Does DMCA pose a risk to Indian hosting companies also?

When a hosting company hosts user content, there is always a risk of the hosting company being charged for abetting the copyright infringement if any by the user. In India, intermediaries are subject to the “Due Diligence” requirement under Section 79 of ITA 2008 which inter-alia requires them to respond to a notice such as a “Take down notice” within 36 hours.

This “Act within 36 hours” does not mean that the hosting company needs to take down any content for which he has received a notice of objection from a member of public. It applies when a competent Court issues an order. There could be some doubt as to an action required when a notice comes directly from the police without a Court order. Normally the Police should respect the tradition of getting a Court order in case of either a suspected defamatory post or a copyright infringement. Neither the Police nor a complaining individual nor even the hosting company has the right to take a judgmental view about any content as to whether it is defamatory or infringing any copyright.  However, it would be necessary for the hosting company to reach out to the accused person who has posted a disputed content and initiate a “Show Cause” process followed by a mediation or arbitration before the next level of action is contemplated. In the meantime, a “Notice” may be displayed that the content is disputed so that visitors are informed and put on notice.

Obviously, copyright owners would not be satisfied with any half measures and would not only require a take down but also further action both civil and criminal on the person who infringed. As regards the hosting company, most copyright owners would be satisfied if a  quick action is taken to take down the offending content.

Under DMCA, four safe harbors have been provided for the service providers according to which the liability of the intermediary would be limited if certain precautions are observed. They are

a) Transitory digital network communications (eg:Network service providers who only transmit data)

b) System caching (eg: ISPs who cache content temporarily)

(c) Information residing on systems or networks at the direction of users

d) Information location tools (eg: Search Engines)

Each of the above have a set of particular conditions, all of which must be met to enjoy the protection of that safe harbor. Each safe harbor addresses a different aspect of potential copyright liability, and meeting the conditions of any one is sufficient to receive protection for the acts included in that safe harbor.

In order to address the concern of the copyright owners, Congress instituted a “Voluntary” notice and take down system so that the allegedly infringing material is removed quickly and then any infringement can be adjudicated in a copyright infringement suit. This system of “notice and take down” starts with a service provider designating an agent to receive notices by filing a form with the copyright office. Then copyright owners who believe that their works are available on a service provider’s system can send a notice to that service provider at the address available in an online database on the Copyright Office’s Web site.

Recently the copyright authorities have simplified the system by introducing an online facility to designate an agent and also reduced the fees for the registration.

Once a service provider wanting to avail itself of the safe harbors knows that its system has infringing material, that service provider must expeditiously remove or block access to the allegedly-infringing material. That knowledge can come from a proper notice from the copyright owner, or when the service provider is aware of facts or circumstances from which infringing activity is apparent. It is not necessary for a service provider to police its users, or guess that something may be an infringement.

In a case in which the notification that is provided to the service provider’s designated agent fails to provide the necessary knowledge, the service provider needs to promptly attempts to contact the person making the notification or takes other reasonable steps to assist in the receipt of notification that substantially complies with all the provisions.

Further, a service provider shall not be liable to any person for wrongful deletion of the content done in good faith when a proper notice has been received.

The service provider must notify the subscriber of any take down, and if the subscriber contests the take down, must restore the material within 14 business days. That provides the copyright owner time to file an infringement suit and get a temporary injunction ordering the continued removal of, or blockage of access to, the alleged infringing material.

There are some legal experts in USA suggesting that DMCA provisions need to be honoured by all service providers who may be serving content to US citizens. If this is true, then there will be need for affected Indian content providers to register their “DMCA agents” with the DMCA authorities.

Generally the provisions of DMCA also constitute the “Due Diligence” under Section 79 of ITA 2008. However, in the case of websites where the content is available to global audience, the risk of DMCA exercising its jurisdiction on Indian service providers is a cause of worry. There have been atleast two instances where DMCA has struck on people outside India. First was the case of a Russian programmer who was a project lead of a product infringing DMCA which was developed in Russia and distributed through a website in which the programmer was arrested while on a tour of USA. Second was a professor working in Japan who was extradited by the friendly Government to face the trial in USA. There is no reason to believe that such things would not recur in future also.

Hence the Indian copyright authorities need to ensure that DMCA is not applied to Indian conent providers bypassing the local laws.

For this purpose, it is necessary for the Indian Copyright Authorities to declare that “No action will be initiated against Indian constituents under any copyright law except through the Indian copyright authorities”.

Simultaneously the CERT IN should coordinate with the Indian Copyright Authorities in ensuring that those who follow ITA 2008 should not be harassed under the Copyright Act with “Take down notices” and “Penal action for not adhering to take down notices”.

This point had been made here several years back but the need for such “Indian Safe harbor” has not been addressed so far.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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