File sharing and copyright infringement – A legal perspective

Warning emails

An MWEB client recently received an email from the ISP warning them about possible copyright infringement. MWEB explained that while it does not actively monitor user activity for purposes of detecting copyright infringement, they do pass on messages coming from organizations that are tracking these kinds of activities.

Similar concerns were raised by some Internet Solutions (IS) clients, but IS was also quick to point out that they do not monitor the usage of their subscribers.

“We don’t specifically track usage specifically of any user. Obviously we do track stats such as data utilisation in Hosting, and usage volumes on ADSL lines, where part of the service is based on the data usage, or where clients specifically ask for bandwidth management and statistics,” IS said.

This all raises the questions: May ISPs monitor your web and email usage and behavior? And do international monitoring bodies have legal recourse in South Africa?

The legal perspective

Reinhardt Buys, IT and Internet law expert and founder of Buys Inc, explains that the law regarding copyright infringement and illegal file sharing is no trivial matter.

Buys explains that an international organization can prosecute a South African citizen for copyright infringement, but the following are applicable:

i) The organisation must be the owner of the copyright infringed (i.e. Universal or United Pictures) may sue if one of their movies was downloaded, but not a watchdog organisation. Source: section 24 of the Copyright Act 98 of 1978; and
ii) The proceedings will have to take place in South Africa in terms of the South African law (i.e. copyright proceedings must be instituted where the infringement takes place and in terms of the laws of the country in which the infringement takes place).

It is also not an easy matter to actually prove that copyright infringement took place. Buys says that to succeed against a person who downloaded a copyrighted movie, the movie studio (copyright owner) will have to prove the following:

i) it owns the copyright in the movie (referred to as a cinematograph film in the Copyright Act);
ii) a copy of reproduction of the movie was made;
iii) the copy of reproduction was made by the person being prosecuted; and
iv) the person who downloaded the movie knew or had reason to know that copyright subsisted in the movie.

“The same general principles apply to P2P music downloads. The high evidential burden generally discourages rights holders to seek prosecution of individuals in other countries than the rights holder,” Buys points out.

Buys further notes that downloading a copyrighted movie is a civil matter (between downloader and rights holder), but downloading and selling / further distributing a copyrighted movie is a criminal matter (section 27 of the Copyright Act).

Internet users also protected

Many large music and movie houses and copyright infringement bodies seem to have the legal high ground when it comes to file sharing and copyright infringement, but users’ rights are protected when it comes to monitoring a user’s Internet usage.

“In SA it would be illegal to intercept internet traffic and link it to a specific IP address (ito the RIC Act). To do so requires a court order. We also have a Constitution that states that a person is innocent until proven guilty… to claim that X, linked to an IP address, downloaded something via a P2P network is a joke… in order to succeed the issues mentioned above should be proven,” Buys says.

Buys however concludes that illegal file sharers and people engaging in possible copyright infringement should think twice. He says that the fact that downloading copyrighted material is possible and that possible prosecution is unlikely does not make it legal and right.

“If we simply tolerate large scale downloading of music and movies there will be no incentive for people to create good music and quality movies… who would invest millions into a movie or even a piece of software if there would be no return?” Buys concludes.

People who would like to learn more about this issue is encouraged to visit http://www.eff.org/share/

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