The messy battle against online piracy
When file-sharing website Kickass Torrents (KAT) went offline after its alleged owner, Artem Vaulin, was arrested in Poland last week, Indians were the most heavily affected by the move.
India provided a big audience for KAT, with Kat.cr—the most popular of its many URLs—having seen 24% of its traffic come from India, more than any other country, according to Alexa.com, which provides rough estimates of traffic to websites.
That would have made kat.cr India’s 29th most popular website, according to Alexa, before it was shut down (globally, kat.cr ranked only 75th).
But for Indian movie studios—as for studios in many other countries—the shutting down of KAT was just one very public spearhead of a multi-pronged strategy against online piracy.
“Obviously, rights owners have their own copyright administration system where they have regular takedown efforts that works through the year with the online community, including Google,” explains Saikrishna & Associates partner Ameet Datta.
That first line of defence is often to send a Digital Millennium Copyright Act (DMCA) takedown notice to the website hosting the illegal link, as well as to Google, which may display a link to pirated content as a search result term (the DMCA is a US law that potentially punishes websites that do not remove copyrighted content quickly after receiving a notice from copyright holders).
Often this process is semi-automated by agencies contracted by studios to comb the Internet for copyright-infringing content, and when working with reputed companies, it can be fairly quick.
End users—the ones who illegally download and watch the content—are practically beyond the reach of Indian law due to slow court processes and a lack of studio interest in alienating customers, agree two copyright lawyers interviewed.
However, there is also the fight against those physically recording movies with a camcorder in cinemas, or digitizing copies of movies before they are even released on cinema screens, which employs a range of techniques, including sophisticated digital watermarking and more.
Studios can also try to disrupt the actual physical distribution network of pirated films, where pirated content is sold on the street after being burned onto DVDs, copied to portable USB drives or memory cards.
But increasingly, those distribution mechanisms appear to be moving online, and it is here that movie studios and lawyers have been seeing the most action recently.
Since 2012, Indian movie studios and content-right holders, such as TV networks with exclusive broadcast rights to massive sporting events, have been becoming more closely acquainted with a certain John Doe. In India, he is also colloquially referred to as Ashok Kumar, but actually, neither John Doe nor Ashok Kumar really exist.
John Doe, the proverbial everyman in the US and in legal circles, is a stand-in for ‘persons unknown’, particularly in copyright-infringement suits that are filed by movie studios mostly against Internet service providers (ISPs) and cable operators offering Internet access, asking them, and anyone else like them, even if not named in the petition, to block access to specific websites and URLs.
That would typically include individual pages on websites like KAT or Pirate Bay that provide access to pirated movie files over the peer-to-peer BitTorrent protocol from other Internet users, as well as larger and smaller fly-by-night sites, modelled on YouTube, which host entire pirated videos for direct streaming on your web browser.
Often, these are only short-term measures to prevent online piracy from stealing the thunder of a release date, as movies have often illegally become available online then, when the majority of profits are made for the studios. This is why lawyers often approach courts nowadays even before a movie’s Friday release.
“Saturday is holiday for the court, Sunday is public holiday, the earliest possible hearing is Monday afternoon, by which time 72 hours have gone,” says Nikhil Rodrigues, partner at Mumbai-based RM Partners, which has acted in the recent John Doe orders on the movies Great Grand Masti and Dishoom.
The exact number of blocked websites is potentially huge. Between January and early December 2014, 2,162 URLs were blocked via court order (of which the majority are likely to relate to copyrights), compared to only 293 blocked URLs under the IT Act, according to information collated by the NGO Freedom House, citing government figures disclosed to the Supreme Court.
The big risk is that such wide blocking orders also sometimes affect innocent websites.
“There are no figures,” says Parul Sharma, an analyst at National Law University Delhi’s Centre for Communication Governance, “but throughout the years, there have been various cases where over-blocking has happened.”
She cites, as examples, the John Doe orders issued for the rights holders of the Fifa World Cup, where the courts gave orders blocking 500-odd websites, or the India-Australia cricket series that also resulted in widespread blocking.
