Online Piracy: What happens when you get caught

Illegal downloading using peer-to-peer technologies could result in some hefty fines, or worse, under South African law

July 26, 2010
Online Piracy: What happens when you get caught

While the Copyright Act of 1978 makes an outlaw of anyone who has ever ripped a CD they own to their PC or copied a song from their PC to a portable music player, it also protects the rights of artists, authors, software developers and other copyright holders.

But what punishment awaits those who use, watch, or listen to copyrighted material without obtaining a legal license for it first?

If you download content protected by copyright without owning a legal license for it then you’re not a criminal, but the owners of the copyright would have a claim against you for damages, explained Nick Hall, an attorney at Michalsons Attorneys.

Such a claim “will usually amount to the purchase price of the good,” said Hall.

South African law criminalises those who distribute copyrighted content without the permission of the copyright holder.

Selling illegally obtained copyright material is an offence in terms of both the Counterfeit Goods Act as well as the Copyright Act, said Jenna Cuming from Chetty Law.

Hall said that even if your intent isn’t to sell and you distribute such material for free you are guilty of a crime under the Copyright Act. This includes uploading content, even in part, using peer-to-peer (P2P) technologies such as BitTorrent.

Cuming provided the punishments for the crime from the Copyright Act:

  1. In the case of a first conviction you could look at a fine of up to R5000 and/or 3 years imprisonment for each copyrighted item distributed.
  2. In any other case a fine of up to R10 000 and/or up to 5 years jail time per copyrighted item.

Hall added that the criminal punishment is over and above the damages that are payable to copyright holders for illegally copying their material.

Enforcing this law can be tricky, however. The police can’t simply show up at someone’s home to inspect their devices for material that potentially infringes copyright.

Cuming explains that the police would need a search warrant issued by a judge who feels there is reasonable probability that a crime is being committed at the premises.

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