Distributing copyrighted material without a license is both a criminal and civil offence in South Africa, even if such distribution is piecemeal over the BitTorrent protocol.
That’s according to Nicholas Hall, a lawyer from Michalsons Attorneys, a firm which specialises in South African information and communication technology law.
Hall said that people like to argue that when you seed a file over BitTorrent you are not sharing the entire file, only portions of it. The argument is that it would therefore be difficult for the state to prove that you actually shared a file containing copyrighted content.
“I don’t think this argument would work,” Hall said.
He said that this type of highly technical argument has been tried in other contexts. “Specifically in the Piggs Peak case,” Hall said.
“The judges basically dismissed the argument and took a far more purposive approach,” Hall said. “The fact is at a high level, by seeding pirated material you are making material available to others to download, and that is a crime, and I think this is the approach the court will likely take.”
While downloading copyrighted material without a license is not criminal, Hall said it remains illegal and a civil matter where the owner could sue for damages.
However, Hall previously pointed out that due to the nature of the BitTorrent protocol, users almost always upload parts of the files that they are busy downloading to other peers.
This means that using a BitTorrent to illegally download copyrighted material in South Africa is more-than-likely criminal, since you are helping to distribute the content while downloading.
Hall emphasised that there is nothing wrong or illegal about using BitTorrent as a technology in South Africa. The legality of the use is determined purely on the content people share using the technology, Hall said.
Asked what South Africans should do to ensure that they stay on the right side of the law, Hall said to use legitimate services to consume your content digitally.
“The iStore has lots of things available. Services like Simfy allow for music streaming legitimately. We will hopefully see services like Netflix become legitimately available to South Africans,” Hall said.
“I realise that most people pirate because they cannot legitimately get the content that they want, but unfortunately that is not really an excuse, or a legal defence,” Hall said.
More on online piracy in South Africa
SA Internet pirate court appearance
First for SA: Internet pirate arrested in Cape Town
SA Internet users must be allowed to copy and share (for research): DTI
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