A Ludicrous Ban

Small acts can have outsize consequences. In 15th century England, Richard III lamented that for want of a nail, a kingdom was lost. In 21st century India, the question is this: for want of copyright protection for a single film, will the whole Internet be lost? On 29 March 2012, the Madras High Court issued an order whose effect Internet users in the country are still reeling from. As we go to press, most Internet users in India are unable to access a number of popular websites that millions of people around the world use every day. These banned websites are not forums for human trafficking or illegal weapon sales, but merely extensions of ordinary human activity like learning, sharing and growing—activities that are particularly well facilitated by the Internet. That the websites have been banned is of great concern; that the order purportedly banning them, and its effect, are both inexplicable and badly understood is of greater concern still.

How did we get here?

These are the facts. Earlier in the year, a little-known Chennai firm called Copyright Labs filed a petition on behalf of RK Productions, seeking protection for their client’s upcoming release—the Tamil film 3—against copyright infringement on the Internet. The film had not opened to audiences yet; the petition sought pre-emptive protection. In response, the Madras High Court passed a ‘John Doe’ order—John Doe being American shorthand for the anonymous everyman—which has a wide, sweeping scope and is designed to protect against potential offences by necessarily nameless persons, or in other words, everyone. The order applied to several Internet Service Providers (ISPs), as well as the aforesaid nameless persons (the John Doe of India is, apparently, ‘Ashok Kumar’), binding them, and their heirs, assignees, representatives and the whole shebang, against infringing copyright in relation to the film on networks they administer.

In apparent compliance with the John Doe order, Indian ISPs reacted with obsequious haste, in singular—and totally arbitrary—fashion. Between them, they have blocked a range of torrent sites (like the Pirate Bay, which is always Target No. 1, regardless of the circumstances), a few video-sharing sites like Vimeo and DailyMotion, and for good measure, some unrelated and completely irrelevant websites such as Xmarks, which allows users to share and sync bookmarks, and Pastebin, a service to store text and code. The weirdest aspect of this countrywide clampdown on a large chunk of the Internet is that the Madras High Court order did not actually specify any websites to block at all. How—and why—the ISPs zeroed in on these particular entities remains a mystery.

The Pirate Bay certainly hosts large amounts of pirated material, but it is also in some part a way to distribute legitimate content legitimately; Vimeo, on the other hand, is the distribution channel of choice for independent films uploaded by the filmmakers themselves; Pastebin has strict policies that are respectful of copyright and is mostly used by free and open source developers to tweak and relay copyright-free software. The sweep of this clampdown by the ISPs defies logic by deeming everything illegal: the wedding video that we cherish and put up to share with our friends, the small, independently financed film we wish to distribute electronically, the piece of free and open source software we just improved upon and would like the world to know about. Luckily for us, any blocking action imposed by local ISPs can be easily subverted by going through a virtual private network—a proxy—and if you’d like to see just how easy and quick this is to execute, please go to http://anonymouse.org. You’re welcome.

But first, the law. There is some confusion as to whether blocking whole websites for copyright infringement is legally permissible, and the answer is mostly no—and partly yes. The procedure for blocking websites in India is governed by Section 69A of the Information Techno- logy Act 2000, as amended in 2008 (the IT Act). Section 69A of the IT Act gives the Central government, or any of its officers specially authorised by it, the power to direct either a government agency or an intermediary to block access to any website under a list of very specific circumstances, namely: a) in the interests of sovereignty and integrity of lndia, b) for the defence of India, c) for the security of the State, d) for friendly relations with foreign States, e) for public order, or f) for preventing incitement to the commission of any cognisable offence relating to the previous points. Failure to comply with a blocking order thus issued is punishable by imprisonment and fines.

Importantly, however, neither copyright infringement nor obscenity (the other popular trigger for censorious actions) is listed as grounds for which a website may be blocked. Sure, the IT Act has specific provisions that lay out the consequences of transmitting obscene material and the infringement of copyright, but being blocked is not one of them. On the basis of its powers under Section 69A(2), the government has laid out procedures for blocking websites and notified the Information Technology Rules, 2009 (with the ‘Procedure and Safeguards for Blocking for Access of Information by Public’), as well as designated nodal officers who can receive these complaints under the Act.

Section 6 of these IT Rules lays out a clear procedure for initiating and implementing a block. The procedure not only involves a thorough examination of the claims, but also reiterates the grounds under which a request for a block might be permissible, namely, the conditions laid out in the IT Act. Section 7 of the same IT Rules lays out the procedure for examination of the request and places it in the hands of a committee; the procedure involves the participation of several high-ranking officials and outlines detailed steps, such as contacting the potentially offending parties and giving them time to respond or take action as appropriate, only after which blocking may be deployed if still necessary.

The law is clear that copyright infringement cannot be legitimate grounds for the blocking of a website. Section 79 of the IT Act, in fact, explicitly provides safe harbour for ISPs, though the controversial Intermediary Due Diligence Rules, 2011, have made a mockery of this section. These Intermediary Rules are currently the subject of heated debate, with many civil society organisations and even some parliamentarians calling for them to be repealed. (You can learn more about the protests at www.it2011.in).

