Piracy case a landmark in SA

Safact has ramped up its Internet monitoring unit and will be going after more people who pirate movies. A Cape Town man will appear in the Commercial Crime Court again in the next few weeks, after being charged with illegally uploading a movie onto a torrent site, in a case that is a landmark for SA and has the potential to set a precedent. By Nicola Mawson

Should the Southern African Federation Against Copyright Theft (Safact) be successful in its bid, this would set a precedent and drag copyright law into the digital age, an era it has previously not had much effect over.

Safact CEO Corn Guldenpfennig says this is the first time such a case has been taken to court in SA, and she hopes it sets a good legal precedent. She notes more investigations are ongoing and hopes more arrests will be made - in addition to the recent arrest of an alleged accomplice, also from the Cape Flats.

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[This] is a first for SA You have to be extremely careful before making a first example.

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Majedien Norton initially appeared in court in December, before the case was postponed to 7 April. Charges have been brought against him in terms of the Counterfeit Goods Act and the Copyright Act.

See also

MS, Hawks see anti-piracy progress

Piracy is not a crime

Southern African Federation Against Copyright Theft

Corn Guldenpfennig

The copyright law dates back to 1978 and the maximum fine that can be imposed on someone selling pirated software is R5 000 per ripped copy.

The Counterfeit Goods Act dates back to 1998, and for first-time offenders, the fine is no more than R5 000 per article or item, or imprisonment for no longer than three years, or to both a fine and imprisonment.

Professor Iain Currie, from the University of the Witwatersrand, who teaches intellectual property law, notes these laws are underdeveloped and do not take into account the digital age. He says, as a result, Safact has to improvise, which is a bit of a stretch.

Currie says the copyright legislation deals with distribution and is more geared to physical copies than uploading.

As the law stands, end-user piracy is not a crime, as the Electronic Law Consultancy spells out on its Web site: The big secret is out: software piracy is not a crime when done for private or individual use, and the worst that can happen to the software pirate is he or she may be sued for the value of the licence he or she should have paid... Piracy is not theft, because theft is a crime, piracy is a copyright violation, and only under certain circumstances is this copyright violation a crime.

Guldenpfennig says uploading is definitely illegal.

Currie says Safact would have faced a problem if Norton had not distributed the movie. He says, should the case be prosecuted successfully, it would mean the outdated laws would be interpreted to cover the digital age.

It is also possible the judge could go so far as to make downloading pirated items illegal, Currie adds.

More arrests

Safacts Internet monitoring unit, which has only been fully skilled for the past six months, will definitely pursue other similar cases and it is also targeting Internet service providers and hosting bodies to force them to get pirated movies offline, says Guldenpfennig. The movie has since been removed from Pirate Bay.

Towards the end of last year, the association succeeded in having torrentbox.co.za removed from the Internet, adds Guldenpfennig. She says criminal prosecutions will be sought if there is a need to go that route.

Guldenpfennig says although SAs broadband connectivity is costly, and not as fast as international offerings, Safact cannot sit back and wait until it is beaten by criminals. Speed and pricing will catch up, but it wont catch us off guard.

Norton, who allegedly uploaded the file, is currently out on R1 000 bail.

Guldenpfennig suspects the ring could be broad and may well point to a serious leak of the film - Four Corners - somewhere. Four Corners was SAs submission for the Oscars, although it was not nominated, and is billed as a coming of age gang thriller.

Safact represents the broader industry and its members include Nu Metro, Ster Kinekor and Sony.

Nowhere to hide

Guldenpfennig would not reveal details about how the suspect was tracked down, but notes the association keeps a careful watch on marketing pages on Facebook before a movie is set to be released. She says Safact keeps tabs on what people say to see if South Africans have seen the film, and then starts investigating.

If Safacts Internet monitoring unit becomes suspicious, it searches torrent sites, which is usually the first place a leaked film will be posted, says Guldenpfennig. She says it then does a reverse investigation to find the uploader and aims to get the post removed.

Guldenpfennig says many torrent sites are willing to accommodate Safact, especially if it has legal backing and its facts straight. Although tracing offenders online can be tricky, Safact uses social networks and screen names to pin down alleged offenders, she explains.

People think they can hide on the Internet. Lots of people tell their whole lives [stories] on Facebook.

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