Big Crook in Little China: The Ramifications of the Hong Kong BitTorrent Case on the Criminal Test of Prejudicial Effect

Abstract

The ongoing problem of digital file sharing technology evolving at a speed far greater than the law can keep up with is demonstrable with litigation upheld against the producers of peer-to-peer networks such as Grokster1 towards the ends of their natural useful lives. As file sharers and, with them, copyright infringers, move onto more efficient networks such as BitTorrent, the story is repeated but with the new problem of the client software being open source. This has led to avenues alternative to litigating against makers of peer-to-peer network clients being explored. Perspectives on what constitutes “to affect prejudicially the owner of the copyright” as laid out in the CDPA 1988 are considered in light of the Hong Kong case of HKSAR v. Chan Nai-Ming. It is argued that the highly strict and surprisingly low level at which the test for prejudicial effect is set is counter-intuitive to the goals of curbing the problems piracy poses. It is concluded that the ongoing battle between file sharers and their opponents has led to the loss of sight of the true goal of regulation: the protection of copyright holders from suffering de facto harm that is at least above a relatively negligible standard.