TMCC 1268/2005
v
CHAN NAI MING
________________________
Before: Colin
Mackintosh, Magistrate
Trial: 12-14th October 2005
Verdict: 24th October 2005
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1. The
defendant is before this court facing three charges brought by virtue of
section 118(1)(f) of the Copyright Ordinance, Cap 528. of attempting to
distribute an infringing copy of a copyright work, other than for the purpose
of or in the course of any trade or business, to such an extent as to affect
prejudicially the rights of the copyright owner; and three alternative charges
of obtaining access to a computer with dishonest intent, contrary to section
161(1) (c) of the Crimes
Ordinance, Cap 200.
2. All
these charges are denied and a trial has followed in which the bulk of the
prosecution evidence, which was quite voluminous, has been adduced without
challenge. The principal area of
contention in the evidence has concerned the admissibility of certain answers
allegedly given under caution to a Customs and Excise officer. That matter was dealt with by way of a
voire dire before the trial proper commenced. The defendant testified in that trial within a trial, but
not in the trial of the general issue.
Outline of prosecution case.
3. The
prosecution allege that the defendant was responsible for distributing three
films on the Internet using BitTorrent software which allows for fast and
efficient downloading of large digital files such as films. The defendant is alleged to have been
the seeder, that is that he installed the films on his computer in .torrent
files (i.e., files with the extension
".torrent"), that he advertised the existence of those files
through newsgroups on the Internet, and that he enabled others to download
them. It is alleged that this
amounted to distribution or an attempt to distribute. All the films were copyright works, so that their
installation in his computer was an infringement of copyright, making them into
infringing copies. The distribution
of the infringing copies was done to such an extent, it is alleged, as to
affect prejudicially the owners of the copyright; or that at least the
defendant attempted so to do. In
the alternative, the defendant, in advertising the existence of the .torrent
files containing the films on the newsgroup computers, thereby gained access to
those computers with a dishonest intent, that is, with a view to dishonest gain
for others.
4. It
is the prosecution's case, that a customs officer located the defendant's Internet
(IP) address through a newsgroup and downloaded the three films which had been
seeded by the defendant. His home
address was located and raided.
The computer in question, which the defendant was operating at the time
of the raid, was seized; and, it is alleged, the defendant made admissions that
he was the user of the Internet account in question, under the pseudonym
"Big Crook"; and that he
had uploaded the .torrent files in question.
Outline of the defendant's case.
5. The
admissibility of these alleged answers was challenged, and I will return to
that issue in a moment. The
interviews were ultimately admitted into the evidence though the defence
maintain that no weight should be attached to them, and it is submitted that
there is no sufficient proof that the defendant was responsible for the
relevant acts alleged by the prosecution.
But the main thrust of the defence is to say that even if the
defendant's involvement is proved as alleged, the evidence does not establish
that the alleged acts amounted to distribution within the terms of section
118(1)(f) of Cap 528. What it
amounts to, it is said, is no more than sharing or making available the films
in question to those who wanted to download them. The acts were of a different character to distribution. And, in any event, there was no
evidence of any prejudicial effect on the copyright owners of any such
distribution.
6. A
number of customs officers laid ambush outside the defendant's home at about 7
a.m. on the 12th of January 2005.
They were armed with a search warrant for the premises. When the defendant's wife left to go to
work, they intercepted her and she allowed them to enter the premises. They found the defendant sitting at a
computer in the living room. His
brother was at another in a bedroom.
7. According
to PW1, he asked the defendant his name and the defendant gave it. The reason for the raid was explained
and the defendant was cautioned.
There was a conversation, which PW1 said that he noted into his pocket
notebook within minutes. It is
exhibit 32. The defendant
acknowledged that he was known as "Big Crook" on the Internet and
that he alone was responsible for uploading BitTorrent files to the Internet
from genuine copies of the films.
No other member of his family was involved. He signed the note, having acknowledged its accuracy in his
own writing. He was supplied with
a notice to persons in custody and was taken to the Customs and Excise offices,
where he made a number of phone calls to a lawyer. Later, having apparently been given a choice as to whether
he preferred an interview to be video recorded or recorded in writing, and
after he had elected to have a written record, he was interviewed: Exhibit
34. Part of what was said at the scene
of arrest was repeated and acknowledged by the defendant; but he thereafter
elected to say nothing.
