(P.S: The discussion that is contained herein is for educational purpose and in exercise of free speech rights in public interest of journalism)
The Incident as Reported
An interesting case has been reported from Mumbai where the Mumbai Cyber Cell has arrested a person from Durgapur for illegally selling “Live NSE Feed”. The accused, one Mr Rajendra Kumar Chell has been booked under Section 420 (Cheating) of IPC besides Section 66 and 66B of ITA 2000/8.
The complaint was filed by the manager of NSE working in a NSEs group company DotEx international Ltd (100% subsidiary of NSE) which has purchased exclusive rights to sell live Capital market data. DOTEX was providing such service to 33 other companies.
Around October 2015, the company DotEx noticed that two websites other than their customers appeared to be selling NSE live data and when approached, offered the service for a fee. On payment the complainant was provided with a “Team Viewer” ID and password through which access was provided to live data. By logging into the Team Viewer, the user would be able to view the “NSE Now Terminal System” and the live market data. The complainant has alleged that the two website owners had stolen NSE’s live data and were selling it illegally.
On receiving the complaint, on January 19, 2016, the police have traced the accused through the Bank account to which payment of the subscription amount (Rs 2550/- presumably per month) was credited and the arrest has now been made on 2nd July 2016.
It is not clear how the accused first acquired the data. It is possible that he would be one of the legal subscribers to the DotEx service which he shared with others like a “Sub Broker”.
“The NSE’s real time data is provided in three levels (level 1, level 2,level 3 and tick by tick). Level 2 provides market depth data upto 5 best bid and ask prices and Level 3 provides market depth data upto 20 best bid and ask prices .The real time data feed is provided in TCP-IP format. It is provided on-line through a dedicated 2-10 mbps channelized E1 private leased line circuits. This line shall be owned by the customer and the line should be from National Stock Exchange, Mumbai to the premises of the customer. Alternatively, the customer can take the data from one of our authorised data vendors.” (Source: DotEx website)
This is raw data which the users need to use through appropriate systems and software. According to the NSE tariff table, the level 3 service for tick by tick basis offered on “Terminal Basis” may cost as much as Rs 99 lakhs for both capital markets and Futures segment. This can be used “Free” by 300 users with an additional Rs 1140 per month per user there afterwards.
It is presumed that one such user has re-sold the service. It is also possible that the accused has subscribed to the service legally with one of the brokers who is authorized to sell the data and tried to re-sell the same data to his customers.
Alternate Legal Interpretations
The case represents certain important legal interpretations and opens up some old discussions on the principles involved in Copyright law.
Presently the case has been booked under Sections 420 of IPC, Sec 66 and 66B of ITA 2000/8.
Section 420 of IPC is a broad section and states as under
“420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
In the instance case, the “Property” is the “Live NSE Data”. Assuming that the property belonged to DotEx as an exclusive licensee, the allegation is that it was dishonestly sold to others by the accused. Does this qualify to be called “Property” under IPC, is a matter to be discussed if IPC sections are to be applied to the case.
On the other hand, Section 66 of ITA 2000 is a reflection of Section 43 and includes “Unauthorized Access” to a computer system including data. Section 66B applies to “Usage of stolen computer resource” which includes data. Hence application of ITA 2000/8 is undisputed though the cause of action under sections 66 and 66B needs to be established. This revolves around “Whether the sharing of data was authorized or not”.
The angle of License Rights
The interesting aspect of the case is what was the rights available to the accused with regard to the data and whether he wrongfully applied the rights.
More than the concept of “Data Theft”, this offence appears to be falling in the domain of transgression of the “License to use”. If the accused is an authorized user in the first place and re-sold it to others, it may not qualify as “Data Theft” or “Unauthorized Access” but may have to be debated under the “Terms of usage of license”.
The scheme as reflected in the NSE tariff card, envisages that an authorized user can anyway share the data with 300 free users and more on additional payment basis. It is possible that the accused may be one such licensed user of another licensee.
In the instant case, the accused has further used “Team Viewer” and created a “Closed system of sub-users” who have been authorized to share the feed which was available to him probably as a legal right. If therefore the first right was legal, the sale thereof would be legal or otherwise based on the contract on which the first right was obtained.
