What are the risks?

A fine of up to $15,000.00 for peer to peer file sharing, payable by the person or entity who holds the account with the internet provider.

What is peer to peer file sharing?

Peer to peer file sharing is when internet users download or upload from each other by using an application or network where they do not pay for copyrighted materials such as films, music, books, television programmes or games.

How do I know if this is happening?

We understand that common sites are Bit Torrent, Gnutella, Vuze, FrostWire, LimeWire … however school aged children are the experts in this field.  If your children, staff or members are using these sites you may be in danger.

Sites like YouTube do not breach the laws because they are video streaming and not file sharing.

How do you protect yourself against peer to peer file sharing?

If you are the internet account holder it is up to you to stay vigilant and be aware of what is happening on your internet service, as you are legally responsible and the accountable party.

There are a number of computer solutions that can help protect you, and we recommend you talk to a computer expert about ensuring that your wireless connection is secure and about options for blocking certain sites and software.

From a legal point of view, we recommend:

• If you are an employer, ensure you have a clear policy around peer to peer file sharing and that your employees or others that may use your system know and understand your policy, and they have signed an agreement to comply with the policy.
• If you are a school, hotel, membership organization, charity, or any entity that allows people access to your internet connection, make sure those people are aware of the law, and do not provide them access to the internet unless and until they sign an indemnity against any cost their internet use causes you.  In the case of schools, you may require an indemnity from the parents or legal guardians.

For those interested the relevant legislation is The Copyright (Infringing File Sharing) Amendment Act 2011.

Bill started a very successful retail business and as a result of a quality product, memorable logo and significant exposure in the market, people very quickly learned about Bill’s business and recognised his logo when they saw it. 

Shortly after starting his business, a competitor entered the market and began operating under a different business name but using a company logo that so closely resembled Bill’s that it began to cause confusion amongst his target market.

Bill attempted to stop his competitor from using the similar logo but because he hadn’t registered his logo as a trademark he found that he didn’t automatically have exclusive use of it, nor the ability to easily prevent a competitor using a very similar mark.

He had other options to try to stop his competitor using the similar logo but they required him to go to court, and relied on the courts recognising “goodwill” in his business.  Goodwill generally equates to an established reputation, so for someone with a new business like Bill it can be hard to establish.  Also, even if yours is a long-established business, think about how hard it might be to provide tangible evidence of something as intangible as reputation.

The important point is that there’s no need to leave it to the courts at all when you can greatly improve the situation Bill found himself in by registering either or both your company name and logo on-line for $115.00 each. 

Compare that to the cost of litigation and you’d be wise to get on to it today!  If your business is worth running, then your company name or logo is worth protecting.

Email: oporter@raineycollins.co.nz or phone: (04) 473 6850.

In an article appearing on 17 March 2009 the newspaper considered the rights of a person  whose photo had been used without his permission on another commercial website.

The following is quoted from the article …

“Copyright expert Kirsten Ferguson, a senior solicitor at Rainey Collins Lawyers, said the issue of internet user rights to intellectual property was usually dependent on the underlying terms of use for each website.”

Kirsten says that if you are concerned about the personal information or photos that you place on websites being used without your consent you need to take particular care to understand the underlying terms and conditions of the website before posting such material.  If in doubt, obtain professional advice so that you ensure you understand your rights.

The downloading and opening of attachments containing material which somebody knows is stolen or dishonestly obtained may constitute receiving stolen goods under the Crimes Act 1961.

If convicted the maximum penalty for receiving stolen goods is a jail term of up to 7 years.

The copying and distribution of material from the internet or emails can also be a breach of copyright. Accordingly, recipients of material by email who have printed off copies of the attachment for themselves and their friends and/or forwarded them on to others may also be in breach of copyright.  The penalties for breach are severe.  You could be ordered to pay damages or in cases of commercial copying, you could face fines of up to $150,000 and/or imprisonment.

Given the massive amount of information shared by way of email and the internet, detection of offences or breach of copyright is difficult.  Notwithstanding this, technology exists whereby owners of information can detect unauthorised copying or downloading of their material.

Recording companies have developed technology to identify people who make unauthorised copies of songs belonging to their artists through the internet.

If you are not confident that what you are about to do is within the law, you are taking a risk.  So the next time you think about forwarding on an attachment or copying a file, think again, you could be breaking the law.