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A what?

What is a torrent you may ask? A Torrent is basically a bookmark of files kept all over the internet and on users’ computers across the internet. Torrent sites collect these bookmarks and make them available so that other users can load the bookmark and automatically pull bits and bobs of the same file from all across the internet – with the resulting file being a perfect copy of the original file.

So what?

RiSA issued so-called take-down notices on a number of internet service providers in SA where a number of Torrent sites were hosted. A take-down notice is an American invention, now entrenched in the South African Electronic Communications and Transactions Act, whereby ISP’s can escape liability from third parties (copyright owners for example) if it responded on a take-down notice (in which a copyright owner will claim its copyright) whilst the facts surrounding the copyright are investigated and proved.

According the RiSA the South African Torrent sites infringed on its members’ copyright and are piracy-centric sites. After the take-down notices were served on the ISP’s (via the ISP Association_, the sites were closed down – to the great chagrin of the local online community.

To the rescue

A local lawyer jumped in on the behalf of the Torrent sites (pro bono) and made some very interesting legal points about the take-down notices and RiSA’s actions:

1. The sites do not actually host any copyrighted material – this is hosted by the user on the other side of the “bookmark” and downloaded by the person using the “bookmark”.

2. RiSA does not have the necessary locus standi (legal standing) to issue the take-down notices, since in terms of the South African Copyright Act, only the copyright owners themselves would be able to institute legal proceedings for the infringements.

3. In terms of the SA’n constitution everyone has a right to be heard in court (access to the courts) and by merely taking down the sites, the ISP’s might have acted unconstitutionally by not allowing the Torrent sites to state their side of the story.

We take your point

The lawyer also warned of civil claims against the ISP’s and RiSA for the infringements. All-in-all, these points made the ISP’s and RiSA sit up and listen, whom have now offered to sit down with the Torrent sites and negotiate. RiSA has also indicated that whilst the issues are being ironed out, that they will not send out any more take-down notices.

The BSA is a private body funded by the big software houses to look after the said software houses’ interests. They of course have a huge interest that piracy is curbed, because this means a direct contribution to their respective bottom lines.

The BSA claims that Microsoft estimates that for every $1 spent on production of the software, $9 worth of revenue is generated within the local economy in which it distributes. The BSA also claims that if software piracy is reduced by 10%, an additional 1200 jobs can be created within the IT sector, R6 billion in economic growth and R480million in tax revenues. The BSA also calls software piracy “dangerous” which sounds quite alarmist to br!ghtshark.

To combat piracy, the BSA has now started a campaign in which employees can report software piracy to the BSA. If the business is found “guilty” of software piracy, the whistle-blower can receive a reward. The reward is basically paid for from the software licensing fees generated from the tip-off – in general when the BSA engages with a business on software piracy they will put pressure on the business to become legal first, with the purchasing of legitimate software licenses. To the skeptical ear this does sound a little like a kind of blackmail, but be that as it may. The whistleblower will then receive 10% of the software licensing fees generated from the tip-off, up to a maximum of R100 000.

That being said, one would have to look at the actual cost of software licensing and the social cost of blowing the whistle on South African employers to the benefit of international or foreign entities. The whistle blower could very easily find himself without a bonus, or even worse, an employer if the cost of the software comes to a very large amount. In the current rocky financial times, this rings even more true.

So, what could one do to go the legal on the software without going illegal in a different manner and following the Somali’s example by turning into a different type of pirate to finance all of the licensing? One manner is to join the ranks of global giants such as Google, YouTube and Yahoo. Globally governments are also cottoning on and the governments of Australia, New Zealand and even South Africa are switching from retail software to Open Source software.

Open Source Software is software available for free, usually downloadable and is collaborative piece of software (ie, developed by collaborative contributors from all over the world). A full description of Open Source Software can be read (here) on Wikipedia, which in itself is an excellent example of an open source solution at work. If you don’t want to kill your broadband limits (or data cap), you can also get copies of the software from Freedom Toasters located nationwide (a Shuttleworth initiative).

There is practically a piece of Open Source Software to replace any of your current (un)licensed pieces of software. The most well-known pieces of Open Source Software are OpenOffice (a word processing suite, competing with Microsoft Office), Thunderbird or Gmail (email clients, competing with Microsoft Outlook) and Linux (an operating system, competing with Microsoft Windows).

Give it a try – tons of others have and have saved a bundle (of BSA-related-stress and $$) in the process.