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 Internet file sharing and Its Impact on Bollywood: liability of Internet service providers

By

Jasper Vikas*

 

The digital age poses many unique problems for law. One such problem is adapting intellectual property to meet the challenges of global computer networks. Biegal makes the point concisely: 'The nature and extent of a person's right to copy material in the online world has become for many the paradigmatic cyberspace-related inquiry'[1]. The aim of this paper is to analyse the impact of internet file sharing on the Bollywood and liability of the internet service providers.

 Introduction 

Internet with which we are all familiar is a gigantic network of computer networks. It already had made impact on the life of the human beings as a whole. Internet has capability to widely spread the network of education. The information is transferred by the click of the mouse button. Not only this, internet had provided an opportunity to make millions of copies of that information in a spur of the time. Interestingly until  the beginning of  the twentieth century, there was no mode available to duplicate the information in the written form. Printing press was the sole invention for the production of information. But, when we talk of performers,  the technology revolution on the one hand proved handy for them and on the other hand it  destroyed their copyright work to a great extent.

The advent of camera and audio – visual inventions enabled replay of the work of the performers. The reproduction of their performance, give public a chance to see them many number of times in their home itself. This forced the performers to go for copyright in the reproduction and broadcasting of their performance.

The advent of internet in the last decade of the twentieth century had created number of other problems. The internet had made earth a home, where any body is next to you. This virtual world had vanished the gap of place and time. The capability of the Internet had alarmed the performers. Today Bollywood is facing the problem of infringement of copyright. Piracy has ruined the business of the Bollywood. The irreparable loss has done to the performers. The copying through C.D. (Compact Discs) and DVDs is a very normal phenomenon now. Police is trying to curb the menace of piracy.

But the advent of Internet file sharing softwares had increased the problem of the execution machinery as well as the performers. Internet file sharing softwares are not only easily available but they are very easy to operate also. The Copyright act exempted the copying for personal use but its sharing with other friends is not permissible under the Act. But, its very tough for the execution machinery to check such type of infringements. Traditional penal laws are not of a much support. Hence, Information Technology Act, 2000.

 Internet file sharing softwares

Internet File sharing is the process of exchanging files over the Internet. The most common forms of file sharing are, running an FTP server or using an FTP program, utilizing Internet Relay Chat (IRC), and using Peer-to-Peer (P2P) programs such as KaZaA (which uses the Fast Track protocol), LimeWire (which uses the Gnutella protocol) or BitTorrent. Bollywood is losing millions of rupees because of the online copying through easy Internet file-sharing softwares such as above. This poses another question of liability. Internet service providers are the only persons who are in contact with both the infringer and the infringed. With the help of their network all the file sharing is possible. Therefore, in Information Technology Act, 2000 there is a special provision for the liability of the internet service providers. Section 79[2] of the IT Act, 2000 creates the liability of the internet service providers.

Copyright Infringement

Generally the copyright in relation to the performers is vested with the performers society, who by taking the fees provide the use of copyright work of the performers. Bollywood had two sets of performers, one is in visual presentation and the other is in audio. With the help of the internet file sharing softwares such as Napster anybody can down load the movie or the audio of any movie from the internet in any of the format such as MP3s etc. In addition to that with the help of these softwares any body can transfer or share these copyright works with any of their friends and foes irrespective of the time and place with out paying any thing. This had made mouse a great thing. Only by clicking one gets the hold over the copyright work of any performer. Now the audio CD of Gulam Ali, and the pictures like Mugle Azam, can be easily downloaded by the help of the internet file sharing softwares and they can be send to the erstwhile friend of anybody. The “fair use of the Copyright law itself provides a limitation, but to the extent of using of the copyright work for oneself only. Section 52 of the Copyright Act, 1958 provides that certain acts are not the infringement of copyright. However, these limitations not give any person a right to distribute the copyright work without the permission of the copyright owner.

Vicarious and Contributory Liability

The U.S. Supreme Court’s decision in Sony Corp. of America v. Universal City Studios limited the circumstances in which liability for contributory infringement may be imposed on a technology company simply because it provided a product that was used for infringement[3]. The copyright laws do not expressly provide for secondary liability for copyright infringement. However, the courts, in a long series of cases, have imposed liability on those who facilitate or profit from copyright infringement.  Thus, there are two main strands of secondary liability for copyright infringement: contributory infringement and vicarious liability.

Contributory copyright infringement means when the defendant, "with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another." In other words, the record labels must not only show ownership of a valid copyright and unlawful copying but must show that the P2P (Peer to peer) company had knowledge of the infringing activity, and materially contributed to the infringing conduct. Again, this is for holding someone other than the infringer liable for copyright infringement. In order to find a defendant liable under the theory of vicarious liability for the actions of an infringer, it must be shown that the defendant has the right and ability to control the infringer's acts, and receives a direct financial benefit from the infringement. Unlike contributory infringement, knowledge is not an element of vicarious liability[4]. In India we have much stringent position i.e., Absolute liability principle. In this principle the person is absolutely liable for the act of his. Though, right now this principle is not applicable in the case of Internet service provider’s liability because of the already inclusive principle in the Information Technology Act, 2000.

