BitTorrent Pirate Loses His Last Appeal

Vix666 writes with a link to a ZDNet article on the final chapter of a story we've discussed before: the first user convicted of piracy for using BitTorrent to download a movie has really, finally, lost his case. Chan Nai-ming was sentenced in November of 2005, lost an appeal in December of last year, and appears to have once again failed to convince a judge to let him out. "The Hong Kong government welcomed the judgment, saying it clarified the law regarding Internet piracy. 'This judgment has confirmed that it commits a crime and violates copyright laws for the act of using (BitTorrent) software to upload and distribute,' said customs official Tam Yiu-keung in a written statement. He added the judgment would have a deterrent effect, a view endorsed by industry watchdogs such as the Hong Kong branch of the International Federation of the Phonographic Industry."

Comments

Copyright law is a farce..

[brxndxn]

How about the death penalty for downloading mp3s? Also, we should definitely kill the family members of people that download movies illegally.

Re:Copyright law is a farce..

[Opportunist]

And since we know how well the death penality worked as a determent for murder...

Seriously, it does not matter at all what's the threat when you get caught. Whether it's just a slap on the wrist and probation or death by hanging, the people committing this "crime" are not ghetto gang members who don't care about another sheet in their file. They're usually normal, law abiding people who have fairly normal jobs or, if younger, go to school or college, often rather good schools or colleges, and plan to have a normal life with a normal job.

When you criminalize those people, all you get is a criminal who wouldn't have been one. Because what's the next thing happening? He's got a file, he's on probation, he probably won't get a good job. What is he gonna do? Commit more crimes. And since he's a criminal already anyway, why not break a real law? Does it matter?

When you go to jail for longer for copyright infringment than for robbery, do you think people who already got jail time for copying would care about what's happening when they sap that old lady to get her purse? Hey, it's a lesser crime, he's getting better!

Folks, something's running REALLY wrong here. With laws like this, we create more criminals but not more faith in the laws.

Why do people usually not murder or steal, rob a bank or kick old nannies off the curb? Because you simply don't do that! Do you really think about the possible jail sentence when you decide NOT to roll your car over that asshole who just gave you the proverbial finger? No, you don't kill him because that's simply something you don't do.

Because, quite frankly, if the law's the only thing that keeps you from going on a killing spree, something's very wrong with you!

People usually abide to the law not because they fear jail, but because of their moral code. Why are there more people speeding than shoplifting? The sentence for either is about the same (for a first time violation) here, still, we have a ton of speeders and rather few shoplifters, compared to it. Why? Because one is negligance and the other is stealing.

And you simply don't steal.

The danger I see is that people get used to breaking the law. When you simply continue what you have been doing for years and suddenly it becomes a crime, will you stop or will you ignore the law? And when you ignore one law, how far is it to ignoring the law altogether and just relying on your code of morals?

Will your morals stay the same? Or will you question them as well? Will you start wondering whether not only the law but also the morals you have been brought up with are wrong?

Scary, if you ask me.

Re:Copyright law is a farce..

[Thexare Blademoon]

Ok, I've been wrong before, but I think he was being sarcastic...

Re:Copyright law is a farce..

[Rojo^]

When you go to jail for longer for copyright infringment than for robbery, do you think people who already got jail time for copying would care about what's happening when they sap that old lady to get her purse? Hey, it's a lesser crime, he's getting better!

It's not a lesser crime. It's just a crime with fewer corporate-funded lobbyists pushing for disproportionate punishment. Your sig is probably unintentionally but ironically relevant to this discussion.

In Soviet Russia, the government controls the commerce.

Re:Copyright law is a farce..

[1u3hr]

Unless it has changed drastically in the last couple of years, Hong Kong is a place where it is often times easier to get an illegal bootleg of a movie or album than it is to get a legitimate copy of it from a store.

