NZ Copyright Tribunal: Accusations Are Presumed Infringement, Despite Denials

from the guilt-upon-accusation dept

A few weeks ago, we noted that the first "three strikes" case of infringement in New Zealand was set to go to the Copyright Tribunal (an earlier case was dropped after the recording industry (RIANZ) realized it had screwed up). The Tribunal has now issued its first ruling, demanding that the accused pay a grand total of $616.57 NZ (about $515 US). The person was accused of downloading and sharing Rihanna's Man Down twice, and Hot Chelle Rae's Tonight Tonight once. The tribunal noted that the first song retailed for $2.39 and the latter at $1.79, so it doubled the first one, and started with $6.57 (all NZ dollars). Then it added $50 to pay for infringement notices being sent out. Another $200 covers the fee that RIANZ paid to bring the case, and then it tacked on a "deterrent sum" of $360 -- or $120 per song. Add it all up and you've got $616.57.

The full ruling is a bit odd, but highlights the ridiculousness of NZ's three strikes law. The Tribunal notes that, since this is the first such ruling, it was going to explain each point carefully, and it did. But the really crazy stuff is that it notes that, under the law, it basically has to assume that the accusations mean guilt. The accused responded by admitting only to downloading Man Down a single time, and guessing that the second time had to do with a problem with uTorrent. She denies entirely that she or anyone in her household downloaded the other song.

"The letter outlines three separate infringements recorded on an internet connection in my name. The first song downloaded was a song called man down by rihanna. I accept responsibility for this. I downloaded this song unaware that in doing so from this site was illegal. When this song was downloaded to my computer; a whole utorrent program downloaded onto my computer [W]hen I turned my computer on it said that the song was still downloading and maybe that caused the song to register twice as it being downloaded? l'm unsure if this is possible or not but don't know why it shows that I would try to download the same song twice.

l kept receiving a pop up notice saying it seems like utorrent is already running but not responding, please close all utorrent processes and try again ... I figured out how to delete the song that was still trying to download but still couldn't figure out how to delete the whole program until just recently when I got someone to look at it as after I received the letter, i assumed having this program on my computer was causing the warning regarding downloading?

When I received the letter warning me of the download and consequences and that it was illegal, I didn't challenge the letter as I took responsibility for my actions and realised I was in the wrong and took it as a warning and didn't do it again.

I would never intentionally do anything illegal and you can see this from my criminal record as it is clean. I didn't realise that it was illegal and I apologise sincerely for this mistake and have removed it from my computer.

In regards to the song 'tonight tonight' by Hot Chelle Rae being downloaded, I can't claim responsibility for this as it wasn't done by myself or anyone in this household but if I find the person responsible for downloading this through my internet then I will definitely enforce the consequences behind doing so."

So, basically, of the three strikes, she admits to one, suggests the other one, if done, was completely by accident, and vehemently denies the final download. The Tribunal basically ignores all that and says that, under the law, an accusation is as good as guilt unless you provide evidence of innocence -- and then says she failed to do so. Think about that for a second. You need to prove a negative here -- which seems close to impossible, but that's what the law apparently requires.

The Act creates a presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement of the right owner's copyright in the work identified. An account holder may submit evidence that this presumption does not apply, or give reasons why it should not apply. In this case, the Respondent has not provided any evidence that the presumption should not apply. In fact, she acknowledges that at least some manner of infringement has taken place and has apologised for this.

You would think that admitting honestly to that single download might make the Tribunal wonder if perhaps the other two accusations were inaccurate, but instead it take it as proof that "some manner of infringement" has taken place, so it can assume that the accusations were all accurate. The Tribunal basically throws up its hands and says that since there is "insufficient evidence" it just assumes "guilty."

There is insufficient evidence before the Tribunal for it to make detailed findings on these factual issues. That is the nature of a decision being made on the papers. On the basis of the information available to it, however, together with the statutory presumption that each incidence of file sharing identified in an infringement notice constitutes an infringement of the right owner's copyright in the work, the Tribunal is satisfied that file sharing took place via the Respondent's internet account as alleged.

In the normal world, "insufficient evidence" means that you're presumed innocent, not guilty. But this is copyright law we're talking about, where the normal rules don't apply.

