Copyright

Anti-piracy movement in India gains heat: Cause for concern or justified response?


Unsatisfied with the court order it recently obtained from the Calcutta High Court, granting an ex-parte injunction against the website www.songs.pk, the Indian Music Industry (‘IMI’) has gone all out against more than a hundred websites alleged to have been indulging in piracy of Bollywood music tracks. In this post, I intend to examine the current state of anti-piracy movement in India and what the future holds for us in India on this issue, so pardon the long post. 
Method of Blocking Websites 
The order is directed against 387 ISP’s (the full list of the 104 websites that the IMI wanted blocked by 387 Internet Service Providers (ISP’s) in the country and the Calcutta High court is available at Medianama), ordering them to block access to the websites mentioned. For those unfamiliar with the subject, ISP’s provide access to the internet itself (for example Airtel, BSNL, Reliance who provide broadband connections etc.), while websites such as MySpace and Google provide access to certain services on the internet (such as Gmail or Google+). The order obtained requires the ISP’s to use any three of the following method to block access to the websites: 
  1. Blocking by DNS name: This would involve blocking access based on the domain name itself. For example – “www.songs.pk” could be blocked. However, this can easily be bypassed by typing the IP address itself (a series of numbers, as opposed to letters) in your browser’s address bar. 
  2. Blocking by IP address: A domain name represents an IP address. For example, the domain name www.songs.pk may have the IP Address “85.103.2.14”. Thus ISP’s can block access to the IP address itself, but IP addresses can be changed, masked or anonymised. 
  3. URL blocking by Deep Packet Inspection (DPI): This is a more invasive form of blocking that actually examines the data being transferred.

Ineffectiveness of Blocking 

At the risk of sounding like a pro-piracy apologist, I think it is important to question whether blocking of such websites is the most suitable method to curtail piracy. To put it quite simply, I would say no, it isn’t. And this should be examined at two levels – firstly, whether this method is actually effective and secondly, whether it is legally sound
On the question of effectiveness, I need hardly point out the ease with which webmasters can manoeuvre themselves around such restrictions. The most blatant example, closest to home is the fact that www.songs.pk, the same website which was ordered to be blocked less than a month ago, has resurfaced as www.songspk.pk, although it won’t be long before ISP’s are forced to block this website as well and the cycle will continue (my ISP currently blocks both websites). This is wasted time and effort. 
On the second issue, I have previously in an article on myLaw.net, criticised the Bollywood industry’s blatant disregard for legal procedures involved in website blocking. Instead of using the provisions contained in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (‘IT Rules’) as required by law, film producers have attempted to bypass statutory mechanisms by obtaining John Doe orders (about which you can read here and here) from courts, since intermediaries are more likely to act on a threat of legal liability based on a court-issued directive than a notice under the IT Act. 
The above two points stand alongside my philosophical objection to ‘blocking’ websites on the whole in the first place. Blocking access to an entire website is a radical measure and should be used cautiously, which is why even the Executive deemed it necessary to formulate specific guidelines on the issue, appropriately naming the IT Rules in a manner that emphasise access to information. There are two key words used in the title itself – ‘procedure’ and ‘safeguard’, both of which seem to have been slighted in this case. 
Moreover, there is a logical fallacy in blocking an entire when there may be completely legal links on the website as well. IMI in its court filings only established that some of the files were infringing, not all. In another article I argue that blocking entire websites for a few infringing links would be akin to supporting the closure of all the shops in Connaught Place, merely because a few shops in Palika Bazaar are selling pirated D.V.D’s. That does seem strange, doesn’t it? 
Legal Options Emerge – Finally Some Positive Developments 
Despite my apparent record label bashing, I do appreciate their efforts towards attempting to create an ecosystem that facilitates legal purchases of Bollywood tracks. Take for example the launch of Flipkart’s online music store called ‘Flyte’, which offers single-song downloads at a price ranging from Rs.6-15 based on their freshness in the market. I have long suggested on this blog that Indian music labels should explore this option (borrowing the iTunes Store idea of allowing single-song purchases) and it is nice to see them warming up to the era of digital consumption of media and backing such initiatives. Moreover, in an interview with Medianama, Saregama’s CEO has even proposed that they want ‘piracy sites to go legit by paying a license fee’. All of this is encouraging, but the current state of affairs is still worrying. 
Reasons to Be Concerned About Potential Future Demands of the Industry 
My biggest concerns about the current situation may be summarised as follows: 
Firstly, recent episodes such as the introduction of the much criticised SOPA bill in the U.S. has confirmed the fear that record labels are lobbying hard for super aggressive copyright enforcement mechanisms in legislative form. Unfortunately, this seems to be worldwide trend spreading from country to country. While the situation in India is not quite so bad, I would venture to argue that it is only so in form and not so much in intent. There are no SOPA-like legislations in the pipeline, but if the recent surge in court orders obtained by the industry, brushing aside mandated procedures, together with a general proclivity of intermediaries to succumb to such pressures and censor content indiscriminately to escape liability are anything to go by, we have a worrying future ahead of us. 
Secondly, when the industry goes after more than an hundred websites at a time, there are bound to be some websites that are wrongly identified as websites engaging in widespread piracy deserving of a website blocking request. If you don’t believe me, just ask Yahoo and Microsoft India who were wrongly added as parties to the ongoing suit in the Delhi HC demanding internet intermediaries take down ‘objectionable’ content (their petitions for removal as parties have been allowed on the ground that they are not social networking sites and further no ‘objectionable content’ was found on their servers). If Vinod Rai can go wrong with just 22 parties, surely the chances multiply when the number is 104. 
Thirdly, this current practise of obtaining ex-parte injunctions against websites with the effect of immediate blocking by ISP’s, seriously undermines the rights of the website owners to be given a fair hearing and violates basic principles of rule of law and natural justice. Similar provisions were contained in the SOPA bill and David Post, in a wonderfully insightful article, does a thorough job of attacking them on legal grounds alone. Think of a website owner based in Singapore who runs one of these ‘alleged’ piracy sites. Can he be reasonably expected to just show up at the Calcutta High Court one day to defend himself even though his website is in the form of a message board where only on occasion, certain users post links to infringing content. Is that fair? 
Where will the demands end? 
In the same interview, Saregama’s CEO says that file sharing websites will be the next target. This is an even bigger concern for me, especially in the wake of the Megaupload seizure in the U.S. While piracy websites such as www.bolloywoodmp3free.com might be a clear-cut case, it gets murkier and the line blur when we are discussing file sharing websites. Dropbox is largely considered to be a legitimate file-sharing service, but such moves might create chilling effect on new file sharing sites who do not want to be exposed to potential liability and business losses if this trend continues. 
I express the above concerns, without even broaching the subject of net neutrality (the principle that advocates no restrictions by ISP’s or governments on consumers’ access to networks that participate in the Internet and opposes restrictions on content, sites, platforms, types of equipment that may be attached, and modes of communication) which although incredibly important, has sadly been a largely neglected issue in India. 
Moreover, with the success they seem to be attracting with such orders, it may not be long before they ask for grossly restrictive measures such as mandating ISP’s to use filtering tools to block content. I would point to the recent landmark ECJ ruling that such an order violates the privacy of users, their right to receive and impart information and restricts the intermediaries’ right to freely conduct business, but I have little confidence in Indian courts’ ability to appreciate sensible interpretation in other jurisdictions on copyright matters (they did not follow the DMCA’s safe harbour principle rationale in the Myspace case for example). 
Conclusion  
Of course, it is common knowledge that www.songs.pk contained more infringing content than could be tolerated and that is indeed a fit case for the likes of IMI to go after aggressively. But I do smell the potential for misuse and the proverbial ‘give an inch, take a mile’ brings about a sense of paranoia in my mind. This, coupled with aggressive lobbying from music executives to pass bills potentially harming free distibution of digital content online is definitely a source for concern. I’m willing to give them the benefit of doubt in this case, but only just.

