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  Reply # 753450 30-Jan-2013 19:37
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Not sure about wrapped installs of I torrent, but since when was the actual installing of such software an offence?

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  Reply # 753454 30-Jan-2013 19:41
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she probably went to the site , found the song and went to downloaded it, she was probably told she needed bit torrent to download it , click here to do so etc , utorrent is a really small program and takes no time to install and you dont need to configure it for it to work, it just runs in the background. I could easily see a novice doing it without knowing what they are doing. She reallt needed someone who knew how it all worked in his/her corner at the tribunal

 
 
 
 


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  Reply # 753498 30-Jan-2013 21:37
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$600 bucks!

Now that's sending a clear message!!!

This woman is just stupid.  Clearly she doesn't know how to shop around for music when she's a bit wasted and looking for some tunes...

http://nz.answers.yahoo.com/question/index?qid=20091030192052AAQaJSv

Fines:
• < 10 km/h = $30
• 10 - 15km/h = $80
• 15 - 20 km/h = $120
• 20 - 25 km/h = $170
• 25 - 30 km/h = $230
• 30 - 35 km/h = $300
• 35 - 40 km/h = $400
• 40 - 45 km/h = $510
• 45 - 50 km/h = $630

Come on woman... the next time you want a tune just jump in the car and scream down to Kmart at 95km/h....  even in a 50km/h area it would have been cheaper... talk about no ability to shop around!!!

But I digress and am off topic really as the issue here really isn't the issue of money at all is it?  Even RIANZ agree with me on that...

The issue is the horrendous crime that this offender has committed on society and punishment that such offending must attract!

We really need to put this offending in perspective I think. 

Stealing 9 minutes of music - driving a car at 95Km/h in a 50km/h zone...  The punishment seems to be the same, though the former seems to be a bit more drawn out than a simple speeding ticket that an officer dishes out in 3 minutes along with a quick telling off.

But what I really want to know is what message all this sends us about our future?

Today we're spending millions and millions on public education about speed and driving because of the harm it causes.

The fine for 9 minutes of stolen music draws the same fine, so are we doing to see millions of government investment finally in public education to put and end to his horrendous offending that causes so much harm in today's digital society?

Should we be considering licensing before kids are allowed to opperate anything that will let you play music to ensure that they do actually understand the rules about music ownership and rights before they engage in listening?

We need to start public education in our schools.  We all know that 17 to 25 yr old drivers are the worst offenders.  Who are really the worst music offenders?  Is it the same age group?

As for this $25 dollar fee for delivering an email to an internet user...  It's just no wonder NZ Post are going out of business!!!  We know that email is much cheaper than paying someone to physically take a bit of paper from one end of the country to the other.  NZ Post should be putting the price of a standard letter up to $250 per item.  That would make much more sense.

Anyway, enough from me on these whole stupid business which just seems to have grown a life of its own and got right out of control, taking up millions and millions of dollars in public money to police this horrific offending.

In closing, I'm kinda interested to know where I can download a copy of the two offending songs we know about so I can get an idea for myself of what this whole mess is about.  (Oh, and by 'download', I don't mean iTunes where I'll have to pay, I'm really not keen to fund RIANZ to keep this rubbish taking up my taxes.)





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  Reply # 753634 31-Jan-2013 08:50
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She admits that she downloaded a song from what she believed to be a genuine source.  This installed uTorrent which when she received the notification she removed - she claims that she has not downloaded anything since.

What she has been caught doing was uploading for the three infringements (twice for the same song) - this implies that even though she believed that she had remove uTorrent, there was likely something left on her computer that was either sharing her music or using her computer as a staging point/bot.

I would suggest that she is probably more guilty of computer illiteracy than intentional file sharing.  This is the problem with a tribunal where the accused are not provided with any legal (or non legal) representation.

As a side point I like the statement in the award at point 19 "if they were legally available for download at that time".  Does this mean that if it was not available the tribunal would not have found the accused responsible?

