ROPING IN ISPS TO CURB INTERNET PIRACY
Of late the ‘three-strike’ or the ‘graduated response’ model for copyright enforcement over the internet is gaining popularity among nations, especially after the ACTA negotiations. In India too, the Committee on Piracy appointed by the Information and Broadcasting Ministry recommended this model. Barring few modifications, the model as the name suggests is essentially a three stage process progressing with issuing warning notices to online infringers and subsequently decreasing bandwidth or throttling protocols and eventually taking down connections on continuous infringements over a period. The warnings are intended to educate users and would furnish evidence capable of establishing guilt beyond reasonable doubt. It is the duty of the ISPs to carry out the entire exercise. In some states, the ISPs are obliged to maintain a record of errant subscribers and relevant information and the copyright holder can have access to these records on obtaining permission from authorities (either judicial or administrative. In other words, if a user shares or downloads infringing material, the ISP would serve a warning notice with clinching evidence. If the person continues or commits another infringement within a month, his bandwidth would be reduced or access would be limited and if he still continues or causes another infringement within a year from the first strike, his connection would be liable to taken out and would be listed among infringers which the right’s holder has access to.
Sharing of copyrighted material and downloading such material by users of P2Ps infringe the holder’s exclusive right to communicate to the public and make copies of the work respectively under Section 14 of the Copyright Act. It is easier for ISPs to identify infringers as they exercise control identifiable information such as the IP address.
THEY HAVE THE ABILITY TO TAKE ACTION. BUT DO THEY HAVE AN OBLIGATION?
Mandating ISPs in weeding out piracy expands the traditional notion of privity of contract, where only the holder had capacity to initiate action. The graduated response is another development in anti-piracy jurisprudence evolving from the ’inducement theory‘ carved out by the US Supreme Court in the MGM Studios Inc v. Grokster Ltd from the ‘doctrine of contributory copyright infringement’ established in the Sony Corp of America v. Universal City Studios Inc. In a nutshell, these judgments extend liability to those who ’induce’ others to infringe copyrights. For instance, P2Ps would be liable as they facilitate infringement by creating a platform which allows users to share and download infringing material and profiting from that. Building on this logic, it can be argued that considering the need for ISPs’ cooperation in identifying infringers and fact that they profit from such infringers by their subscription, ISPs have an obligation to curb infringements.
In AFACT v. iiNet, the Australian Federal Court answered the question of whether non-action by ISPs on infringers is tantamount to an ‘authorisation’ of the infringement in the negative observing that “the law recognizes no positive obligation on any person to protect the copyright of another”. The inducement theory was, therefore, rendered inapplicable because the court drew a distinction between ISPs as providing mere access to the internet and P2Ps as the actual ‘means’ of infringement; the former had neither any connection nor control over the latter. Hence, the legal basis for mandating ISPs to take action rests on a shaky foundation and this ambiguity can be resolved by legislating on the same.
TAKING DOWN CONNECTIONS: A BIT TOO HARSH?
The taking down of internet connections, as rightly pointed out in the iiNet case, would even prevent the user from accessing internet for non-infringing purposes and, thereby creating concerns regarding the reasonableness and proportionality of the penalty imposed. Firstly, access to internet is very vital today and has been declared as either a constitutional right or a basic human right stemming from the right to freedom of free speech and expression across several Western democracies. Given the past track record of Indian courts in giving a creative and broad interpretation to fundamental rights, the recognition of this right by the Indian judiciary does not seem too farfetched. Secondly, it should be noted that neither the sharers nor the downloader obtain any commercial advantage out of this transaction. Thirdly, with highly optimized and easily accessible search engines such as the Google, the distinction between pirated and genuine sources is often obscured. It would be unreasonable and unfair to take down internet connection of a person for downloading a song from illegal sources without actually having any knowledge or mala fide intention to do the same. In light of these concerns, taking down connection seems to be a bit too extreme.
WHAT WILL YOU DO WITH THE RECORDS?
The holder can avail the remedy for damages only if he/she succeeds in obtaining the infringers list. There, however, is no clarity on whether the list discloses all acts of infringements or the third strike alone. It is almost impossible to initiate action against every infringer and obtain the award, considering the rate and quantum of infringements each day and backlogs in judicial system. This would frustrate the whole purpose further. Moreover, many authors have rightly pointed out situations wherein nailing the infringer becomes difficult. Consider the example of multiple users accessing internet through a single connection. As such deceiving by mimicking IP addresses in not too difficult particularly in Wi-Fi enabled networks. Apart from these technical fallacies, this move would exhort ISPs to constantly police its subscribers, thereby blatantly infringing their privacy.
