Aussie Dallas Buyers Club fuss shows NZ doing better? Yeah, nah

In a landmark ruling across the Ditch, an Australian federal judge has ordered several ISPs to name customers who illegally downloaded the Matthew McConaughey flick The Dallas Buyers Club.

The ruling could see 4700 Aussie downloaders fined. And, depending on how any appeals go, it could lead to a flood of similar actions. Some commentators have contrasted the fear-and-loathing in Oz with the so-called "three-strikes" law here, which is apparently better.

An InternetNZ release headlined "Dallas Buyers Club fuss shows NZ got it right" (see RAW DATA below) picks up this theme, saying The New Zealand government at the time is to be applauded for implementing what seems to be a sensible – and workable – regime."

Normally I'm on the same page as InternetNZ but in this case ... no. Our legislation has proved totally dysfunctional.

After the Copyright (Infringing File Sharing) Amendment Act was passed, there was a flurry of Copyright Tribunal Hearings as various alleged pirates received "third strike" notices during 2013.

But, although the law allowed for a penalty of up to $15,000, damages were usually in the $200-400 range.

Last year, record industry use of the law dried up (with a brief spurt of activity mid-year). And the NZ Screen Association, representing the major Hollywood studios, has yet to file a single infringement notice.

Everyone seems unhappy with the new law.

The likes of InternetNZ (yes, elsewhere) and Tuanz criticise what they see as its heavy-handedness, especially an internet account holder being targeted for the actions of family members, flatmates or staff, and section 122N of the Act – or the "presumption of guilt section" as Lowndes Jordan partner Rick Shera – has called it. The case successfully brought against an NZ soldier in Afghanistan who wasn't even in the country when a handful of songs were downloaded on his internet account was a showcase for everything bad about the law.

Meanwhile, copyright holders are complaining the three-strikes warning process is too expensive and laborious. And I'm guessing that, behind closed doors, they are not that thrilled about the low penalties dished out by the tribunal.

With zero notices over movie or TV downloads, it's hard to point to any deterrent effect. But if the NZ Screen Association does wake from its slumber and make an example of someone, I'm guessing InternetNZ will be up in arms.

And, in any case, rights holders can still launch a civil action, in the same manner as the Dallas action across the Tasman.

Maybe you can say our file sharing law promotes an open and uncapturable internet because the process is so badly seized up that nothing's happening. But it doesn't seem satisfactory.

The government is committed to reviewing copyright law but not until TPP negotiations wrap up (and that of course will only lead into an endless new round of armwrestling as whoever is US president at the time tries to get it ratified by a Senate full of 100 representatives, most free trade apart from whatever is produced in their back yard.

Whenever it finally gets to it, I have little hope the government's review will prove satisfactory to any side. The law will always trail behind technology.

The blunt fact is that streaming and digital distribution can't be un-invented, and they certainly can't be controlled. Like the music and games industries before them, TV and movie makers have to embrace the opportunities afforded by online. And they are, to a degree. 

ckeall@nbr.co.nz

Follow @ChrisKeall

RAW DATA: InternetNZ press release - Aussie Dallas Buyers Club fuss shows NZ got it right 
The furore over the Dallas Buyers Club case in Australia shows that, compared to our friends over the ditch, New Zealand got it pretty right when it changed the Copyright Act in 2011 and implemented its three-strikes regime to counter infringing file sharing in music and movies.

"The New Zealand system is better for all parties than what we've seen happen in Australia" says InternetNZ Chief Executive Jordan Carter.

"The rights holders know how much it is to lodge a claim and how to do it, the Internet Service Providers (ISP) know their obligations, and if an infringement notice is sent to an ISP’s customer, the privacy of that individual's details are kept to just the ISP.

"The New Zealand Government at the time is to be applauded for implementing what seems to be a sensible - and workable - regime."

The situation that Australia has found itself in is the result of having no modernised legal framework to deal with emerging technologies such as downloading film and music.

"The trend away from infringing file sharing started when easy and cheap access to legal content became available. From the iTunes store for music & movies, to providers of streaming access to TV series and movies like NetFlix or Spotify, cheap and legal access is now a reality. Infringing file sharing is slowly becoming a thing of the past," Jordan Carter says.

ENDS