Transfer files on P2P is an offence in Hong Kong
The legal battle on BitTorrent cases reached an end on 18 May 2007 and the full judgement released on Hong Kong Legal Information Institute
On 12 Jan 2005, officers from HKSAR Custom Department raided thedefendant's (Mr. Chan) home after tracking his address from an online forum. Mr. Chan he had uploaded 3 .torrent files on 10 Jan 2005 and 11 Jan 2005 to the forum and these enabled BT users to download copies ofmovies. In first instance, Mr. Chan was charged by virtue of section118(1)(f) of the Copyright Ordinance, Cap 528 and of obtaining access to a computer with dishonest intent, contrary to section 161(1) (c) ofthe Crimes Ordinance, Cap 200. But in the final judgement in the Court of Final Appeal, the 5 judges unanimously dismissed Mr Chan appeal andhe was convicted of 118(1)(f) of the Copyright Ordinance only.
This was a high profiled case and the HKSAR government launched propaganda on their determination on combating the copyright battle. Since charges was brought to the court in 2005, the number of BT seeds decreased in Hong Kong. It was a success and a few points must clarify.
First, back in 2005 the prosecution charged Mr. Chan with "obtaining access to a computer with dishonest intent". This charge was totally wrong and stimulated many critics on the legal ground ofthis copyright case. Mr Chan was using his own computer to store andupload BT files. There was no hacking or illegal access on thecomputer he owned. By bring this charges, the prosecution misused the law and most ridiculously was that the judge agreed this charges. In the Court of Final Appeal, both the prosecution and judges corrected this mistake.
Second, the criminal offence from section 118(1)(f) of the CopyrightOrdinance was enacted before peer-to-peer ever existed and yet this section was able to catch distributing infringed copies via BTnetwork. The major argument by the defendant was that the detail mechanism of P2P does not constitute "distributing" since Mr. Chan was passively waiting owner to locate the media files and there were nophysical medium exchanged, only electronic currents. The judgesdisagreed and said if (1) the infringing copies were created by thedefendant and (2) his action enabled others to obtain the infringingcopies (in any way technologies allows and with full knowledge), then the defendant's action falls into the definition of "distribution"under Copyright Ordinance.
On 12 Jan 2005, officers from HKSAR Custom Department raided thedefendant's (Mr. Chan) home after tracking his address from an online forum. Mr. Chan he had uploaded 3 .torrent files on 10 Jan 2005 and 11 Jan 2005 to the forum and these enabled BT users to download copies ofmovies. In first instance, Mr. Chan was charged by virtue of section118(1)(f) of the Copyright Ordinance, Cap 528 and of obtaining access to a computer with dishonest intent, contrary to section 161(1) (c) ofthe Crimes Ordinance, Cap 200. But in the final judgement in the Court of Final Appeal, the 5 judges unanimously dismissed Mr Chan appeal andhe was convicted of 118(1)(f) of the Copyright Ordinance only.
This was a high profiled case and the HKSAR government launched propaganda on their determination on combating the copyright battle. Since charges was brought to the court in 2005, the number of BT seeds decreased in Hong Kong. It was a success and a few points must clarify.
First, back in 2005 the prosecution charged Mr. Chan with "obtaining access to a computer with dishonest intent". This charge was totally wrong and stimulated many critics on the legal ground ofthis copyright case. Mr Chan was using his own computer to store andupload BT files. There was no hacking or illegal access on thecomputer he owned. By bring this charges, the prosecution misused the law and most ridiculously was that the judge agreed this charges. In the Court of Final Appeal, both the prosecution and judges corrected this mistake.
Second, the criminal offence from section 118(1)(f) of the CopyrightOrdinance was enacted before peer-to-peer ever existed and yet this section was able to catch distributing infringed copies via BTnetwork. The major argument by the defendant was that the detail mechanism of P2P does not constitute "distributing" since Mr. Chan was passively waiting owner to locate the media files and there were nophysical medium exchanged, only electronic currents. The judgesdisagreed and said if (1) the infringing copies were created by thedefendant and (2) his action enabled others to obtain the infringingcopies (in any way technologies allows and with full knowledge), then the defendant's action falls into the definition of "distribution"under Copyright Ordinance.
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