Rubbish. I live in Hong Kong. Bootleg media have always been around, but there are legit music and DVD shops in every shopping mall. Bootleg shops were concentrated in a few areas, and temporary street stalls, but there are perhaps a fewe dozen outlets in the whole territory at any time, under pressure from periodic raids by the Customs Dept. Of course, if you want Spiderman 3 the week the movie opens, you can probably find a crappy cam version. As for software, the days of the "fully loaded" PC as was standard 10 years ago are long gone. Most PCs come with the whole shrinkwrapped and certified software deal now. Businesses need support, they have to buy legal software.

It's another story over the border in Shenzhen.

then the media companies do have a right to be paid for the copies and in the long term the penalties would very well need to be harsh.

You've lost me there. The media companies certainly want penalties to be harsh. You can steal physical DVDs and suffer much lower penalties. In the case of uploading old movies, movies that have already been shown on free to air TV in this case, it's hard to see any reason to treat it as a capital offence.

Re:Copyright law is a farce..

[flyingsquid]

Yes, it really isn't stealing, but that really doesn't mean that it shouldn't be illegal. In countries like the US where for the most part piracy is pretty low, making it illegal is almost entirely counterproductive. In countries like China making it illegal is probably the only way that there is going to be progress on getting people to actually purchase the media that they are wanting to have.

This case is just a joke. The dude is a sacrificial lamb to help convince American media interests that China is serious, nothing more. But if they were really serious about respecting copyright, they'd make a serious effort to crack down on all the people who are selling counterfeit CDs and DVDs on the streets in Beijing. This is like busting some poor schmuck who buys an illegal shot of booze, but leaving Al Capone free on the street. I'm not saying that he's in the right, but the guy's real crime is being in the wrong place, at the wrong time.

Re:Copyright law is a farce..

[TheVelvetFlamebait]

Why do people usually not murder or steal, rob a bank or kick old nannies off the curb? Because you simply don't do that!

The reason is that society has had years of conditioning that tell us these actions are wrong. We don't do these things because we decided a long time ago that we didn't want that in our society, that our society would be better off without such actions happening, We then solidified that into written law. The pro-copyright lobby is trying to do the same thing with piracy.

Re:Copyright law is a farce..

[EsbenMoseHansen]

Copyright infringement is a economic crime. So, the punishment should be of an economic nature --- a fine. No reason to put anything in his criminal record either. For downloading, I suggest 2*(price of movie at time)/(chance of discovery). For uploading, I'd suggest a very similar amount... the damagde to the "victim" is greater, yet his personal gain is less. So, same fine.

Re:Copyright law is a farce..

[Opportunist]

And that doesn't work, writing laws before common consensus supports them. A law that is resisted by the majority of people will be ignored.

The only way to enforce a resisted law is by brute force. And behond, we're heading that way. That doesn't lead to more law and more support for the law. Rather, it breeds resistance, not only against this single law but against the whole legal apparatus.

Re:Copyright law is a farce..

[boteeka]

I agree with you.

But let us just do a little comparison here.

Let's say a guy with a decent job in America (the US) is downloading movies using BitTorrent software. The thing is that this way he gets the movie for free, he only pays for internet connection, which he would pay already. A recent movie release in the US is something between $10 and $40 (I'm not a US citizen, so I looked at WalMart's prices). What is the average monthly sallary for an average guy? $2500 to $5000? http://www.worldsalaries.org/usa.shtml In all cases is more than $1000 a month. For a quick calculation let us assume the salary is $3000. From this amount of money he could get 120 DVD releases, calculating with an average $25 per DVD.

Let's take a look at a Romanian (I'm from here) guy with decent job and salary. The average monthly salary is somewhere around $300. The average price for a DVD release (which is quite old compared to the new releases in the US, because here, the new releases come after 5-6 months) is $20. Now it's easy math, the Romanian guy could buy 15 DVD releases, which aren't even the newest ones.

I know these calculations are vague, to say the least, because one doesn't spend his whole salary to buy DVDs, but also think that stuff like clothes, consumer electronics, etc. cost more than in the US. Only food is a little bit cheaper or at the same price as in the US.

Also think of that the internet has "opened the eyes" of people living in poor countries for what they "could" buy, what is available on the international market, and those people are willing to have those stuff too, but their financial status doesn't allow them.