Also, "the applicant rightly acknowledges, a difficulty in this case is that it is not know how many downloads, if any, were made" - IF ANY

I'm not condoning file sharing however, this is an example of what we expected would happen with this law - the only people getting caught are not the prolific downloaders (should I say uploaders) that they want to prevent, but the ignorant/computer illiterate.




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  Reply # 753639 31-Jan-2013 08:55
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gzt: It is obvious she had no legal representation as there are many questions which were not properly addressed which could have reduced the deterrent award.


It's a disputes tribunal, you can't have legal representation at these. She could have had someone sitting with her (a McKenzie friend) acting as an advisor though. Sections 38(5), (6) and (7) of the Disputes Tribunal Act 1988 refer. She should have sought legal advice well ahead of this case though and had her defence well planned out.

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  Reply # 753647 31-Jan-2013 09:15
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StarBlazer: As a side point I like the statement in the award at point 19 "if they were legally available for download at that time".  Does this mean that if it was not available the tribunal would not have found the accused responsible?

According to the Act:

for each work in which the Tribunal is satisfied that copyright has been infringed at the IP address of the account holder,—
  • (i) if the work was legally available for purchase in electronic form at the time of the infringement, the reasonable cost of purchasing the work in electronic form at that time; or
  • (ii) if the work was not legally available for purchase in electronic form at the time of the infringement but was available in some other form, the reasonable cost of purchasing that work in another form at that time; or
  • (iii) if neither subparagraph (i) nor subparagraph (ii) applies, the amount claimed by the applicant in respect of the work, or any other reasonable amount determined by the Tribunal


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  Reply # 753650 31-Jan-2013 09:17
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Behodar:
StarBlazer: As a side point I like the statement in the award at point 19 "if they were legally available for download at that time".  Does this mean that if it was not available the tribunal would not have found the accused responsible?

According to the Act:

for each work in which the Tribunal is satisfied that copyright has been infringed at the IP address of the account holder,—
  • (i) if the work was legally available for purchase in electronic form at the time of the infringement, the reasonable cost of purchasing the work in electronic form at that time; or
  • (ii) if the work was not legally available for purchase in electronic form at the time of the infringement but was available in some other form, the reasonable cost of purchasing that work in another form at that time; or
  • (iii) if neither subparagraph (i) nor subparagraph (ii) applies, the amount claimed by the applicant in respect of the work, or any other reasonable amount determined by the Tribunal

All bases covered there then!




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  Reply # 753651 31-Jan-2013 09:18
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Behodar:
According to the Act:

for each work in which the Tribunal is satisfied that copyright has been infringed at the IP address of the account holder,—
  • (iii) if neither subparagraph (i) nor subparagraph (ii) applies, the amount claimed by the applicant in respect of the work, or any other reasonable amount determined by the Tribunal


Is it just me or does that seem to encourage copyright holders to make nothing available in NZ in any form so they can set their own damages (provided they're "reasonable" whatever that is defined as)

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  Reply # 753652 31-Jan-2013 09:18
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PhantomNVD: Not sure about wrapped installs of I torrent, but since when was the actual installing of such software an offence?


When it shares your music collection to the world!




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  Reply # 753654 31-Jan-2013 09:18
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am I the only one who thinks $616 is pretty light, and it wouldnt really bother me?

sure its $616, but max is $15,000, so $616 seems like nothing.

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  Reply # 753658 31-Jan-2013 09:25
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reven: am I the only one who thinks $616 is pretty light, and it wouldnt really bother me?

sure its $616, but max is $15,000, so $616 seems like nothing.


The deterrent part is only $120 per song.  I would say she got off lightly.  I was pleased to see the tribunal had ignored research into how many times a song may have been uploaded - if they had "concrete" proof this award could have been higher.  I'm sure they will next time...

