First pirate prosecution in New Zealand under "three strikes" law

Filed Under: Featured, Law & order

The New Zealand copyright tribunal has imposed its first penalty under the country's "three strikes" file sharing regulations.

The name comes from baseball, where batters are automatically out if they fail to hit the ball after three tries.

(Why it is called a strike when you miss altogether is not clear to this cricket-playing writer.)

In New Zealand, your three strikes go something like this:

  • A detection notice. Please don't do it again.
  • A warning notice. You seem to have ignored your detection notice.
  • A enforcement notice. See you at the tribunal.

The notices are issued not for downloading, although strictly speaking merely downloading counts as infringement, but for uploading.

Only those who are thought to have been "communicating [a] work to the public," in the words of the tribunal, get pinged with notices.

Additionally, the detection and warning notices expire and are effectively expunged if you don't reoffend for a specific period.

The theory here seems to be that if you pull your head in after your first or second warning, or even if you carry on ripping off content but stick to downloading, the entire issue will go away of its own accord, and no-one but your ISP will be any the wiser about your alleged infringements.

It works out this way because the rights-holder identifies the allegedly-infringing internet connection; the ISP ties this to a user and issues the notice, for which there is a modest charge of $25 to the rights holder to act as a sort of rate limiter; and the user decides whether to take heed. The user's identity is not revealed back to the rights holder.

Previous cases of this sort have been attempted, but dropped before reaching the tribunal.

Because this is a first time for everyone, notably the tribunal itself, the judgement document goes into more detail than you'll probably see next time:

At nine pages, and with much of it in point form, the document is nowhere near as long or as turgid as you might expect.

In fact, I recommend you give it a read. I think it shows that copyright enforcement can be done in a way that provides for deterrence, punishment and restitution without getting out of hand.

Whether or not the ISPs should be expected to play the role that they do in the enforcement process in New Zealand is another matter.

But I suspect that you will be pleasantly surprised at the balance shown by the tribunal.

It did penalise the respondent, who will have to pay out NZ$616.57 (just over US$500, or £325), but didn't accept the rights holders assertion that the breach was self-evidently "flagrant".

If you're interested, this very particular amount was calculated as shown below. The odd $6.57 is the actual cost of the stolen songs, which the respondent ended up paying for anyway:

Peace with honour? Justice with responsibility? Soft on piracy? Pandering to the recording industry?

What do you think? Let us know in the comments...

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21 Responses to First pirate prosecution in New Zealand under "three strikes" law

  1. Ameraussie · 947 days ago

    It's called a strike because the batter swings at the ball and misses :)

    • Paul Ducklin · 947 days ago

      Yeah, but I still don't get it. When the pitcher misses his target it's a "ball" and when the batter misses his target it's a "strike"...and people say that cricket has impenetrable terminology!

      • Curt Parliament · 946 days ago

        A pitch that is in the hittable area called the "strike zone" is called a strike (the pitcher hit the target), and counts as such for the pitcher if the batter doesn't swing at all. If a batter swings and misses, it also counts as a strike for the pitcher. Thus a swing and a miss is also called a strike.

        • Paul Ducklin · 946 days ago

          That makes's a strike *by* the pitcher *against* the batter...

          • Scott · 946 days ago

            Exactly, and it's even shown in score sheets as such! When scoring a baseball game a strike is shown as an uppercase X. A strike! After 3 strikes the batter strikes out (the ump yells "you're out!"), because a line of strikes were complete - XXX - a strike out!

            Incidentally a ball is shown as an upper case O. That may have come from a zero (meaning no strike) and since it looks like a ball, they just say ball (instead of zero).

      • hermann · 946 days ago

        It's called a "strike" for the same reason we drive on a Parkway, and park in a Driveway

    • Ali · 946 days ago

      I hadn't thought of strike as being a misnomer. The one that I think is odd is "try." Why is it a try if you succeed? I'd like a sport that gave you points for trying.

      • Paul Ducklin · 946 days ago

        I know the answer to that one...tries (which are now worth 4 points in Rugby League and a whopping 5 points in Rugby Union) used to be worth 0 points.

        All they did was give you a "try at goal" (that's where you try to kick the ball through the goalposts - still called a "conversion kick", because it converts a try into a goal).

        Games were won and lost on the basis of goals scored. Tries only came into it if the two teams had the same number of goals.

        The difficulty (and the degree of team work) needed to get the try-at-goal, compared to kicking the goal itself, led to the "try" being assigned a value in its own right, which has slowly but steadily increased against the other ways of scoring. In my lifetime, the try has gone from 3, to 4, to 5 points in the Union flavour of the game, with the try-at-goal worth 2 points and thus the goal itself 5+2 = 7 points.

        Obvious, really :-)

  2. William · 947 days ago

    That is incredibly reasonable. If I were a recording artist, photographer, or even graphic designer and someone is using my work without having paid royalty or for the work itself, I would want to be paid fully for my loss. But this should also go against those who download as well. To me it is theft. I'm probably the only one who feels this way. For example - I'm keeping a personal blog and won't use images that I haven't been given permission to use. Naked Security can't tolerate just anyone using their pink robot on their website and most likely won't allow it ((unless incredibly kind) because its directly associated with them.