If there's any silver lining to the ruling, it's that the Tribunal did not go as far as RIANZ wanted. It had argued that the accused should have to pay a lot more than the cost of purchasing the track for that initial cost, because (it argued) any upload could be shared multiple times. The Tribunal rejects that idea, saying that it is "not relevant" to the cost issue, though it may be relevant concerning deterrence. On the issue of deterrence, the Tribunal more or less sticks its finger in the air and picks $120.

RIANZ tried to argue that the deterrence fee should be high, because it insisted the downloading of three songs (really only two songs) was clearly "flagrant." Why? Well, because she used uTorrent! Therefore, she must be a serial infringer.

The fact that the account holder had BitTorrent protocol (uTorrent version 2.2.0) software installed on her computer. It notes that the locating downloading, installing and configuring of such software is a deliberate act and does not occur without direct action on behalf of a computer user.

The fact that uTorrent is perfectly legal and has significant non-infringing uses is not something that the RIANZ cares to concede. RIANZ also claimed that three whole downloads proves "flagrancy." Oh, and they insist that she "took no action to alter her behavior" -- again as an argument for flagrancy. Of course, the woman argues that she did, in fact, change her behavior. Either way the Tribunal notes that these arguments have nothing to do with flagrancy, since they'll automatically apply to just about anyone who shows up in front of the panel.

On the whole, it seems doubtful that this is going to suddenly make people start buying music again, but why let that get in the way of shaking down some music fans?

Filed Under: accusations, copyright, new zealand, three strikes, tribunal
Companies: rianz

First Three Strikes Case In New Zealand Goes To Hearing

from the and-you're-out dept

Back in 2011, we wrote about New Zealand's rush to put in place a three strikes law that involved punishment for people accused -- not convicted -- of copyright infringement online. Having gone into effect, it looks like the Copyright Tribunal set up to deal with such cases is now about to have its first hearing concerning someone who got a third strike. As the report notes, the big labels, represented by RIANZ (the New Zealand version of the RIAA -- representing the same labels), has sought action against 17 people who got three strikes. Six cases were dropped (reason unknown, but probably because they paid large sums of money to RIANZ -- or because RIANZ realized they were about to be completely embarrassed by someone who had done nothing wrong.), and another 10 sought to have the Tribunal make its decision based on written submissions alone. Only one person sought to have a full hearing which is getting underway soon.

Unlike the US's six strikes effort, the NZ one is a lot more draconian, with significant fines likely, even in cases of incidental and minimal sharing:

The tribunal can make awards of up to $15,000 against pirates, and Rianz had sought awards of several thousand dollars in at least two of the dropped cases.

In one, Rianz sought about $2700 from a Wellington student whose internet account was allegedly used without her knowledge to download five songs valued at $11.75. That case also seemed destined for a formal hearing.

Yes, RIAA/RIANZ, that's exactly how to rally the public to your cause. Demand $2,700 for someone who had an internet account on which someone else downloaded $11.75 worth of songs. And you wonder why people think all of these "piracy" efforts are insane... Here's a tip to the RIAA/MPAA and all related groups: if you want to be taken more seriously, stop attacking your fans and try to figure out how to better serve them.

Filed Under: copyright, new zealand, three strikes
Companies: rianz

Creators: Kill The Hobbit To Save Regular Earth, And Win!

from the with-apologies-to-martin-freeman dept

Last week, we wrote about an article by Joe Karaganis discussing the huge tax subsidies and political concessions wrested from the New Zealand government by Warner Bros. in order to film The Hobbit in the country. The editorial was entitled Kill The Hobbit Subsidies To Save Regular Earth, which inspired an editorial cartoon that Bloomberg View attached to it, which in turn has inspired Joe to launch a contest for creative interpretations of The Hobbit as an allegory for the situation.

First, I confess I hadn't fully thought through how to map the various heroes and villains of ‘Kill the Hobbit’ back onto ‘The Hobbit.’ But on reflection, this drawing seems a bit off. In my version of the story, the hobbit is the villain, stealing gold from the people of New Zealand (I guess to take back to Hollywoodshire?) This would make Smaug the dragon the public, and Smaug’s giant pile of gold the commonwealth (that’s why it’s so large). Smaug should be casting the Expecto Patronum (EP) spell to banish the Hobbit, not the other way around.

