Three strikes update 1

Intellectual property | Print Article

[Autumn 2013]

We published an article on the Copyright Act 1994 Three Strikes Law on illegal downloading in 2011. It is interesting to see what has happened since. Over 2,700 infringement notices have been sent out at the request of RIANZ (Recording Industry Association).

However, surprisingly only eleven people who have received final ‘three strike’ notices have been referred to the Copyright Tribunal for further action. Two have been withdrawn due to defects in the notices and/or their service. One of those cases illustrates both the defects and risks in the legislation previously highlighted.

The defendant was a student in a flatting situation and held the internet account. She did not understand file sharing software and the flat never received the first notice and did not really understand the second warning notice. The flatmates were asked to stop doing anything they were doing by the defendant and they denied everything.

While blaming someone else is not an automatic ‘get out of jail card’ it illustrates both the risk of allowing other persons to have access to your internet accounts and the penalty of ignoring the notices. The lack of service was the only reason for the withdrawal.

The one case that has been heard resulted in a penalty of $616.57 – the tracks (2) $16.57, $250 costs and a deterrent penalty of $360. Again the defendant claimed that one song was never uploaded in the household but there was insufficient evidence to avoid the penalty. Despite a maximum penalty possible of $15,000 it appears that minor infringements are unlikely to be so risky as to deter infringers.

The Copyright Tribunal has now produced an indication as to the way that the system will operate but there seems to be a lack of commitment by copyright holders to press many users beyond the infringement notices. However, if they do decide to do so you should be cautious that access to your internet provider through home or flat computers should be restricted and monitored so that flatmates and members of family, relatives and visitors cannot illegally download and upload without your knowledge.

As stated in 2011 the law will be relatively toothless unless enforced consistently. Perhaps the recording and movie industry felt that the threat would be sufficient. This does not seem to be the case.