6 comments.

  1. AvatarAnonymous

    Can the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 be used for such claims? It can be used in “…in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above…” (as per Section 69A.

    Only the Information Technology (Intermediaries guidelines) Rules, 2011 should apply in such a case.

    Reply
  2. AvatarAmlan Mohanty

    @Anon 12:05

    Thanks for the comment. The Intermediary Guidelines do not provide a mechanism for blocking a website. It is the courts who have interpreted the Guidelines to permit blocking as well as a reasonable remedy. This is the crux of the problem. I would much rather the notice and takedown procedure (despite its own shortcomings) be followed in such cases.

    Section 69(8 of the IT Act is the only provision under which content can be blocked and not under Section 79 of the Act.

    Thus there is a fundamental issue with regard to blocking of content/websites itself, which needs to be resolved.

    Reply
  3. AvatarAnonymous

    Correct. The Intermediary Guidelines for the lack of any limitation on the same, allows for blocking as a measure against the intermediary itself if it violates Rule 3(4) for instance.

    The blocking guidelines you have referred to in the blog post have nothing to do with a copyright violation. Those rules only lay down PUCL-equivalent guidelines of website blocking. It is arguable that the same need not be extended to cases where the Intermediary Guidelines is being relied upon as the Court is the institution exercising authority and not an agent of the Executive. That is of course, if you trust the court’s exercise of discretion!

    Reply
  4. AvatarAmlan Mohanty

    Anon 12:59

    I think you have answered your own question with your follow-up comment.

    You say that the Intermediary Guidelines permit blocking of websites, in the absence of any express restriction. I beg to differ.

    I have referred to the IT Rules in the blogpost since it is the only provision of law that permits blocking of websites. It is clear to both you and me that it is not to be utilised for copyright infringement cases and that is precisely the point I am trying to make.

    It is very convenient for the record labels/producers to obtain a court order asking for the site to be blocked since it is fairly obvious that their demands will not endure a test for blocking of a website under the IT Rules, which is why they have attempted to bypass this requirement, completely avoiding the DIT.

    Does no one else see a problem with this kind of action?

    Reply
  5. AvatarAnonymous

    I agree with the contention that IT Rules 2009 is the only provision of law that permits blocking of websites. Due diligence exercise and Rules do not permit ISPs to block websites on their own.

    Reply
  6. Avatarswarjitkumar

    India needs a strict rules to safeguard the Film Industry. But it is India very hard to accept this could happen quickly. The system is totally corrupted. The Industry should become united and develop such technology to protect them from piracy. I love Old Hindi Songs and films, and these are available free on internet, ok fine, but if a new movie released in a couple of days you will find the movie on internet. The is the open face that is making loss for film industries in India

    Reply

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