Three strikes update 2

Intellectual property | Print Article

[Winter 2013]

We wrote an article on the Copyright Act 1994 on illegal downloading in 2011 – known as the Three Strikes Law. At the request of RIANZ (Recording Industry Association), several thousand infringement notices have been sent out but only a few have made it before the Copyright Tribunal. Those cases now give an indication of the way the Three Strikes Law is progressing.

The cases illustrated that no evidence of infringing file sharing is required to be presented. It is presumed that if a notice is issued, then infringement has occurred and the onus is then placed on the account holder to prove there was no infringement. Unfortunately the decisions do not guide as to what evidence could be provided and lack of knowledge is not a defence except in assessing penalties.

It does not matter what a user intends to do or admits responsibility for. What matters is the fact that on at least three separate occasions infringement works were uploaded from or downloaded to an internet holder’s IP address.

In one case the defendant was a student in a flatting situation and held the internet account. She didn’t understand file sharing software and the flat never received the first notice and did not really understand the second warning. Her flatmates were asked to stop doing anything and they denied any infringement. The case was only withdrawn because of defective service.

A second case was one where the account holder’s parents had to pay for their children’s illegal music downloads to the sum of $317. The parents said they had twice told their three young children not to illegally download music after receiving two initial warnings.

The penalties, however have not been large. Although the RIANZ have regularly claimed in excess of $1,000 as a penalty, the penalties seem to range in the $200-$700 range.

What is important is that blaming someone else is not a “get out of jail” card. Parents with internet savvy children, flatmates and other internet holders with access to the internet account is becoming a major risk and one that cannot be avoided. A lack of password security on your Wi-Fi site could enable neighbours and hackers to access your account without your knowledge.

On the other side of the coin, despite the number of infringement notices, only a few have ended up at the Tribunal. We said in 2011 the law would be relatively toothless unless enforced consistently. Perhaps the recording and movie industry felt that the threat would be sufficient. So far the cases only indicate that innocent account holders are being penalised for the actions of others which is reflected in lighter penalties. It will not however be long before major penalties are awarded in direct infringement cases. The advice is “IP holder beware”.