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What Price Paradise?

Showing that it is no one hit wonder, the Copyright Tribunal has recently issued its second decision under the Copyright (Infringing File Sharing) Amendment Act 2011 – the so-called “Skynet” legislation. In this case, the Recording Industry Association of New Zealand (RIANZ) had sought an order for payment from a TestraClear internet account holder who, RIANZ alleged, had engaged in infringing file sharing of the Ke$ha song “We R Who We R” and the Coldplay song “Paradise”. The infringing acts were said to have used BitTorrent as the file sharing application. The total amount sought by RIANZ was $1681.55.

TelstraClear, the internet service provider, had sent the account holder the requisite three infringement notices, but he had not challenged any of them.

The account holder filed a one page submission to the Tribunal, in which he stated that the alleged infringements were inadvertent and had happened when his two sons (8 and 12 years of age) were playing on the computer. He also indicated that the whole family was lacking in computer literacy and that they had since removed BitTorrent from their computer. He said he was sorry for what had happened and realised that he should have paid attention to the infringement notices that he had received from his internet provider, TelstraClear. The account holder didn’t believe he was the type of person that the Skynet law was intended to catch.

RIANZ challenged this, disagreeing that the infringements had occurred inadvertently, given that the internet account holder had BitTorrent loaded on his computer. RIANZ also noted that he had not heeded the warnings of the first two notices from TelstraClear.

The Tribunal had no problem finding that the three infringement notices had been issued correctly, that there was an infringement of copyright and that this had occurred at the IP address of the internet account holder. The Tribunal then had to decide whether it would be “manifestly unjust to the account holder” if it were to make an order for payment. The Tribunal said that, even if the infringements did occur when the internet account holder’s sons were playing on the computer, this would not be enough to make an order “manifestly unjust”. The Tribunal also rejected the account holder’s comments about his family’s lack of computer literacy, pointing out that they were literate enough to load BitTorrent onto the family computer. Overall, the Tribunal concluded that making an order for payment would not be manifestly unjust to the internet account holder.

The Tribunal then went on to consider what amount should be paid by the account holder. It considered issues such as whether the infringement was flagrant – meaning outrageous, scandalous, deceitful or calculated – and concluded that was not the case. The Tribunal arrived at an amount of $557.17. This fell quite short of the amount sought by RIANZ. The Tribunal calculated this using a combination of the amount that the internet account holder would have paid to purchase the two songs ($7.17), costs of fees paid to TelstraClear for issuing three infringement notices ($50), the cost of the application fee paid to the Tribunal ($200) and a deterrent ($300).

The moral of the story? Seeking Paradise could cost you more than you had planned. Be aware of who is using your internet account, and for what purpose.  Be aware that file sharing software such as BitTorrent automatically allows others to upload from your computer, and allowing others to upload is an infringement of copyright.  And finally, don’t ignore the infringement notices from your internet provider.

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