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First ‘three strikes’ decision handed down in NZ

Insufficient evidence costs RIANZ its big win as court imposes tiny fine

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The Recording Industry Association of New Zealand (RIANZ) is reaching for the porcine lipstick after its first “three strikes” win resulted in a tokenistic fine of a little over $NZ600.

New Zealand’s “Skynet” law, which came into effect in November 2011, provides for fines of up to $NZ15,000 for infringements. However, in handing down its first decision, the Copyright Tribunal said some aspects of the alleged infringement couldn’t be decided on the facts available to it.

RIANZ sent notices to the unnamed female accused’s through her internet service provider, Telecom New Zealand. Those notices alleged both uploading and downloading of two singles, Rhianna’s Man Down and Hot Chelle Ray’s Tonight Tonight. The accused admitted that she intended to download Rhianna's song, but that the upload was the result of an unwanted uTorrent that self-installed with the downloaded song. She denied all knowledge of downloading the Hot Chelle Ray single.

The combination of her admission and the three notices sent to the customer were enough for the tribunal to find that uploading took place, but noted that “it is possible that the Respondent only intended to download the works,” and that there is “insufficient evidence before the Tribunal for it to make detailed findings on these factual issues”.

A lack of evidence also arose when it came to calculating the penalty: RIANZ was unable to tell the tribunal how many individual uploads might have come from the respondent’s computer: “Using current Internet detection services,” the tribunal said, “the rights owners were not able to obtain details of the number of persons who downloaded the tracks in issue."

As a result, the penalty included just $NZ6.57 for the actual infringement. The remainder of the total fine of $NZ616.57 ($US515 or £326) comprised $NZ50 for the fee paid by RIANZ to Telecom, $NZ200 for its application to the tribunal, and $NZ320 as a deterrent.

New Zealand’s NBR has a copy of the decision here.

Under the law, an accusation is only brought before the tribunal after the customer accused of copyright infringement has been sent three warnings via his or her ISP. ®

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