3strikesnz

Invalid Three Strikes Skynet Copyright Infringement Notices

Posted on March 11, 2012January 2, 2013 by Matt Taylor 3 Comments

We’re six months into the Copyright (Infringing File Sharing) Amendment Act, the law that pleased no one (the copyright lobby thought copyright holders should only pay the price of sending a letter, everyone that uses the internet thought the law was stupid), but was passed anyway.

Invalid notices

Tech Liberty asks if some infringement notices being sent to customers are invalid because they don’t contain the required information under the law.

An Orcon customer posted on the 3StrikesNZ forum about two notices (s)he received and posted the screenshots of the emails (click for larger versions). Note that both notices are for the same song. Anonnz says that the offending file, torrent, and software was removed after the first notice and so a second warning notice should never have been sent.

Tech Liberty brings up a number of reasons why the notices are invalid according to the Copyright (Infringing File Sharing) Regulations:

4(2)c(iii) states notices must describe the type of work in terms of section 14(1) of the Copyright Act.
4(2)c(iv) states notices must describe the restricted act or acts in terms of section 16(1) of the Copyright Act by which copyright in the work is alleged to have been infringed.
4(2)c(v) states notices must give the New Zealand date and time when the alleged infringement occurred or commenced, which must specify the hour, minute, and second. The first notice doesn’t specify the time to the second.
4(2)c(vi) states notices must identify the file sharing application or network used in the alleged infringement.
5(2)b states notice numbers must identify whether the notice is a detection notice, a warning notice, or an enforcement notice; and (c) that they must identify the IPAP that sent the notice.

Account suspension

Additionally, the second to last paragraph of the notice misinforms customers about internet account suspension, stating: “the Copyright Tribunal has the authority to … apply to the District Court to suspend your account for any period up to six months”. Account suspension is not currently an available punishment.

The requirements for notices and punishments are spelled out quite clearly, so I wonder what else copyright holders and IPAPs are doing incorrectly.

Delivery of infringement notices

There’s some really interesting discussions over on the 3StrikesNZ forum.

The nature of delivery of infringement notices has been brought up. FlyingPete suggests that email is unreliable for the delivery of such important notices (as in missing them could cost the account holder $15k), because of spam filters and because some people don’t check email accounts very often.

The Act states that infringement notices are to be sent the same way bills are sent, unless agreed otherwise, and assumes that the way you receive your bill must be reliable, otherwise you wouldn’t pay it. It overlooks that a lot of people are using automatic payments and don’t need to check the bill for a service that stays the same price every month.

StuFlemingWIC, from an IPAP, points out that even snail mail is unreliable, especially when sent to student flats. He suggests that registered mail would have been a good requirement for sending notices.

^{Image credit: Anonnz}

Posted in Law, New Zealand, Technology

From Today: Three Strikes and You’re Out

Posted on August 11, 2011January 2, 2013 by Matt Taylor 3 Comments

Copyright infringements, from today, come under the poorly worded, poorly debated regime introduced in the Copyright (Infringing File Sharing) Amendment Act. Infringement notices can be sent out 21 days from today, on September 1st.

The aim is to make it easier for rights owners to take action against copyright infringers who download music, movies, TV shows, books, software etc. Peer-to-peer (P2P) file sharing is the intended target, but the law seems like it could include other types of file sharing, which will end up being clarified by the Copyright Tribunal or the courts:

“file sharing is where—
“(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and
“(b) uploading and downloading may, but need not, occur at the same time

Some examples of the software likely covered under the law (if they’re being used to download infringing content) are here.

Process

Torrenting Notices from rights owners are sent to alleged infringers through their internet protocol address provider (effectively their internet service provider), like Telecom, Orcon and Slingshot. The order of the three notices (hence the three strikes name) are a detection notice, warning notice and then an enforcement notice. What notice you’re on is specific to each rights owner, eg. if you’re on the second notice, a warning notice, with Sony, a notice sent from Universal would be a detection notice, the first notice, assuming this is your first run in with Universal. This example, however, seems like it would be muddied if Sony and Universal both use an agent to do their bidding for them and it is the same agent.

There is a 28 day on-notice period after a detection or warning notice is issued where alleged infringements against that rights owner don’t count towards the next notice.

Detection and warning notices expire nine months after the date of the original detection notice. Enforcement notices expire 35 days after they are dated. The expiration of an enforcement notice expires the previous detection and warning notices too.

Rights owners pay $25 + GST to the IPAP for each notice they send through them. IPAPs have said that this won’t cover the set up and ongoing costs that this act cause, which will probably mean higher internet prices for everyone.

Rights owners don’t see an alleged infringer’s personal details.

The Copyright Tribunal

When an alleged infringer is on an enforcement notice, the rights owner can pay $200 to take them to the Copyright Tribunal, which will normally accept written submissions, but a face to face hearing can be requested by either party. Legal representation isn’t allowed at the hearing, but the rights owner will likely be represented by someone who knows what they’re talking about. Fines can be ordered of up to $15,000. There’s a provision in the act for rights owners to apply to a District Court to get an accused’s internet access cut off for up to six months. It’s currently not available, but could theoretically be implemented at any time.

Challenging notices

The normal burden of proof is reversed with an alleged infringer having to prove that they didn’t infringe copyright (how you prove you didn’t do something, I’m not sure). A notice can be challenged by an alleged infringer. Challenges have to be received by the IPAP no more than 14 days after the notice was dated. It’s up to the rights holder whether they reject or accept the challenge. If a rights holder doesn’t respond to a challenge before the close of the 28th day after the original notice was dated, the challenge is deemed to be accepted.

Account holder

The account holder, most likely the person whose name is on the bill, is liable for any content downloaded or uploaded over the connection they pay for. Unlike speeding tickets there’s no way to transfer this liability. Schools and pupils, universities and students, businesses and employees, libraries and library users, parents and children, landlords and tenants or flatmates could all be affected because of this. This also means that account holders are liable for guests or people they don’t even know who might be accessing their unsecured wireless internet (if you’re not sure if your wireless internet is secure, you can Google something like ‘securing wireless internet’ to make sure).

Effect on illegal file sharing

The regime ends up being ridiculous because a moderately technically competent person can get around it easily. Extreme illegal file sharers are probably already protecting themselves using seedboxes or VPNs. More casual downloaders will likely swap to using seedboxes, VPNs, streaming websites, searching file storage websites like Mediafire with Google or downloading audio from YouTube after they receive a few detection notices. There’s also the possibility of them avoiding the regime using mobile internet, which isn’t covered under the law until October 2013, or by using unsecured or free Wi-Fi.

Is this the death of free Wi-Fi? Are Rugby World Cup tourists going to wonder why their accommodation doesn’t include internet access? Are some ISPs going to start blocking all P2P traffic regardless of the legality of it?

It will be interesting to see which rights owners choose to send notices under the new regime. To be honest, I’m not sure how initiating a process that leads to the Copyright Tribunal is going to want to make people spend money with a company.

More information at 3strikesNZ.

^{Image credit: Jennie Faber}

Posted in Law, New Zealand

Matthew Taylor

Tag: 3strikesnz