But hey, people may see it differently, and their right to publish those perspectives on our common culture is part of what’s at stake in ‘Kill the Hobbit to Save Regular Earth’ (pivoting here to New Zealand’s support for the IP-enforcement-on-steroids Trans-Pacific Partnership Agreement).

So with that in mind, I am happy to announce the ‘Kill the Hobbit to Save Regular Earth’ Initiative– KH2SREI for short (pronounced Kisstory, after the ancient Elven admonition to beware Hobbits bringing gifts).

I invite you to flesh out the Kisstory allegory in whatever direction makes most sense to you. If you send me pictures, I will publish them here (as long as they are not obscene or gratuitously nasty). I will even try to talk the good people at Bloomberg View into running them. And if we get enough submissions we will have a public vote to award copies of the “semi-epic” Media Piracy in Emerging Economies to the two most worthy entries (plus whatever other awards we can accumulate in the meantime.)

As for those "other awards", we're throwing a Techdirt t-shirt into the mix. So if you're a creator, whatever your medium, we hope you'll submit something! Head on over to the contest page for more details and some "extra points" guidelines, including a "Special award for the best pro-Hobbit, pro TPPA, pro Warner Bros art, if we get any" because hey, political cartoons can cut both ways.

Filed Under: hobbit, hollywood, infringement, movies, new zealand, subsidies

Kim Dotcom Cleared To Pursue Case Against New Zealand For Illegal Spying

from the opening-up-a-can-of-worms dept

The latest in the saga of New Zealand's Government Communications Security Bureau (GCSB) -- their version of the NSA -- illegally spying on Kim Dotcom, is that he's been cleared to file a lawsuit against the GCSB for its activities and the GCSB will be told to reveal some of the details of its secret electronic spying setup.

The order for the GCSB to reveal top secret details came as the High Court at Auckland ruled the spy agency would now sit alongside the police in a case probing the unlawful search warrant used in the raid on Dotcom's north Auckland mansion.

Chief high court judge Helen Winkelmann said the GCSB would have to "confirm all entities" to which it gave information sourced through its illegal interception of Dotcom's communications.

She said her order included "members of Echelon/Five Eyes, including any United States authority". The Echelon network is an international intelligence network to which New Zealand and the United States are members, along with Australia, Canada and the United Kingdom.

You have to imagine that New Zealand officials are seriously regretting falling for the DOJ's version of the Megaupload story without bothering to actually check the details, huh?

Filed Under: gcsb, illegal spying, kim dotcom, new zealand
Companies: megaupload

The Hobbit Took $120M From Kiwi Taxpayers - Maybe They Should Own The Rights

from the we-wants-it-back dept

Yesterday, we wrote about how US taxpayers were handing over approximately $1.5 billion to Hollywood to get them to film movies in certain locations -- and how little of that money actually generated jobs (though, lots of it flowed into the pockets of Hollywood studio execs). Even worse, the story highlighted how there's a nasty "race to the bottom," where Hollywood demands increasing subsidies from different locations, with promises to only film movies in the locations with those subsidies. That means more and more taxpayer money going to Hollywood, for the sake of a temporary production, which often brings in workers from LA, and has only a brief, marginal impact on the local economy -- usually much, much less than the subsidy in question.

While the NY Times article explored how this was happening in the US, a new article at Bloomberg highlights how this is happening around the globe, using key examples from the subsidies around The Hobbit and Harry Potter -- both of which involved massive subsidies in response to Hollywood threats to film elsewhere.

How much taxpayer money can Warner Bros. demand from the government of New Zealand to keep production there (rather than, say, in Australia or the Czech Republic)? That answer turns out to be about $120 million, plus the revision of New Zealand's labor laws to forbid collective bargaining among film-production contractors, plus the passage of three-strikes Internet-disconnection laws for online copyright infringement, plus enthusiastic and, it turns out, illegal cooperation in the shutdown of the pirate-friendly digital storage site Megaupload and the arrest of its owner, Kim Dotcom.