8. The
thrust of the challenge to this interview was that the defendant did not give
the answers in question, that he was induced to sign the pocket notebook by the
officer telling him that his wife would be allowed to go to work and that he
was not given an opportunity to read the note before signing it. He had been alarmed by the sudden raid
by a large number of officers who had rushed into the premises and was easily
persuaded to sign. It was also
said that there were a number of breaches of the rules for the detention and
questioning suspects. In particular, that the defendant was not cautioned
before being asked for his name and that he was not given a copy of the
notebook entry before the interview.
It was said that in the interview, the contents of the pocket notebook
were misrepresented and the defendant was tricked into writing and signing an
acknowledgement of the earlier conversation.
9. I
do not intend to rehearse all the evidence here. I applied the ordinary burden and standard
of proof in criminal cases to this issue.
I carefully considered the issues raised about the events at the
defendant's home. I was sure that
the customs officers had acted in a proper and professional manner, that the
notebook entry had been made at the first available opportunity, that it was
accurate, and that it had been shown to the defendant and properly acknowledged
by him as an accurate record.
I was sure that what was written in the interview record (exhibit 34) in
relation to the answers given at the scene was not designed to be a verbatim
account: it was simply a report to
the effect that the defendant had made an admission which was then expanded by
the officer to encompass the general allegations which were being made against
the defendant. It did not
undermine the evidence of the answers given at the scene. I was sure that there was no substance
in the complaint about the provision of a copy of the notebook record to the
defendant. As with all issues of admissibility, the prime issue to be
determined was the question of voluntariness. If the prosecution has proved
beyond a reasonable doubt on the whole of the evidence that an interview was
voluntary, the record of it is admissible. If, for any reason, it was not
voluntary, the record is inadmissible. If the circumstances in which it was
made were oppressive, it must be regarded as having been involuntary. There is
also a further safeguard, that a record of a voluntary interview may be
excluded if it was obtained by unfairness or trickery.
10. After
careful consideration of all the evidence relating to the manner and
circumstances in which these interviews were conducted, including the
allegations made by the defendant and his evidence, and having due regard for
the Rules and Directions on the Questioning of Suspects, I was in no doubt as
to their voluntary nature, and that there were no other grounds upon which I
should exercise my discretion to exclude the records.
11. In
a slightly unusual turn of events, after I gave my ruling on this issue, I was
invited to treat the defendant as a man of clear record, he having a single,
ancient and minor conviction on his record. I agreed to do so, and determined that the defendant was
entitled to a full character direction as to his credibility as a witness in
the course of the voire dire proceedings.
I therefore reviewed my decision but reached the same conclusion.
12. The
remaining evidence was adduced by admitted facts under section 65C of the
Criminal Procedure Ordinance (Exhibit 39), and the production of a bundle of
statements under section 65B together with their exhibits.
13. The
statements were mostly summarised using the summaries contained in a document
marked as Exhibit 40. I do not
intend to list them here. One of
the witnesses, a forensic computer expert, Kwan Yuk-kwan, was called. His statement was adduced as Exhibit
31. He produced a diagram of the
BitTorrent system (Exhibit 41), which set it out in graphic form.
14. This
was not a case where the defence were relying on the statutory defences
contained within the Ordinance.
The prosecution retained the burden of proving the allegations to the
usual standard. The defendant was
entitled to the benefit of being treated as a man of clear record with regard
to the issue of propensity to offend.
Credibility was not relevant on the general issue, since he did not
testify and such answers as he had given amounted to admissions.
15. This
is not the time to give a detailed account of the evidence. It is all to be found in the record,
and in the exhibits. It has
usefully been summarised by Mr Hayson Tse in his written submissions.
16. The
essence of the BT system is the efficient delivery of packets of digital
information, which, when put together, create a large file such as a film which
can then be viewed.
