Torrents and Legality...

[twitchsan]

Question: Is it legal to use torrents as an alternative means to download software?

And can a service provider contact you and inform you that there is "pirate" activity on your network system? And can they take further action if this is so?

I have been looking everywhere for information relating to this and how it is dealt in South Africa.

Please i desperately need the help, cause i am wondering if i should get legal aid in this matter, and i need to have clarity first...

 

[Veroland]

A torrent in itself is legal, however, downloading copy right material is not legal.

There are many applications etc. that have torrents available to download them, OpenOffice springs to mind.

 

[twitchsan]

Thank you, for the help, i still need more information thought, cause it confuses me when a service provider claims privacy, and then... Well, inform every as things happen...

 

[LazyLion]

This is an area of our law that has not been tested in our courts in South Africa. The Copyright Act says that you may import into the republic material for your own personal use, but you may not further distribute that material.

The question is... does the downloading of a song or movie count as "importing into the republic for your own personal use"? And does using the BitTorrent protocol itself class as "distribution"?

We are still waiting for somebody to be tried under these circumstances. Nobody has been found guilty of it yet.

The BitTorrent protocol itself is not illegal, but I suspect that you might be liable for damages or an infringement if it is proved that you violated copyright by downloading something from the internet.

But the copyright holder has to first prove that damage or loss has occurred, and it has to be worth his time to take you to court. I highly doubt that is going to happen for the average home user.

 

[APoc184]

To answer your real question.

YES. They can prosecute you for downloading copyright software via torrents.
You probably downloaded copyrighted software and they tracked you down. They then sent a notice to your ISP to warn you about these activities. If it continues they can get a court order to force the ISP to reveal your details and then prosecute you.
It should be somewhere in your T&C

EDIT: That is how I understand it.

 

[Keeper]

What's this "Copyright Act" you speak of? does it say we have a "Right to Copy" or something, cause I don't understand.....

and what the hell does infringement mean?

 

[LazyLion]

For the sake of those interested... this is the relevant section of the Copyright Act 98 of 1978.

http://www.publishsa.co.za/docs/Copyright_Act_No.pdf

Section 27...

27 Penalties and proceedings in respect of dealings which infringe copyright

(1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright-

(a) makes for sale or hire;

(b) sells or lets for hire or by way of trade offers or exposes for sale or hire;

(c) by way of trade exhibits in public;

(d) imports into the Republic otherwise than for his private or domestic use;

(e) distributes for purposes of trade; or

(f) distributes for any other purposes to such an extent that the owner of the copyright is prejudicially affected,

articles which he knows to be infringing copies of the work, shall be guilty of an offence.

[Sub-s. (1) substituted by s. 11 (a) of Act 52 of 1984 and by s. 3 of Act 61 of 1989.]

(2) Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence.

(3) Any person who causes a literary or musical work to be performed in public knowing that copyright subsists in the work and that performance constitutes an infringement of the copyright, shall be guilty of an offence.

(4) Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such rebroadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence.

(5) Any person who causes programme-carrying signals to be distributed by a distributor for whom they were not intended knowing that copyright subsists in the signals and that such distribution constitutes an infringement of the copyright, shall be guilty of an offence.

(6) A person convicted of an offence under this section shall be liable-

(a) in the case of a first conviction, to a fine not exceeding five thousand rand or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, for each article to which the offence relates;

(b) in any other case, to a fine not exceeding ten thousand rand or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment, for each article to which the offence relates.

The key words here are.... "otherwise than for his private or domestic use" That little phrase gives you the right to download and bring into this country anything for your own private domestic use.

So NO, it is not "illegal" to download movies.

...but arresting someone, charging them and sentencing them is another thing entirely. As far as I know that has never happened for someone downloading (which I think would be legal according to this section) or uploading (which I think MIGHT constitute an infringement in terms of this section - but I am not a lawyer).

Uploading and distributing is another matter. That is technically "illegal" (a violation of copyright) according to this act. That person, if convicted, would be subject to the penalties mentioned in this act.

When that finally happens to some according to this act.... THEN we will have our answer and be able to say this and that is ILLEGAL. But, as I have said... that has never yet happened to someone in South Africa for giving a movie to his friends, or even for uploading movies. It really only happens to those guys at the Flea Market who are actually SELLING the fake and pirated stuff. Those are the guys that this act is really targetted at.

btw, this is not talking about the CIVIL claim that any copyright owner might have. If the owner of the work can prove that he has suffered financial loss due to your activities, he can institute a civil claim against you.