[...] The U.K. government found this out in 2005, when Warner Bros. threatened to move "Harry Potter" productions to the Czech Republic. The government of Gordon Brown caved in to studio demands and passed new subsidies. In 2009, New Zealand also gave in and now faces demands for more.

Again, if this actually created the economic activity that Hollywood claims it does, perhaps it would be worth it. But both articles highlight how this isn't true at all. It just shifts money from local taxpayers to Hollywood execs.

The worst part is that, for most of the wannabe Hollywoods, it's bad economic policy on every level. The productions bring in mostly low-end, temporary jobs, while the high-end jobs remain in Hollywood or New York. Call it the Curse of Harry Potter.

That article, authored by Joe Karaganis, who has been studying this issue for quite some time, suggests that if the public is financing these movies, then perhaps the movies should belong to the public if the studios can't pay back the loans. The suggestion is a really creative one. If the movie actually makes money, then the studios can pay back the loans. If it's a flop, then let the movie go to the public via a Creative Commons license, and let the public do something with it.

One way to break the curse is to route public money through what we might call an Expecto Patronum license -- named after the powerful defensive charm in the Potter series. Under the license, public money takes the form of a conditional loan rather than a grant or tax break. After five years, producers have a choice: Pay back the loan or re-release the film under a Creative Commons attribution license, which would allow it to be shown freely.

If a film is among the few that have longer-term commercial value, its producers can choose the first path. If it isn't, they lose nothing by taking the second route. The license thus underwrites creative risk-taking without squandering public money on blockbusters. It also ensures that public investment generates public culture -- not works controlled by the studios for the next 95 years.

It's such a reasonable idea that you know that Hollywood would freak out at any legitimate push to use it. In true "entitlement mentality," they believe such taxpayer-funded subsidies are their right, and that localities that won't pay up are missing out. Yet, as the data clearly shows, most locations would be much better off saying "no," as the benefit is minimal. Or, at the very least, they should make the terms similar to what the article suggests. If you want the public to finance the movie, then make it conditional. In the end, you pay back the loan or the public gets the movie.

Filed Under: copyright, hobbit, jobs, new zealand, subsidies

Latest TPP Round Locks Out Public Interest Groups Who Flew To New Zealand; Gives Them 15 Minutes Of Access

from the shameful dept

The various government bodies negotiating the Trans Pacific Partnership (TPP) have been criticized repeatedly for their lack of transparency. In the last few negotiating meetings, they've tried to respond to this by arguing that they allowed public interest / civil society groups various ways to meet with and interact with the delegates. For the most part, this interaction was way too limited, but it was something. However, for the latest negotiating round in New Zealand, it appears that these groups have been almost entirely excluded. Representatives from a bunch of groups fighting for the public interest -- including EFF, KEI, OpenMedia.ca, Public Citizen and others flew all the way to New Zealand... only to be barred from the premises where the negotiations are being held, save for a brief 15 minute session for each on one day of the 10 day negotiation.

Academics, experts, consumer groups, Internet freedom organizations, libraries, educational institutions, patients and access to medicines groups have flown a long way from around the world to Auckland, New Zealand, to engage with delegates in the 15th round of Trans-Pacific Partnership negotiations.

For the first time, however, we have been locked out of the entire venue, except for a single day out of the 10 days of negotiations. This not only alienates us as members of public interest groups, but also the hundreds of thousands of innovators, educators, patients, students, and Internet users who have sent messages to government representatives expressing their concerns with the TPP. All of us oppose the complete unjustifiable secrecy around the negotiations, but more importantly, the IP provisions that could potentially threaten our rights, and innovation.

These new physical restrictions on us are reflective of the ongoing lack of transparency that has plagued the TPP negotiations from the very beginning.

This is really shameful behavior on the part of the New Zealand hosts.

Filed Under: civil society, new zealand, public interest, tpp
Companies: eff, kei, public citizen

DailyDirt: Cool Coins, Unpopular Coins...

from the urls-we-dig-up dept

While digital forms of payment are becoming increasingly popular, cash probably isn't going away anytime soon, and a lot of people still like to collect coins. For the amateur numismatists out there, here are just a few interesting coin stories.

