By Chris Whitworth
A leading copyright lawyer says a recent US file sharing court case highlights the dangers of New Zealand’s proposed internet laws, which he says could see innocent users wrongly accused.
An Illinois District Judge ruled last week that an IP address – the unique number assigned to all computers – does not equal a person and cannot be used to hold someone liable for online copyright infringement. (Read more about the case.)
The case should give peace of mind to internet users but Lowndes Jordan partner Rick Shera, who specialises in online copyright law, says New Zealand’s new laws directly counter the ruling.
“Our law has gone completely the opposite way, and said, well, we don’t care, we will just stop at the IP address and say it doesn’t matter whether you know or don’t know who is using the IP address, the account holder is going to be liable anyway,” he says.
The US example comes only months after a UK case where a pornography company dropped its complaint against several defendants accused of illegally sharing the company’s intellectual property. (Read more about the case.)
The judge in the case had questioned whether IP addresses were proof of individual infringement, before the company pulled out of proceedings.
In the US, Judge Harold Baker said the person whose IP address is used for the infringement may not be the culprit, or even aware of the offending.
“The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbour, or someone parked on the street at any given moment,” he writes.
Under New Zealand's new laws, any person whose IP address is suspected of illegal filesharing will be sent up to three warnings over a three-month period before facing fines of up to $15,000 and possible internet account termination.
Mr Shera says existing copyright law in New Zealand is more aligned with the US ruling, and requires that a plaintiff prove that an actual person infringed copyright.
But come September 1, the new file sharing laws will supersede existing copyright legislation in cases of online piracy.
“I think it’s quite a dangerous extension of our law to simply extend copyright liability to people who may not be actually responsible for the infringement,” says Mr Shera.
It is not just household users who should be concerned - Mr Shera says retailers, schools and universities could all be liable for copyright infringements carried out on their WiFi connections.
Schools and universities are said to be safe under the recently revised law, as previously they could have been fined as an ISP (Internet Service Provider), but Mr Shera says the catch is they are still liable as account holders.
Even if they believe everything possible has been done to discourage illegal peer-to-peer sharing, they could still face hefty fines.
“What it will mean is that people who provide free WiFi are going to be looking very carefully at whether it’s worth it.”
This could see schools, unis and coffee shops around the country cancelling free WiFi services.
Mr Shera says the US and UK examples are positive signs that the legal system is adjusting to new online realities.
“I think what you’ve seen in those two cases…is the courts are getting a bit more technology savvy and not just taking it for granted that an IP address means a person and means that the person who controls that IP address had any responsibility for the infringement.”
He says unless New Zealand’s internet laws are further changed they will remain dangerously behind the times.
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