You might be fooled into thinking that there’s only one important legal battle going on in South Africa at the moment. Contrary to popular belief and coverage, the South African justice system continues on its day-to-day progression of the mundane and the unusual outside of the media circus in Pretoria.
In fact, despite all the hyperbole and media promises around the Oscar Pretorius trial in Pretoria, it’s hard to think of anything that’s likely to change in the long run as a result of this particular court drama. Yes, there is now a precedent for cameras in court again, but you can bet news organisations will only apply to install them next time there’s a major trial with lots of sordid details to beguile a public hungry for sensationalism.
There is, however, a very real legal precedent going to be set far away from the Bedouin camp of journalists in the north. A case before the courts which is filled with complex technical and ethical issues which few are likely to take the time to understand. In its implications for future prosecutions, the prosecution of a Cape Town man who is accused of sharing a digital file containing an unreleased South African film online is much more significant for the future of law enforcement. It will define the legal establishment’s views on online copyright infringement for the foreseeable future and give rights owners an idea of the kinds of protections a court will offer them against downloaders.
Majedien Norton, a 29-year-old father of two from the Cape Flats, is accused of using The Pirate Bay to distribute a digital copy of Four Corners. The film was shot in townships of the same area and tells a story of gangland violence described by its producers as:
…a multi-thread, coming of age crime drama set in a unique and volatile South African sub culture. At times raw and violent, at other times touching and true… weaving universal themes of love, loss, kinship, betrayal and redemption.
The case is the first of its kind in the country. According to Salome le Roux, a trademark attorney with intellectual property law firm Smit & Van Wyk, copyright infringement in South Africa has historically been treated as a civil, rather than criminal offence.
“The South African Police Service simply don’t have investigators who are skilled in this area,” le Roux says, “It’s very hard to lay a criminal complain of copyright infringement.”
At a recent hearing in front of the Commercial Crimes Court in Bellville, on February 26th, Barry Mills of the South African Federation Against Copyright Theft (SAFACT) – an industry-funded body which usually deals in cases of counterfeit DVDs – told the court that he saw people tweeting about the Pirate Bay file, and traced Norton through the username linked to upload the torrent link. According to SAFACT, its newly founded ‘E-Task team’ used this information to investigate further, before bringing a complaint to the police.
Ahead of a plea hearing scheduled for 1st April, the prosecutor has asked police to conduct further technical investigations into the origin of the file discovered online.
The technicalities of torrenting
As anyone who has been following the global argument around copyright over the last 20 years will tell you, things can get messy when trying to describe how file sharing works from a legal point of view. Uploading a torrent link to the Pirate Bay is not the same thing as uploading a movie file, a nuance often lost in political discussions on the subject. The listing on torrent sites is merely the instructions for joining a distributed network of other PCs with same file on and swapping the data around – a fact which the owners of sites have used in court before.
BitTorrent, the most popular method of sharing movies, works by breaking files up into chunks. To over-simplify, a big movie might be broken up into three files, A, B and C. When you begin downloading, your BitTorrent client connects you to dozens of other computers, some of which may hold one or all of those smaller files. Once all three files are on your computer, they are reassembled back into the original big file.
The tricky part is that if you have A and B, but want C, your computer will begin uploading the chunk files you do have while searching for a machine that has the one you want. So you might be passing A on to another movie fan while at the same time as downloading C. This effectively means that when you download a film, you’re also making it available to others – an act which carries much harsher penalties in law than merely accessing a copyrighted work without the correct permissions.
Under South African law the act of downloading an unlicensed copy of a copyrighted work is not a criminal offence (but it may be a civil one): it’s the act of uploading and therefore “distributing” the file that may be criminal.
For the most part this is an academic difference: no-one has yet faced a criminal prosecution for online file sharing, and South African ISPs routinely ignore requests from overseas copyright holders to identify computers based in this country discovered connected to a BitTorrent network.
A legal precedent
Because of this, SAFACT has said that it sees this case as a precedent and will base future prosecutions that it is currently investigated on the outcome. In a press release, quoting CEO Corne Guldenpfennig, SAFACT said that:
When asked about the significance of the case, Guldenpfennig said that it is a first for South Africa and that they made extremely certain of all the rights issues around this situation. ‘You have to be extremely careful before making a first example,’ she said.
What’s curious about using this particular case as a first example, however, is that SAFACT’s usual modus operandi is to go after those who produce large quantities of counterfeit DVDs, rather than the street vendors who are little more than a final link in the chain. It’s a policy often seen in drug enforcement – aim to cut it off the main supply, because if you arrest one corner kid, another will be along to take his place in five minutes.
“Usually the focus of current copyright enforcement is targeted at people who produce giant numbers of counterfeit DVDs,” says Professor Iain Currie, a copyright expert at Wits University, “It’s usually in relation to copying on a grand scale.”
Before the court
Norton was arrested on 11th December and released on bail on the 13th. Police seized his PC, laptop and mobile at the time of arrest.
