Subramanian Swamy and the Constitutionality of Copyright Criminalisation – Part II

(Summary: disproportionate criminal sanctions against copyright infringement seriously harm FoE interests -> to be constitutionally valid, copyright criminalisation must fall within the bounds of Art. 19(2)’s enumerated grounds -> the “public order” exception requires that the offending conduct must have a proximate potential to disrupt the even tempo of life -> neither of these requirements are met -> no other Art. 19(2) exception is attracted -> disproportionate copyright criminalisation is unconstitutional)

Continuing from Part I, in this post I argue that the criminal law against copyright infringement, specifically in the form of the various Goonda Acts, is constitutionally invalid.

Before that, to further establish the counterintuitive link between copyright law and the freedom of expression, I offer a few examples of a phenomenon that can only be termed “copyright censorship”. In at least two instances, in 2007 and 2010, the Russian police selectively targeted journalists and activists in raids against software piracy, with the active and enthusiastic assistance of Microsoft’s lawyers in the latter case. In 2013, one intrepid blogger’s research revealed that a Spanish anti-piracy company was being used to suppress documentary evidence that the Ecuadorian government was purchasing surveillance equipment. This investigation also revealed that the same company had also filed DMCA notices with respect to an image showing an Argentine minister snorting cocaine. These events demonstrate that there exists a real conflict between copyright enforcement and the freedom of speech, one that is increasingly being exploited by states as the world moves towards stricter infringement penalties. The most rampant copyright censors, however, are private parties. The combination of strong copyright law and weak safe harbours for online intermediaries ensures that resistance to copyright censorship is the exception, not the norm. The DMCA mechanism has been shoehorned by LGBT groups to take down bigotry, Big Media to take down dancing babies, newspapers to silence criticism, and a whole host of other things. The fact of the matter is that disproportionate criminal laws against copyright infringement, in status quo, have significant negative effects on the freedom of speech.

Among the arguments of the petitioners in Subramanian Swamy v. Union of India was the claim that a criminal law punishing defamation was a disproportionate restriction of the freedom of speech guaranteed under Art. 19(1)(a) of the Constitution, since it effectively amounted to the penalisation of a private wrong by the state. While this argument was shot down (more by a peppering of near-misses than a direct hit of any sort), it serves as a useful starting point for us.

What we can learn from Swamy is the building of a case against the constitutional validity of the several laws that provide for criminal sanction against copyright infringement, in varying degrees. Section 63 of the Copyright Act contains a penal provision for knowingly committing or abetting copyright infringement. Section 63A provides for enhanced penalties for repeat offenders, while Section 63B applies to knowingly using an infringing copy of a computer program. This, however, is merely the beginning. While arguments may exist to question the necessity for the state to intervene through the criminal justice system in what is essentially a private dispute over primarily monetary gain, I will not go into these in this post. This is for two reasons: first, we have bigger fish to fry. Second, while it may be unwise for the state to secure, through its penal law, one person’s private monetary interest over another, to argue that it would be unconstitutional is a bit of a stretch.

What we will examine over the course of this piece is the validity of the various pieces of state legislation that dangle (I argue) disproportionate penalties over the heads of individuals who are merely suspected of engaging in copyright infringement. These come in the form of the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum Grabbers and Video or Audio Pirates Act, 1985 (“the Karnataka Goondas Act”), the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1982 (“the TN Goondas Act”), and equivalent “Goonda Acts” in Kerala and Maharashtra. These Goondas Acts, which were primarily intended to tackle recidivism in violent crime, provide for preventive detention, among other measures aimed at eradicating “history-sheeters”. Previous analyses of Goonda Acts have focused on legislative competence and the question of prior restraint. Elsewhere, Eugene Volokh and Mark Lemley have persuasively argued that preliminary injunctions in most copyright cases would constitute prior restraint and therefore violate the freedom of expression. Here, I attempt to construct an argument against the validity of the Goonda Acts independent of the prior restraint and legislative competence challenges, in the hope of uncovering a new layer of constitutional infirmity underlying these enactments.

Copyright criminalisation is not covered by Art. 19(2)

One possible argument is that a law against copyright infringement would fall outside the protective sphere of Art. 19(2), and therefore be invalid as an illegal restriction upon Art. 19(1)(a). Having outlined the many ways in which infringing content could still constitute a valid exercise of the freedom of speech, it is clear that any restriction that targets infringement and catches these valid exercises of the Art. 19(1)(a) freedom must be struck down for being overbroad.

Art. 19(2) of the Constitution permits restrictions on the following grounds: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, and incitement to an offence.

Of these grounds, the only one that comes closest to justifying the Goonda Acts as applied against piracy is a public order restriction.

A somewhat useful conceptualisation of the import of the phrase “public order” was famously propounded by the Supreme Court in Ram Manohar Lohiya v. State of Bihar (1965):

“One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.”

The distinction between “public order” and “law and order” was made clearer in subsequent cases, notably in Arun Ghosh v. State of WB (1970) where Hidayatullah, J. held that the question of whether any given act amounted to a breach of public order or merely a breach of law and order turned on the effect this act had on society. To illustrate, he pointed out that a violent crime in ordinary circumstances may amount to no more than a breach of law and order, while the same act in an environment of communal tension may constitute a public order breach. The key question, according to him (and the numerous subsequent judges who endorsed his view on the point) was whether the act disrupted “the even tempo of life” in the community.

In addition to this ‘disruptive potential’ requirement, there exists another threshold that a measure must satisfy in order to be able to invoke the public order exception: proximity.

Rangarajan v. P. Jagjivan Ram (1989) laid down the proposition that for an exercise of the Art. 19(1)(a) freedom to justify the invocation of a public order restriction, it bear a clear and immediate causal link to the disruption of public order. The Rangarajan court propounded the “spark in a powder keg” test to determine whether a given intervention was justified under Art. 19(2).

These two strands of jurisprudence come together to dictate that for public order to be invoked, the act in question must have a proximate potential to disrupt the everyday life of the people in its immediate environment.

Do the Goonda Acts meet these tests? Let’s examine disruptive potential first. One of the stated objects of the Acts was to rescue the film industry from bleeding losses due to piracy. Even assuming that Bollyood/Tollywood/Kollywood/Sandalwood are indeed suffering immeasurable losses from film piracy and that digital pirates are thieves who steal the shirts off the backs of movie producers, this would still qualify as no more than a breach of law and order. Provisions of the Copyright Act have been violated, and the violators must be brought to book and the losses incurred by the film industry must be compensated. However, the “even tempo of life” has definitely not been affected in the slightest.

We can use the proximity test to dismantle another argument often used to justify laws like the Goonda Acts: that there exists some sort of nexus between digital piracy and drug trafficking, terrorism or other forms of organised crime, and this ensures that pirates operate as fronts that fund these more insidious activities. Even assuming for a moment that this argument is reflective of ground realities (It’s not.), it still wouldn’t meet the proximity test since the public order interest (organised crime) is too far removed from the measure. In other words, the constitutionally justified response to organised crime is a measure targeting organised crime, not one that does not, in and of itself, pose a danger to the public order.

In sum, the Goonda Acts cannot claim to fall within any of the Art. 19(2) exceptions, and must inevitably be struck down. Over the next post, I will argue that even if the State is able to successfully argue that one of the Art. 19(2) exceptions are attracted, the Goonda Acts fail to fulfil a further proportionality requirement and must therefore be struck down regardless.


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