Another file-sharing case brought before New Zealand’s Copyright Tribunal by the major record labels has been withdrawn at the 11th hour after it was discovered that none of the”strikes” had been properly delivered to the account holder. As yet again rightsholders and ISPs delay the implementation of a similar scheme in the United States, they will seek to avoid the 100% failure rate in contested cases set by their Kiwi counterparts.

In 2011 New Zealand introduced the Copyright (Infringing File Sharing) Amendment Act with the aim of reducing illicit file-sharing by sending out warnings and ultimately punishing copyright infringers.

In the first six months of the scheme RIANZ, the Recording Industry Association of New Zealand, sent out 2,766 notices. To date a total of 18 Internet account holders have been referred to the Copyright Tribunal to face fines after receiving their third strike for sharing music. But for RIANZ things haven’t been going well.
In an early test of the system, the first individual who said they would contest their case in person had their case dropped by the labels.
There were several problems. To begin, the first “strike” notice never arrived and the third was sent to the wrong person. Furthermore, the second and third notices both lacked required information, with the latter being wrongfully sent during the “cool-down” period after the second, effectively nullifying the notice.
And now it’s been revealed that the second case to be contested at the Copyright Tribunal has also been withdrawn by RIANZ at the eleventh hour, again after a failure in the warning system.
The case appeared to be fairly straightforward. A female account holder of the ISP Slingshot had used BitTorrent to share a total of 11 songs, of which two (including one by Rihanna) were detailed in the case.
She had been tracked by MarkMonitor, the same company that will spy on alleged copyright infringers in the United States when that scheme finally gets off the ground next year. The company said that the woman had been using the Vuze/Azureus BitTorrent client and had been monitored making the works available between 17 December 2011 and 28 July 2012.
However, since MarkMonitor can only prove that any infringer has uploaded content to them, RIANZ used some educated guesswork for their damages calculations. Relying on similar reasoning to that employed during the first contested case, the music group argued that since the woman had made the music available for such a long period, the tracks must have been downloaded a number of times.
They came to the conclusion that, based on an Envisional study, that the two tracks in question would have been downloaded around 90 times each for every single instance of infringement logged by MarkMonitor. The first track was logged once, the second a total of three times, coming to a grand total of 360 downloads.
After arriving at a figure of $1175 for the hypothetical downloads plus sundries, added to another $3,500 by way of don’t-do-it-again punishment, RIANZ concluded their September 17 claim with a demand $4675.
But despite all the effort and number crunching, the alleged infringer won’t have to pay a penny due to a failure in the system.
The problem appears to be down to the woman’s ISP. Service providers are supposed to make sure that infringers receive their strike notices so they can be “educated”. However, the woman’s ISP, Slingshot, simply sent them to an email account associated with her account. Trouble is, she’d never used the email account, so had therefore received no notices.
Faced with this disaster RIANZ rightly withdrew their claim, but for the second time in two months contesting cases put before the Copyright Tribunal has been shown to be an effective strategy. It’s clearly worth checking to see if something hasn’t been done by the book.
Over in the United States the labels of the RIAA will be watching and learning from these failed RIANZ cases and will be mindful that even when they do their bit, ISPs can still get things wrong. As we know, the “six strikes” scheme has just been delayed yet again – this time until 2013 – time enough, the labels hope, it get this done right straight off the bat.