    • Pier · 947 days ago

      This is not about "theft". You cannot steal something which is digital. It's a copy. Now with that said, I am actually a music producer myself, so I do understand where you're coming from.
      However, I think this is a question of time. Bear with me :)

      You, like many others, give your time away. Your time is limited. How much is it worth? People need to understand that this is not about stealing digital copies because that's not possible. It's about ignoring the fact that another human being took time out of their life to create something. The question now that every person who pirates should ask themselves is: Are you as a person going to just piss on that sacrifice or are you going to respect it?

      • Tom · 946 days ago

        if in the big scheme of things this is really all about you paying your share to someone who took the time out of their lives to bring something new and exciting to you, maybe we should start thinking from the other direction and ask "is taking the time to LISTEN( and/or LOOK AT) the offering, also not a valuable payment, consideration, for the entire transaction? I don't see anyone, throwing a nickel into a pot for Leonardo, every time someone glances at a representation or copy, of the painting called Mona Lisa, or any of his other works or the multitude of other artists, craftsmen etc that have gone on before.
        "tenshinchigi" is completely on line with the way it is. Its not so much about the act of giving or receiving, its all the bureaucracy, middlemen and klingons in between!

      • Scott · 946 days ago

        That's the exact rhetoric that the RIAA want's us to believe. Did you realize that most starting artists usually get around 10% of record sales, and it's usually for a limited time, i.e. no residuals? After paying of advances, fees, and costs they are usually left with very little money. Most artists in the industry are NOT getting rich. Just like everywhere else, there is a very small percentage that are benefiting from the effort of a larger group.

    • tenshinchigi · 947 days ago

      Except this wouldn't apply to a recording artist, photographer, or graphic Designer. As an artist I know all too well how the legal system works. It would help out big companies; not us, not the little guy like me.

      [Comment edited for length]

      This war big companies are waging over content is so far over our heads it's not even funny. There is literally nothing we can do to ever make money because laws don't protect us, they protect them.

  3. Phil Docherty · 947 days ago

    I like it, typically New Zealand, fair and sensible to both parties.

  4. Sam · 947 days ago

    It would be interesting to see how many so called 'recording artist, photographer or a graphic designer' supports their kind by buying legal stuff and not downloading something when they get it for free. Hopefully someone would be sensible to put in a 'Freedom of Information' request to see how many so called 'people who get paid royalties' got prosecuted. It seems like everyone wants the law to work in their favour when they are to get money and not to work when they have to pay for something.

  5. Tony · 946 days ago

    I like New Zealand's approach given the law is worded intelligently and more importantly easy to understand. Here in the U.S. the same law would take 1357 pages to explain and require a lawyer to understand. The fines would run into the hundreds of thousands of dollars and no first warning.

  6. Gavin · 946 days ago

    Maybe it does seem like "everyone" wants copyrighted stuff for free, but I know there are people like William who understand and adhere to the morally right path.

    I was in the music industry in the UK for a few years and though that is now many years in my past I try very hard to ensure I do not support piracy of any kind, and my family fully adheres to that also. No-one needs pirated material. No-one.

    I like what New Zealand has done here very much. Highly unreasonable and draconian enforcement attempts by the RIAA and others in the US are not the way to fix the problem. Clearly such deterrents are not working with the American masses and it is therefore a good thing that copyrighted material distribution is beginning to adapt to the new normals of a digital world. I think the NZ way of approaching this issue is about the best real-world enforceable legal course of action as any I've seen.

    In the meantime, maybe almost everyone I associate with does steal any song or movie they wish, but I still don't NEED them!

  7. Adam · 946 days ago

    I like how New Zealand only fines him $616.57 for torrenting, while in America there's someone facing a $675,000 fine for downloading 30 songs. Freaking RIAA...

  8. Obedient Citizen · 946 days ago

    People photocopying pages from books at the library should brought to a tribunal as well as they are taking away revenue from the authors.

  9. Morgen Donner · 946 days ago

    How is this going to impact peer-to-peer file sharing networks?
    Many people download without actually understanding the technology behind the action they've taken (ie uploads happening while you download) This legislation may seem reasonable on it's face but I see problems looming in the background. I'm all for fairness but what I see is a world that is clinging to archaic property rights laws instead of adapting to the changing business environment.
    ( Copyright enforcement has produced some truly horrific outcomes (ie Aaron Schwartz). Maybe this is a step in the right direction - QED.

  10. hotdoge3 · 913 days ago

    It did penalise the respondent, who will have to pay out $00.00 got off as not pay $25 to the ISP

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About the author

Paul Ducklin is a passionate security proselytiser. (That's like an evangelist, but more so!) He lives and breathes computer security, and would be happy for you to do so, too. Paul won the inaugural AusCERT Director's Award for Individual Excellence in Computer Security in 2009. Follow him on Twitter: @duckblog