Pat Pilcher: Is Skynet really digital Darwinism in action?

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Having handed down its first fine, New Zealand's Copyright Tribunal effectively delivered a slap on the wrist with a wet bus ticket. Sources indicate that attempts by the music industry to get a larger fine failed due to an almost complete lack of evidence.

The 3 strikes legislation, more commonly known as the skynet law, was intended to discourage copyright infringement and yet it seems to be punishing the ignorant. The law consists of three key stages.

When an individual is found to have breached copyright by sharing copyrighted material, they are sent an initial written warning (which in legal parlance is known as a 'detection notice'). In this particular case, the prosecuted offender had run afoul of Def Universal music group subsidiary Defjam Music, by downloading the Rihanna song 'Man Down'.

Well there's no accounting for musical taste, nor for foolhardiness, as a second 'warning notice' was also sent to the same person after they uploaded the same track again. Fool me once shame on me, fool me twice shame on you, fool me three times and well, you can slap me with a fine.

Bizarrely a third 'Enforcement Notice' was finally sent to the same person after it was found that they'd shared a track from Hot Chelle Rae 'Tonight Tonight'.

Having followed the development of the three strikes law since its inception, I am amazed that this person wasn't aware of the penalties involved given the sheer amount of publicity involved and are nothing short of gobsmacked that this person then continued to infringe copyright after receiving multiple warnings.

Maybe I am being more than a little harsh and credit where credit is due, the individual did write to the Tribunal explaining that they'd not been able to shut their torrent client down (yes it runs minimised in the system tray). The person then went on to say that "When this song was downloaded to my computer, a whole uTorrent program downloaded onto my computer..When I turned my computer on it said that the song was still downloading and maybe that caused the song to register twice as it being downloaded?".

Even though the Tribunal pretty much had what was a full confession, there was still not enough evidence hence the relatively small fine of $616 (which still makes the three downloaded tracks amongst the most costly music in New Zealand).

The really crazy thing is that obtaining music cheaply (or even freely) without infringing copyright isn't terribly difficult. According to RIANZ "A $616 fine delivered by the Copyright Tribunal would have bought the un-named file-sharing offender access to 20 million tracks on Spotify for four years". Free services such as YouTube and Pandora also stream music and music can also be downloaded from freemusicarchive.org.

Sadly this disciplinarian approach is what we're now left with. By now most tech savvy people have discovered legit sources for music and possibly also work arounds (such as seedboxes and proxies) to evade detection and prosecution. Sadly those less in the know are being hit hard, paying 200 times the value of the music they downloaded. Perhaps now might be a good time for RIANZ as the music industry representative to run a campaign promoting both free and commercial legitimate music sources instead of resorting to slapping the ignorant with a wet bus ticket.

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