On the other hand $616 is the cost of computer illiteracy and ignorance - pretty harsh if you think you had done everything possible to stop it.  Even at the point of the tribunal, she thought that the offence was downloading - she was caught of making the material available.

Perhaps the IPAPs when sending the notices out should include a "these are some of the things you should check on your system" making it clear that downloading is only part of the problem - perhaps even offering a service to clean your system (for a fee no doubt).




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  Reply # 753661 31-Jan-2013 09:28
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Dratsab:
gzt: It is obvious she had no legal representation as there are many questions which were not properly addressed which could have reduced the deterrent award.

It's a disputes tribunal, you can't have legal representation at these. She could have had someone sitting with her (a McKenzie friend) acting as an advisor though. Sections 38(5), (6) and (7) of the Disputes Tribunal Act 1988 refer. She should have sought legal advice well ahead of this case though and had her defence well planned out.

Those are good points. Additionally the case was decided 'on the papers'. I presume this means on the basis of written submission. From what I can see the Tribunal accepted a lot of RIANZ assertions and rejected the respondents claims. Her claim was that (a) she intended to download one song and accepted full responsibility for that (b) did not know the song was from an unlicensed source (c) did not know a bit torrent client had been installed on her machine and implies it the install may have occurred automatically with no direct knowledge.

Based on arguments from the RIANZ the tribunal essentially rejected (c) and said the mere presence of a torrent client indicates willful intent to infringe.

Onward
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  Reply # 753663 31-Jan-2013 09:30
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PhantomNVD: Not sure about wrapped installs of I torrent, but since when was the actual installing of such software an offence?



Installing Torrent software is not illegal in the same way as buying a car is not illegal. The use there of maybe illegal.

I use Torrents weekly to download Linux and other OSS and this is completely legal. I drive my car obeying the Road Code so that is legal. If I used same to download and share music and video etc that is illegal, if I exceed teh speed limit in my car that is illegal.




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  Reply # 753666 31-Jan-2013 09:37
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KiwiNZ:
PhantomNVD: Not sure about wrapped installs of I torrent, but since when was the actual installing of such software an offence?



Installing Torrent software is not illegal in the same way as buying a car is not illegal. The use there of maybe illegal.

I use Torrents weekly to download Linux and other OSS and this is completely legal. I drive my car obeying the Road Code so that is legal. If I used same to download and share music and video etc that is illegal, if I exceed teh speed limit in my car that is illegal.


How would you feel if you were caught uploading files from you computer - not because you actually intentionally shared them, but because the program you had installed was doing things you were not aware of or was configured incorrectly?

I'm playing devil's advocate here but in the same judgement by the mere fact that you have installed torrent software shows intent to share and therefore guilt!  Obviously completely flawed assumption and should be challenged.

Does anyone know if there is any way for her to appeal against the tribunal decision or is it final?




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  Reply # 753681 31-Jan-2013 10:05
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Dratsab:
gzt: It is obvious she had no legal representation as there are many questions which were not properly addressed which could have reduced the deterrent award.


It's a disputes tribunal, you can't have legal representation at these. She could have had someone sitting with her (a McKenzie friend) acting as an advisor though. Sections 38(5), (6) and (7) of the Disputes Tribunal Act 1988 refer. She should have sought legal advice well ahead of this case though and had her defence well planned out.


No it isn't, it's the Copyright Tribunal, not a Disputes Tribunal.  The Disputes Tribunal Act doesn't apply to this type of tribunal and the rules for it are set out in part 10 of the Copyright Act 1994 - which does allow either party to be represented by a barrister or solicitor (Section 214(1)).

But in answer to the questions about how she could have installed it unknowingly, that's easy.  Searching for any music, you are almost guaranteed to run across a site purporting to offer all you can eat access to millions of songs for a low monthly subscription if you install their software and hand over your card number.  They always claim to be completely legal.  If she came across one of these she probably did think it was a legal site and that she was signing up to a legitimate service.  And trying to remove the software may not necessarily succeed.

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