“The problem with over-bloc-king is mostly that people who are blocked are often really small players,” says Sharma. “They don’t have money or knowledge to go against these (large studios procuring John Doe orders), and all of us end up losing on legitimate speech or content.”
Aadarsh Agarwal runs a DVD, VCD and Blu-ray online shop at Induna.com—all directly distributed by the official distributors. Until 12 July, that is. “One fine morning, we wake up and we find that our website is not opening for us,” says Agarwal.
He and his team tried every office computer on BSNL connection, and none of them allowed any access. A Vodafone cell phone connection did not allow access to their site either.
Instead of their website loading, they received a message that the site has been blocked by a court order, says Agarwal. “This was totally confusing and we were at a loss; it’s the first time it happened.”
“Generally, you don’t even know who’s being blocked, that’s the problem, and the person being blocked doesn’t know why he is being blocked,” says Shamnad Basheer, of the Spicy IP blog and part-time professor at Nirma University and National Law School of India University, Bengaluru.
To find out more, Agarwal sent someone to visit the local BSNL office, with no success; kept trying out Internet connections (an Airtel connection still allowed access to their website, strangely), and began searching Google, jumping through ever more hoops. After a while, they found a DMCA takedown notice mentioning a page on their site.
A placeholder page advertising the upcoming DVD of Great Grand Masti, which had not yet been released, was the apparent reason that their entire website was inaccessible (except on Airtel, where only that one page was inaccessible but the rest of the site could still be opened).
Agarwal continued his quest on Google and finally found limited media reports of a court case (on websites Spicy IP and Medianama), eventually finding a Bombay high court order that 110 websites illegally sharing copies of Great Grant Masti should be blocked.
According to Agarwal, he eventually managed to confirm, through an agency sub-contracted by the producers, that Induna had been mistakenly included in the list of websites to be blocked.
The list of URLs submitted to courts for blocking are usually compiled by specialist anti-copyright agencies—two major players in the field are Bengaluru-based Aiplex Software Pvt. Ltd, which is an “online content protection solution”, according to its website that “most of the entertainment companies” rely on, and Delhi-based MarkScan.
However, until now, such agencies have had little incentive to get it right. Their bill is usually paid by the copyright holder, who has filed the John Doe order in court and usually doesn’t mind if overblocking of websites takes place. And courts realistically do not have enough time to manually check hundreds of file-sharing websites.
“The court is so overburdened in India, it is impossible for the judge to examine every single (URL),” says Sharma. “That has been the biggest problem with John Doe orders: the court has passed these without scrutiny.”
That is especially so since John Doe orders are made ex parte—in the absence of a party whose lawyers would strongly oppose the copyright holder petitioners’ cases.
In other words, the websites that are blocked are not a party to the John Doe case, and “to be fair, the Internet providers don’t have an incentive to fight back”, according to one studio lawyer, so essentially the judge only hears one side’s arguments. The lawyer didn’t want to be named.
However, in the last month, several judgements by the Bombay high court and the Delhi high court’s division bench have done much to improve the image of John Doe orders as unaccountable.
On 26 July, Bombay high court justice Gautam Patel passed a judgement in the suit brought by Eros International Media Ltd against 50 telecom and Internet provider defendants (including John Doe), seeking to block websites allegedly illegally distributing the movie Dishoom.
That judgement followed several weeks of landmark orders by justice Patel that carefully and deeply explored the nuances for John Doe orders, the necessity for them, as well as their pitfalls.
“Blocking access is very much like cutting off the oxygen or blood supply,” said Patel.
Basheer calls Patel’s a “fabulous job” that “reined in the excesses we saw in John Does”.
In a nutshell, Patel decided that the list of 134 pirate Dishoom URLs compiled by Aiplex had to be verified by Eros’ in-house lawyer and the lawyer representing Eros in court, and the accuracy of which had to be confirmed via a sworn affidavit in court.
Patel also did a brief sanity check of the list of URLs and screenshots of the sites compiled by Eros to make sure no legitimate websites, such as those hosting movie trailers or selling legal DVDs, would be blocked.
On 29 July, a Delhi high court bench of justices Pradeep Nandrajog and A.K. Pathak also came to a similar conclusion that more scrutiny of URLs was required, on an appeal brought by the Department of Electronics and Information Technology (Deity) of the communications and IT ministry that it did not want to be party to these John Doe blocking disputes.