• New Zealand is minting a series of coins with Hobbit characters on them -- with the most expensive Hobbit coin made of about 28 grams of gold. The coins will be legal tender, but they'll probably be hoarded by Hobbit fans and coins collectors for being preciousss. [url]
• The Royal Canadian Mint has a glow-in-the-dark quarter with a dinosaur on it. Canada killed its penny, but collectible glowing coins apparently have a bright future up north.... [url]
• A 1909 Lincoln penny is on Mars, as part of the Mars Hand Lens Imager (MAHLI) instrument on the Curiosity rover. This penny will serve as a calibration target, and it's probably the most valuable penny in the universe. [url]
• The US GAO recommends replacing dollar bills with dollar coins -- even though dollar coins are a hugely unpopular with people who actually spend American money. The US Treasury had to stop minting a lot of dollar coins last year because it had such a ridiculous surplus of dollar coins that weren't making it into general circulation. If only people would use dollar coins, the government could save a bit of money when it makes money. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

Filed Under: canada, coins, collectors, dinosaurs, dollar coin, glow-in-the-dark, hobbit, mars, new zealand, numismatists, penny

New Zealand Government Admits That Order To Suppress Illegal Spying On Kim Dotcom Only Such Order Issued In 10 Years

from the oops dept

You may recall that, back in September, the New Zealand government admitted that the GCSB (Government Communications Security Bureau), the local equivalent of the NSA had illegally spied on Kim Dotcom to aid American DOJ investigators. New Zealand's Prime Minister, John Key, apologized and ordered an investigation. Many were asking when Key actually knew about the illegal surveillance, which covered domestic communications, despite GCSB's mandate being focused on foreign communications. It's now come out that the order to "suppress" the information about GCSB's activities, signed by acting prime minister Bill English (normally the Finance Minister) while Key was abroad, was the only such document in 10 years:

The spy agency has stated that the certificate signed by Finance Minister Bill English as Acting Prime Minister was the only one found in "a thorough search of our files".

Mr English was asked by the GCSB to sign the "ministerial certificate" while Prime Minister John Key was overseas in August. The certificate said knowledge of the GCSB's involvement in the Dotcom investigation would damage its ability to detect or prevent serious crime.

The fact it was the only ministerial warrant in 10 years was discovered by the Green Party under the Official Information Act. Its rarity has led Green Party co-leader Russel Norman to question how Mr Key stayed ignorant of its existence until a month after it was signed.

Beyond the concern of who knew what and when, there should be continued outrage in New Zealand at its goverment's willingness to bend over backwards to break the law just because the US entertainment industry was putting pressure on the DOJ to "do something" about Megaupload. The fact that they appear to have not only broken the law, but then issued a one-of-a-kind order to try to hide the fact that they broke the law really says something about the lengths the NZ government were willing to go to please Hollywood.

Filed Under: bill english, gcsb, john key, kim dotcom, new zealand, secrecy, surveillance

First 'Three Strikes' Case In NZ Dropped After It Becomes Clear Accused Didn't File Share

from the why-you-don't-base-things-on-accusations dept

One of our biggest problems with the various "three strikes" or similar programs is the fact that they're all based entirely on accusations not convictions. You would think, in this day and age of bogus copyright claims, that people would realize why that might be a problem. Down in New Zealand, where they implemented a three strikes plan not too long ago, the local version of the RIAA (the RIANZ) has been pushing to bring "music pirates" to the copyright tribunal to pay for their supposed infringement. However, as expected, it's looking like all that's happening is the record labels are being left with egg on their face yet again.

That's because RIANZ had to hastily drop one of the cases after it became clear that the person they were accusing of file sharing... didn't even know what file sharing was. Nice job, record labels! There were multiple problems with the case:

The defendant was a student in a flatting situation and was the account holder for the flat's shared internet account. She has never used file sharing software and we had to explain to her what it was and how it worked. It seems likely that one of her flatmates had it installed.

The flat never received the first detection notice and they didn't really understand the second warning notice. She did show it to her flatmates and asked them to stop doing anything they were doing. They denied doing anything, so she checked to make sure that their wireless network was properly protected by a password in case they had been hacked. The third notice was a mess - addressed to the wrong person, Telecom eventually withdrew it and replaced it with another one.

