GUEST BLOG : Could it happen in NZ?

This guest blog is from a posting originally on the website of Lowndes Jordan, and authored by Rachael Cederwall and Rick Shera (TUANZ member). (Original post here)

"The Federal Court of Australia has decided that Australian ISPs must provide users’ details to Voltage Pictures, the owner of the copyright in the film Dallas Buyers Club.

Voltage identified 4,700 or so IP addresses at which it alleged the film was illegally shared using BitTorrent, a peer-to-peer file sharing protocol. However, an IP address of itself does not identify the user. That information is generally only held by the ISP who supplies connectivity to the user via an IP address that is within the ISP’s delegated range. ISP ranges are public information so that is how Voltage knew which ISPs to sue.

Voltage therefore sued those ISPs seeking a preliminary discovery order against them under rule 7.22 of the Federal Court Rules 2011 (Cth), to identify the 4,700 alleged infringers. The Court concluded that it was appropriate for Voltage to be given preliminary discovery of all the user names.

While such actions have become commonplace in the US, this decision creates a precedent in Australian law allowing rights holders who can trace alleged infringement to an IP address to use the preliminary discovery process to find out who is associated with that IP address. 

One of the big concerns is that this may lead to what is called “speculative invoicing” or “copyright trolling”, where the copyright owner sends letters to individual users threatening issue of proceedings and large damages, which it then says it is prepared to forgo if the user makes a payment (reported to be around US$5,000). Voltage is alleged to have engaged in these practices in the US so, despite the fact that neither Australia nor New Zealand yet have large statutory damages regimes, the Judge in this case has ordered that the letters Voltage proposes to send must be submitted for his approval first.

But, could this happen in New Zealand? Is there scope for a New Zealand court to make a similar order under New Zealand’s pre-trial discovery rules?

The answer is a fairly clear “Yes”. New Zealand High Court Rule 8.20 allows the Court to order a person (who need not be the intended defendant) to make a document available to an intending plaintiff where it appears to the Judge that the intending plaintiff cannot formulate a claim without reference to that document. In this scenario, the ISP would be the person against which the order would be made and the information held by the ISP which matches the IP address to its user would be a “document”.

It might be thought that there is no need for this in New Zealand given that we already have a means by which copyright owners can take action with respect to alleged infringement using peer-to-peer networks. That is the #3strikesNZ “Skynet” infringing file sharing regime, introduced a couple of years ago as new sections 122A-122U of the Copyright Act 1994. We’ve posted a detailed diagram of that regime previously. The reason why it has not been used nearly as much as was anticipated is that the copyright owners object to paying the $25 per notice fee (the same argument is taking place in Australia in the context of the proposed Communications Alliance code, but that is another story). That $25 cost pales into insignificance beside the cost of a pre-trial discovery application to Court, but, if the applicant considers it will get its money back and more, then maybe we will see a pre-trial discovery application like this in New Zealand. There is certainly nothing which forces a copyright owner to use the infringing file sharing regime as opposed to going to Court. Let’s therefore hope New Zealand ISPs and Courts are as alive to the dangers as their Australian counterparts."

TUANZ and RHAANZ welcome RBI2 announcements

16th March 2015


TUANZ and RHAANZ welcome RBI2 announcements

The announcements on the 12th March by the Hon Amy Adams, Minister for Communications in regards to the RBI2 and Mobile Blackspots programmes have been welcomed by the Telecommunications Users Association of New Zealand and the Rural Health Alliance Aotearoa New Zealand.  “We support the continued investment in rural infrastructure to ensure that this vitally important part of the New Zealand economy and society is not left behind” said Craig Young, CEO of TUANZ.

To ensure that the voices of rural users of telecommunications services are heard in the process, TUANZ and RHAANZ have entered into an agreement to collaborate on the issue of rural connectivity.  “Our organisation represents most of the rural stakeholder groups with our focus on health and we welcome the expertise that TUANZ can bring to our advocacy around the importance of connectivity for the improvement of rural health outcomes.” said Michelle Thompson, CE of RHAANZ.

As a first step, the two organisations are planning to host a Rural Connectivity Symposium in Wellington in late May.  The aim of this day will be to develop a joint submission to the RBI2 and Mobile Blackspot requests for information. Ms Thompson says “The ability to gather together a large number of rural stakeholders and to provide a response to the Government's request is a great opportunity for us to provide a strong unified response which reflects the voices of rural users of telecommunications services”

Wiki New Zealand launches gorgeous new website

Earlier this year I wrote about the website Wiki NZ and how its founder and chief Lillian Grace (@GracefulLillian) along with her team was working to make New Zealand's publicly available data accessible to everyone.  As part of our general aim of talking about how we can use these great new broadband networks we suggested their website was a good place to start - well, now its a GREAT place to start.

Since my last post, they have been beavering away on the backend tech to deliver a great looking new website bringing that data together in one place and displaying it in simple graphs. Have a look here WIKINZ.  But they're not stopping there - they are working on features and new levels of interactivity and collaboration so that more of us can use and view the data in ways that are useful to us.

So head over there and see what you can find - and also take the time to hear from Lillian introducing the site.

Unfair Contract Terms - are you ready?


This week the Commerce Commission published its final Unfair Contract Terms Guidelines and its approach to enforcing the new unfair contract terms law when it takes effect next month.  This relates to clauses in standard form consumer contracts where the terms have been offered to the consumer on a ‘take it or leave it’ basis, and the contracts relate to goods and services that are usually for personal use. 

Unfair contract terms will be prohibited in all standard form consumer contracts entered into on or after 17 March 2015, and also in those contracts (except insurance contracts) that are renewed or varied on or after that date. 

The unfair contract terms provisions allow the Commission to seek a declaration from a court that a term in a standard form consumer contract is unfair. While only the Commission can apply for a declaration, any person may file a complaint with the Commission on any contract.
Generally speaking the court may declare a term unfair if it is satisfied that the term causes a significant imbalance in the party's rights and obligations and isn't necessary to protect the legitimate interests of one of the parties.

The Commerce Commission guidelines issued this week are intended to help businesses comply with the law.  Businesses have been given 15 months warning to give them time to prepare for them and its now important you note there is no grace period and from the 17th March the Commission will be enforcing the new laws.  In fact they have stated their initial focus will be on industries commonly falling into the categories including telecommunications, rental cars, fitness, airline and online trading.

The Commission issued draft consultation guidelines in July last year and received approximately 30 submissions back. The guidelines have now been finalised and are available on the Commission’s website.  

A fact sheet for consumers that will enable them to identify unfair contract terms is also being developed and will be released shortly.