17. The
evidence established that the BitTorrent system starts with an uploader putting
a film onto a computer linked to the Internet: this is known as the seeder
computer. That film can, as in
this case, be from a genuine DVD or VCD.
The uploader creates a .torrent file on the seeder computer,
which contains, amongst other things, the contact information for the seeder
computer, its IP address. The .torrent
file is not a copy of the film.
18. The
next step is for the existence of the .torrent file to be published on
the Internet, usually (as in this case) through a newsgroup. The uploader also activates the .torrent
file of the seeder computer, which connects it to what is called a tracker
server. The tracker server is a
computer which is responsible for linking downloaders with the seeder computer
and with each other. The
downloaders obtain the IP address of the seeder computer from the .torrent
file published in the newsgroup.
The tracker server identifies the seeder as a computer which has the
whole of the film installed, i.e., a complete file.
19. The
first downloader downloads the .torrent file to his computer, activates
it and thereby connects through the tracker server to the seeder computer and
the download then proceeds.
20. Downloading
is by means of "packet switching", whereby a large file like a film
is broken down into small packets of digital information, which are sent from
one computer to another. The first
download from the seeder computer goes to a downloader computer which has
activated the .torrent file and accessed the seeder through the tracker
server. Assuming, as in the
present case, that there are a number of downloader computers, they will
receive packets from the seeder computer and from other downloaders. In other words, the second and
subsequent downloaders will take packets from the seeder, from the first downloader
and from each other. They will
also upload packets to other downloaders, including those from which they are
receiving packets. The packets are
transferred as required between all the computers linked through the tracker
server. When a downloader has a
complete file, the digital packets are automatically arranged in the correct
order for viewing the film. If it
remains connected through the tracker server, such a computer can become a
seeder.
21. It
is however essential that during downloading process, the original seeder
computer remains connected to the Internet. Even if all the connected downloaders have between them got
all the necessary packets which together would make a viewable film, the seeder
computer, with the whole file installed, must remain connected, at least until
one of the downloaders itself has a whole file.
22. The
evidence also established that on 10th January 2005, customs officer Chan
Tsz-lai browsed a movie newsgroup in Hong Kong, and saw a reference to Big
Crook having uploaded a file to the BitTorrent newsgroup, which related to a
film called "Daredevil".
There were images of inlay cards from the film, which had a picture of a
statuette superimposed onto them and a .torrent file. The .torrent file was downloaded
and activated by the officer and showed the seeder's IP address, where the
source seed was located, which was in fact the defendant's computer. Forty other downloaders soon
joined. The officer downloaded the
film, as did two of the other downloaders, before the connection was broken.
23. On
the 11th January 2005, the same procedure was followed with two other films
called "Red Planet" and "Miss Congeniality". A full copy of each of the films was
acquired by the customs officer and two other downloaders in respect of the
film Red Planet. All the
downloaded copies of the films were confirmed to be infringing copies.
24. The
IP address led to defendant's home and the raid which I have earlier
described. He was the account
holder of the IP address. The
computer being used by the defendant was referred to as "M1". Adjacent to it was a camera, which had
been used to make the images of the inlay cards and the statuette.
Amongst the discs seized from the vicinity of the computer, were the
three which contained the films which are referred to in the charges. They were genuine copies of copyright
works.
25. Forensic
examination of the computer confirmed, amongst other things, that it had been
used to store the relevant three copyright works, to make .torrent files
of them, to activate the .torrent files and to store the images of the
inlay cards. There was also
evidence of communication with the movie newsgroup.
26. This
is only a brief summary of the relevant evidence. Taken together with the defendant's admissions, it proved
that the defendant had used the computer (M1) to make infringing copies from
the three genuine VCD movies, that he had thereafter made .torrent files
relating to those movies, and that he had made photo images of the inlay cards
and stored them on the computer by using the camera seized from his home. He had, by e-mail, sent the .torrent
files, and the inlay images to the BitTorrent newsgroup. The .torrent files were
activated. His computer was kept
online with the tracker server, and therefore the customs officer and other
downloaders could receive full copies of the films in question from the
computer M1.