Police originally questioned Norton on the presumption that he was the original source of the copies of Four Corners which were freely available at traffic lights and street corners all over the Cape Flats. Norton alleges that he was offered a deal whereby if he could identify a leak at the production company, he’d be granted immunity from prosecution.
It appears that SAFACT and SAPS believed – or at least claimed to believe – that the torrent file Norton is accused of uploading on 21st November was acquired from someone involved with the film’s production and subsequently used to manufacture DVDs for street hawkers.
Until the most recent court appearance, the prosecution had not been briefed of the fact that the film was so widely available that on 17th November, the movie producers published a plea to fans not to buy counterfeit DVDs off of the street via the official Four Corners Facebook page. A local newspaper was reporting that the film was on the streets as early as September – when the film was originally scheduled to be released (it’s currently due out at the end of this month, but no explanation for the delay has been given).
DVD copies are still on sale and there are different rips also available online – the Pirate Bay copy was compressed using a H.264 codec, while a full rip of the DVD VOB files which was uploaded on 13th December remains in circulation on other torrent sites.
None of that may matter: the prosecution has confirmed that it intends to continue on the grounds that the Pirate Bay link represents unauthorised distribution, regardless of whether or not the file was used to create copies on a mass scale.
The prosecutor says that he is confident of his case and is currently considering using both the Copyright Act and the Counterfeit Goods Act to proceed. Under both Acts, the penalty for a first offence is a fine of up to R5 000 or three years in jail, or both.
With no precedent to draw upon, there’s simply no way of guessing whether or not a conviction for Norton would mean a slap on the wrist and a fine or a relatively hefty jail term.
Law that needs a change
“The current copyright law is was simply not made with this sort of thing in mind,” explains Professor Currie. He adds that this will be an important test case for South Africa, with “far reaching implications” for other organisations and companies that want to start enforcing copyright online.
The test before the court is likely to be whether or not file sharing is an act of counterfeit, copyright infringement or both. Both laws date from before the internet age: the Counterfeit Goods Act of 1997 clearly states in the first line of its preamble that it is designed “To introduce measures aimed against the trade in counterfeit goods so as to further protect owners of trademarks, copyright and certain marks under the Merchandise Marks Act 1941”. If a file is swapped without money exchanging hands, does it count as trade? It’s not clear that a digital file even fits the description of counterfeit as laid down by the Act.
The Copyright Act of 1978 – last amended in 2002 – makes no mention of the internet.
The key test for copyright will be whether or not will be whether or not sharing Four Corners counts under section 27 as distributing:
…for any other purposes to such an extent that the
owner of the copyright is prejudicially affected,
articles which he knows to be infringing copies of the work,
The onus is on the prosecution to show that the copyright owner was “prejudicially affected” by the upload, which might mean having to prove how many people have accessed it (it was removed from The Pirate Bay last month).
Overseas, laws such as the notorious Digital Millennium Copyright Act in the US were drawn up specifically to deal with online file sharing. Even under these often draconian pieces of legislation, however, jail sentences are rare. The founders of The Pirate Bay, for example, received six month suspended sentences for running the site.
The government is currently considering its policy on copyright, and is known to favour liberal interpretations of copyright that weight the law in favour of economic development over ownership of rights’ holders. It’s a discussion that is increasingly taking place across the developing world, where countries are coming to realise that extreme copyright protections can be counter-intuitively damaging – the ability to photocopy maths textbooks, for example, means more children learn maths, arguably a better outcome than a few more bucks in academic publishers’ pockets – especially if it fosters a new generation of accountants, who might well end up working for the same publisher in the future.
“There are also powerful interests arguing for a tightening of up of the law,” says Currie, “We’ve no idea which way it will go. The current regime is not adequate for the problems of the digital age though.”
Waiting around for policy issues to sort themselves out is no longer an option. The Norton case means that South Africa as a country needs to think about how it’s going to proceed in matters around copyright infringement as a matter of urgency. Many countries have been through protracted phases of doling out heavy punishments for copyright violations by file sharers, which have achieved very little in terms of stopping people from uploading and downloading files at will. If the courts decide to set an example with Mr Norton by throwing him in jail and effectively putting his wife and children on the street, the one thing we can be confident of is that it won’t be a very effective one.
You can’t put the internet genie back in the bottle. As mobile operators who sell lucrative ringtones, music services that offer on-demand streaming and video sites like Netflix and iRoko know: you can’t suffocate the technology used to violate copyright, you have to innovate around it. Give people legal alternatives to access media online, and they take it.
This is not a problem South Africa is facing alone, of course. Holland has just seen a very similar test case to this one, in which a man had his conviction for copyright infringement overturned on appeal.
Nor is it a problem restricted to the film industry – we’re routinely told by games distributors that illegal copies of popular games on the streets limits the range of titles they’re prepared to import into South Africa.
But it is a problem that can no longer be ignored.
SAFACT, the producers of Four Corners and its distributors were all contacted in relation to this article several times over the last two months, but none have yet replied to queries.