While some say the days of video shops are numbered anyway and that they must adapt or die, others say that digital pirates are crossing a legal and moral line. Pierre Potgieter and Zama Khumalo examine the battle between technology and the law, and the moral questions it raises.
While some say the days of video shops are numbered anyway and that they must adapt or die, others say that digital pirates are crossing a legal and moral line. Pierre Potgieter and Zama Khumalo examine the battle between technology and the law, and the moral questions it raises.
Late last year the South African Federation Against Copyright Theft approached Rhodes University with a complaint of copyright infringement from local entertainment outlets.
Music and video store owners claim that Direct Connect (DC++) software – a legal computer program for sharing files between computers on a network – makes it possible for students on the Rhodes network to illegally share music, movies and series, and that this practice harms their business.
“We have no student market. Obviously we can’t compete with a free service,” says The Spot’s Justin Robertson. “Long before I even get a list of what to order, students have already seen it,” says Coenie de Klerk, from Mr Video.
And Mark Whithnail of Musica, says, “Without the support of students, the entertainment places will close down.” The businessmen believe Rhodes should take responsibility for the file-sharing on the Rhodes network that has become an open secret.
“[Rhodes] cannot be ignorant about it and say what the students do on DC++ is not their problem,” Whithnail says. De Klerk acknowledges the scope of the problem: “If you stop DC, obviously it will help, but it won’t be the end of the problem, because the technology is there to download the movies.”
Yet there is a legal aspect to it as well. “We know it is a losing battle, but we should have a few years before it [DVDs] is obsolete, and we should be able to turn to the law to support us,” says Robertson.
Section 23(1) of the South African Copyright Act defines copyright infringement or piracy as any person, not being the owner of the copyright who… does… any act which the owner of the copyright has the exclusive right to do or to authorise. This generally entails the unauthorised copying and distributing of material.
But what is Rhodes University's responsibility in relation to such piracy? Peter Clayton, Deputy Vice Chancellor of Research at Rhodes, emphasises: “We take the infringement of copyright very seriously. It is in our student disciplinary code, and it’s in our acceptable use policy. And where infringement is brought to our attention we take action against people.”
Sarah Driver, a prosecutor on the Rhodes Disciplinary Committee adds: “We did have some copyright infringement cases quite a few years ago. But we certainly didn’t have anything in the past five years that I can recall.”
Guy Halse, of Rhodes’s IT Division explains: “Technology has for a long time superseded the pace of legislation.” The Electronic Communications and Transactions Act, he says, does not oblige them to police their network. Privacy implications complicate the matter of policing, as it involves a constitutional right of users.
“I don’t have any legal right, nor does any internet service provider, to snoop your traffic,” said Halse. He admits, however, that it's often possible to trace someone without violating their rights, or involving a court order. Network policing is almost impossible, Halse says, given the structure of the network, in which connections don’t pass through a single access point.
Also, IP addresses (identifying computers on a network) change, and data volumes are extremely large. Copyright infringement reports therefore have to be up-to-the-second specific about exactly who is sharing exactly what.
Halse also explains that a quota system is used to limit the amount of internet bandwidth students can use, but that pirated material could come via other networks, such as 3G or ADSL.
“[Piracy] is not a university problem, this is a society problem, Halse said, because the technology exists outside the walls of the university and has done for a number of years. Whithnail believes a lot of people are unaware that digital piracy is a criminal act. I think education and awareness is the key,” he said.
Adding to the list of problems, he said, was a culture of sharing and the fact that this was so convenient. He believes students don’t necessarily intend it as a malicious act, but do it “because everyone else is doing it”.
The words “Loose lips sink ships”, written by users on the communication window of DC++, suggest students are far from ignorant about the implications of what they're doing, however. “I suspect the youth have thought about piracy less than the older generations, because they’ve grown up where downloading is the norm,” said Halse.
“It is not even whether they know it is illegal or not. Have they ever given any thought whatsoever about the morality of what they are doing? There is a massive sense of entitlement, with no kind of moral underpinning of why they feel entitled.”
The market itself could be seen as another reason for the increase in piracy over the years. “There are probably larger numbers of people on the middle ground who are doing piracy because the market hasn’t evolved to meet what they want to do, says Joe*, a network expert.
I think it is important that people understand that the business models have changed. It’s a business practice that would’ve failed without the university. Perhaps it would’ve failed in two years’ time, but we’re talking about delaying the inevitable. I don’t see a DVD slot on this,” he quips, holding up his smartphone.
“Obviously the media industry needs money from somewhere, the question is just where? South Africa is catching up with the rest of the world. The question is whether South Africa can compete in this global market.”
Economics professor, Geoffrey Antrobus, is adamant that sharing is simply wrong, however. He says his problem is the attitude of I’ve got to have it, and I’m going to have it whether it is legal or not. Antrobus says, “You are crossing a line here, and attempting to justify it by saying that if you are poor you should be able to thieve.”
Antrobus also draws a distinction between piracy and the free distribution of material, where the creator gives permission and finds other ways of generating revenue. “Even in a market with free distribution, copyright infringement would still be theft. Theft is not definable in terms of income. Theft is taking somebody else’s property. We have enough corruption in our society. Where do you draw the line?”
Antrobus further explains: “Markets change naturally. To encourage piracy in order to force the market to adapt, I think is the wrong way to go about it. It decreases the efficiency of the economy, and usually comes at the expense of someone. Furthermore, market adaptation happens from a production side. We (in Grahamstown) don’t have manufacturing of movies/music etc. There is so much less opportunity to adapt. [Grahamstown’s businesses’] only route is to try and stop people from stealing movies.”
Joe recognises this, saying, “I’d be surprised if people are creative enough to adjust in a way that is meaningful. And it is unfortunate for Grahamstown.”
*Not his real name
