Second file sharing decision sees father fined after sons - one just 8 - download pirated music

NBR ONLINE has obtained the second decision under the new file sharing law, which is published in full for the first time below (see RAW DATA end of story).

It sees a 50-year-old father ordered to pay $557 after his sons downloaded pirated music tracks (Coldplay's Paradise and Kesha's We R Who We R).

One son is 12, the other just eight years old.

All names are suppressed.

Rianz (the Recording Industry Association of NZ, representing EMI and Sony Music in this action) had asked for $1681 in damages. The Copyright (Infringing File Sharing) Amendment Act allows for maximum damages of $15,000.

Again, NBR sees no excuse to pirate music at a time when iTunes and other services offer low-cost downloads for almost any song, and the likes of Pandora and Spotify offer New Zealanders free (ad-supported) music streaming.

But, like the first decision, the second graphically illustrates two drawbacks of the new copyright law.

One, that an the holder of an internet account is responsible for the actions of anyone who uses that account. And while it's a father, but it could equally be an employer or, say, a hotel or motel owner.

Second, the onus is on the accused to prove their innocence - a bad legal principal, and something that will lead to many a mis-matched fight as under-resourced punters go up against record labels and (if they ever get their act together) movie studios.

Multiplier argument shot down, again
In the first decision, Rianz asked the Tribunal to consider the multiplier effect. That is, that although just two songs were downloaded (one of them twice by mistake to constitute the offender's "third strike"), file sharing software meant they could also be uploaded to the internet and shared many times. The Tribunal said it could find no proof that was the case and went with lower damages than those requested by Rianz.

Again, this argument was rejected.

Computer illiteracy no defence - or is it?
Tribunal member Warwick Smith writes in the second decision that the defendant claimed there was "very little computer literacy" in the household.

However, he rebukes, "It appears there was enough at least enough computer literacy to locate and install the BitTorrent application [software used for file sharing]." The defendant was given two chances to uninstall it after receiving warning notices in November 2011 and June 2012 before the third strike warning (in August 2012) put him before the Tribunal.

Well, maybe. But some will wonder if the 12-year-old was BitTorrent-savvy, but the father was ignorant of how files were being shared. It's a messy situation, but not unexpected given many MPs displayed a poor grasp of file sharing as the legislation was debated.

Catalyst Intellectual Property partner Kate Duckworth tells NBR ONLINE she sighted the notices sent to the Telecom customer involved in the first file sharing decision. She says they were confusing.

"People don’t understand that files can be automatically uploaded from your computer if you have file sharing software installed. Some people don’t seem to know they have the software installed on their computer, and that music can be automatically uploaded by others," Ms Duckworth says.

Ideally, infringement notices would educate people. 

But the notices are sent by ISPs who are already fuming about the cost of the law and who, in Ms Duckworth's view "are doing the minimum to comply."

Why are these people being targeted?
I'm at a loss as to why the music industry's first two cases targeted people who downloaded just two songs by multi-national artists.

I'm no PR expert, but surely Rianz would be better off targeting someone who had pirated local artists en masse? 

Another mystery: if film piracy is such a problem, why has the movie industry failed to send a single infringement notice (more on that one here).

RAW DATA: Read the full decision.

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ckeall@nbr.co.nz