Copyright

Busting a Baloney: Merely Viewing Blocked Websites Will Not Land You in Jail!


a-lot-of-baloney

Fear-mongering and the Internet often go hand in hand. Throw in Bollywood, copyright and blocking John Doe orders and you have exciting drama as well!

One that played out to the hilt yesterday, as a number of media houses reported that merely viewing a “blocked” website in India could get you jailed! Fortunately (or perhaps unfortunately for aggressive IP enforcers), this is not true! But first a bit of background.

Blocked Message from ISP’s:

In a news report the day before, India today spoke of the latest warning message on a blocked URL that stated as below:

This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at [email protected] who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance”.

 The India Today report went on to note:

This [jail term and fine are] just for viewing a torrent film, or downloading a Film from a host that may have been banned in India, or even for viewing an image on a film host like Imagebam. You don’t have to download a torrent film, and then the actual videos or other films, which might have copyright. Just accessing information under a blocked URL will land you in jail and leave your bank account poorer by Rs 3 lakh”.

This piece of scare mongering was then repeated ad-infinitum in other papers as well, including the Times of India, the Indian Express, DNA, Zee News, Deccan Chronicle.

Is this for real? Are they seriously going to put us behind bars for merely viewing a blocked website or its contents?

Is this for real? Are they seriously going to put us behind bars for merely viewing a blocked website or its contents? While the message displayed is badly drafted, surely it cannot be the case that merely viewing a URL or web-page is an offence, even if it does contain illicit content (provided of course that the viewing does not entail the making of a “copy”).

Background to Blocking and John Doe:

But first, where did this new “blocking” notice (that ISPs appear to be implementing) come from? For this, one needs to go back to the recent spate of spectacular “John Doe” orders from the Bombay High court. As we noted in several earlier posts, the Bombay High Court (Justice Patel in particular) appears to be infusing much needed safeguards into John Doe orders.

In the Dishoom case, Justice Gautam Patel of the High Court refused to grant a John Doe injunction since the plaintiffs had merely thrown in a bunch of websites and URLs that they wished to block without checking to see that they actually contained infringing content. Patel was caustic in his criticism of this shoddiness, noting that:

I have reason to believe that some of these links may in fact be of vendors advertising forthcoming DVDs or official downloads. ….It is no longer possible for Plaintiffs to now come and expect to get sweeping orders just for the asking. I expect a far higher standard of care. I understand that the Plaintiffs are anxious to protect their copyright. As against that, there are other public law rights of wider import that Courts must protect. I have very little doubt as to which is the more important.

Subsequently, Justice Patel granted the plaintiff’s fresh application for John Doe order only after the plaintiff had done more homework and authenticated each one of the links presented to him. Additionally, he also directed ISPs to paste a special default error page on a blocked URL containing a detailed message listing out:

  1. The specific offences under the Copyright Act for which the URL was blocked and the legal consequences thereof;
  2. The suit number, date and details of the order under which the concerned URL was blocked; and
  3. A statement that the aggrieved persons may directly approach the court after 48 hours of notice to the plaintiff.

A Diluted Duty to Display?

Tata Communications Ltd (TCL) went to court saying it was technically (near) impossible to display the above information on the blocked URL/page. Justice Patel was not amused and stated that this kind of display will be “elementary to anybody who has done a beginners’ course in web application coding”. He then gave the Tatas a three-day deadline to comply with his earlier order.

Subsequently, the Tatas approached again stating that they could provide a detailed message (when compared with the existing format that merely says that “blocked under the orders of the Competent Authority”) but only a detailed “generic” message as opposed to a specific message outlining details of the particular case under which the blocking order was passed.

Reluctantly, Justice Patel appears to have relented and permitted this, though he made it clear that this would only be on a “temporary” basis:

I will, however, make a slight allowance on Mr. Tulzapurkar’s application for leave to publish a more generic error page, subject to certain conditions. Mr. Tulzapurkar suggests a format that allows an affected party to contact a designated officer of the 11th Defendant. That officer will then provide the necessary information. Mr. Tulzapurkar tenders a draft of the proposed error message….I will accept this temporarily with some modifications.

Botched Up Message from the Tatas:

Unfortunately, the Tatas (TCL) bungled up the message and wrote it in less than clear language. Rather than stating that the block was due to a court order or a government agency, the Tatas went on to warn the public of consequences of copyright infringement. And slightly paradoxical too, given that the website/URL has been blocked and there is no “infringing” content anymore! So where is the question of viewing or downloading “illicit” content when the URL itself has been blocked! In any case, viewing a webpage is not an offence, even if the page contains illicit content, unless one copies or downloads or transmits that content in some way, in which case it will amount to a copyright infringement.

But in all fairness to the Tatas, the “message” that they intended to display has to stamp of the court. The court however made it clear this was only a temporary stop gap arrangement:

At the moment, I do not propose this to be used as the standardized notice.. To the extent indicate earlier, the earlier directions stand modified, limited to the 11th Defendant. This order will operate till 19th September 2016, by which time I propose to revisit the issue.”

One hopes that at the next date of hearing, the Tatas come up with a clearer message that aims at providing public notice of the block and the reasons thereof. And not so much to use the medium of the “block” to issue yet another copyright threat!

In a well researched piece, Salman SH of Medianama contends that even the e-mail address on the blocked page provided by TCL for contacting the nodal officer ([email protected]) is non-functional! This is in violation of the pre-condition upon which Justice Patel had permitted this generic message by the Tatas. He had clearly cautioned thus:

As long as the contact email address of a Nodal Officer is provided and there is an assurance of a response from that Nodal Officer within a reasonable time, taken as an undertaking to this Court (with all that this implies), then it might be worth attempting….I have no reason to believe that the 11th Defendant and its Officers will not comply with this. Should there any issue, this order can always be revisited at any time.

One hopes that TCL will soon correct the e-mail address and that all ISPs take due care and caution in displaying the requisite public notice on blocked websites.

In the meantime, do rest easy. There is no way that you or someone you love will get arrested for merely viewing a blocked Torrent or website or URL!

ps: This post was authored jointly by Shamnad, Pankhuri and Ritvik

pps: image from here.

 

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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