Lawyer Reinhardt Buys from Buys Inc. Attorneys, who had previous experience of defending against RiSA threats, offered to represent the sites free of charge, telling 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.”

In correspondence with ISPA, Buys refuted the allegations made against BitFarm and NewsHost, stating that RiSA failed to comply with the Electronic Communications and Transaction Act 25 of 2002 and acted unconstitutionally in dealing with the takedown requests from RiSA.

According to a new report, immediately after Buys’ correspondence, RiSA responded saying that they are prepared to work with Buys’ clients BitFarm and Newshost “to ensure that the rights and interests of all parties are respected under the law,” with Sony BMG Managing Director and RiSa board member Keith Lister providing assurances that while these negotiations take place, further takedown notices would be suspended.

“I am not at liberty to disclose current mutual undertakings / progress, but I’m confident that this whole thing might still have a happy ending,” Buys told mybroadband.co.za.

However, the language used by RiSA is not completely conciliatory, stating that there should be no doubt over “our willingness – and our capacity – to protect the economic and constitutional right of our members and, through them, the rights and interests of a large number of South Africans.”

At the time of publication, both BitFarm and Newshost are operational. A third smaller private BitTorrent site, NinjaCentral, appears to be in the process of closing.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In order to get the sites closed, RiSA sent copyright complaint letters to ISPA (the South African ISP association) demanding that BitFarm and Newshost should “be taken down with all access to the domain name blocked”, claiming the sites breach Section 27 (1) (b) of the Copyright Act 98/1978. However, according to the site’s lawyer there are several problems, not least that the sites do not host any infringing content.

In fresh correspondence with ISPA, Reinhardt Buys refutes the allegations made against BitFarm and NewsHost. He states that not only did RiSA fail to comply with the Electronic Communications and Transaction Act 25 of 2002 due to the manner in which it presented the takedown requests, but ISPA acted unconstitutionally in dealing with the takedown requests from RiSA. The relevant section from the South African Constitution is highlighted below:

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

According to the correspondence, Buys states that it is uncertain if ISPA even considers the legality of takedown requests before initiating the disconnection of a site, and notes that their current takedown procedures seem to be “directed only at the protection of ISPs from possible liability for third party content, regardless of the evident harm done to online free expression, fairness and equality”.

Interestingly, Buys points to a 2004 submission by ISPA itself, on the ‘Proposed Guidelines for Recognition of Industry Representative Bodies’.

ISPA believe that is it critically important for freedom of speech that a service provider be given an option to take stance on content that is of unclear legal status. Clearly, a service provider should not host content that a court of law or some other authority has ruled to be illegal. But in a case where the legal status of content is unclear (perhaps, for example, if an unproven accusation of hate speech had been made against a particular web page), an ISP should not automatically be required to remove the content. Such a requirement would have a chilling effect on free speech.

However, all of this might be considered moot, since it appears that the complainant, RiSA, had no locus standi or ‘legal standing’ to request the takedown of the sites:

In terms of section 24 of the Copyright Act 98 of 1978, only the copyright owner may institute proceedings related to copyright infringement. The Complainant is not a copyright owner and merely a unit within an organisation that claims to represent the South African recording industry

To this end, Buys has advised the administrator of BitFarm and NewsHost to re-enable both sites and to re-engage in their previous activities, while considering claiming for losses, damages and legal costs from both ISPA and RiSA via civil litigation. In the face of further harassment or intimidation from RiSA, the sites may seek a protective interdict from the courts. Buys has also called on ISPA to implement takedown procedures “which are free of constitutional concerns”.

The full legal response can be found here (pdf).

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

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.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.