Early Lessons From New Zealand's 'Three Strikes' Punishments

by Glyn Moody

New Zealand has the unhappy distinction of being in the vanguard of using the "three strikes" approach of punishment for people accused of sharing unauthorized copies online. As in France and the UK, this was brought in without any preparatory research to ascertain its effectiveness, and without any real thought about the practical implications. That makes a post by Susan Chalmers on the blog of InternetNZ, a "non-profit open membership organisation dedicated to protecting and promoting the Internet in New Zealand", particularly valuable.

It's entitled "Early Lessons from the Copyright Tribunal", and looks at the first two cases that have come before the New Zealand body responsible for implementing the three strikes law (recently, a third one has been added.)

It's full of fascinating details, and is well-worth reading for the insights it gives into the realities of the three-strike approach in New Zealand. Take the following, for example:
Both were caught illegally uploading songs. The specific "wrong" here according to the Copyright Act is that only the copyright owner can "communicate the work to the public". The law appears to presume that when your BitTorrent client allows other P2P users to download from you, then you are communicating that work to the public, even though that “public” could in fact be one person
That might seem a mere technicality, but as Chalmers points out, it isn't:
The written decisions showed that the account holders had a limited understanding of the technology they had been punished for using. Neither account holder seems to have understood that when you download a file, the client will automatically start uploading it to peers who request it. This goes to suggest that the account holders didn't know what their computer was doing was wrong (though they may have understood that downloading was wrong).
Again, this isn't a minor detail, because of perhaps the most problematic aspect of the three-strikes approach:
The law inverts the age-old principle (you know, that one that's essential to due process and a democratic society) that a person is "innocent until proven guilty". In a normal copyright infringement case that occurs in a court of law, the burden is on the copyright owner to prove that the alleged infringer infringed.

Under Skynet, the burden is on the alleged infringer/account holder to prove that they did not infringe. Specifically, they have to contest each of the three infringements listed on the notices.
Chalmers' post makes clear why the tribunal's "guilty until proven innocent" approach is unjust: it presupposes that the people involved fully understand what they are accused of. If they don't, they stand little chance, since they won't be able to defend themselves, and probably won't think to hire -- or be able to afford -- lawyers to navigate the complex process of defense in an area that is still being defined. With the traditional legal system of innocent until proven guilty, the burden of proof lies with the copyright owners, who are better placed to hire lawyers, since they are typically large companies that turn to them reflexively, and can easily pay their considerable fees. And in those circumstances, the accused will naturally be conscious that they need to seek legal help -- no sensible lay person would think to argue the case themselves.

As Chalmers emphasizes:
We have to be immensely careful that in developing novel legal standards and processes to protect copyright owners in the online environment, we do not gloss over the basic safeguards that should be provided to people under a fair legal system.
On the basis of these early cases, and the clear bewilderment and helplessness of those accused, it would seem that this is simply not happening. It will be interesting to read a similar analysis once more people have been processed by the system.

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