Hong Kong's highest court today dismissed an appeal against the world's first conviction for infringing copyright by sharing files using BitTorrent technology.
Lawyers say that the ruling could make it more likely that similar cases are brought in other jurisdictions.
Chan Nai-ming, who used the internet alias Big Crook, had distributed three films using BitTorrent peer-to-peer file sharing technology. He was convicted of copyright infringement and sentenced to three months in jail in October 2005 at Tuen Mun Magistrates Court.
The Hong Kong Court of Appeal upheld the conviction in December 2006, but the case was then appealed to the Court of Final Appeal.
Chan was convicted under section 118 (1)(f) of Hong Kong's Copyright Ordinance, which states: "A person commits an offence if he, without the licence of the copyright owner...distributes (otherwise than for the purpose of, in the course of, or in connection with, any trade or business) to such an extent as to affect prejudicially the owner of the copyright, an infringing copy of a copyright work."
In a 24-page judgment written by Justice PJ Ribeiro the Court dismissed the two main questions raised by the appeal: what constitutes a copy capable of distribution and what conduct amounts to distribution.
"The judgment is about squeezing the reality of the internet into the drafting of Hong Kong's Copyright Law," said Nick Redfearn, a partner of Rouse & Co in Hong Kong.
He added that the approach taken by the Hong Kong authorities to convict Chan could be used elsewhere to launch more prosecutions against people who upload movies using BitTorrent technology.
Kevin Pun, an associate professor of computer science and law at Hong Kong University, represented Chan Nai-ming in his appeal. Pun argued that an electronic copy can only exist as something stored in a physical object that stores digital data, such as a CD or a flash memory card.
A digital copy, according to Pun's argument, cannot then be distributed unless the storage device is physically transferred to the recipient.
When using BitTorrent peer-to-peer file sharing technology a so-called seeder (such as Chan) uploads a copy of a film so that it is contained in a number of different files. The uploader then makes it available to other users of the network. These users are able to download the files simultaneously so that they end up with a complete copy of a film.
Justice Ribeiro rejected Pun's argument, stating that a digital copy of a work can be distributed on the internet. He used the example of an academic who publishes a book review which he had written on his computer and saved on his hard drive. In response to requests by his friends the academic then creates electronic copies and sends them as email attachments. Ribeiro said that the academic would then have distributed his work without delivering any physical storage device.
Pun argued that for distribution to occur the distributor must transfer his copy to the recipient, after which he no longer owns the copy. As the seeder in a BitTorrent network does not transfer his copy, Chan did not distribute the films.
Justice Ribeiro dismissed this argument by stating that as the infringing copies were generated by Chan's computer before being sent to the downloaders this amounted to distribution.
Chan Nai-ming had been on bail pending the appeal and will now serve three months in jail.
Hong Kong's government launched a consultation paper on Copyright Protection in the Digital Environment, for which submissions closed on April 30. A draft of possible revisions to the Copyright Ordinance is expected in the next few months.
