Torrent and piracy debate rages on

The issue of torrent websites and copyright infringement hit the headlines recently with the Recording Industry of South Africa (RiSA) Anti-Piracy Unit issuing take-down notices for local torrent and newshost websites.

According to the RiSA Anti-Piracy Unit, Bitfarm is a locally hosted piracy-centric torrent and NZB distribution website. In another letter RiSA called Newshost a locally hosted, invite-only piracy-centric NZB site.

ISPA received letters from RiSA, aimed at the ISP MTN Network Solutions, calling for Newshost and Bitfarm to "be taken down with all access to the domain name blocked".

According to the RiSA Anti-Piracy Unit, Bitfarm and Newshost contravene Section 27 (1) (b) of the Copyright Act 98/1978 through the facilitation of piracy.  

Section 27 (1) (b) of the Copyright Act 98/1978 states that: "Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright, sells or lets for hire or by way of trade offers or exposes for sale or hire."

This section however does not mention the facilitation of piracy which raises questions about the legal validity of the take down notices sent to ISPA.

ISPA, however, accepted the complaints by RiSA and sent letters to the ISP MTN Network Solutions which hosts Bitfarm and Newshost.

ISPA said in its letter to MTN NS:  "Acting as your appointed agent, we have reviewed the complaint and in our opinion it is a valid complaint which meets all of the legal requirements of the Electronic Communications and Transactions (ECT) Act."

"The limitations on liability of service providers for content granted by Chapter XI of the ECT Act require that you remove or disable access to the data concerned upon receipt of a take-down notification. We therefore request that you respond expeditiously to this notice," said ISPA.

Reinhardt Buys from Buys Attorneys, a legal expert in media, IP and Internet law, argues that sites that collect, index and host so-called torrents are legal in South Africa.

"The content of such sites is not only protected by the constitutional right to free speech, but is also outside the scope of any copyright claims," said Buys.

ISPA at fault?

According to Buys, who offered to act on behalf of Newshost and Bitfarm, the procedure followed by ISPA in dealing with the take down notices were fundamentally flawed, unfair and unconstitutional.

Buys further argues that RiSA failed to comply with the requirements of section 77 of the Electronic Communications and Transaction Act 25 of 2002 and that RiSA had no locus standi to request the take-down of the Bitfarm and Newshost websites.

"ISPA proceeded with the take-down request, which resulted in the taking down of our client‘s websites (Bitfarm and Newshost), potential financial damages and the gross violation of procedure and our client‘s constitutional rights," said Buys.

Buys is also of the opinion that RiSA’s allegations of Bitfarm and Newshost’s facilitation of piracy fails to establish any form of unlawful or illegal activity or content.

"There is no legal precedent, whether in case law or legislation, in South Africa or elsewhere, confirming that the hosting of torrents and NZBs and the indexing of such files is unlawful or illegal," said Buys.

Search engines illegal as well?

Another argument put forward by Buys is that if the hosting and distribution of torrents and NZBs were indeed illegal, as RiSA alleges, search engines would also be illegal since most search engines index and link to torrents and NZBs.

"For example, a search for "torrent" on the local Ananzi.co.za site, returns search results that link directly to sites like Torrent Scoop and The Pirate Bay," said Buys.

"If the submission of the complainant [RiSA] is to be accepted, these search results would not only be illegal, but also subject to take-down."

Does RiSA have any case?

According to Buys the RiSA Anti-Piracy Unit has no grounds to request the take-down of Bitfarm or Newshost.

"In terms of section 24 of the Copyright Act 98 of 1978, only the copyright owner may institute proceedings related to copyright infringement. The complainant is not a copyright owner and merely a unit within an organisation that claims to represent the South African recording industry," Buys states in a legal document.

Buys says that in its take-down notices the RiSA Anti-Piracy Unit has failed to show that its members authorised it to submit the notices or to take legal action on their behalf. This raises questions about the substance of the take-down notices.

"We trust that ISPA appreciates the significance of your unlawful actions detailed above and the unacceptable precedent you have set in dealing with RiSA’s notices," Buys concluded.

RiSA did not respond to numerous requests for feedback regarding this issue.  ISPA could not respond in detail by the time of publication.

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Torrent and piracy debate rages on