Centre for Internet & Society

Prompted by courts and piracy-fearing businesses, Indian ISPs have taken down popular, legitimate websites. This Op-ed by Lawrence Liang and Achal Prabhala was published in the Indian Express on May 22, 2012.

The funniest thing about the “ban” on torrent sites and video-sharing sites by a Madras high court order of March 29 is that it doesn’t work. Naturally: we’re talking about the Internet, whose users and makers have fended off twisted judgments, corporate takeovers, undue state control and outrageous censorship since its inception. So if you currently live in India and want to read the new Paulo Coelho bestseller on his preferred distribution service — otherwise known as The Pirate Bay — or want to watch your own wedding video on Vimeo, the platform of choice for independent filmmakers, then all you have to do is go through one of the many hundreds of virtual private networks that provide a workaround, most of which are free and take about two seconds to execute.

Sadly, this is where the fun ends. As you read this, Internet Service Providers (ISPs) across the country will have put in place an overreaching, wildly imaginative and totally ludicrous ban on just about everything the Internet facilitates human beings to excel at — learning, sharing and growing. The real danger is not the effect of the court order or its interpretation, but the fact that it is a part of a disturbing trend in which copyright owners presume that it is piracy that results in the failure of their films. This, coming from an industry that regularly churns out facsimiles of Hollywood hits and renders them original works worthy of copyright protection. Let’s get this clear: films fail when they are bad. Films that hit the box office jackpot do so in spite of piracy simply because they are good.

A quick recap of the facts. Earlier this year, a Chennai firm called Copyright Labs, acting on behalf of its client R.K. Productions, applied to the Madras High Court to protect the Tamil film 3 — starring Dhanush and Shruti Haasan and directed by Rajnikanth’s daughter, Aishwarya — from copyright infringement on the Internet. The petition was filed even before the film’s release; the protection sought was pre-emptive. The Madras high court passed a “John Doe” order, which is, in essence, a sweeping set of protections granted against unknown potential offenders in the future, without giving any other interested party the chance to be heard. Any order that does not give the other side a chance to be heard — without even knowing who the other side is — has to be exercised judiciously; if every new film produced in India released with an ex parte order every Friday, principles of natural justice would be diluted, to the larger detriment of the legal system itself.

This is not the first John Doe order pertaining to copyright that has been issued in India, but it is certainly the most consequential. Previous orders (in relation to copyright) are relatively recent, and have been passed over the last few years in relation to a single motion picture and to music at large — but their effects have been relatively contained. The problem with John Doe orders is that by their overly broad and sweeping nature, they extend to a range of non-infringing activities as well, thus catching a whole range of legal acts in their net. And speaking of legal acts, the ultimate irony here is that the first we heard of this film was through the viral hit song Kolaveri Di — distributed at will with the blessings of the filmmakers — which created massive pre-release publicity for 3. Consider then that this order is not quite the slaying of the golden goose, but a gag order on the animal kingdom since there could be a wild animal lurking amidst the geese.

Reading through the list of websites that ISPs have banned — as Nikhil Pahwa carefully details on Medianama — is an eye-popping exercise. The Pirate Bay, everyone’s favourite hallucination, is on it. So are Isohunt, and a few others. Two video-sharing sites are named, Vimeo and DailyMotion. (Never mind that all these websites house a sizeable percentage of perfectly legitimate content that is user-generated and user-uploaded and distributed with the full permission of the copyright owner.) Inexplicably, the ISPs — or some mysterious intermediaries between the Madras high court and them — in their wisdom, march forth and ban a website that allows the sharing of bookmarks (Xmarks), and another that primarily exists for Twitter users who want to exceed their 140 character limit (Pastebin), regardless of their complete inapplicability in this situation.

India’s copyright act allows owners of content the right to prevent infringement through the use of injunctions, but these injunctions have to be narrowly construed and applied only to specific instances of infringement. Which is to say, take down the infringing video, not the whole website, and don’t intimidate the host. When injunctions threaten freedom of speech and expression, then free speech should necessarily trump copyright claims — and the courts cannot be used as convenient shopping forums for maladies that don’t exist. The real issue here is that copyright industries have to come up with better business models that take cognisance of technologies that allow people to exchange information. The course we are currently on will only result in strangling technology and stifling innovation and creativity.

Read the original published by the Indian Express here

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