First pirate prosecution in New Zealand under “three strikes” law

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…