The three strikes model is wrought with certain inherent impracticalities and would have an adverse impact on internet usage per se. For instance, a vast majority of libraries and universities have unrestricted access and taking down or reducing bandwidth would majorly hamper their work. Furthermore, the cost borne out of identifying, issuing, recording and protection information by ISPs would eventually have to be met by subscribers, thereby, making access to the internet more expensive. Moreover, a regulatory body is required to oversee the functioning of ISPs and to hear appeals from the subscribers to ensure compliance with the norms of due process.
Impracticalities apart, the entire model derives its logic from on a slippery legal ground and would certainly have a negative impact on genuine users. This measure would undoubtedly deter considerable users from sharing infringing material. It should, however, not be forgotten that the demand for free music/movies still exists and if at all sharing movies is profitable then taking down connection would not deter the person from applying for another connection with a different ISP and the whole thing might act as impetus for physical piracy. It is, therefore, pertinent to develop alternatives such as Google Music or Napster which fills the vacuum by ‘appearing to be free’.
2 thoughts on “SpicyIP Guest Post: Three strikes and you’re out!!!”
One of our experienced commentators sends in this insightful comment:
What were interesting issues in this entire episode, other than the problems pointed out by your posts, can be listed as below:
What is the locus standi of the I&B Ministry to constitute committees on issues related to the law of copyrights and the rules under which the law is to operate?
As per the Allocation of Business Rules of the Government of India, the subject of Copyright is with the Ministry of HRD. However, owing to the rather high profile of the subject, the Ministry of I&B does not seem to be able to resist dabbling in such issues. This is evidenced further by their earlier eagerness to constitute a Committee located at FICCI to suggest a draft Optical Disc Law. That Committee met quite a few times and then ultimately submitted a report which has been lying unused for the last 4 years.
Why did the Committee only I&B Ministry officials and rightholders and not any copyright expert or even representatives of ISPs?
An unusual composition. You do not have public interest groups, you do not have copyright experts, you do not have anyone to represent the ISPs whose obligations are currently governed by the IT Act and you do not have anyone to ask a basic question as to why the number of films being made in India is going on increasing if piracy is really causing so many losses. Nobody seems to have even an inkling that piracy has been sidestepped by the Film industry through the new business models. If films fail, it is because they are not appreaciated by the audience and not because the pirates punctured a hole in the revenues. This is not to say that piracy is good. Far from it – piracy, like any other criminal activity, mostly attracts the most unsavoury of characters. Yet, in its enthusiasm to address the issue in a foolproof manner, the Committee seems to have cast its net too wide and not left any loops for the non-pirate infringers to be dealt with differently.
Why was the music industry not represented on the Committee?
The music industry seems to face the biggest threat from Internet-based piracy. It went unrepresented. Unlike the film industry, the music industry has very limited degrees of freedom regarding innovating with business models. The IMI, an organisation run by a rather unholy clique that has interest only in keeping the pot boiling so that their (the clique’s) relevance remains in the eyes of the members, is not the best entity to articulate the concerns of the industry but is perhaps the only one which has a view. Yet the Committee did not have anyone from this lot.
Did the committee have the benefit of any reliable information on the extent of losses due to piracy faced by the film and music industry?
What is the extent of piracy affecting the film and music industries and what part of it is attributable to the Internet? The last neutral exercise was done in 1996-98 by the National Productivity Council and its report was released in 1999. The report is available on the Copyright Office website. Why has nobody replicated that exercise in the last 10 years? Is it because the results might not gel with the figures being quoted by various interest groups such as BSA, IIPA, etc. which would have us believe that the pirates siphon off more than half of the revenues that would accrue to the rightholders?
Did the Committee examine the reasons for the failure of the extending of Goonda Act to copyright piracy in curbing the activity, before suggesting an even more cumbersome mechanism?
On the one-hand the fact that extending the Goonda Act to piracy has not proved efficacious, on the other the Committee encourages all States to do so. Not only that, the other measures suggested would require cumbersome institutional mechanisms to enforce.
While at this, whichever ministry has the jurisdiction would do well to address the issue of the role of ISPs and/or domain name/server owners in curbing online defamation as well. Instances are not unknown where a disgruntled employee goes on an online libellous rampage against her ex-employer through blogs. If the domain does not remove the content, would it be possible/proper to get all ISPs to block that particular webpage… this might also require, in course of time, building a database of blacklisted webpages. Of course, as in all issues wrt to the Net, problems abound..