's necessary and good.)
[ link to this | view in chronology ]
Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?
[ link to this | view in chronology ]
Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?
If by 'wrong' you mean legally then maybe, it depends on the laws. Judging from the analysis above that's certainly up for debate under New Zealand law. Not to mention the situation isn't one of the law at all, it's a third party system. It's extra-legal. Now there is a word for taking the law into your own hands and that is widely considered wrong.
[ link to this | view in chronology ]
Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?
[ link to this | view in chronology ]
Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?
No, I addressed real risks associated with these attacks. Whether or not they're applicable to this particular case doesn't change the fact that innocent people have been attacked in the past, and this setup is gamed to make it impossible for an innocent to protect themselves. I'm sorry if that's not convenient to your usual narrative and your lies about everyone disagreeing being a pirate, but that's reality for you - it's complex and justice shouldn't be based on whatever preconceived assumption you find convenient.
"I'm not for harsh corporatized law where fools are dragged in and inquisited, threatened, and unduly punished beyond the actual value of the tunes"
Really? That's not what you normally spout.
"the principle of WRONG to COPY someone else's work must stand."
Nobody argues with that. It's the overbearing removal of peoples' right, disproportionate punishment, the ignoring of business solutions that don't require legal measures and attacks on every new technology that affect that amount of income people can get from work they did 30 years ago.Those are the problems.
You know, the things everybody's actually discussing while twats like you attack us as pirates and wave your strawmen and lies around. Join in the real conversation everybody's really having some time, you might enjoy it.
[ link to this | view in chronology ]
Re: Re: @ "PaulT": "If I get falsely accused" -- what about accurately, as in the given cases?
No, I addressed real risks associated with these attacks. Whether or not they're applicable to this particular case doesn't change the fact that innocent people have been attacked in the past, and this setup is gamed to make it impossible for an innocent to protect themselves. I'm sorry if that's not convenient to your usual narrative and your lies about everyone disagreeing being a pirate, but that's reality for you - it's complex and justice shouldn't be based on whatever preconceived assumption you find convenient.
"I'm not for harsh corporatized law where fools are dragged in and inquisited, threatened, and unduly punished beyond the actual value of the tunes"
Really? That's not what you normally spout.
"the principle of WRONG to COPY someone else's work must stand."
Nobody argues with that. It's the overbearing removal of peoples' right, disproportionate punishment, the ignoring of business solutions that don't require legal measures and attacks on every new technology that affect that amount of income people can get from work they did 30 years ago.Those are the problems.
You know, the things everybody's actually discussing while twats like you attack us as pirates and wave your strawmen and lies around. Join in the real conversation everybody's really having some time, you might enjoy it.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
I'm curious to know
I only question that because there is an extremely high likelihood with bittorrent that the uploader is only communicating a partial file - either because they haven't finished downloading themselves, there are others seeding, or they decide to switch off their client. In itself, that received part file is useless.
[ link to this | view in chronology ]
Re: I'm curious to know
[ link to this | view in chronology ]
Re: Re: I'm curious to know
And it doesn't answer my question - can copyright be claimed on an incomplete or corrupt file?
[ link to this | view in chronology ]
Re: Re: Re: I'm curious to know
[ link to this | view in chronology ]
Re: Re: Re: I'm curious to know
i *PRESUME* that the one 'gotcha' in this scenario, is the 'illegal intent' angle: it don't matter that someone is totally incapable of killing someone, IF they SAY they are going to kill someone, that is enough for the law...
art guerrilla
aka ann archy
eof
[ link to this | view in chronology ]
Re: Re: Re: Re: I'm curious to know
I think it would only be enough for a court to find you guilty of attempted murder. For an actual murder charge to stick, you have to have killed someone. And there is no "Attempted Infringement" law on the books (but there likely will be now that I've given them the idea).
[ link to this | view in chronology ]
I do hope this was only one strike for them. It would be unfair for strikes two and three to rack up in quick succession before the first one was adjudicated.
[ link to this | view in chronology ]
Re:
I was reading the propaganda and to successfully challenge a Mitigation Measure you need to prove at least HALF of the notices were incorrect otherwise no dice.
