Interview: When technology fights back

Michael Kwan (MK): We have two main programmes in place that we call lineament monitoring systems. The first focuses on BitTorrent and file sharing. The second deals with online auction platforms. Our principle is to use technology to tackle technology crime. So, first of all we identify the most popular and latest sites that are using cyber technology to commit technology crimes and then we explore the possibility of whether those features can be detected by using an automatic IT system. Based on these principles we developed the Lineament I and Lineament II systems.

Michael Kwan

Albert Ho (AH): In 2004 when the Bit Torrent software was becoming increasingly popular and the movie industry were complaining about illegal downloads we set up a special taskforce with the movie industry to monitor downloading. In 2005 there was a high-profile case against someone called Big Crook, whom we targeted in 2005. He had uploaded three Hollywood movies. In Hong Kong we only criminalise uploaders, downloading is a civil matter. It was the first case of enforcement against an individual for this offence. The case created a lot of noise in the community at the time and went to the Court of Final Appeal (see box). We won and that laid the foundation for enforcement action against individuals distributing infringing copies of copyright work on the internet. Michael thought about how to deal with a problem that was so huge that it was impossible to monitor the internet effectively with human resources. That is the origin of the first lineament system in 2007.

MK: At that time, the system was quite simple because we just used to monitor local discussion forums in Hong Kong. Most of the torrent files of the BitTorrent network were just attachments. Now they are placed on overseas cyberlockers. We have modified the Lineament I system so that it can trace those overseas cyberlockers and then download the torrent file. Even if the overseas locker uses some kind of technology to avoid scanning by asking you to key in certain characters, Lineament I can crack those codes. Our system can tackle it automatically and download the torrent file, perform an analysis and retrieve background information. Most important of all is that it can alert Customs officers and preserve the detected information automatically.

Lineament II focuses on auction sites. There are three features. It can monitor the target account on a 24/7 basis. Once it detects suspected infringing activities, such as selling of counterfeit handbags or selling of pirated optical disks it will preserve the information and notify Customs officers. The third feature is that Lineament II can surf all auction accounts that we suspect belong to the same offender. Even if it is a different auction site, the system can still perform a search.

AH: Lineament I and Lineament II don't use hacking. They just assess information that is publicly available – these are just webpages that you or I can see. We don't go deeper than what can be seen with the naked eye. Once we have found something suspicious we will ask for a search warrant and ask the online service provider to supply details of the user. And the court will scrutinise our evidence.

They cannot refuse once the court has granted the order because that would be contempt of court. We cooperate well with the online auction sites. On one of the sites now in Hong Kong, when you log on to try and carry out a transaction there is a pop-up window that warns you that selling counterfeit goods is a crime.

The rise and fall of Big Crook

Peter Ollier, Hong Kong In May 2007, Hong Kong's highest court dismissed an appeal against the world's first conviction for infringing copyright by sharing files using BitTorrent technology. Chan Nai-ming, who used the internet alias Big Crook, had distributed three films (Daredevil, Miss Congeniality and Red Planet) 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. 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. Hong Kong is in the process of revising its Copyright Ordinance. More information on the revisions and on the Big Crook case is available in the searchable archive at www.managingip.com.

MK: After Big Crook, according to the Hong Kong Internet Exchange, the volume of BitTorrent traffic dropped by almost 85%. Of course, we just measured the traffic. We don't know if it was uploading or downloading or of what kind of data. But that is a sharp decrease. After the introduction of Lineament I, we have detected about two to three cases and obtained two convictions. They were given suspended prison sentences.

Albert Ho

AH: We have more convictions using Lineament II. Most of the time the punishment is a fine, because the offenders have only auctioned one or two items. But there have been some prison sentences. Sometimes the counterfeit seller uses the bank account of someone else like a relative to accept the payments. But these are the proceeds of an indictable offence and handling the money amounts to money laundering. In one case recently the person who sold counterfeit goods online got two months in prison suspended for 12 months, and the person who handled the money got six months immediate custodial sentence. The law is very strict on money laundering.

AH: The unique thing about Hong Kong Customs is that we are the sole authority for enforcing IP rights throughout the Special Administrative Region. It is very convenient. I don't think there are too many other authorities with that power. We operate as a one-stop service. If any rights holder has a problem that concerns IP in Hong Kong they can come to us. From the beginning until the destruction of the goods they just deal with us. We only deal with criminal remedies.

We have 250 people in our office and 150 more in a special task force that is a mobile brigade. We are looking to deploy more people to deal with online piracy enforcement.

AH: We have zero tolerance of counterfeiting and piracy. But we know that it is almost impossible to eliminate it completely. We want to drive it as low as we can. To do that, we need to be innovative and creative. At the same time we need to look at the enforcement side and the demand side and that means education. We need to raise the awareness among the general public – if they don't buy then the supply will be affected. We are going to organise a youth ambassador presentation ceremony with 11 uniformed organisations with 200,000 members with the Intellectual Property Department (IPD). Most of them are secondary school members.

We need to nurture a sense of respect for the protection of IP. We organise a lot of activities so that they have the ownership of protecting IP. We have engaged them in a number of competitions and last year we took a number of them to Tokyo to learn how other advanced countries in the region protect IP. We took them to Customs, we took them to visit Sony, and to some animation studios and other innovative industries so that they know it is a big problem to steal other people's work. And there are plans to take students to the mainland later this year.

For education we partner with the IPD. There is a new video coming out that will be advertised on the TV and radio, advising the public that selling counterfeits is a serious crime.

AH: We have had very good cooperation with Guangdong province. We have an expert group with the whole of the province for the protection of IP. That involves all the authorities in the whole of the region, including Customs, police, the Copyright Bureau, the local IP office and the local Association of Industry and Commerce. We have a number of initiatives on how to protect IP in both regions. The IPD has introduced a lot of initiatives, including the I Pledge campaign, which Guangdong province has now introduced.

We exchange our enforcement and education and publicity experience and we then move on to new initiatives. In terms of enforcement we have direct contact with the all the agencies – we can pick up the phone and talk to them and even organise joint operations. We also participate in operations with China Customs throughout the whole of China.

AH: This is an increasing trend. Dealing with it involves a lot of international cooperation and intelligence exchange. But we do have a wide network within the Customs community. Last October we organised a conference in Hong Kong with Interpol. We are working closely with the police community – in most places it is the police that carries out these investigations, not Customs.

I would say it is the fake Mah-Jong games. We have also kept a Louis Vuitton football that was produced around the time of the last World Cup. Fake eggs are talked about a lot but I think that they are a myth.

AH: We have a designated contractor to do it. We have different products and different procedures. We shred them to a very small size and then different materials go to different contractors. Unfortunately we cannot give these items away – we cannot encourage people to use counterfeit products.

AH: People! I meet all sorts of people in this job and learn new things. When you tackle IP you need to adopt a multidisciplinary approach. You need to use legal knowledge, criminology, technology and forensic experts. You need a combination of this knowledge to do an overall assessment and develop a holistic approach to tackle these things. You need to have an inquisitive mind. It's also important to ask the right questions. You might not always get the right answer but you have to keep asking.

MK: From my perspective it is a combination of the academic and the online world. You might need to understand the psychology of a pirate in order to tackle that kind of crime effectively.

AH: Both of us have a passion for this job. We try to merge enforcement practice with academic work and that is important. Academics have real expertise in research and there needs to be some linkage. All innovation is a combination of enforcement knowledge and academic research.

Albert Ho is senior superintendent in the IP Investigation Bureau of the Hong Kong Customs & Excise Department. Michael Kwan is divisional commander of the Copyright Investigation Division in the same organisation.