MUMBAI: The Hong Kong Court of Final Appeal published its judgement of its ruling confirming that 38-year-old Chan Nai-ming was guilty of violating Hong Kong’s Copyright Ordinance for the attempted distribution of illegal copies of three Motion Picture Association (MPA) member company titles via BitTorrent, a peer-to-peer (P2P) network forum.

Chan, who had been free on bail awaiting his appeal to Hong Kong’s highest court, was taken into custody after the court’s ruling to begin serving three months in prison. The case was the world’s first in which criminal charges were filed against a user of BitTorrent (BT) technology.

The Court decision clarified two important legal issues in relation to protecting copyright. Firstly, the law recognizes that electronic copies, independent of the medium they are stored on, have protection under the law. Secondly, uploading BT files and making them available to others constitutes ‘distribution’.

Chan’s lawyer had argued that Chan’s conduct did not amount to ‘distribution’ and that his ‘passive’ role meant that he had simply made the material available for others to download. Rejecting this argument, Justice Ribeiro PJ said, “Distribution in its ordinary meaning, is clearly capable of encompassing a process in which the distributor first takes necessary steps to make the item available and the recipient then takes steps of his own to obtain it. A simple example involves distribution of soft drinks or other consumer items by means of coin-operated vending machines.”

“The legal principles involved in this case have been subject to intense scrutiny by the finest legal minds in Hong Kong’s legal system. The upholding of this conviction sends a clear message to Internet thieves – you are not anonymous, you will be found and you will be prosecuted: You can click but you can’t hide!” It also recognizes the hard work of Hong Kong’s law enforcement and prosecutorial agencies in protecting intellectual property rights; Hong Kong continues to demonstrate its intellectual property rights protection leadership. Internet pirates the world over should take note – you can and will be found, prosecuted and punished for the theft of intellectual property,” said MPA vice president and regional legal counsel, Asia-Pacific Frank Rittman.

Following three weeks of intensive investigation, on 12 January, 2005, the Intellectual Property Investigations Bureau (IPIB) of the Hong Kong Customs and Excise Department arrested Chan, launching Hong Kong’s first prosecution for copyright violations involving the illegal distribution of motion pictures through the Internet.