India has the third largest population of internet users and soon it could be the country with largest number of prisoners! For close to six months now, the Anti-Piracy Cell (APC) of the Kerala Police with the assistance of Mollywood’s new anti-piracy tracking software, Agent Jadoo, has been aggressively monitoring the cyberspaces to combat piracy. The software, developed by a Kochi-based JadooTech Solutions Ltd., detects the IP addresses of users dealing in pirated copies. The software assisted the Kerala Police in conducting raids against 30 individuals found to be uploading ‘Snehaveedu’ in July. This September, however, the APC in a preposterous attempt at curbing piracy registered a whopping 1,010 cases against individuals for uploading, downloading or streaming recently released ‘Bachelor Party.’ Incidentally, the complainant M.C. Sajithan, who holds the telecast rights of the movie, obtained a John Doe order on October 16, 2012 to prevent ‘unknown persons’ from uploading, downloading or streaming of ‘Ustad Hotel’. (Image from here)
The actions of the overzealous Kerala Police are unprecedented and highly questionable. It is rare for IP addresses to be used in copyright enforcement, especially against mere downloading or viewing of works.
IP Address: Weak link to personal identity?
Consider a hypothetical situation: ‘X’ owns a kitchen knife and ‘Y’ borrows the knife and stabs ‘Z’. Will ‘X’ be liable for the murder of ‘Z’ because he owns the knife? Ludicrous as this may sound, this is exactly how the Kerala Police appears to have dealt with in identifying infringers. The Kerala Police filed complaints based on IP addresses from where infringing activity was reported. For those unaware, an IP address is a unique number generated by an ISP to every computer resource connected within the network. An IP address does not reveal the actual user of the computer resource. To elucidate further, a New York District Judge stated that ‘it is more likely that the subscriber to an IP address carried out a particular computer function … than to say an individual who say an individual who pays the telephone bill made a specific telephone call’. Simply stated, an IP address can only trace the computer from where the infringing material has been uploaded or downloaded. It cannot state with certainty the identity of the user who actually did it.
This begs one to question whether an IP address can form the basis for registering criminal complaints for copyright offences? Section 63 of the Copyright Act, 1957 which criminalizes copyright infringement requires the offender to have ‘knowingly’ infringed or abetted an infringement. In a situation where the subscriber is not the actual infringer (as in the case of IP addresses), this determination of ‘knowledge’ becomes tricky. This is so because criminal intent is a question of fact and hence, is dependent on facts and circumstances of each instance. Consider a scenario where a sixteen year old kid downloads an illegal movie clip using a torrent from: (A) home network and (B) cyber café. How fair and just is to treat the father of the tech-savvy kid [in (A)] in the same manner as the cyber café owner [in (B)] who provides services for profit?
IP address based copyright enforcement is not entirely new. France and New Zealand recently legislated a three strikes regime (3SP) to issue warnings to subscribers based on IP addresses. The only difference, a monumental one, is that subscribers have a statutory obligation to secure their internet connections. In other words, each subscriber is responsible for activities through his network. In India, on the other hand, neither the IT Act nor the Copyright Act imposes such heavy burden on individuals to secure their internet connections.
On a different note, it is plausible for a novice internet user to easily confuse the legitimacy of an illegal source on the internet. Even here, there exists no statutory provision in the Copyright Act or there exists any general obligation on consumers to verify the authenticity of a movie file before further dealing. The Kerala Police seems to have proceeded with registering complaints based on IP addresses in ignorance of these legal nuances.
What happened to fair use investigations?
Sections 51 of the Copyright Act laid down circumstances which constitute infringement. Section 52 on the other hand, culls out an elaborate list of acts which are deemed as not infringing. From a plain reading of both provisions, we understand infringement as actions which violate author’s rights excluding the fair dealing exceptions. In essence, an act of reproduction of a movie is infringing as long as the purpose of such reproduction doesn’t fall within the contours of Section 52. Looked at in this way, a prima facie case of copyright infringement can be made out only after eliminating the possibility of Section 52 defenses. Interestingly, Justice Muralidhar of the Delhi High Court in 2010 had cautioned the Police to conduct fair use investigations prior to effecting seizure under the Act dealing with seizure of infringing material. The relevant part of the order states:
Consequently, prior to exercising the power of seizure under Section 64(1) of the Act the Police officer concerned has to necessarily be prima facie satisfied that there is an infringement of copyright in the manner complained of. In other words, merely on the receipt of the information or a complaint from the owner of a copyright about the infringement of the copyrighted work, the Police is not expected to straightway effect seizure. Section 52 of the Act enables the person against whom such complaint is made to show that one or more of the circumstances outlined in that provision exists and that therefore there is no infringement. During the preliminary inquiry by the Police, if such a defence is taken by the person against whom the complaint is made it will be incumbent on the Police to prima facie be satisfied that such defence is untenable before proceeding further with the seizure. (emphasis added)
Section 52(1)(a)(i), amended recently, expanded the fair dealing matrix to all works for ‘private or personal use.’ Prior to the amendment, the exception was available only to literary, dramatic, musical and artistic works and that to for private use. Despite this clear legislative intent, I suspect if the Police examined to see if the purpose of downloading had more than personal use.
Kerala’s notorious reputation in tackling piracy
Not too long ago the Kerala film lobby strong-armed its government to authorize preventive custody of copyright pirates in its Goondas Act, the Anti-Social Activities (Prevention) Act, 2007. Recent raids by the Kerala Police indicate widespread use of the Act. The Act authorizes preventive detention of ‘digital data and copyright pirate’ who are defined as:
any person who knowingly and deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and includes any person who illegally enters through the identity of the user and illegally uses any computer or digital network for any illegal personal profit by deceiving any person or any computer system; (emphasis added)
The broadly worded definition to ‘digital data pirate’ has no parallel in any other law in India. One would notice that the definition deals with identity theft, hacking and unauthorized use of computer resource, acts which are offenses under the IT Act. In an article published in JIPLL last year, Prashant & I demonstrated how the Kerala legislature overstepped its authority in enacting the provision which ideally falls within the exclusive domain of the Union. The article can be accessed from here. (Image from here)