Hongkie Town

The city's highest court has been told that a copy of a movie placed on the internet was not, in fact, a copy.

Kevin Pun Kwok-hung, associate professor of computer science and law at University of Hong Kong, made the claim as he appeared on behalf of Chan Nai-ming, 39, the first person in the world to be convicted of attempting to distribute movies using BitTorrent peer-to-peer file-sharing technology.

Chan, who online called himself "Big Crook", is appealing against his conviction and the three-month sentence handed to him by then Tuen Mun magistrate Colin Mackintosh on October 24, 2005. He has so far served 24 days of the sentence.

Mr Pun, who is also a barrister, told the court the crime allegedly committed by his client was not covered by Hong Kong's laws.

He argued that as the law currently stood, a copy of a copyrighted work had to have a physical manifestation - it had to be an actual thing. The files posted by Chan did not fit that description.

Moreover, he said, Chan had not distributed the files; he had merely put them on the internet - the distribution was done by the people who downloaded the three films.

The Court of Final Appeal bench - comprising Chief Justice Andrew Li Kwok-nang, permanent judges Mr Justice Kemal Bokhary, Mr Justice Roberto Ribeiro and Mr Justice Patrick Chan Siu-oi and non-permanent judge Lord Millet - asked if that could be so. Could it be said, they asked, that the Coca-Cola Company was not distributing its product when an individual approached a vending machine, put their money in the slot and pressed the button to buy a can of cola?

Senior assistant director of public prosecutions Richard Turnbull argued that Chan was engaging in exactly that kind of behaviour.

He previously likened Chan's actions to putting a famous painting face down on a photocopier with a sign saying "free copies".

Hong Kong's laws, Mr Turnbull said, specifically mentioned the internet as a medium of distribution and as such obviously contemplated that swirling packets of data within the network could constitute copies of protected works.

However, if the court disagreed, he asked that they consider reinstating two charges of accessing a computer for dishonest gain that had been left on Chan's file following his conviction.

Mr Turnbull quoted the magistrate as saying in his judgment that there was "no doubt that [Chan's] act ? did amount to accessing a computer for dishonest gain".

"It is quite clear from the magistrate's finding that he would have found [Chan] guilty on the alternative charges," Mr Turnbull said.

He invited the court, in the event that it decided to quash Chan's conviction for attempted distribution, to reinstate the alternative charges and sentence him accordingly.

The court reserved its decision.

The reporting on this case in The Standard seems clearer (just some excerpts below):

The first BitTorrent user in the world convicted of uploading movies told the Court of Final Appeal his act was at most a "civil wrong" instead of a criminal one and that his conviction should be quashed.

Chan's counsel Kevin Pun Kwok- hung argued that his client was not charged under the distribution of electronic data in Hong Kong.

He said the Copyright, Designs and Patents Act in England, which differentiates distribution rights in material copy and communication rights, such as broadcasting intellectual material, has yet to be adopted in Hong Kong.

The section of the ordinance under which Chan was charged requires the distribution of a physical copy, argued Pun, a Hong Kong University professor who specializes in information technology law and intellectual property.

The alternative charges of accessing a computer with criminal or dishonest intent can also apply to Chan if the judges find the original conviction inappropriate, Turnbull said.

But Pun said it is improper for the prosecution to bring in an alternative charge at a later period.