My point is that the market isn't fair, why (and how) should a poor country's citizen pay almost the same price for a product as a rich country's citizen for the product which is not even the newest.

wtf

[wizardforce]

the punishment seems a bit extreme for one movie but where do they draw the line? what do you do when people simply dont intend to pay for something that took alot of cash to make to begin with- especially when every protection scheme fails horribly? make better movies? how exactly does that solve the problem of people in effect stealing movies? [if thats the case why are pirates getting the crappiest movies?]

Re:wtf

[Turn-X Alphonse]

Your logic also backfires.

Nobody is entitled to someone else's hard work for free.

Re:wtf

[goombah99]

He did not own the right to distribute the film. That right is available and he could have purchased it. Instead he stole them. Why is this difficult to understand?

Re:wtf

[Jherek Carnelian]

what do you do when people simply dont intend to pay for something that took alot of cash to make to begin with Work only on commission. That way you get paid before it is possible to "pirate" the creation. The internet is great at distributing information in the form of media, it ought to be great at distributing information in the form of debts too, making the pooling of commissions by groups of millions of patrons feasible to pay for even the most crazy expensive productions.

Re:wtf

[Turn-X Alphonse]

Public domain does not allow you to pirate blockbuster movies the day they come out.

Re:wtf

[Turn-X Alphonse]

Linus releases the kernel free, he has given permission.

Re:wtf

[Jherek Carnelian]

Public domain does not allow you to pirate blockbuster movies the day they come out.

1. So what? Time does not effect the fundamental truth that we are all entitled to the results of that hard work.
2. It could in any country which defines all creations to be public domain, it even used to be so in the USA for any foreign produced works

Re:wtf

[Jherek Carnelian]

Copyright and other intellectual property mechanisms exist to promote the sharing of novel and other valuable works. Passage into public domain is in exchange for protection, not some natural state of things. No now you are being insane. Public domain is PRECISELY the natural state of things. Freedom of expression is a natural right, copyright is defined as a temporary exception to that right. It certainly is not a natural right on its own.

Meanwhile, wrt your point about not publishing the work prevents it from entering the public domain. Well, no effing duh. Yer a bril genius with that. If you don't show the creation to anyone else, it really doesn't matter now does it? It's like the tree falling in the forest, no one cares.

Re:wtf

[Turn-X Alphonse]

The story is about a guy in HONG KONG. Hiding behind the US Consitituion does you no favours in this debate.

Will Americans PLEASE get it into their heads that NATIONAL LAWS ARE NOT INTERNATIONAL.

Re:wtf

[etymxris]

"Hard work" isn't something that can be stolen except through slavery or fraud. You're probably talking about the fruits of hard work, in which case there would be plenty of exceptions to your statement. Modern science and mathematics were built on the labors of many, and yet the fruits of these labors cannot be owned.

Hard work, by itself, guarantees nothing. I can spend thousands of hours building model planes, grinding through MMPORGS, or trying to woo a crush, only to be left with little or nothing to show for my efforts.

Re:wtf

[Arterion]

How about I send them a penny in the mail for the work? Then it's not for free. I say that because I think many feel that, relatively speaking, that's how big business collectively compensates the hard work of peons. And I do mean hard work. Like, back-breaking work. I don't really think that sitting back and making money simply by investing is "hard work", but the richest people get by just by doing that.

I think of more people had more disposable income, they'd see more sales. I think that Johnny Minimum Wage should be able to enjoy art without having to choose between licensing fees or rent.

Re:wtf

[Convergence]

The public domain is the natural state of things. You have it reversed.

Copyright is a right, granted by the government, to enter into my house or my business and forbid me from copying a work for a friend or creating a derivative work. Generally in american jurisprudence, we frown upon the government infringing into people's private homes and businesses unless the government has an overriding interest otherwise.

You are perfectly free to leave a piece of beautiful music unrecorded, but you won't convince me that the natural state of things includes the ability to, with the power of the government, coercively forbid me from transcribing that overheard music. Of course, copyright does give you the right to enter my private home or business to enforce your will, because public policy has judged that the public benefit --- the production of creative works --- justifies the infringement on personal liberties.

