THE HOOK FEATURE

The Hook: NZ has passed "three strikes" legislation to
stamp out piracy. Will it work?
03 May 2011
We ask four industry experts whether the three strikes legislation NZ has introduced in order
to stamp out piracy will work.

(l-r) Colin Jacobs, John Lambrick, Sabiene Heindl, Trajce Cvetkovski

The Hook: NZ has passed "three strikes" legislation to
stamp out piracy. Will it work?
03 May 2011
by Lars Brandle
Trajce Cvetkovski
Lecturer, School of Political Science and International Relations (UQ); Legal
Practitioner

“Three strikes laws” as deterrence? I think of failure in the US criminal system. And the US
is the largest Western nation. As for New Zealand, there are various factors to take into
account. Mobile networks will not be affected by this legislation until October 2013. That’s a
long time away. NZ has a very small population. Any anticipated success in enforcement
should not empirically be described as globally successful.
True, lawyers must seek leave in most Tribunal settings. But in quasi-criminal matters
involving punitive sanction, lawyers will be the standard and not the exception for natural
justice and procedural fairness reasons. That’s the reality. Also, the procedures suggest
reverse onus of proof. This will be challenged and scrutinised. If people are found “guilty”
and fined, it will be interesting to measure success in terms of deterrence. I’m not convinced.
What seems to be missing from the debate is the lack of recognition of legal realism in
relation to how media consumers behave in liberal democratic societies.

John Lambrick
General Counsel, RMIT University
It’s important such legislation doesn’t adversely impact upon the efficiency of Internet
industry and impose greater costs upon it. The trouble with the “graduated response”
approach is that it will require significant involvement of the Internet industry. Copyright
police work is not part of the core business of an ISP, and ISPs may find themselves spending
an inordinate amount of time on file- sharing enforcement matters. In the iiNet case, the
Federal Court heard evidence that iiNet received up to 5000 infringement allegations per
week.
A better system would see ISPs required to provide account-holder details to a content owner
who claims infringement. The content owner could then take direct legal action. Account
holders would need to be protected against unsubstantiated claims, and ISPs should be
compensated for the cost associated with handing over those details. This option better
focuses the cost and accountability associated with filesharing as a matter between the
content owner and the account holder. Such a “minimalist” approach is also desirable for a
very practical reason: filesharers are technologically savvy, and will no doubt utilise other
“safer” technologies in future to access copyright-protected content.
There is no point setting-up cumbersome legal architecture to deal with this issue if it will
become redundant tomorrow

Sabiene Heindl
General Manager, MIPI

We applaud the introduction of the New Zealand “graduated response” legislation. Like
many countries worldwide, NZ has recognised the devastating impact that illegal file-sharing
is having on artists and songwriters and the need for Internet service providers and content
owners to work together to address this issue.

The NZ law introduces a simple three notice regime aimed at deterring illegal file-sharing of
content and migrating consumers to legitimate consumption that supports artists and
songwriters [The regime will come into effect September 1, 2011. After the third notice, the
copyright owner can go to the Copyright Tribunal – which can issue fines of up to
$NZ15,000].
Illegal P2P usage has reduced in territories like France, Ireland and South Korea which
introduced similar mitigation systems. We hope that this positive news from NZ will further
encourage Australian ISPs and content owners to work together towards an industry led
solution to address illegal file-sharing. This, in parallel with education and innovative
commercial models, will channel Australia’s love for music into legitimate support.

Colin Jacobs
Chair Electronic Frontiers Australia

When I see governments implementing “three strikes” graduated response mechanisms

around the world, I have to ask: “Whose side are they on?” A system that bypasses natural
justice for Internet users is draconian, and it penalises citizens for the supposed benefit of a
few companies mostly headquartered overseas. And will it work? Of course not. Few people
will pay it any mind until they get the notice in the mail, and then they’ll have to learn how to
cover their tracks.
And if a few New Zealanders decide to steer clear of unauthorised downloading because of
the scheme - at no small cost to the taxpayer - will this usher in a renaissance of growing CD
sales for the music industry? I’d like to see some evidence of that.
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