BitTorrent ruling puts downloaders at risk, says expert

HONG KONG: BitTorrent ruling puts downloaders at risk, says expert
University of Hong Kong professor says conviction of movie uploader could lead to criminal liability for downloaders as well; downloaders say they will continue using BitTorrent

South China Morning Post
Tuesday, October 25, 2005

By Ravina Shamdasani and Stuart Biggs

The world's first criminal conviction of a BitTorrent user may have opened the doors to making even downloaders of files through the technology criminally liable, an expert in computer science and law has warned.

The warning came as Chan Nai-ming, who used the alias "Big Crook", was convicted by Tuen Mun magistrate Colin Mackintosh yesterday of three charges of attempting to distribute three Hollywood films -- Daredevil, Miss Congeniality and Red Planet -- using BitTorrent file-sharing technology.

Sentencing was adjourned to November 7 and Chan released on bail, but the magistrate did not rule out imprisonment - the offence carries a maximum four-year jail term -- despite the defence lawyer's calls for a non-custodial sentence such as a community service order.

Mr Mackintosh rejected defence lawyer Paul Francis' argument that Chan only "made available" copies of the films and could not be accused of distribution.

"The defendant loaded the files into his computer, he created the .torrent files, created the images of the inlay cards and imprinted them with his logo, the statuette; he published the existence of the .torrent files, and the names of the films in question, on the newsgroup," the magistrate said. "He said in effect, 'Come here to get this film if you want it'. His acts were an essential part of the downloading process and ... amounted to distribution."

But Kevin Pun Kwok-hung, associate professor of computer science and law at the University of Hong Kong, pointed out that BT technology works with the downloaders also automatically becoming uploaders, and questioned the wisdom of launching criminal prosecutions against users of such technology instead of leaving it to businesses to take civil action. "If you say by placing something on the internet, you are committing a crime, you are saying all BT downloaders are criminals because their computers are downloading and uploading," he said.

"The key issue is whether placing something on the internet amounts to distribution, but I personally don't find the legal argument convincing -- it amounts to authorisation but not distribution."

Connie Carnabuci, a partner at Freshfields Bruckhaus Deringer and head of its Asia intellectual property and information technology practice, said the ruling did not extend criminal liability to individual downloaders, but focused on "the attempt to distribute copies of copyrighted material".

"I think it's a fantastic ruling, especially for the copyright owners in Hong Kong," she said. "That an individual could go to prison may provide a policy platform for the police to educate people that this kind of activity is theft."

Net conviction fails to faze freeloaders
By Vivienne Chow

BitTorrent users vowed to continue downloading from the internet, saying yesterday's conviction of user Chan Nai-ming by Tuen Mun Court only meant the uploading the initial "seed" file for internet transfers had been criminalised.

"The case will stop people putting up a seed on BT websites, but not those who download the files," said a 20-year-old BT user. "Plus, only one person was convicted, not a huge number of people arrested."

A 24-year-old user who downloads anime with BT, said: "For sure I will continue, as I am not a frequent user and I just download files but do not upload or share any seed files. I don't believe the copyright owners have the technique or resources to sue us."

BitTorrent works by allowing a download from multiple sources, each supplying a small part of the whole. When anyone downloads a BitTorrent file, it becomes a source for other downloaders.

The creative industry welcomed the court's verdict on the world's first prosecution of a BitTorrent user, but said the decision, on its own, would not stop people downloading copyrighted content files via the internet.

Woody Tsung Wan-chi, chief executive of the Hong Kong, Kowloon and New Territories Motion Picture Industry Association, said: "This is a small victory because it addressed only part of the problem, which is uploading a 'seed'. The most effective measure would be to review the law."

He said that after Chan's arrest in January, the number of locally posted seeds dropped by 95 per cent.

Sam Ho Wai-hung, the Motion Picture Association -- International's director of operations for China, said that if the case was seen by the world as a precedent, fewer seeds would be uploaded.

"If the world is taking action at the same time, the number of illegal file-sharing activities will decline a lot," he said.

Ricky Fung, chief executive officer of the International Federation of the Phonographic Industry (Hong Kong), said the case helped clarify the law and had boosted the organisation's confidence about filing civil cases against unauthorised downloaders.

The comics industry said internet service providers should help prevent illegal file-sharing.

York Mok, chairman of the Hong Kong Internet Service Providers Association, said ISPs would continue co-operating with court orders instructing them to disclose customer information.

Date Posted: 10/25/2005