However, the division bench also left open the possibility of blocking entire websites that are in “entirety or to a large extent indulging in piracy”.
It remains to be seen where exactly that line of “large extent” is to be drawn and how it should be proved, and whether it would have included websites such as KAT, which also link to some non-pirated and non-copyrighted content.
More unequivocally, justice Patel also said that entire websites shouldn’t be blocked; only individual URLs should be blocked for up to 21 days (studios would need a new court order to extend the blocking beyond 21 days).
Furthermore, every page blocked by an ISP under a court’s order would also have to include a notice on the blocked page giving information under what law, by which court and in which case the link had been blocked. Website owners should be allowed to approach the courts to object to a wrongful block.
If implemented by ISPs, this would be a vast improvement on the current regime, though potentially question marks remain about how easy it is for the average smaller website operator to approach some high court in India.
Induna’s Agarwal, based in West Bengal, says that as of 1 August, they still can’t access the entire website from their office BSNL connection, and while one colleague can access the website over a Vodafone mobile connection, another can’t.
At the time of going to press, we have confirmed that an Airtel connection in Delhi allows access to the website, but when trying to access their holding page of the Great Grand Masti DVD, all you see is a blank page.
The blocking technology and approaches by ISPs are far from uniform. Some telecom operators’ blocking order “compliance wasn’t great”, said a lawyer working on such cases, who declined to be identified.
The technical infrastructure may not currently exist for every ISP to speedily intercept thousands of URLs and to inject custom warning pages, in line with justice Patel’s order, explaining why each individual page had been blocked.
One solution would be reform of the system, pulling such cases out of the courts. Basheer says, “We should have a neutral third-party body, an ombudsman of sorts”, which could verify individual links and also more efficiently deal with websites like Induna that have apparently been blocked erroneously.
The body could be financed by content owners and telecommunications providers, so no one side has a unilateral interest or stake in it, suggests Basheer.
However, the very biggest problem the industry faces may not be legal at all.
Justice Patel very lucidly expressed the frustration of how the law has been unable to keep up with the “constantly shape-shifting nature of Internet and digital technology, the swiftness of which is no match for the glacial pace of legislative and jurisprudential change; and perhaps, too, from a real fear that the Internet represents something both unknown and unknowable”.
With KAT’s alleged advertising revenues of $12.5 million to $22.3 million per year, according to US law enforcement agency claims, it only took hours after its founder’s arrest for the entire KAT site and all its thousands of links’ content to get copied by another enterprising group of pirates, hosted at a new domain.
And there are several methods that can make futile most blocking attempts, including theoretically the most draconian blocking systems such as China’s Great Firewall.
“Once there’s VPNs (virtual private networks), this entire thing is nonsensical,” says Basheer about how technology can skirt most blocking regimes under the law.
VPNs act like gateways, usually based abroad, that allow you to connect to the Internet without your ISP or the government knowing what you are doing. You can sign up to a VPN for a monthly fee or some are even for free, including Opera, having recently bundled its own free VPN into some desktop version of its popular web browser.
At the other end are free or paid proxy services (a bit like a VPN light), or the Tor Browser Bundle (which is free, slightly slow, but very easy to install and even more anonymous than VPN, as it is used by journalists operating under repressive regimes, as well as whistle-blowers like Edward Snowden, spies, and also terrorists and paedophiles).
Granted, some of these are currently beyond the commonly assumed technical expertise of the average Internet user, but then again, so were Torrent files until a few years ago, or illegal movie streaming sites before that, or Napster and other peer-to-peer file-sharing services nearly two decades ago.
And putting too tight a lid on such technologies by way of copyright laws could be counterproductive. “We want digital innovation to keep happening,” says Basheer. “YouTube as an innovation would have never come about if you had clamped down on piracy in such a way that the only way would have been for it to go offline (in the early days).”
Indeed, perhaps the law will run out of ways of dealing with piracy, and the industry’s main weapon in future will be to embrace new tech and find ways of effectively monetizing it.
Kian Ganz is publishing editor of Legally India.
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