SEBI regulates the scheme of “Sub Brokers” and “Investment Advisors” as regards providing “Investment Advise” from the point of view of investor protection. But SEBI regulation may not prohibit distribution of raw data on which the investors may take their own decision. Hence in the instant case, there may not be any violation of SEBI regulations. However, if the concept of “Sub Brokers” and “Investment Advisors” as regulated by SEBI permits providing of investment advice as well as data sharing services through broker’s own shared “Trading software”, there is an implied permission for brokers to share NSE live data to their customers.
The key point therefore that determines this case is how did the accused first come to possess the right to the data and what were the terms. If the terms under which the accused acquired the data did not specifically prohibit its sharing with others either for consideration or otherwise, it may be difficult to make the charges stick.
In this connection, I am reminded of an old debate on copyrights in which it was discussed if a “License to a Music CD” obtained by a person entitles him to play the music aloud in such a manner that the music could be heard by the other non licensees in the vicinity some of whom may be the members of the family of the licensee and some not. (P.S: Reference may be found in the archives in naavi.org)
We can also discuss such “Licence Rights” as to whether it extends to the playing of the music on loud speakers in a function for a fee.
We have similar debates where TV broadcasters and cable operators object to playing of TV in a public place such as a restaurant, arguing that the licence given is for use by a “Single Person”. Even BCCI and ICC have used such rights for restricting rights of providing live feeds of cricket match scores and taking pictures of live sports action etc.
It appears that in the instant case also a debate will ensue on whether the data feed which gets displayed on a TV screen should be viewable only by the licensee and no body else.
The trend in the copyright arena is to narrow down the licenses to such an extent that every commercial harnessing of the licensed material whether it is for personal use or for education or for other truly commercial purposes under different forms of licensing so that the user can be bled to the last drop of his blood.
It must be also remembered that the data in this particular instance refers to the collection of activities of investors as captured by the system. NSE is only an aggregator of the actions of investors to make a bid or buy or sell. The live data feed is therefore not a originally created “Intellectual Property” of the NSE. Hence the right of NSE on live data feed is not “Absolute”.
A comparable example is a sports event where the sportsmen create the spectacle. But the “Organizer” claims right to the viewing of the “Spectacle”. However, in a Cricket match organized by BCCI, it pays the players so that it can claim the right to their performance view. In the case of NSE, the investors pay money in different forms to NSE and hence NSE cannot automatically claim the right to display the actions of the investor.
Hence there are several larger complicated issues involved in determining if the offence in this instance is upheld.
If therefore the present charge is upheld, there could be a fall out which would affect several other usage contexts of data beyond the stock markets.
In particular, in the stock market domain, it would affect every licensed live data feed owner such as a broker. If the concept of “Live data feed is only for the licensee” is upheld, every employee of the broker who works in the trading hall and has the probability of viewing the live data feed on the trader’s screens, would be considered as a “Licensed user”.
Similarly, if a customer of a broker is using a broker’s feed on his personal computer and his friend or colleague is shoulder surfing to find out how a share is moving, it could be construed as an offence of data theft.
From preliminary information that is available, it is unlikely that either DotEx or any of its 33 licensed data users and the scores of licensed brokers have a robust usage contracts that prohibits the viewing of the trading screens on a user’s computer by friends and family members of the licensed users. They may however make retrospective changes to their contracts now to manipulate the terms of usage of their live data feed to protect their interests unmindful of the possibility that such unilateral changes of contractual terms may amount to offences under Section 65 or 66 of ITA 2008 as well as offences under IPC for manipulation of evidence.
I wish that the Court which goes into the case understands the possibilities of an undesirable consequence of its decision (if it upholds the charge and rules out that a licensed user cannot share the trading screen with another) which would require every computer user to ensure that his computer screen is not visible except to himself when a trading screen is running and take a consumer centric view of the incident.
(The above discussion is for academic purpose and in exercise of the journalistic freedom of speech and is based on the information available at this point of time. I reserve the right to change my views if additional information becomes available)