If you have any questions about this is suggest you contact a good copyright lawyer... I can recommend several to you. One of them who is a member of this board.

 

[Vetseun]

Copyright basically entails the exclusive right of a copyright holder to reproduce, publishing, adapt etc a specific copyrighted work... (so in effect it gives the owner the exclusive "Right to Copy")

Infringements is just a fancy term for saying that someone else does any of those exclusive rights without the copyright holder allowing it (copying (reproducing) a film for example).

 

[Keeper]

Copyright basically entails the exclusive right of a copyright holder to reproduce, publishing, adapt etc a specific copyrighted work... (so in effect it gives the owner the exclusive "Right to Copy")

Infringements is just a fancy term for saying that someone else does any of those exclusive rights without the copyright holder allowing it (copying (reproducing) a film for example).

hehe I was actually just joking around. but thanx vetseun

Gary says it pretty well.... basically boils down to:
ok to dl series.
not ok to upload series.
not ok to sell series.

unless I'm missing something...

 

[APoc184]

For interest sake.
If the ISP warns you about your illegal torrent activity regarding a movie. What stops them from warning someone who used Usenet to get this movie?

 

[LazyLion]

hehe I was actually just joking around. but thanx vetseun

Gary says it pretty well.... basically boils down to:
ok to dl series.
not ok to upload series.
not ok to sell series.

unless I'm missing something...

Yes, until they actually sue one of you criminals! ... the law remains unclear and we exploit the gap in the law. BTW, there are many countries in the world, eg. Netherlands, where it is perfectly legal to copy or download ANYTHING as long as it is for yourself.

I would assume that the law would only step in where there is massive financial loss or blatant selling of the copyrighted goods.

 

[Vetseun]

The key words here are.... "otherwise than for his private or domestic use" That little phrase gives you the right to download and bring into this country anything for your own private domestic use.

So NO, it is not "illegal" to download movies.

No you've got it slightly wrong there. It is quite illegal to download movies. The “otherwise than for his private or domestic use" is to differentiate commercial infringement from non-commercial infringement (selling of copyrighted material vs personal and private use), and is not an inferred type of consent. You can never infer meaning when interpreting legislation. If the legislature wanted to say something they would have said it explicitly.

What Sec 27 details is what is called criminal copyright infringement, and is aimed at commercial infringement if I can call it that (IP is being sold/traded, basically any action that would costs the IP owner royalties – think flea market stuff).

On the flipside of the coin, when you download a movie for your own use you are still infringing the studio's copyright in that movie, because that have not granted you the right to reproduce the movie. It's still illegal, Their remedy lies in Section 24 (as opposed to 24 and 27), where they can sue you and get an order to stop you using it and claiming damages and a "reasonable royalty".

...but arresting someone, charging them and sentencing them is another thing entirely. As far as I know that has never happened for someone downloading (which I think would be legal according to this section) or uploading (which I think MIGHT constitute an infringement in terms of this section - but I am not a lawyer).

Someone can only be arrested if the commit an offence. Section 27 states that the actions in (a) - (f) are offences, so you can be arrested and charged for those. You won't however be arrested for non-commercial copyright infringement (infringement falling outside (a)-(f)). You'll only be sued by the copyright owner in terms of section 24.

Uploading and distributing is another matter. That is technically "illegal" (a violation of copyright) according to this act. That person, if convicted, would be subject to the penalties mentioned in this act.

It depends on purpose for which it is uploaded and distributed. Uploading and distributing for commercial gain (flea market type acitivties) you can be arrested/fined/sued in terms of Section 27 and 24. Uploading and distributing for personal non commercial use, you can be sued in terms of only Section 24.

 

[LazyLion]

go back one chapter and look at infringement under section 23... the wording is exactly as I copied from section 27.

There is no infringement according to the act where a person brought a copy into the republic for his own personal and private use.

In order for you to be guilty of an infringement or to be liable for an action under civil law, you would have had to have brought the copy in for "other purposes" or for distribution.

There is no other way around it.

There are no grounds for a civil or criminal action where there is no infringement. And there is no infringement if you brought the copy in for your own personal and private use.

