Last week decision by the Recording Industry Association of New Zealand (RIANZ) to drop one of its eight file sharing cases before the Copyright Tribunal is strange, but also a stark illustration of a law that leaves the accused essentially defenceless.
The accused was a student flatting with others in Wellington. She was the account holder of the flat's Internet connection which in turn someone there used to allegedly download five songs. The student denies it was her and in fact, didn't know how to do it.
As the account holder however she faced being hauled in front of the Copyright Tribunal after three notices sent via post and a hefty penalty.
RIANZ went in boots and all, demanding $2,700 for the cost of music, notice and tribunal fees and as a deterrent. According to RIANZ's unverified calculations each of the five songs downloaded was shared ninety - 90 - times. Instead of the $11.95 in total, the lost sales were $1,075.50.
Add to that $1,250 as a deterrent penalty and $373.75 in notice and tribunal fees and that's $540 per song.
Stop and think about that figure. Valuing the theft of a twenty-track CD in the same manner would mean a $10,800 penalty.
The student received help from Tech Liberty, lawyers and InternetNZ and offered to settle the case for costs.
RIANZ refused to settle however and said it would take her to the tribunal for "flagrant abuse of copyright".
Then, after the student had filed her submission with the Tribunal and asked for a hearing in person, RIANZ withdrew its case without an explanation.
Nor was there an apology or an offer to pay for the student's costs and inconvenience.
These include having to close down her Internet account after being summoned to the Copyright Tribunal and having to find somewhere else to live after falling out with her flatmates over the file sharing.
I've asked RIANZ to explain why it dropped the case and also, how the cost of the music was calculated and ditto the damages. So far, there's been no response from RIANZ.
Becoming an accidental pirate
How easy is it to be accused of copyright infringement and potentially be caught up into a months-long legal process like the student above?
It couldn't be easier: all you need is Internet access and to use web services as intended. Everything else is automatic. In fact, it happens every day overseas.
To give you an example, in the eyes of Google and YouTube I'm a pirate with two strikes to my name.
I learnt about the second strike in March this year, when YouTube sent an email (to my Gmail of course) saying a video that I had posted may have content that's owned or licensed by an outfit called GlobalTVCom.
This was odd because the video was one that Microsoft had created and posted for people to share - it's the Gmail Man, knocking Google. I put it on YouTube in June 2011 for easy embedding in a story and promptly forgot about it.
Now I was an alleged copyright pirate because of the clip. Luckily, my penalty was small: GlobalTVCom would get my AdSense revenue for the video from now.
That's bizarre enough, but it got stranger: GlobalTVCom didn't say who they actually were, and Google refused to tell me. If I wanted to contest the claim, I could send a counter notice under the Digital Millennium Copyright Act or DMCA, the US law that governs these things.
Doing so would've put me in risk of being sued in a US court if the counter notice wasn't accepted by the rights holder, and Google warned that I needed to consult a lawyer before filing it.
I decided against going down the DMCA route and instead, confirmed with Microsoft that the video in question was indeed theirs and that I was entitled to use it the way I had.
Next, I worked out that GlobalTVCom was in fact Shaw Media in Canada.
I contacted Shaw's media people explaining my situation, and heard back from communications manager Lauren Wilson who admitted that:
"Shaw Media does own GlobalTVcom and we have seen a few videos automatically claimed to our account. Google does this by matching content in public videos with content in our own videos. The number of videos that are auto claimed is extremely large, so we only release videos if disputes are filed. Should you wish to go that route, note that we aim to address dispute resolutions once per week."
No apology however and what about the AdSense cents Shaw had appropriated from my YouTube account - would they pay those back to me? Shaw still hasn't answered that question.
Long story short, both Google and Shaw stopped responding to me and some weeks after my DMCA piracy strikes were gone from my YouTube account.
This included the first one, which was apparently was incurred in 2006 after Telecom filed a DMCA notice against my account for the Theresa Gattung "confusion as a marketing tool" spoof video.
That was before Google bought YouTube and indicates that the strikes last for a long time and that their protection for parody and free speech is only skin deep.
I was able to get to the bottom of case through my contacts as a journalist but imagine it would be difficult to do so for others. In the process, I learn that the reason for the second strike was due to Google's Content ID system that automatically watches out for copyrighted content and penalises infringers automatically, with no real checks. It's up to you to prove that you're not a pirate.
Mine wasn't an isolated case either: I was told that there had been others of GlobalTVCom incorrectly asserting copyright over Microsoft's videos.
Clearly, rights holders can do this with impunity just like music studios can accuse innocent people in New Zealand of copyright infringement, demand heaps of money and put them through the legal wringer.
What can you and I do? Not a whole lot beyond paying the stand-over money or turning off Internet access.
That's the law.
* US introduces a six-strikes copyright system; customers disputing the allegations have to pay a US$35 filing fee.
* Electronic Freedom Frontier: Top ten takedowns in Google's copyright transparency report.
* Hew Griffiths, an Australian who spent 3 ½ half years in prison and was extradited to the US for file sharing.
* US hosting company takes 1.45 million educational blogs offline after DMCA notice.
* Copyright bots boots NASA Mars rover videos off YouTube.
* Megaupload sues Universal over sham YouTube takedown.