[ontheroad]

Taken from today's STANDARD:

`Big Crook' adopts civil approach in Net appeal

Diana Lee

Thursday, May 10, 2007

The first BitTorrent user in the world convicted of uploading movies told the Court of Final Appeal his act was at most a "civil wrong" instead of a criminal one and that his conviction should be quashed.
Chan Nai-ming, 40, alias "Big Crook," was convicted by a Tuen Mun magistrate in October 2005 of three charges of attempting to distribute a copyrighted work.

He was alleged to have used BitTorrent, a popular Internet peer-to-peer, file-sharing program.

Chan's counsel Kevin Pun Kwok- hung argued that his client was not charged under the distribution of electronic data in Hong Kong.

He said the Copyright, Designs and Patents Act in England, which differentiates distribution rights in material copy and communication rights, such as broadcasting intellectual material, has yet to be adopted in Hong Kong.

The section of the ordinance under which Chan was charged requires the distribution of a physical copy, argued Pun, a Hong Kong University professor who specializes in information technology law and intellectual property.

He said Chan only made available through the Internet an infringed copy of Hollywood films Daredevil, Miss Congeniality and Red Planet that were stored in his hard disk.

Court of Final Appeal Justice Robert Ribeiro asked Pun whether the electronic signals constituted electronic copies.

Pun replied that the downloaders made the decision to get the data from Chan's disk, not his client.

They had decided to get copies of the infringed copy in their computers.

Chief Justice Andrew Li Kwok- nang said either the upload or the download of electronic copies involves a computer hard disk, which is an act of distributing the copy in a tangible form.

BitTorrent allows downloads from multiple sources, each source supplying a part of the file - making it easier and quicker - to share large files such as films and software.

Chan was sentenced to three months' imprisonment.

He served 21 days in prison before he was granted bail in a decision by the Court of Appeal.

Senior assistant director of public prosecutions Richard Turnbull argued the pertinent section of the ordinance covers copies in digital form, and the Internet is clearly defined in the ordinance as one of the means of infringing copyrighted works.

Turnbull also said it is wrong for Chan to assume that if he had incurred a civil wrong, his act was, therefore, not criminal.

It can be both, said Turnbull.

The alternative charges of accessing a computer with criminal or dishonest intent can also apply to Chan if the judges find the original conviction inappropriate, Turnbull said.

But Pun said it is improper for the prosecution to bring in an alternative charge at a later period.

He urged the Court of Final Appeal to ignore it.

Chief Justice Li, permanent judges Roberto Ribeiro, Patrick Chan Siu-oi and Kemal Bokhary and non- permanent judge Lord Millett decided to reserve judgment after a three-hour hearing.

Chan's bail was extended pending judgment.

[PDLM]

"Should we be worried?"

Only if you are a criminal...

[KnowItAll]

PDLM -- That is a very flippant response, given what is happening in the US and other countries.

These days, you are essentially guilty until proven innocent and the legal and emotional cost of proving your innocence can be crippling to most folks I know.

God forbid someone in a prosecuting office decides to make an example of you (and I mean this is the sense of anyone reading these).

[Sunfire]

Seems like we should also be worried about posting links to images on forums now. BEWARE

[ontheroad]

Originally Posted by PDLM

"Should we be worried?"

Only if you are a criminal...

What I meant to say was, if they can prosecute people who upload movies, what stops them from prosecuting all torrent users? When you download something, you have to upload it, that's how the system works....

[KnowItAll]

http://hongkong.scmp.com/hknews/ZZZT5TPXH1F.html

A Hong Kong man who posted a message with an internet link to an overseas pornographic website was fined yesterday for publishing an obscene article via the internet.

The prosecution and conviction, the city's first under the Control of Obscene and Indecent Articles Ordinance, involved the use of a common computing technique, the police's commercial crime bureau said.

The judgment has worried the local internet community, particularly with regard to possible constraints on the free flow of information.

Questions were also raised on whether guidelines are sufficient to halt online distribution of obscene material.

Woo Tai-wai, 48, pleaded guilty in Kwun Tong Court to publishing eight obscene photos via a local internet forum.

He provided a linked message which, when clicked, would enable other forum users to access an overseas pornographic website showing the photos.

A hyperlink is a graphic or text string which, when clicked, opens a new web page or jumps to a new location in the current page.

Deputy Magistrate Jason Wan Siu-ming fined Woo HK$5,000 in light of his guilty plea and clean record.

Lots of issues at play here ....

[ontheroad]

Originally Posted by KnowItAll

http://hongkong.scmp.com/hknews/ZZZT5TPXH1F.html



Lots of issues at play here ....

Now I'm worried.

[PDLM]

That's the most ridiculous prosecution I've seen for a while.

Presumably Google will be prosecuted next?

[ontheroad]

Originally Posted by PDLM

That's the most ridiculous prosecution I've seen for a while.

Presumably Google will be prosecuted next?

Or people who link to anti-china, pro-tibet, etc etc websites? Soon democracy and freedom of speech will be a thing of the past. Make the most of it while it's still here...

[hullexile]

Does this then mean that if you received the message with the link and did not delelte it you are in possession of obscene material? Would seem logical wouldn't it?