Although many stories about anti-piracy activity seem to come out of the United States, Europe, Canada and Australia, operations are certainly not limited to these countries. Today, news is filtering through that South Africa’s biggest BitTorrent and Usenet NZB sites have been taken down by the recording industry.
According to reports received today, two South African BitTorrent trackers have fallen to anti-piracy action. BitFarm.co.za was the largest tracker in the country with more than 10,000 members but that site has been closed along with a smaller private tracker known as NinjaCentral. Furthermore, BitFarm’s sister site, NewsHost, which specializes in Usenet indexing via .NZB files, is also receiving unwanted attention.
The legal threats emanate from the country’s equivalent of the RIAA, the Recording Industry of South Africa, otherwise known as RiSA. Instead of targeting the individual sites directly, it seems RiSA notified South Africa’s ISPA (an industry group for ISPs) who accepted the complaints.
In their complaint about NewsHost, RiSA stated that the site was an “invite only piracy-centric NZB site” offering over 12,300 NZB files. RiSA states that the site “contravenes Section 27 (1) (b) of the Copyright Act 98/1978 through the facilitation of piracy”, even though this section doesn’t mention facilitation directly:
27. (1) Any person who at a time when copyright subsists in a work, without the authority of the owner of the copyright
(b) sells or lets for hire or by way of trade offers or exposes for sale or hire;
ISPA accepted the complaints and contacted the ISPs hosting the BitTorrent and NZB sites. Part of their correspondence to the ISPs is listed below:
ISPA recently received the attached take-down request, targeted at your organisation. Acting as your appointed agent, we have reviewed the complaint and in our opinion it is a valid complaint which meets all of the legal requirements of the Electronic Communications and Transactions
(ECT) Act. The limitations on liability of service providers for content granted by Chapter XI of the ECT Act require that you remove or disable access to the data concerned upon receipt of a take-down notification. We therefore request that you respond expeditiously to this notice.
Although the BitFarm and NinjaCentral sites are down right now, RiSA also demanded that NewsHost’s domain name should be blocked, but the site is still partly accessible (but it continually tries to pull data from BitFarm, which is down) and displays an unusual note on the homepage:
In the meantime, lawyer Reinhardt Buys from Buys Inc. Attorneys who has previous experience of defending against RiSA has offered to represent the sites free of charge.
Reinhardt told TorrentFreak: “Sites that collect, index and host so-called torrents are legal in South Africa – the content of such sites is not only protected by the constitutional right to free speech, but is also outside the scope of any copyright claims.”
Noting that the sites in question do not host any actual copyrighted content but simply metafiles which link to the location of material hosted elsewhere, Reinhardt explains that sites such as these are similar to The Pirate Bay whose content in turn can be easily found using another search engine – called Google.
“A site like The Pirate Bay can never be liable for direct and criminal copyright infringement because it simply does not copy, share and distribute copyrighted material. The person using a torrent to download a file is the guilty party and not the publisher of the torrent,” he explained. The only liability left for a site like TPB would be under ‘contributory infringement’.
Reinhardt explained that there three types of copyright infringement under the South African Copyright Act 98 of 1978.
- Direct infringement – copying and using a copyrighted file without permission
- Criminal infringement – selling and distributing copies of copyrighted files
- Contributory infringement – materially contributing to either of the above forms of infringement.
“The courts have developed a nice test to determine whether a technology, tool or action amounts to contributory infringement and that is the so-called ‘but for’ test,” says Reinhardt, “i.e. will the P2P sharing of copyrighted files be taking place but for the existence of The Pirate Bay? This test was developed to protect innovative technologies such as CD burners, recorders and the like.”
“The answer is, absolutely not. Even without sites like The Pirate Bay, P2P file sharing would be possible. So, The Pirate Bay can never be guilty of contributory infringement.” Based on Reinhardt’s comments, ISPA may have taken down the sites prematurely. At this point it is unclear whether the sites will take the case to court, but if they do, they certainly have a chance to win.