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The Bit-Torrent cases


The legal battle (1) on Bit-Torrent cases reached an end on May 18, 2007, and the full judgment (2) released on Hong Kong Legal Information Institute.

On 12 Jan 2005, officers (3) from HKSAR Customs Department raided the defendant's (Mr. Chan) home after (4) tracking his address from an online forum. Mr. Chan had uploaded three torrent files on Jan 10th and 11th, 2005, to the forum and these enabled BT users to download copies of movies. (5) In first instance, Mr. Chan was charged by virtue of section 118(1)(f) of the Copyright Ordinance (6), Cap 528 and of obtaining access to a computer with dishonest intent, contrary to section 161(1) (c) of the Crimes Ordinance, Cap 200. But in the final judgment in the Court of Final Appeal, the five judges unanimously dismissed Mr. Chan's appeal and (7) he was convicted of 118(1)(f) of the Copyright Ordinance.

This was a high (8) profiled case (9) and the HKSAR government launched propaganda on their determination on combating the copyright battle. (10) Since charges were brought to the court in 2005, the number of BT seeds decreased in Hong Kong. It was a success, although a few points must be clarified.

(11) First, back in 2005 the prosecution charged Mr. Chan with "obtaining access to a computer with dishonest intent". (12) This charge was totally wrong and stimulated many critics on the legal ground of this copyright case. Mr. Chan (13) was using his own computer to store and upload BT files. There was no hacking (14) or illegal access (15) on the computer he owned. By bringing (16) this charges, the prosecution misused the law and (17) most ridiculous was that the judge agreed these charges. In the Court of Final Appeal, both prosecution and judges corrected these mistakes.

Secondly, the criminal offence (18) from section 118(1)(f) of the Copyright Ordinance was enacted before peer-to-peer ever existed (19) and yet this section was able to catch (20) distributing infringed copies via BT network. (21) The major argument by the defendant was that the detail mechanism of P2P did not constitute "distributing" since Mr. Chan was passively waiting owner to locate the media files and no physical medium exchanged - only electronic currents. The judges disagreed and said (22) if (1) the infringing copies were created by the defendant, and (2) his action enabled others to obtain the infringing copies (in any way [22] technologies allows and with full knowledge), then the defendant's action falls (23) into the definition of "distribution" under (24) Copyright Ordinance.

Footnotes

(1) Correction: Use "over the" instead of "on."
(2) Suggestion only: Change "has been released on Hong Kong Legal Information Institute" to " released by the Hong Kong Legal Information Institute" or "is available from the Hong Kong Legal Information Institute."
(3) Suggestion only: Change "from" to "of the" or "from the."
(4) Suggestion only: Change "tracking" to "obtaining."
(5) Suggestion only: Delete "In the first instance."
(6) Correction: Insert "Act."
(7) Suggestion only: Change "he was convicted" to "convicted him."
(8) Correction: Use "profile" instead of "profiled."
(9) Suggestion only: Try "and the HKSAR government launched propaganda on their determination on combating the copyright battle," use "in which the HKSAR government employed propaganda in its determination to win the copyright battle".
(10) Suggestion only: Try "Since charges were made in 2005, the number of BT cases have declined in Hong Kong.
(11) Suggestion only: Use "Firstly, in 2005, the prosecution…"
(12) Suggestion only: Instead of "This charge was totally wrong and stimulated many critics on the legal ground of this copyright case," use "This charge was totally false and provoked a great deal of criticism about the legal basis of this copyright case/."
(13) Suggestion only: Use "had been using" instead of "was using."
(14) Suggestion only: Insert "of."
(15) Suggestion only: Change "on" to "to."
(16) Correction: Changes "this" to "these."
(17) Suggestion only: Change "most ridiculous was that the judge agreed these charges" to ", surprisingly, the judge agreed with these charges."
(18) Suggestion only: Change "from" to "described in."
(19) Suggestion only: Consider breaking the sentence here and beginning a new sentence with "Yet."
(20) Suggestion only: Replace "distributing infringed copies via BT network" to "prevent further copyright infringement by stopping distribution of copies via the BT network.
(21) Suggestion only: Change "The major argument by the defendant was that the detail mechanism of P2P did not constitute "distributing" since Mr. Chan was passively waiting owner to locate the media files and no physical medium exchanged - only electronic currents" to the following: "The defendant's main argument was that the detailed mechanism of P2P did not constitute 'distributing' since Mr. Chan was passively waiting for the owner to locate the media files and did not participate in an exchange of any physical medium. There were only exchanges of electric currents."
(22) Correction: Insert "that."
(23) Suggestion only: Use 'within" instead of "into."
(24) Correction: insert "the."


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