Kiwi Three Strikes Tribunal Fines Soldier Who Was Serving In Afghanistan When Infringement Happened
from the manifestly-unjust dept
G Thompson was the first of a few of you to send in this story about the latest "three strikes" Tribunal hearing in New Zealand, in which the Tribunal ruled against a guy, despite the fact that he was a soldier in the NZ Armed Forces and deployed in Afghanistan at the time the various accusations of infringement occurred. Upon getting the third strike, having just returned from his tour of duty, he sent the tribunal a letter, noting that it was impossible for him to determine who had actually infringed, as he was away fighting for the country and there had been a number of flatmates in the place during the time of the accusations, such that it could have been any one (or multiple ones) of them downloading infringing material. Still, he agreed to "accept responsibility" because it was his account. That's an honorable thing to do, though it's simply ridiculous that he should have to do that, since he is clearly not at fault.I have just returned from deployment overseas [in] Afghanistan and was not aware of music being downloaded. It is very difficult to determine who in the household is responsible for downloading music as flatmates are currently deployed around NZ.And yet... the Tribunal still made him pay $255.97, despite not doing anything. The breakdown was $200 to reimburse the RIANZ for the application against him, $50 in fees, and another $5.97 for the "price" of the 3 songs on iTunes. Of course, since he wasn't the one who downloaded the songs in the first place, it seems ridiculous that he should have to pay for those songs, let alone the various other fees.
However I understand entirely that I am the person who is held liable for these actions. I have spoken to the pers [sic] who have access to my internet IP address, and between 8 pers, we cannot determine who is fully responsible.
I ask that this notice be a lesson to those in my household as they now understand how severe the consequences may be for committing such an act. I do not wish this situation to grow any more than it needs to be. I am currently going through transitioning from military life in Afghanistan to life back home in NZ, and I'm not fit to tackle this allegation made against me.
However, I take full responsibility for the acts committed under my IP address and wish for this to be resolved asap. I am willing to co-operate by any means required of me.
As Rick Shera points out in the link above, the Tribunal even acknowledged that it could override the automatic fine by claiming such a ruling would be "manifestly unjust," but bizarrely chose not to. Shera questions under what circumstances the Tribunal would ever use that ability if it didn't use it in this case:
So, it was open to the Tribunal to decide in these circumstances - soldier overseas, no way of knowing who infringed and therefore no ability to recover any award, admitted responsibility - that to make an award was manifestly unjust. Remember that it is unjustness to the account holder (the soldier in this instance) that is relevant not any unjustness to or cost incurred by the copyright owner. Difficult for the Tribunal though without any argument on the point being presented by the Respondent.
I have said before that trying to show manifest unjustness will be extremely hard, especially given the presumption of guilt in section 122N and the fact that an account holder is liable for all actions taken using its account. I think this case underlines that. I find it hard now to imagine any circumstance that will invoke this protection for an account holder.
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Filed Under: afghanistan, copyright, liability, new zealand, three strikes, tribunal
Companies: rianz
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So...
Well, Dr. Cox, if you would...
http://www.youtube.com/watch?v=KQxhOYqLPdY
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Re: So...
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FTFY
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Pretty clear the "manifestly unjust" element is just for show
But that also means they have to jettison any idea of fairness or justice because once you are "accused" you are effectively guilty. What a travesty.
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Though it is either stupid, heroic or ethical dependant on the context.
Here he was trying to be ethical though all legal advice would of been to explain that it wasn't him, for the absolute proof he was out of the country at the time and therefore it was either an unknown flatmate, an unknowable guest or a 'hacker' it is up to the tribunal to prove.
Problem here is he admitted guilt.. you can take the soldier out of the country but you can't take the sense of obligation to tell authorities everything and they will always be equitable out of the soldier.
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It's easier
Governments and corporations in bed together. Question is, who's boofing who?
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So you've come out against personal responsibility!
Or is it that you OPPOSE his principles, Pirate Mike?
Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
A "safe haven" for pirates. Weenies welcome. Vulgarity cheered.
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Re: So you've come out against personal responsibility!
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Re: So you've come out against personal responsibility!
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Re: So you've come out against personal responsibility!
Replace murder with any crime including fraud, throwing snowballs at cars etc. and it is still a stupid argument to make.
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Re: So you've come out against personal responsibility!
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"Yes, I'm doing the honorable thing by [whatever RAINZ wants him to say to further their propaganda]..."
Terrible to think that way, but I keep hoping for satire in these situations and the constant disappointment has made me bitter and cynical.
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Re: Got some brown on your nose from your masters at the MPAA
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Re: So you've come out against personal responsibility!
Did you actually read the actual NZ transcript of the tribunals findings?
Did you actually read that Mike or anyone for that matter ANYWHERE oppose his ethics and/or principals?