Then came the notice from the Ministry of Justice that action was being taken against the account holder.

In other words, a complete disaster, top to bottom. And for this, the RIANZ demanded $2669.25 in penalties. How'd they get that number?

1. $1075.50 as the cost of the music.
2. $373.75 to repay the cost of the notices and tribunal fee.
3. $1250 as a deterrent.

The cost of the music was calculated as being five tracks (total number of notices) multiplied by the $2.39 cost of each track on the iTunes store. The observant may notice that this works out to $11.95 rather than $1075.50. RIANZ decided, based on some self-serving research, that each track had probably been downloaded 90 times and therefore the cost should be multipled by 90. There is no basis in the Copyright Act or Tribunal regulations for this claim.

While the student in question ended up cancelling the internet account for the entire flat -- making life difficult for everyone there -- she eventually worked with Tech Liberty New Zealand to defend her. After Tech Liberty highlighted the multiple problems with the case, RIANZ -- realizing that it had screwed up royally -- decided to just drop it.

It would be funny to look at how often they make accusations, only to walk away when they realize they're going to lose. That is, it would be funny if it didn't seriously mess with people's lives. You'd think, given how often false accusations are levied, that lawmakers would know better than to pass a law that allows for such actions to be taken based entirely on accusations without real evidence.

As Tech Liberty notes:

This case exemplifies just how unjust and unfair the law is.

If you are the account holder you will be responsible for the actions of anyone using the account. There is no way for non-technical people to monitor or control what their flatmates or other people sharing the internet connection are doing. Even IT professionals would struggle to do so with the normal tools available on a home network.

The provisions in the law allowing for an internet account to be cut off have been suspended for now. This was because it is becoming increasingly clear that an internet account is critical for engaging in modern society. However, the effect of this law was still the same - the defendant panicked at these allegations and cancelled her account, cutting off her entire flat from the internet.

The law is meant to act as a deterrent to infringing copyright, but the way it is written it is actually an incentive. "Just use a connection that doesn't have your name on the account and they'll be be the one who is penalised!" The only deterrent is to becoming an internet account holder.

Filed Under: liability, new zealand, three strikes
Companies: rianz

Hollywood Wines & Dines Kiwi Politicians To Get Them To Support Hollywood's Copyright Insanity In TPP

from the don't-fold dept

The whole Megaupload/Dotcom mess seems to have really woken up New Zealand to just how much damage an overzealous interpretation of copyright laws can do. New Zealand has already passed a ridiculous three strikes law that US diplomats offered to write for them -- but it seems that the whole Megaupload case has many in the country rethinking their government's support for Hollywood's interpretation of copyright.

And that actually represents a big problem for Hollywood, because New Zealand has been a key force in pushing back on Hollywood's plans for copyright expansionism in the Trans Pacific Partnership (TPP) negotiations. But Hollywood (and the USTR) need New Zealand to come on board, so they've moved into aggressive lobbying mode. Prime Minister John Key, fresh off of apologizing to Kim Dotcom, showed up in Hollywood recently to be wined and dined by studio execs:

The movie industry's main motives for wining, dining and flattering the Prime Minister were not about Dotcom or subsidies, although it has an obvious interest in both.

The end-goal is to get Key's Government to drop its opposition to aggressive United States demands in the Trans-Pacific Partnership Agreement (TPPA) negotiations. New Zealand will host the next round of TPPA talks in Auckland in early December.

And... at the same time he was being catered to by studio bosses, counterparts in New Zealand were aggressively lobbying other officials there:

While John Key was in Los Angeles, top US intellectual property negotiators were in Wellington lobbying for their latest proposals.

The article linked above, published in the New Zealand Herald, properly points out that what Hollywood is asking for of New Zealand "is too high a price" to pay, just to keep Hollywood happy, and to bring big movie productions to New Zealand. It will impact too many other businesses and "stifle the growing local industry." Hopefully, politicians in New Zealand understand that keeping Hollywood happy seems to result in pretty damaging situations for people in New Zealand and continues to push back against such overreach.

Filed Under: hollywood, john key, lobbyists, new zealand, tpp