27. Kwan
Yuk-kwan confirmed in his live evidence that the seeder computer had to
undertake the necessary "establishing steps" before any other
computer could join in. After they
joined, all their data would originate from the infringing copy of the seeder
computer even if, with regard to some of it, it came via another
downloader. It was however,
essential for the uploader (the defendant) to activate the .torrent file
and remain connected, so that the original data from the file containing the
film could be split into packets and sent out to the various downloaders. It
was only because downloader computers were themselves running BitTorrent
software that they could download from the seeder. The witness agreed that it was the decision of the operator
of the downloader computer to obtain the file in question from the seeder, and
it was that action which commenced the flow of data to the downloader
computer. Downloading from the
seeder would not be possible if the seeder computer was turned off or the
BitTorrent software was closed or otherwise blocked.
28. Evidence
was also given of a number of e-mails emanating from the seized computer,
M1. For the purposes of
determining the defendant's liability on charges 1 - 3, I treat these e-mails
with caution, and I have placed no weight on them.
29. Extensive
arguments have been presented on the first issue of whether the defendant's
conduct, once established, could be said to amount to distribution of an
infringing copy. I might say that
there is no suggestion that the activities the subject of this trial were being
done for the purpose of, or in the course of, or in connection with, any trade
or business. Neither is there any
issue that the copy of each film, once installed on the defendant's computer,
was an infringing copy. Each
charge is as alleged as an attempt to commit the offence. The prosecution say that the object of
alleging an attempted offence is primarily the issue of "prejudice",
an issue to which I shall return.
30. The
term "distributes" is not defined anywhere in the Ordinance. There has, I am told, been no previous
prosecution under this sub-section so there is no judicial authority directly
on point. I have been referred to certain
overseas cases to which I have had regard. It is suggested that if the court finds any ambiguity in the
terms of the section 118(1)(f), it should look to the available legislative
materials and it should also have regard to section 19 of the Interpretation
and General Clauses Ordinance, Cap. 1.
Of course, I do have regard to that section; but I find no ambiguity in
the terms of section 118(1)(f), which uses ordinary language in a clear manner. The question, it seems to me, is
whether the conduct described falls within it.
31. Mr
Francis for the defendant has argued that the defendant has simply made the
films available for others to download.
He submits that the term distribution, as it appears in the sub-section,
imports a positive act. He says that
at the time of the downloading, the acts were those of the downloaders, not the
defendant, whose role at that stage was entirely passive. What was done was not a distribution by
the defendant. He did no more than
leave his computer in a state whereby others, if they chose to do so, could
access it and take material from it.
Mr Francis points to other sections in the Ordinance, where there is
specific reference to the issue of copies or to making available such copies
(see, for example, section 22 (1), acts restricted by copyright). The use of the word,
"distributes" in section 118(1)(f) denotes something different, he
argues. At all times, after the publication
of the .torrent file on the newsgroup website, the seeder computer
remained passive and it was not therefore, distributing the material. No criminal offence was committed by
the defendant, even though there may be some civil liability to the copyright
owner.
32. I
have considered these submissions but I find that they cannot be
sustained. I am in no doubt that
the acts of the defendant did amount to distribution within the ordinary
meaning of that word and within the meaning of that word as it appears in the
relevant sub-section.
33. The
defendant loaded the files into his computer, he created the .torrent
files, he created the images of the inlay cards and imprinted them with his
logo, the statuette; he published the existence of the .torrent files,
and the name of the films in question, on the newsgroup, so that others would
know where to go to download. He
said, in effect, "Come here to get this film if you want it." He activated the .torrent file,
so as to enable others to download.
He kept his computer connected and the BitTorrent software active to
allow the downloading to take place.
The downloading involved the dissemination of the data comprising the
infringing copies. His acts were
an essential part of the downloading process and were continuing throughout the
downloading, even if he had not been sitting at the computer at all times. These acts were an integral part of the
enterprise of downloading the infringing copies to other computers. This amounted to distribution. I might add, that given that the
intention of the defendant, inevitably inferred from his acts, was to distribute
the infringing copies; and given that his acts were more than merely
preparatory to such a distribution, he was, at the very least, attempting to
distribute.