Re:wtf

[cliffski]

sure, after all, he has been dead for a looooong time, and easily recouped his investment from public performances of his plays (which were not free). Now exlain how that translates into torrenting the new spiderman movie, for which hundreds of people worked for years, and are currently using the fruits of their labour to pay their grocery bills and rent?

yes, copyright periods should be shorter. Ignoring all copyright and taking all copyrighted works (including very recent ones) works AGAINST this argument, as it just persuades content creators that copyright needs stronger enforcement, and that those who violate copyright are opposed to paying the creators for their work at all.

If you really have a beef with copyright, start a campaigning website, write articles on it, pester your elected representative, boycott companies that lobby for extensions, and make a public fuss about it through the democratic system. persuade others of your case. I agree 100% that copyright should never extend past the lifetime of the author, and probably be shorter still. Do NOT kid yourself that doing none of the above, but sitting in your bedroom downloading hollywood movies achieves anything towards this aim. It just increases the justification for stronger DRM, more draconian sentences for copyright infringement, and makes governments more sympathetic to the complaints of big business. Pirating Spiderman 3 is not a political gesture, it's just getting a movie for free.

Re:wtf

[pcardno]

True, but I think you'll find Linus is not short of a cent or two, as he is compensated via other methods for his hard work.

It may not have been his initial intention, but if you look at it as if we we're talking about the music industry rather than software, a band generally invests an awful lot of time and hard work at their own cost and distribute their work for free, with the hope of eventually being compensated. To extend the metaphor to almost breaking point, bands make most of their money on the road through touring, personal appearances and merchandise. Not far off of Linus's fees for public appearances, conferences and consultancy, where he makes most of his money, I assume.

To just take the music industry, one of the key issues with it is that the current measure of success, chart position, is based on product sales. Due to the nature of commercial radio's playlist policies, it is impossible to get on air on a mainstream show without a reasonable chart position. As such you can't reach most of your potential audience without sales, so people downloading illegally and not buying the songs does directly affect the audience you can reach. I'm not saying that this is the way it should be, I know enough people in bands signed to major labels that this approach has almost ruined, but it's the way the industry currently works to achieve a good level of success (i.e. to be able to support yourself and plan for the future via the music industry) and you have to live within it.

Re:wtf

[QuantumG]

It's a false dichotomy. People make this argument ("You are not entitled to anyone's hard work without cost to you.") and invite you to argue the opposite. The problem is not a question of entitlement.. the problem is a question of control. By making this argument, people are trying to make the argument that they should be able to control the actions of everyone to protect their hard work. They are demanding that everyone be their agent in defending their work because it is impossible for them to defend it themselves. Not surprisingly, it seems the only people willing to do this are the people who are in the same boat.

In any case, this argument is easily seen as false.. just go out in public. You will find plenty of people doing hard work and not getting paid for it. You'll even find plenty of musicians.. playing a whole lot of music.. doing this supposed "hard work" that most people who make this argument are suggesting must be paid for. Do you feel you should give them money? Or do you just feel they are begging. How about those assholes at the lights who clean your windshield with a dirty squiggy? Do you feel you should give them money because they did a service for you.. even though you didn't ask them to? Even though it was useful because your windshield was dirty?

No. People who do work for hire without first securing someone to hire them are just confused.. or deliberately trying to invoke an obligation in others when none should exist.

Re:wtf

[rook2pawn]

If the music industry goes broke because of piracy ( i wager anyone to prove that this is a realistic threat, backed with charts and data ), then musicians will continue to play music and people who appreciate their music will find ways to support them. Our society, our culture supports music, and we will support musicians, not corporations who paid for $20 million dollar spot or a billboard ad on the back of a bus. It may not mean that rock stars will get to live like "rock stars" but it will mean that music will always exist as long as people want to express themselves musically, for themselves and for the community they live in, no matter what happens.