So even if you can prove 1 of their claims is completely bogus and incorrect, if their are 2 others you can't convince the arbitrator are also incorrect all of them stand.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
"Rights" holders are very careful that anything "digital" other than cyberattacks (used to ratchet even further) are NEVER discussed in a big publicly televised debate.
[ link to this | view in chronology ]
Re: Deja Vu?
http://news.yahoo.com/blogs/ticket/gibbs-drones-obama-talk-fight-club-17404486 0--politics.html
[ link to this | view in chronology ]
Corwin above better stated my opinion. I no longer believe in copyright as a viable concept anymore and will be suspicious of any replacement because of lack of trust in the current politicians in office. The competence they claim escapes me. Better to strike it down and worry about controversy later at least it will be legal. You can call it bullshit or whatever. I don't care at this stage. Do you feel damaged by it? -apathy- Think thats wrong? Too bad. I think your wrong too.
If you think i'm unjustified in this conclusion you can pick up on my logic trail here: http://www.techdirt.com/articles/20130222/14191722072/six-strikes-officially-begins-monday.shtml#c25 58 (the reasons are culturally based)
It occurs to me that the 3 or 6 strike 'plans' are just ways to squeeze money off of the unwary public in massive amounts. Adam Chandler said it; “follow the money”. Since the stink is enough, we don't need hounds to follow it...
I used to hear the phrase “inadmissible evidence” very often but even in the courtroom it seems a vanished concept never mentioned. The word “disallowed” seems to be currently in vogue like the judge actually has a choice or something like that.
At one time there were strict rules for evidence like not being to admit anything as evidence that was not on the search warrant. More strict are the first person witness rules and hearsay. The law written these days is so vague and uninterpretable that the (totally outrageous) phrase, of self justification, “intent of the law” is used in locally interpreted and implemented law. (yes the law in East Texas seems interpreted and implemented differently than elsewhere)
the fact that the IP and download evidence gathered so far by anyone is hearsay is a fact. The laxity of the ISPs and involved copyright associations classifies as ignorance. For reasons of completeness you'd have to download an entire file from the accused person just to prove it was not a corrupted file. (thanks #16 your nick is sooo long)
Ignorance of the law (is no excuse) goes both ways. Its one of the most abused phrases of false justification right along with (sic) “you should have thought of that before you...” (did that). Both phrases presuppose guilt without substantiation. Only a first person evidenced based (no hearsay) trial gives legitimacy and even then the above phrases is like a verbal water boarding regardless of guilt. The voluminous incomprehensibility of current law (thanks Monkey) reminds me of the founders intention that the constitution would be re-ratified every 50 years or so. (but the current crop of boneheads... -worry, worry-)
---
Two lawyers and a copyright maximalist enter a bar. The first lawyer asks the bartender for the plagiarized shaken not stirred martini. The second lawyer picks out the copyrighted nefarious Bluu-Rei brandy and the copyright maximalist requests the trademarked BatBoy beer. The bartender replies “that'll be two Strikes and a DCMA take-down notice”.
-_^
[ link to this | view in chronology ]
Why do we have a court system overcrowded with non violent offenders anyway? It seems the last 40 years of law enforcement has lost touch with... everything? So much to pick on hardly worth a rant.
Here is an example of how an unfair punishment system compares to a fair and kinder type of system:
http://www.guardian.co.uk/society/2013/feb/25/norwegian-prison-inmates-treated-like-people which is just from Reddit. What is so hard to measure recidivism (return to criminality) which is what we WANT to measure.
Ya know, I really have to thank the Internet for easy comparisons like that and Reddit for being one of the more observant communities.
The cigarette argument argument: http://www.techdirt.com/articles/20130215/02462421991/undisclosed-uspto-employees-write-report-sayin g-uspto-does-great-job-handling-software-smartphone-patents.shtml#c381
[ link to this | view in chronology ]
The entertainment industry understand full well that those laws will never accepted if enforced and those have very real negative impacts in the bottom line hence the need to find proxies so people don't immediately link them to the actions taken that harm people.
Those fools are screwed though, because copyright is the law being used to make those claims, the more it is used and the more visible it is to the public what it really does the less sympathy and trust it generates and at some point people will realize what it really costs to allow artificial monopolies to be granted to others.
[ link to this | view in chronology ]