Alleged pirates to walk the plank

Article  \  25 Apr 2012

The first enforcement (third strike) notices have now been issued to alleged copyright infringers in New Zealand.

New Zealand brought the ‘three strikes’ or ‘skynet’ law into force in September 2011, under the provisions of its Copyright (Infringing File Sharing) Amendment Act 2011. The Act seeks to provide a mechanism by which copyright owners can issue warnings to internet users illegally sharing copyright files.

Since 1 November 2011, the Recording Industry Association of New Zealand (RIANZ) has sent a steady stream of complaints to New Zealand Internet Protocol Address Providers (IPAPs), mostly in relation to the alleged sharing of pop and R&B music.

Only after being issued with three strikes (each strike being at least 28 days apart) can the alleged copyright infringer be required to appear before the Copyright Tribunal, which can impose a fine of up to $15,000. As of 20 April 2012, at least two enforcement (third strike) notices have been issued – one by TelstraClear, and one by Vodafone.

At this stage, there is no way of knowing who the alleged pirates are, or what files they have been accused of sharing. It also remains to be seen what level of fines will be imposed by the Copyright Tribunal.

Meanwhile in Australia, the third biggest internet service provider (ISP), iiNet, has successfully defended claims from a group of 34 Australian and US film and television companies. The entertainment companies alleged that iiNet had authorised or enabled copyright infringement by allowing its users to download copyrighted material (see Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23; [2012] HCA 16). 

The Australian High Court has again ruled in iiNet’s favour, dismissing the entertainment companies’ appeal.  It has been held that the extent of the ISP’s power is “limited to an indirect power to determine its contractual relationship with its customers” and does not extend to taking positive steps to ensure that its customers are not infringing copyright.

The ISP is now said to have proposed a graduated response model, whereby an independent body mediates the interests of all parties in accordance with “community standards”. The system would be relatively similar to that employed under New Zealand copyright law, or the voluntary graduated response system of the US.

Other countries to implement graduated response laws include Great Britain, France, South Korea, and Taiwan. To date, there have been no reports of fines (or other penalties, such as internet disconnection) being imposed under any of the regimes.