Re:wtf

[rook2pawn]

Lets not forget the spirit of copyright. It is actually a beautiful instrument as the earlier poster had mentioned : "Copyright and other intellectual property mechanisms exist to promote the sharing of novel and other valuable works". According to Wikipedias History of Copyright Law, England's Statute of Anne (1710) promotes the author not distributor. The RIAA says it lobbies for the artist, but "The recording industry is able to pay exploitatively low percentages as all the record companies pay artists very similar amounts. Therefore if an artist wants to release their music there is no viable alternative other than to sign away their music to these organisations. This might eventually change in the future with the advent of web based music sales. Services may evolve to allow musicians to sell their music via the web without the need for a record company in its present form and consequently reap a fairer share of the profits from their music." (quote from the Record Industry wiki) Clearly this means the RIAA lobbies for the distributor, hence, this practice is in direct violation of the spirit of copyright, which on that alone, discredits any moral authority from the RIAA (aside from their already heinous behavior). There is no reason why we should not jail the RIAA. The RIAA is an active participant in corporate bought law, which comes down to bribery, a violation of United States Code, Title 18 (Criminal), Chapter 11, Section 201. Mitch Bainwol should be able to get sentenced from anywhere from 0-12 months, unfortunately, but its not in the realm of impossiblity. There is also a stautory maximum fine of $10k or $20k. Right from RIAA's About Us is the quote "The Washington Post has called Bainwol a "Top D.C. Lobbyist and Man in Demand."".

This guy taunted them

[LiquidCoooled]

Chan had posted a message inviting BitTorrent users to download a movie on an Internet movie forum called "bt.movie.hk" using his "Big Crook" alias.

Thats similar to the motorbike guy who gave loads of speed cameras the bird because he thought he was safe.
Had it just occurred quietly no-one would have batted an eyelid.

Oh no!

[BalaClavaChord]

aXXo is that u?

Please tell me your ok!

Uploading copyrighted works without permission

[Anonymous Coward]

the first user convicted of piracy for using BitTorrent to download a movie has really, finally, lost his case.

No, he could have used any other protocol. He was not convicted for using Bittorrent to do anything. He was convicted for uploading a movie without having a license to do so.

Re:Uploading copyrighted works without permission

[przemekklosowski]

He was convicted for uploading a movie without having a license to do so. No, his big problem was redistribution: he uploaded while feeding other bittorrent clients, therefore falling into a more severe legal category.

Scapegoats to the slaughter

[BillGatesLoveChild]

This comes a week after Australia extradited to the US an Australian Citizen who never stepped foot in the US for a similar offense. Australia's excuse is it's sycophantic Prime Minister it'll do anything the US Government tells it to. What's China's Excuse?

(Sadly) this isn't the Chinese government kissing American butt. They've got some "bad" publicity last week, so this poor sap is being made an example of.

Meanwhile the RIAA and MPAA continue to lie, cheat and steal with politicans at their bidding (that's the DMCA Congressman).

Re:come on out trolls

[gujo-odori]

Well, first of all, he's 38. Even if "30 is the new 20" he hardly qualifies as a kid. When I was 38 (but hey, 40 is the new 30, so I can be 38 again ina a few years ), I knew at least a few things. I knew the difference between right and wrong, legal and illegal, smart and stupid. In the latter category comes the idea that "If my definition of right and wrong differs from the law's definition, I should not do about enacting my definition in a public and noticeable way, lest I get busted." Clearly, he didn't get the difference between smart and stupid.

Secondly, he wasn't imprisoned for copying a file (funny how we expect copyright to be followed when bringing companies to task for violating the GPL but not when some individual violates copyright; the GPL is founded on copyright law, after all, not contract law), he was sentenced for *distributing* the copyrighted content that he copied. That's a far greater transgression under copyright law.

Finally, don't look now, but the only troll in this picture is you.

In the net balance...