The Digital Millennium Copyright Act 1998 and the Anti-cyber squatting Consumer Protection Act 1999 are enacted in America for creating the liability of the internet service providers. In Religious Technology Center v. Netcom[5] court stated, “It does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the Internet.” Thus, the claim of direct infringement was dismissed in the above case. The court also looked into the aspect of secondary liability of the ISP. The plaintiff had to prove that Netcom had the authority and ability to check the infringer's actions and also received a direct financial benefit from the infringement[6]. On the latter point, the court noticed that the monthly subscription fees of the ISP did not register any increase, and so the court held that the ISP did not receive a direct financial benefit from the infringement. The ISP was absolved of any vicarious copyright liability, but on the aspect of contributory infringement, the court held that the question of whether Netcom encouraged the client to post infringing materials should be determined at the time of trial. The law clearly spells out the criteria to establish a case of contributory or vicarious copyright infringement against an ISP and makes it more cumbersome. In Recording Industry Association of America v. Verizon Internet Services[7], court held that section 512 (h) of DMCA did not authorise the issuance of a subpoena to an ISP, which was alleged to have provided the means of communication but which could not said to have control over material located on its customers’ computer hard drives. The section permits copyright owner to request the clerk of any United States District Court to issue a subpoena to an ISP for the identification of an alleged infringer.  In BMG Canada Inc. and others v. Doe and others[8], in Canada, court held that the test for an order compelling a non-party (the ISPs) to disclose information about an unknown alleged wrongdoer is as follows, the applicant must establish a prima facie case against the unknown alleged wrongdoer; the person from whom discovery is sought must be in some way involved in the matter under dispute; he must be more than an innocent bystander; the person from whom discovery is sought must be the only practical source of information available to the applicants; the person from whom discovery is sought must be reasonably compensated for his expenses arising out of compliance with the discovery order in addition to his legal costs; and the public interests in favour of disclosure must outweigh the legitimate privacy concerns.

India

Avnish Bajaj CEO of Baazee was arrested under section 67[9] of the IT Act 2000. This section prohibits the transmission of obscene material in electronic form, prescribing imprisonment of up to five years for violations. Now, can Bajaj be held responsible when the student who put up the advertisement would have agreed to the terms and conditions? Further, add to this his Web site is not a content Web site so much as a `service provider' kind of site. Section 79 of the IT Act, under certain conditions, does not hold the network service provider liable for third party information.  Moreover, the above case is not of internet file sharing. Section 79 of the Information Technology Act, clearly exempt the ISPs such as Satyam, Dishnet, and Wipro Netcracker from the liability of any third party information if they proves

Ø      That the offence or contravention was committed without their knowledge. or

Ø      That they had exercised all due diligence to prevent the commission of such offence or contravention.[10]

 Suggestions 

The infringement of copyright of performers in their performances is inclusive of both audio and visual performances. In U.S. legislation, the Digital Millennium Copyright Act 1998 clearly talks of liability of ISPs. The principles of contributory liability and vicarious liability are almost clearly manifested in the above Act. The above Act allows on the one hand the ISPs to terminate the accounts of individuals who infringe copyrights on a regular basis and on the other hand, in the United States, ISPs have to register an agent with the appropriate office so they can receive information of copyright infringements. The above provision eliminates the possibility of an ISP being caught unaware of third party infringements. The Indian Information Technology Act 2000 must include sections addressing the financial aspect of the transaction. The American concept of contributory infringement must also be incorporated into the Indian Act so that if any person "with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, "the person can be made liable”.

            The liability of the Internet Service Providers should not be made absolute because it is not possible to check each and every transaction on Internet. It will be more violative of freedom of expression if every body is under the eyes of some one. The amendment in the Information Technology Act is the necessity. The information world is changing day by day. Therefore, the Act related to information technology needs to be flexible enough to cover the development in the IT. The rights of the Bollywood performers can only be safeguarded only with the help of the vigilant Internet Service Providers and by the development of the Internet Ethics. Internet Ethics must have to include in the curriculum of the students. So that from the early stage of their development they will be teach to not commit the offence of copyright violation through internet file sharing softwares. 

                                                            © Copyright Reserved.


* Jasper Vikas George, Advocate, Delhi High Court, New Delhi, Residence – 69, Antriksha Apartments, H-3, Vikas Puri, New Delhi, Office – G & G Associates, Advocates and Solicitors, G – 2/2, Ground Floor, Sector – 16, Rohini, Delhi - 110085

[1] Biegal, S. (2001) 'Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace', MIT Press: London (hereafter Biegal), at page 74.

 [2] Section - 79  Network service providers not to be liable in certain cases. -For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

 Explanation. -For the purposes of this section, -

 (a)           “Network service provider” means an intermediary;

 (b)           “Third party information” means any information dealt with by a network service provider in his capacity as an intermediary

[3]Harman, Wendy, “Is Grokste Contributory and Vicarious? How the courts wrestle with copyright and creativity in internet age “.

 [5] 907 F. Supp 1361 (N.D. Cal 1995)

[6] Id. at 1375

[7] 351 F.3d.1229 (D.C.Cir., Dec.19, 2003)

[8] 2004 FC 488

[9] [9] Section - 67 Publishing of information, which is obscene in electronic form. -Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

 [10] Vikas Jasper, “Internet File Sharing and liability of Internet Service Providers”, (Under Publication)

[Ed: Views Expressed here in are that of the Author]



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