 

[APoc184]

I understand "brought the copy in" as bought it somewhere else. Thus legally obtaining it(just not from a ZA company). But torrents are different in my mind because you obtained it illegally.

 

[LazyLion]

I understand "brought the copy in" as bought it somewhere else. Thus legally obtaining it(just not from a ZA company). But torrents are different in my mind because you obtained it illegally.

How so? There is nothing illegal about torrents. They are a distribution technology... much like the post office.

It doesn't matter how you got it into the country.

 

[cavedog]

For the sake of those interested... this is the relevant section of the Copyright Act 98 of 1978.

http://www.publishsa.co.za/docs/Copyright_Act_No.pdf

Section 27...



The key words here are.... "otherwise than for his private or domestic use" That little phrase gives you the right to download and bring into this country anything for your own private domestic use.

So NO, it is not "illegal" to download movies.

...but arresting someone, charging them and sentencing them is another thing entirely. As far as I know that has never happened for someone downloading (which I think would be legal according to this section) or uploading (which I think MIGHT constitute an infringement in terms of this section - but I am not a lawyer).

Uploading and distributing is another matter. That is technically "illegal" (a violation of copyright) according to this act. That person, if convicted, would be subject to the penalties mentioned in this act.

When that finally happens to some according to this act.... THEN we will have our answer and be able to say this and that is ILLEGAL. But, as I have said... that has never yet happened to someone in South Africa for giving a movie to his friends, or even for uploading movies. It really only happens to those guys at the Flea Market who are actually SELLING the fake and pirated stuff. Those are the guys that this act is really targetted at.

btw, this is not talking about the CIVIL claim that any copyright owner might have. If the owner of the work can prove that he has suffered financial loss due to your activities, he can institute a civil claim against you.

If you have any questions about this is suggest you contact a good copyright lawyer... I can recommend several to you. One of them who is a member of this board.

Very clever it seems its legal to download movies but illegal to distribute it! That's what I understand

 

[APoc184]

If I buy a DVD from Amazon, then included in the price was Amazon's cost price to the distributor and included in their price was the right to distribute copies. (which they paid the studio)
But if I download it via torrent the studio, distributor and retailer lost revenue.

That is how I understood it. But hey, I don't download movies

 

[icyrus]

How so? There is nothing illegal about torrents. They are a distribution technology... much like the post office.

It doesn't matter how you got it into the country.

I don't think it has anything to do with the tech behind how you got it but rather that you didn't get it from the copyright holder.

The whole thing is a pointless mess.

 

[Vetseun]

go back one chapter and look at infringement under section 23... the wording is exactly as I copied from section 27.

There is no infringement according to the act where a person brought a copy into the republic for his own personal and private use.

Section 23 (2) does not stand apart from 23 (1). They need to be read together.

23 (1) Copyright shall be infringed by any person, not being the owner of the copyright, who, without the licence of such owner, does or causes any other person to do, in the Republic, any act which the owner has the exclusive rights to do or to authorize.

(2) Without derogating from the generality of subsection (1), copyright shall be infringed by any person who, without the licence of the owner of the copyright and at a time when copyright subsists in a work

(a)...
(b)...
(c)...

Downloading is reproduction. Reproduction is one of the exclusive rights reserved for the Copyright holder.

Section 23 (2) attempts to curb indirect infringement. What it describes are the grounds for indirect infringement by trade in infringing items for the purposes of Section 27 - Penalties and proceedings in respect of dealings which infringe copyright, and is not meant to "derogate from the generality of subsection (1)"

In short Section 23 (1) lays down the grounds for infringement. Section 23 (2) merely elaborates on certain activities, and does not limit the application of 23 (1).

Edit: Also, dont forget about the last sentence of Section 23 (2). It actually reads like this:

(a) imports an article into the Republic for a purpose other than for his private and domestic use

...if to his knowledge the making of that article constituted an infringement of that copyright or would have constituted such an infringement if the article had been made in the Republic.

The whole clause is aimed at buying/importing/selling/trading pirated goods.

 

[LazyLion]

Section 23 (2) does not stand apart from 23 (1). They need to be read together.

It's kinda hard to do that when section 1 was removed by the copyright amendment act of 1992

The whole clause is aimed at buying/importing/selling/trading pirated goods.

Those are all commercial activities and have nothing to do with personal and domestic use.