bodyType

customContents

entityId

entityUuid

articlePageQuery

filter

article

articleBaseAdvertisingInfoArticle

articleListArticle

articleSeoArticle

helpersCheckIsPostiesArticle

hooksArticleAcknowledgementGateOverlayArticle

hooksTrackPageViewArticle

hooksContentInterestArticle

articleLinkingDataContent

hooksAmpRedirectArticle

articleSchemaContent

liveArticle

advertZone

sentiment

contentLock

topics

types

sections

paywallTypes

createdDate

publishedDate

moreOnThisArticles

urlAlias

commentCount

authorLocations

authors

corrections

sponsorType

displaySlideShow

multimediaEmbed

printHeadline

seriesContainer

articleSpeeches

socialHeadline

headline

images

flag

firstTopic

glossary

flattenTypeIds

additionalInfoBoxes

quizIds

image

relatedLinks

relatedNewsletters

__typename

sponsor

pdfFiles

seriesReverseOrder

series

disableOffPlatformContent

published

updatedDate

summary

subHeadline

body

keywords

readingTime

customTimezone

liveContents

SCMP Reporter

The Hong Kong government scored a major victory last week after winning a criminal conviction against unemployed BitTorrent user Chan Nai-ming.
The city has declared itself a champion of intellectual property rights - a message that always goes down well with the foreign business crowd.
Following the conviction of 'Big Crook', as he was known online, the music and film industry responded with predictable amens and halleluiahs.
The government looks to have furthered its policy goals as well.
 If the city's numbers are anything to go by, the posting of BitTorrent seeds to the internet from Hong Kong has dropped 80 per cent since Chan's arrest. So, the government wins and so too has the entertainment industry. 
But what about the law?
Chan was brought up on criminal charges but this was not a typical criminal case in that he did not attempt to profit from his activity like, say, the DVD pirate you might see in Tsim Sha Tsui.
The Copyright Ordinance provides only one formula to send a BitTorrent user to jail if he does not use the technology 'for the purpose of, in the course of, or in connection with, any trade or business'. This meant the government was required to demonstrate that Chan 'distributed' copyrighted materials without their owners' permission, 'to such extent as to affect prejudicially' the copyright owners.  
What was in dispute in this case is what constitutes 'distribution'. The Copyright Ordinance provides no definition of the word. But Tuen Mun magistrate Colin Mackintosh found that Chan had actively distributed copyrighted material.
Mr Mackintosh noted that Chan had uploaded seed files to the internet which made it possible for others to begin downloading three Hollywood  movies and he stayed connected to the internet long enough for someone to download a full copy - a necessary step to ensure distribution over BitTorrent. Chan had also created images of the movies' inlay cards. Altogether, this amounted to 'distribution' and meant Chan was criminally liable, according to Mr Mackintosh.
But is this fair to Chan? Although Chan played a critical role in the process, each downloader using BitTorrent must also simultaneously be a data supplier by making his piece of the file available to other users.
If Chan's activities amount to 'distribution', then how would you describe the activities of others in the BitTorrent supply chain? Are they not criminally liable as well?
The magistrate, however, drew a distinction between other BT users and Chan as a 'seed' provider. His interpretation of 'distributes' under the Copyright Ordinance seems overly expansive as well. A key feature of BT file transfers is that no user needs to actively distribute copies; they only need to make their copies available online.
Whoever wants the file makes a decision to download it. Chan has no control over who does what and should not be held criminally accountable. At most, Chan has authorised and facilitated others to infringe copyright - enough to satisfy a civil claim but not enough for a criminal conviction.
The defence, in arguing against the criminal charges, said that Chan was merely 'making available a copy' of the files on the internet - a prohibited act under the Copyright Ordinance.
Yet the ordinance states clearly that both (1) 'issue' of and (2) 'making available' infringing copyrighted material to the public amounts to copyright infringement, subject to civil penalities but not criminal ones.
If misery loves company, Chan is not alone. In May, the United States Immigration and Customs Enforcement agency, along with the FBI, started the first criminal enforcement proceedings against a BT user in that country. A British man is also under threat of lawsuits for operating a BT support site.
What is clear, however, is that the government's short-term victory will do little to curb online piracy in the long run. Many popular services are decentralised - making them difficult to prosecute - and many BT users are based offshore.
A decrease in online piracy will require across-the-board effort, not just enforcement. This includes enhancing supply by making appropriately priced legal download services available, educating users and providing them with good legal alternatives, and improving the regulatory environment by clarifying outdated laws via  legislative amendments. 
Relying on a judge's opinion on a case-by-case basis is not the way forward. While Chan's conviction serves the government's  objectives and the  industry's financial interests, it does not serve the law.
?
Yvonne Chia is a partner at Stevenson, Wong & Co



BitTorrent user's conviction raises more issues than it solves