First three download offenders could face penalties as low as $275

The book is unlikely to be thrown at three Telecom customers, who are the first to be hauled up in front of the Copyright Tribunal under the new file sharing law.

The three, who face individual actions, could be faced with penalties of up to $15,000 under Copyright (Infringing File Sharing) Amendment Act (2011).

But lawyer and internet specialist Rick Shera notes, "Courts will err on the low side when a regime is only newly implemented."

Copyright Tribunal chairwoman Susy Frankel has not returned requests for comments.

Mr Shera says he doesn't know how the Tribunal will assess penalties, but told NBR it directed by regulation to consider whether or not the allegedly pirated work is available in New Zealand.

The Tribunal is also directed to take into account the flagrancy and frequency of offending.

Another factor is the degree of damage done to the copyright holder.

"The regulations also contemplate a costs award alone being sufficient (that is,. $275)," Mr Shera notes.

We need carrots as well as sticks
Even if Mr Shera is right, and the first three offenders get a modest penalty, my fear is will still have a chilling effect on New Zealand downloaders.

What's wrong with that?, you might say. Stealing is stealing.

The problem is that there are a number of issues with the file sharing law. Foremost that it puts the onus of proof on the accused (who is likely to have fewer legal resources than the copyright holder). 

Then there are the significant logistical problems caused by the fact an account holder (who could be a parent, school principal, the head of a flat, and employer or the operator of a wi-fi network) is responsible for the actions of all those who use their internet connection (family members, staff, pupils, visitors, flatmates, random passersby).

But let's assume the first three cases are relatively clean.

My fear is still that it will cower the general public.

Broadcasters and copyright holders - often fighting a rear-guard action to maintain regional monopolies in the fact of fast-moving technological change - will feel emboldened to, well, keep sitting on their hands.

Their efforts to support new media options, and provide customers with a wide variety of street-legal content for download, will remain sluggish in this part of the world.