As things stand, a copyright holder can ask for the removal of infringing content by sending a take-down notice under the provisions of the Intermediary Due Diligence Rules, however flawed they are, or by asking for a John Doe order. A take-down notice is a complaint by the copyright holder to a website, indicating the specific uniform resource locator (URL) where the infringement is allegedly happening. It is a procedure further reinforced in the 2012 amendment to the Indian Copyright Act, which reiterates the rights of intermediaries, such as ISPs, to transmit any potentially infringing content until a take-down notice is sent and examined. A John Doe order, by its wide, sweeping nature, is normally exercised with the greatest caution, and only granted in the most exceptional circumstances. John Doe orders do not provide for public examination and discussion of claims; they do not allow any other side—other than the petitioning party—to state their case; and they can be badly misunderstood by the parties involved, as vividly demonstrated in this case.

In this case, both the petition and the order are questionable in several ways. The Tamil film 3—starring Dhanush and Shruti Haasan and directed by Rajini- kanth’s daughter Aishwarya—is not exceptional. It is one of the hundreds of Tamil films made this year, following on from the thousands of Tamil films made thus far. There is no particular reason why this film alone is worthy of a John Doe order. Ironically, it is exceptional only in that until Copyright Labs’ petition, the film served as a working demonstration of the benefits of a free and open Internet: the reason we knew of the film was the massive publicity generated by the viral hit ‘Kolaveri Di’—a song whose popularity spiralled by being shared freely and widely, regardless of copyright ownership. In the case of ‘Kolaveri Di,’ the producers saw the piracy of the song as publicity, and encouraged it. Then, it would seem, they decided that any piracy of the film was, well, piracy—and decided to stop it in the most insensible and ruthless manner possible. And there you have it: not only can you now have your cake and eat it too, you can also smash it in the faces of millions of users with impunity.

Copyright Labs, the previously unknown firm in Chennai that acted for the producers of 3 appears to be run by one Harish Ram, whose Twitter feed covers the catastrophe in revealing detail. Facing the wrath of fellow tweeters who were outraged at their inability to access their favourite websites, his collected responses on the handle @harishramlh instructively outline the disastrous way by which the court order he wanted has been implemented. Harish claims that his firm was forced to take action because infringing sites “don’t respond”. His cry for help would be plausible except for one inconvenient detail: the film 3 released on 30 March 2012, and the John Doe order was obtained on 29 March 2012—a day before the film’s release. What kind of piracy could Copyright Labs have been trying to battle unsuccessfully prior to the film’s release? There are instances of pre-screening prints of a film making it to torrent sites, though these are rare. Most often, the piracy of a film only happens after its public release. At the time of Copyright Labs’ petition, it is likely that very few or no take-down notices had been served because very few or no infringing acts had been committed yet: this is the very basis of the petition and ensuing order. (A quick search on Pirate Bay confirms that the only torrents related to the film are dated after its release, and not before). A little while later, perhaps upon discovering that he too cannot watch his best friend’s wedding video on Vimeo, Harish casually tweets  that he has “written to unblock the whole site and block only specific piracy links” and presto, Vimeo is unblocked.

Regulators, take note. This is how the Internet is governed in 21st century India: by the fluctuating whims of an excited young man in Chennai in possession of a court order he neither deserves nor understands.

Thanks to the fact that our governments and corporations are constantly fantasising about how to censor our Internet (and frequently succeeding), the people who bring us the Internet, the hapless ISPs, have been beaten into submission; they now jump to the mildest murmur of reproach with wildly imaginative and unduly overreaching reactions. The last thing we need in an online environment full of dirty tricks is more dirty tricks. If anyone in power has any desire to keep the Internet working for the millions of Indians who prosper by it, safe harbour for ISPs must be restored in the IT Act—and the Intermediary Due Diligence Rules must be repealed.

Our courts cannot be used as quack-houses to buy pills for imaginary problems. The copyright industry is not a sick patient; it’s just a hypochondriac. Films don’t fail because of piracy; they fail because they’re not worth watching. The most popular films in this country are also the most pirated, and yet they remain money-spinners. The real problem is the unbending inability of this industry to adjust to the world; to the Internet; to the life-changing technologies that human beings have witnessed and embraced and prospered by over the past two decades. Instead of responding to these changes creatively, film producers and music distributors think that digging in their heels and acting like petulant children is going to delude consumers into seeing them as something grander than they are. The reality is that they are simply packers of culture and knowledge who aren’t even wrapping up their products competently. For now, though, these children have been given a nuclear bomb to play with, and they just used it to kill a cockroach. Beware the radiation.

Lawrence Liang is a lawyer and researcher at the Alternative Law Forum; Achal Prabhala is a writer and researcher in Bangalore

Click to read the original published in the Open Magazine on June 2, 2012