P2Ps fight eviction

By Siyabonga Africa, ITWeb junior journalist

Johannesburg, 11 Nov 2008

Buys Inc ICT attorney Reinhardt Buys is adamant two person-to-person (P2P) file-sharing Web sites, which he is defending pro bono, are legal in SA.

This is despite the Internet Service Providers Association (ISPA) serving them with takedown notices.

Bitfarm and NewsHost are the targets of the Recording Industry of SA's (Risa's) anti-piracy campaign.

Risa claims more than R500 million is lost locally to piracy per annum. The recording body explains, in a complaint to ISPA, that Bitfarm hosts over 26 104.08Gb of music, while NewsHost has more than 1 200 NZBs, which are XML-based file formats for retrieving posts from remote servers.

The industry association claims that both sites contravene Section 27 (1) (b) of the Copyright Act 98/1978 through the facilitation of piracy.

Buys argues the sites only publish metafiles which link to the location of material hosted elsewhere. The sites do not store copyrighted files, but simply search and index torrents, exactly like Google does.

“Piracy happens when a person downloads or uploads a copyrighted file - that's not what my clients' Web sites do,” he says.

Wrong target

ISPA says Buys is shooting the messenger. ISPA regulatory advisor Mike Silber says the Internet association's role is as a conduit between complainants and ISPs.

“We receive a complaint from the complainant on behalf of our clients and we perform a basic validation to confirm the complainant exists,” Silber explains. “There were around five file sharing Web sites targeted and three ISPs that we dealt with in this complaint.”

Silber adds that when the complaints have been delivered to the ISPs, and in this instance it would be MTN Network Solutions, which hosts both Bitfarm and NewsHost, then the matter is between the ISP and the content provider to resolve.

The complaint states that if the ISP does not remove or disable the content in question, this will negate the limitation on liability granted by the Electronic and Communications Transactions Act. Chapter 11 of the Act requires ISPs to remove or disable access to data that is the source of a takedown notification. Only Bitfarm has been disabled so far.