[Anarchysoft]

...wouldn't abandoning copyright law entirely ultimately have greater good than what we have now? There are abundant examples that creativity and innovation are not absent where there is not a motive of profit. If I had a machine that could copy food endlessly with no more work than bringing a bowl to it, would I not be acting immorally to demand as much payment as I could for it and restrict the creation of such a machine by anyone else? The 'right' to property, including ideas and other intangibles as 'property', has been the root of so much human suffering but continues to be excused. Instead, they punish Prometheus.

Re:In the net balance...

[moderatorrater]

That's a very touching post, it is, but the mafiaa isn't restricting people's access to fire or food, they're restricting access to something that is made entirely for entertainment. The immorality of withholding free food is that a lot of people don't have enough of it. If you restrict access to Seinfeld episodes, there's not a single person who's life will end.

If you're going to oppose something, oppose patent laws which actually influence what medications and life saving devices people have access to. Fighting copyright law is like fighting the ability for someone to own a .22 pistol while everyone's walking around with an uzi.

Re:In the net balance...

[cpt kangarooski]

And no, the world is not a better place with fifty gazillion hacks trying to rework Disney cartoons, we are far richer as a culture when a smalll handful of talented people are rewarded fairly for creating the next Mickey Mouse.

A reworking of a Disney cartoon is of equal value to an original cartoon, actually.

Look at Shakespeare: nearly all of his plays are either based on history, or are based on stories that were already around. He was a thoroughly derivative artist, but a really excellent one. So long as there is a great quantity of works, I'm not too worried about just what those works happen to be.

Re:BitTorrent illegal?

[Anonymous Coward]

It means committing a crime in Hong Kong is now illegal.

Re:come on out trolls

[Locklin]

There's a reason geeks get up at arms over GPL violations, and it's not because of a double standard.

It's because the GPL (and simmilar) was created to sidestep the problems of copyright. If you think current copyright law is a farse, than you release your work as GPL, not public domain. If you release it public domain, people can use it in copyrighted works, thus (indirectly) copyrighting your work.

The GPL uses copyright law to make sure your work never becomes part of the farse of copyright.

What!??!

[Tellarin]

Man, at first I read the end of the summary as "the International Federation of the Pornographic Industry".

Well, somehow that would make sense as they are fu*%$ this guy. :(

Yes you are. Supreme court: Feist vs RTC (1991)

[Convergence]

http://www.law.cornell.edu/copyright/cases/499_US_ 340.htm

This was already ruled upon in the US Supreme court. Feist vs Rural Telephone Company (over a telephone book). They rejected any argument that right t of control (copyright) would be granted based on 'sweat of the brow' or the hard work in creating an uncreative or unorigional work.

They explicitly said that creativity is required to grant copyright. As alphabetizing names and putting them into a book is not creative, the result was not copyrightable, despite the amount of effort put into producing the telephone directory. Creativity may apply in the selection or the arrangement, but not in the facts themselves.

Now, of course, in an attempt to end-run around this ruling, there are occasional rumblings of creating a 'database copyright', that may forbid the duplication of a database of facts.

China's economy

[HaMMeReD3]

This is just a joke, sure 1 person loses most of his life so china can make an example to the world that "oh we care about piracy". They are a communist nation and as such have sacrificed one life so they can pretend like they care.

Uhhh, yeah, sure, uh huh, china cares about piracy?????

If anything china is the one country on this planet that in general has no respect for any copyright laws of any other nation. Hell, they will pirate anything. You invent and patent invention a (NOT SOFTWARE), the chinese will steal it, remake it out of the cheapest and crappiest components possible and try their hardest to undersell you, effectively causing you, the inventor/artist/producer major damages. What legal repercussions do you have? Don't look at me, I have no clue.

We pirate movies freely in america, in china you pay for pirate copies of movies in retail stores.

Although there are ethical rules against being a pirate, a pirate must also have a code of ethics, and reselling is against that code. They aren't even to be called pirates from now, they do not deserve the honor with the title, from now on chinese pirates are to be known only as software thieves.

Re:Actual harm done

[jez9999]

but it's plainly obvious what's going on when people distribute and download verbatim copies of full movies.

You don't have to use verbatim. There's memorex, imation, philips....