No you didn't because you have too much shit running through your brain to contemplate the act of reading anything all the way through before you comment about your one sided love affair with Mike.
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Re: So you've come out against personal responsibility!
If someone takes my car and runs someone over, I can feel bad about allowing them to use the car, but it was not my action or inaction that caused them to do it. That is too far a stretch of transference. (And I am assuming the individual I loaned the vehicle to was someone who was legally able to drive and not knowingly impaired)
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Re: So you've come out against personal responsibility!
your spelling as atrocious. its spelled:
"T-O-O-K T-H-E F-A-L-L"
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Re: So you've come out against personal responsibility!
He chose to assume responsibility for the actions taken on his IP. Dumb but admirable of him.
HE WAS NOT responsible for those actions.
I come here and read the articles (agree with some, disagree with others) and only read sporadically through the comments; but every time I would like to read a whole comment thread, I see your comments at the top of the page, and wonder, how in the world an idiot of your ilk could actually type.
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Re: So you've come out against personal responsibility!
So who in your household takes responsiblity for your acts of stupidity, boy?
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Re: So you've come out against personal responsibility!
And people wonder why copyright gets no respect. Guess what, bucko - Shylock also went the route of demanding his pound of flesh, and look how that turned out for him!
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Sounds a lot like the outrageous prices hospitals charge for a single pill of over the counter Advil or Tylenol.
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What I would do in this case is tell the flatmates that their access to my internet was gone until whoever downloaded the music paid up. (and when they admit it, tell them to use their own internet connection in future)
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In fact in this case itself the costs that the tribunal awarded were just NZ$255.97 [ http://www.nzlii.org/nz/cases/NZCopyT/2013/5.html ]
After you extract the RIANZ cost of everything and then add in the awarded cost of NZ$255.97 you find that the RIANZ are actually out of pocket by $20 with NO WAY TO EXTRACT THAT EVER!
With the 5 cases under it's belt already the Tribunal has awarded standard rates of basically what the music would normally cost to download PER Song (not per instance) and the standard tribunal costs etc.
It's not the damages the RIANZ (and its puppetmaster the RIAA) wanted, nor will it ever likely to be.
Karl Schaffarczyk, a law student at University of Canberra just wrote a nice article about all this and how the damages and Strike system is basically useless, not what the Industry wanted at all and why it will most likely ever ever reduce piracy
If you cannot access the Conversation website (for that Article) it was also replicated with permission at Delimiter
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Making the total charge over 49 times the purely imaginary loss due to the downloads.
People who bring applications should pay for them themselves, if 5.97 wouldn't make it worth their while then perhaps they wouldn't waste everybody else's time and money pandering to these delusions.
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the award of costs to the loser is actually pretty standard in court cases (it might be different in america) and the rationale is that the compensation is supposed to put you in the position you were in before the tort was committed. If costs were not awarded, then you would leave the plaintiff worse off than they were before the tort was comitted. So no, eople who bring successful applications shouldn't ahve to pay for themselves ( especially since it could easily be an individual, not a big media company)
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And by "funny" I mean depressing.
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Do not confess to things you did not do.
No! You're just rolling over for the tyrants in this scenario instead of fighting for the freedoms that you went to Afghanistan for in the first place.
NZ is a land of innocent until proven guilty. Do not give these corrupt, power hungry idiots more ammunition.
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Re: Do not confess to things you did not do.
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Re: Do not confess to things you did not do.
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This is not justice, this is the courts getting some work because of an organisation believing the chilling effects of this is worth the loss they take on runnning the trial... This is a more than perfect example of the classic "in any trial, everybody lose except the court."
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Politicians on the wrong side of this issue will also find themselves wondering what happened to their careers and will find it hard to believe they lost them due to addressing imaginary problems while ignoring the real harm being caused by legislating for delusion, it has after all worked so well for so many other areas. But they will lose them because the fallout from the legislation to address fictional problems affects everyone, not just a minority grouping and the companies that push for this bizarre copyright enforcement will lose their businesses and it will be the rare person from either group who will ever understand where they went wrong.
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Prosecutorial misconduct?
Just shows once again that prosecutors and the courts will go for the maximum sentence every chance they get just like with Aaron Schwartz.
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Computer Tech View
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Do not think that the 6 strikes in the US will be any different. The RIAA has already been busted once on the supposedly non-biased parties involved in this. To be sure the deck is already stacked before anyone is accused.
So far their batting record for accuracy by articles already posted is just as bad as it ever was. This is why guilt by accusation totally fails. In the long run I really hope this drives people to refuse to pay for the entertainment offered in stores as a payback method.
Make em broke and they won't be having these little kangaroo courts.
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Should be a win-win.
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