34. I
am sure that it would be straining the language to breaking point to conclude
that the defendant's acts did not constitute, or might not have constituted, a
distribution of the films which are the subject of the charges. This was not merely "making
available" the BitTorrent files.
These were positive acts by the defendant, leading to the distribution
of the data. He intended that
result. In no way can the
defendant's involvement in the downloading of this material be properly
described as passive. The fact
that the recipients of the packets of data, originating from the defendant's
computer, might have received it by indirect routes does not alter the nature
of the defendant's act of distribution.
Prejudice.
35. I
turn to the question of whether the prosecution has proved that the defendant
distributed to such an extent as to affect prejudicially the owner of the
copyright. Again, the phrase
"affect prejudicially" is not defined in the Ordinance but it is
clearly wide in scope.
36. In
relation to the three charges, the evidence established that soon after each of
the .torrent files had been published on the newsgroup, 30 to 40
computer users became involved in the downloading process. In the first two cases (charges 1 and
2) the customs officer and two others each obtained a full copy of the film. In the other case (charge 3), the
evidence showed that only the customs officer obtained a full copy of the film.
37. Prejudice
in this context is not necessarily restricted economic prejudice, though that
is the obvious area at which attention is directed. It might be said that (for example in the case of Miss
Congeniality, charge 3,) the distribution of one copy to a customs officer, who
would never otherwise have bought it, in the context of local sales since release in 2001 of
over 50,000 copies, barely amounted to significant prejudice. If that is a correct analysis, then
given that the intention of the defendant must have been to distribute much
more widely than simply to one downloader, his acts amounted to an attempt to
distribute to such an extent as to affect prejudicially the owner of the copyright,
within the context of section 159G(1) of the Crimes Ordinance, Cap 200. It is inevitable that distribution to
30 or 40 or more downloaders would involve prejudice to the copyright owners
through unauthorised distribution of their intellectual property and lost
sales. And though lost sales, in
the context of the evidence in this case, might be small, nevertheless, such
losses would amount to a prejudicial effect.
38. Potential
lost sales are not the only measure of prejudice. There is, for instance, the movie rental market to be
considered. And copyright owners
plainly suffer prejudice from such piracy as this beyond simply their sales
figures. The widespread existence
of counterfeits tends to degrade the genuine article and undermines the
business of copyright owners.
39. This
was not a distribution of an infringing copy amongst a few friends. It was a distribution in a public open
forum where anyone with the appropriate equipment could obtain an infringing
copy from the defendant. The
technology has developed to such a point that the prejudice to the copyright
owners when their films are distributed in this fashion is, in my judgment,
manifest. And these were attempts
to commit the offences even if the completed offences had not been committed.
40. It
follows that each of charges 1 to 3 has been proved. It is not necessary therefore for me to deliver verdicts on
charges 4, 5 and 6. However, it is
appropriate, in all the circumstances, for me to record that I am in no doubt
that the defendant's act in publishing the .torrent file on the
newsgroup computer, which thereby made it possible for the seeder computer to
upload infringing copies to others, did amount to obtaining access to a
computer with a view to a dishonest gain for another. The gain in question was the obtaining of a complete
infringing copy of the film. The
gain was dishonest in that it was obtained by avoiding the inevitable payment
for genuine copy of the film. R.
v. Ghosh [1982] QB 1053, lays down a two part test for dishonesty which has
equal application here. Was the
defendant's conduct dishonest by the standards of reasonable and honest
people? The answer is yes, because
he was deliberately and improperly depriving the copyright owners of their
pecuniary rights. Did the
defendant realise that it was dishonest by those standards? The answer is undoubtedly affirmative.
41. However,
in the light of my verdicts on charges 1-3, I deliver no verdicts on charges
4-6.
Representation:
Mr Hayson K S Tse,
Department of Justice, for the prosecution;
Mr Paul Francis,
solicitor, of Messrs Tang, Wong & Cheung, instructed by the Duty Lawyer
Service, for the defence.
NOTE:
THIS IS NOT AN OFFICIAL TRANSCRIPT OF WHAT WAS SAID IN COURT though it is
believed to be accurate