Hong Kong man jailed in landmark web piracy case

A Hong Kong court sentenced a man to three months in prison Monday in what is believed to be the first jail sentence for distributing movie files over the popular online BitTorrent (BT) network.

In a stark warning to online file sharers worldwide, Chan Nai-ming (38) an unemployed man who called himself “Big Crook”, was jailed for uploading three Hollywood movies onto the web via the BitTorrent.

In sentencing, magistrate Colin Mackintosh served notice on online pirates the world over.

“The message has to be sent out by courts that the distribution of infringing copies, particularly by seeding films onto the internet, will not be treated leniently,” Mackintosh said in his judgement.

Although there was no evidence of any personal financial gain nor element of trade of business, the magistrate said there was little distinction between sharers of unauthorised files on the internet, and manufacturers or distributors of pirated CDs and DVDs.

Such offenders in the past had been given up to 12-month jail sentences.

Acknowledging the “huge” potential for damage this has caused to the film industry, Mackintosh said “it would be irresponsible of the courts not to recognise that” thus “a sentence of imprisonment is imperative”.

Although several online file sharers using services other than BitTorrent have received jail sentences, most recently in Taiwan and the United States, all sentences were either suspended or later converted to fines.

Ricky Fung, chairperson of the International Federation of the Phonographic Industry, believed the court had made a fair judgement.

“The deterrent effect is certainly there. A lot of people think they would be lucky enough not to get caught but they should realise now they could be punished by the law,” he said.

Woody Tsung, chief executive of the Motion Picture Industry Association, welcomed the court’s verdict.

“Jailing is quite a serious punishment and to a certain extent, it’s good enough. If BT users think they could go to jail by uploading movies onto the internet without permission, no-one would dare at do it again,” he said.

BT is a programme that works by allowing downloads from multiple sources, each supplying a small part of the whole.

It offers high-speed downloads allowing internet users easily to trade and share music, movie and software files.

When anyone downloads a BT file, it becomes a source for the others.
Thus, locating those who upload or download material can be a difficult and complicated process, industry observers said.

“If I have to sue someone, I would have to know who I am suing. So this [judgement] can’t simply solve the rest of the cases,” Tsung said.

“It’s highly difficult for private companies to identify these people.”

The makers of music, movies and software say illegal sharing of copyright material is losing them billions of dollars each year.

The BT service is among a number of so-called peer-to-peer online file sharing services, which include Limewire and KaZaa, that internet surfers use to share files.

Chan was arrested in January and charged in April for uploading the movies Daredevil, Miss Congeniality and Red Planet onto the internet without a licence by using the BT peer-to-peer file-sharing program.

Chan was convicted of copyright infringement by the local Tuen Mun court in Hong Kong’s suburban New Territories on October 24. He faced a maximum of four years in prison.

Mackintosh said he reduced the term because this was Chan’s first offence and the first sentencing for such a case in the world.

However, the magistrate said anyone else caught illegally sharing files in the wake of his judgement could expect tougher treatment.

“I made some reductions [to the] term to reflect the fact this is the first such conviction,” he told the court.

He said all users of the BitTorrent system were opening themselves up to potential prosecution.

“The defendant and those with whom he associated through the BitTorrent community were fully aware of the criminality of uploading things through (the network),” Mackintosh said. - AFP

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