How legal are torrents in SA?
Peer-to-peer file sharing has become one of the ‘killer applications’ of the broadband era, making it possible for users connected to the Internet to easily share files with other users and gain access to content from across the world.
These file sharing systems are however not without their opponents, typically the music and movie industries, which argue that they are losing billions through the distribution of copyrighted material.
Many users, on the other hand, feel that more affordable and accessible digital content will limit the impact of file sharing on the entertainment industry, and encourage companies to embrace new technologies rather than fight them.
Torrent websites
Websites that collect, index and host torrent (BitTorrent) files have long been a controversial issue and there has been little clarity on the legality of such websites.
The music and movie industry are aggressively targeting file sharing services, which include torrent websites, trying to stop the illegal distribution of copyrighted material. This fight has up to now only showed marginal successes.
The popularity of torrent websites like The Pirate Bay, ranked in the top 100 websites in the world, is proof of the growing support and use of torrent services. It is not surprising that The Pirate Bay has been involved in various legal spats, both as the plaintiff and as the defendant.
In 2006 the website’s servers, located in Stockholm, were raided by Swedish police, causing it to go offline for three days. The company was however successful in defending their position and services were restored soon afterwards.
According to unconfirmed speculation, two of the most prominent local torrent websites, Ninja Central and Bitfarm, as well as NewsHost, a service which keeps archives of all binary files listed on the main USENET servers in South Africa, received letters from the Recording Industry of South Africa (RiSA) threatening legal action.
This raises the question as to the legality of torrent websites like The Pirate Bay in South Africa.
Legal expert opinion
According to RiSA the websites were invite-only, piracy-centric sites offering only torrent and NZB files. RiSA states that the sites “contravene Section 27 (1) (b) of the Copyright Act 98/1978 through the facilitation of piracy”.
Reinhardt Buys from Buys Inc. Attorneys, a legal expert in Media, IP and Internet Law, says that sites that collect, index and host so-called torrents are legal in South Africa.
According to Buys the content of torrent websites is not only protected by the constitutional right to free speech, but is also outside the scope of any copyright claims.
“These sites do not host or share actual copyrighted files, but merely metafiles related to the location and nature of copyrighted material hosted elsewhere (on user’s PC’s). As such, sites like thepiratebay.com are nothing more than search and index sites,” says Buys.
“The content found on thepiratebay.com may easily be found by conducting a simple Google search for example ‘Boston Legal torrent’. If thepiratebay.com is illegal, any search engine is potentially illegal if it indexes and hosts the meta data of potentially copyrighted material.”
Buys points out that in terms of the SA Copyright Act 98 of 1978, there are 3 forms of copyright infringement:
–Direct infringement
– copying and using a copyrighted file without permission;
–Criminal infringement
– selling and distributing copies of copyrighted files; and
–Contributory infringement
– materially contributing to either of the above forms of infringement.
“A site like thepiratebay.com can never be liable for direct and criminal copyright infringement because it simply does not copy, share and distribute copyrighted material. The person using a torrent to download a file is the guilty party and not the publisher of the torrent,” said Buys.
It follows that the only potential liability for a site like thepiratebay.com is for contributory infringement.
“The courts have developed a nice test to determine whether a technology, tool or action amounts to contributory infringement and that is the so-called ‘but for’ test. i.e. will the P2P sharing of copyrighted files be take place but for the existence of thepiratebay.com? [this test was developed to protect innovative technologies such as CD burners, recorders and the like],” Buys said.
According to Buys the answer to this question is ‘absolutely not’. “Even without sites like thepiratebay.com, P2P file sharing would be possible. So, thepiratebay.com can never be guilty of contributory infringement,” Buys concluded.
Buys has also offered to defend local torrent websites free of charge in any legal battle and has recently announced that he is how acting on behalf of the affected local websites and has completed a detailed response to the South African record industry and ISPA.
RISA was asked for feedback on Internet piracy and their view on the legality of torrent websites in South Africa, but did not respond to requests for information despite numerous attempts.
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