Chan Nai-ming
Encyclopedia
Chan Nai-Ming is a Hong Kong
citizen, believed to be the first person in the world convicted of the crime of illegal mass distribution
of copyrighted works using BitTorrent Peer-to-peer file sharing
. Chan was 38 years old and unemployed.
, Miss Congeniality and Red Planet
) onto the Internet using BitTorrent under the webhandle , which can be translated as either “Master of Cunning” or “Big Crook”.
Chan was sentenced to three months in prison on 8 November 2005. The maximum penalty under law was four years in prison.
At the Tuen Mun Magistracy, Magistrate Colin Mackintosh said that he had reduced the term because this was Chan's first offence and the first sentencing for such a case in the world. However, the judge claimed that anyone else caught illegally sharing files
in the wake of his judgment could expect tougher treatment.
5000 while waiting for the results of the appeal to the High Court. On 12 December 2006, the High Court
upheld the original verdict and sentence. He was jailed immediately.
The High Court denied him leave to appeal to the Court of Final Appeal, but he was bailed for HK$5000 on 3 January 2007 to seek leave for appeal at the CFA (leave can be granted by either the High Court or the CFA). On 7 February, the CFA granted him leave. Oral arguments were held on 9 May 2007. Chan's lawyer said the word "copies" only refers to tangible objects like CDs and tapes. Digital files don't count. He also said that UK law distinguish between the two by having separate "Distribution Right" for tangible objects and "Communication Right" for intangible files. Also, it is the downloader that initiated the transfer, thereby copying the work. Chan merely put it on the net. The government's lawyers disagreed. The decision is reserved.
The judge from the court of final appeal ruled out Chan's appeal on 18 May 2007. The result was that Chan's appeal was rejected, and the original sentence (3 months in jail) was upheld.
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
citizen, believed to be the first person in the world convicted of the crime of illegal mass distribution
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
of copyrighted works using BitTorrent Peer-to-peer file sharing
Peer-to-peer file sharing
P2P or Peer-to-peer file sharing allows users to download files such as music, movies, and games using a P2P software client that searches for other connected computers. The "peers" are computer systems connected to each other through internet. Thus, the only requirements for a computer to join...
. Chan was 38 years old and unemployed.
Alleged incident
Chan Nai-Ming was accused of uploading three Hollywood films (DaredevilDaredevil (film)
Daredevil is a 2003 American superhero film written and directed by Mark Steven Johnson. Based on the Marvel Comics character of the same name, the film stars Ben Affleck as Matt Murdock, a blind lawyer who fights for justice in the courtroom and out of the courtroom as the masked vigilante Daredevil...
, Miss Congeniality and Red Planet
Red Planet (film)
Red Planet is a 2000 Technicolor science fiction film directed by Antony Hoffman, starring Val Kilmer and Carrie-Anne Moss. It was released on November 10, 2000.-Plot:...
) onto the Internet using BitTorrent under the webhandle , which can be translated as either “Master of Cunning” or “Big Crook”.
Trial
He was charged with 3 counts of “attempting to distribute an infringing copy of a copyright work (otherwise than for the purpose of, in the course of, any trade or business) to such an extent as to affect prejudicially the owner of the copyright, without the licence of the copyright owner, contrary to sections 118(1)(f) and 119(1) of the Copyright Ordinance, Cap. 528 and section 159G of the Crimes Ordinance, Cap. 200” and 3 counts of an alternative charge of “Obtaining access to a computer with dishonest intent, contrary to section 161(1)(c) of the Crimes Ordinance, Cap. 200”. Since the first 3 charges were proven, the last 3 charges were dropped.Chan was sentenced to three months in prison on 8 November 2005. The maximum penalty under law was four years in prison.
At the Tuen Mun Magistracy, Magistrate Colin Mackintosh said that he had reduced the term because this was Chan's first offence and the first sentencing for such a case in the world. However, the judge claimed that anyone else caught illegally sharing files
Computer file
A computer file is a block of arbitrary information, or resource for storing information, which is available to a computer program and is usually based on some kind of durable storage. A file is durable in the sense that it remains available for programs to use after the current program has finished...
in the wake of his judgment could expect tougher treatment.
Appeals
He was released on bail for HK$Hong Kong dollar
The Hong Kong dollar is the currency of the jurisdiction. It is the eighth most traded currency in the world. In English, it is normally abbreviated with the dollar sign $, or alternatively HK$ to distinguish it from other dollar-denominated currencies...
5000 while waiting for the results of the appeal to the High Court. On 12 December 2006, the High Court
Court of First Instance (Hong Kong)
The Court of First Instance is one of two courts in the High Court of Hong Kong. The court has unlimited jurisdiction in both civil and criminal matters...
upheld the original verdict and sentence. He was jailed immediately.
The High Court denied him leave to appeal to the Court of Final Appeal, but he was bailed for HK$5000 on 3 January 2007 to seek leave for appeal at the CFA (leave can be granted by either the High Court or the CFA). On 7 February, the CFA granted him leave. Oral arguments were held on 9 May 2007. Chan's lawyer said the word "copies" only refers to tangible objects like CDs and tapes. Digital files don't count. He also said that UK law distinguish between the two by having separate "Distribution Right" for tangible objects and "Communication Right" for intangible files. Also, it is the downloader that initiated the transfer, thereby copying the work. Chan merely put it on the net. The government's lawyers disagreed. The decision is reserved.
The judge from the court of final appeal ruled out Chan's appeal on 18 May 2007. The result was that Chan's appeal was rejected, and the original sentence (3 months in jail) was upheld.
External links
- TMCC 1268/2005 HKSAR v CHAN NAI MING original judgment
- HCMA 1221/2005 HKSAR v CHAN NAI MING High Court appeal judgment
- FAMC 0061/2006 HKSAR v CHAN NAI MING CFA bail pending leave application
- FAMC 0061A/2006 HKSAR v CHAN NAI MING CFA bail pending appeal
- FACC 0003/2007 CHAN NAI MING v HKSAR CFA appeal judgment
Academic opinion
- Hong Kong’s copyright laws: Recent developments and dilemmas Clayton G. MacKenzie, Acta Juridica Hungarica (2007) 48, 115-124
- The Hong Kong BitTorrent Case (HKSAR v CHAN NAI MING): Will Big Crook Go Down Big Time for a Little Infringement? Stuart Weinstein & Charles Wild, Working Paper (abstract only), April 2007
- Big Crook in Little China: The Ramifications of the Hong Kong BitTorrent Case on the Criminal Test of Prejudicial Effect Michael Filby, Working Paper, February 2007
- Criminal Infringement of Copyright: The Big Crook Case Steven Gething, in Brian FitzgeraldBrian Fitzgerald (academic)Brian Fitzgerald is an Australian academic and Barrister of the . He is an Intellectual Property and Information Technology/Internet lawyer who has pioneered the teaching of Internet/Cyber Law in Australia...
, Fuping Gao, Damien O'Brien, Sampsung Xiaoxiang Shi (eds), Copyright Law, Digital Content and the Internet in the Asia-Pacific (2008) 367
Journalistic reports
- New York Times 8 November 2005
- BBC 7 November 2005