The Southern African Federation Against Copyright Theft (SAFACT) recently announced that the first criminal prosecution against an Internet TV box seller had concluded.
It said Jacque Hilbert from AVSupply pleaded guilty to charges relating to distributing the media boxes when he appeared in the Bellville Specialised Commercial Court on 31 March.
However, Hilbert has disputed the accuracy of SAFACT’s version of events, and many of the details reported in the press.
The details of the dispute are summarised below.
SAFACT stated that Hilbert’s case was linked to arrests made following a series of raids in joint operations between it and the police.
Hilbert contends that neither he nor his wife were arrested during or after the raids.
MyBroadband asked SAFACT if it stands by its statement, but the federation did not respond by the time of publication.
Was AVSupply convicted of a crime, or Jacque Hilbert?
SAFACT stated that Hilbert was given a suspended sentence. “The sentence was suspended for five years on condition that he is not convicted of contravening the provisions of section 86 of the ECT Act again.”
Hilbert maintained that the charges against him and his wife were withdrawn, and that he pleaded guilty to a different charge against AVSupply.
The charge sheet and sentence agreement corroborate Hilbert’s statement.
Jacque and Tracy Hilbert are listed as the accused and were charged in terms of the Copyright Act for “making infringing copies of a work for sale or hire”.
In the plea agreement, only AV Supply is listed as the accused – and it pleaded guilty to one count of contravening the ECT Act, a different charge.
Hilbert also said that although he appeared as a representative of AVSupply, he did not receive a criminal record as a result.
The state advocate who prosecuted the case, Advocate JA Agulhas, confirmed that Hilbert and his wife are directors of AVSupply, but did not receive a criminal record as a result of the guilty plea.
Value of the goods seized
As part of the plea deal, Hilbert agreed that items seized during the raid on AVSupply be forfeited to the state.
SAFACT said the value of the confiscated items was estimated at approximately R80,000.
Hilbert said the number of boxes listed in the plea deal was incorrect, as only 12 boxes were confiscated, and that the retail value of the items was below R15,000.
MyBroadband asked SAFACT what it based its estimates on, but the organisation did not respond by the time of publication.
It should be noted that according to the plea deal, the devices listed in the table below were seized because they were not type-approved by ICASA.
The confiscation had nothing to do with copyright, digital rights management, or region-blocking circumvention.
|AVSupply goods seized|
|Android TV Box||Kit Kat||15|
|FM Car modulators||–||5|
|LB Link wireless||USB Adaptor||1|
|Bluetooth Adapter||RS-388 V2||5|
|LB Link||BK-WN 150 AM||1|
|LB Link||Deluxe Range 802.11 USB||1|
Was the DroidTv Box MXiii a “pirate TV box”?
Hilbert also disputed media reports that AVSupply had distributed a “pirate TV box”.
He said he pleaded guilty to the boxes “interfering with data”, and not being ICASA-approved.
However, the balance of SAFACT’s press statement and the resultant reports appear to be accurate in this regard.
AVSupply pleaded guilty to the following:
- “The XBMC is fully customised pre-installed add-ons called fusion, Mashup, and Xunity Respository.” [sic]
- Providing access to Sky Sports and BBC channels in South Africa without licensing the content for the region.
- The DroidTv Box MXiii had no local channels but had movies, series, news, sports, and kiddies’ channels that AVSupply had not licensed for the region.
- XBMC, in conjunction with the add-ons that are installed on the box, link to pirated content online and provides access to this content seamlessly.
- Regional blocking is bypassed by using the box in conjunction with software and add-ons.
- Various protection and digital rights management systems have to be bypassed or removed for the box to play a movie, series, or sport content.
Hilbert said there was no pirated content on the DroidTv box when they sold it, and that any software or add-ons were only there because they came with the device’s firmware.
He said they had to update the firmware of the media boxes as there was a bug in the old version that caused problems with the power supply.
Regarding advertising “XBMC streaming add-ons” in their listing of the DroidTv Box, Hilbert said he used the same product description as Amazon.
Had he realised the potential legal ramifications of the wording, he would never have used it.
Why plead guilty when you believe yourself innocent?
On why he pleaded guilty on behalf of AVSupply when he believed they were innocent, Hilbert said he felt like they were backed into a corner.
When the charges were first laid against them, he searched online to see if he could find affordable legal advice, and came upon the Legal Advice Office.
He was instructed to pay the company for their services, and said that one the Legal Advice Office’s “panel attorneys” appeared for the first few hearings. The attorney then withdrew, saying he had not been paid for his services by the contracting firm.
The disbarred attorney who ran the Legal Advice Office, Hugh Pollard, is reportedly facing fraud charges.
Prosecutor Agulhas confirmed that Pollard’s case is being handled by the same unit that handled the AVSupply matter, and that Hilbert is a complainant in the case.
Hilbert said he was advised to get legal aid, but was told that since they earn an income, they do not qualify for free legal aid.
After explaining the situation to the prosecutor, Hilbert said he was offered a deal: all charges against him and his wife would be withdrawn, but AVSupply must plead guilty to contravening Section 86(4) of the ECT Act.
Feeling like he had exhausted all his options, he took the deal.
AVSupply did not have to shut down, nor were Hilbert and his wife held criminally liable as directors of the company.