Kirti Tarang finds out how legal (or illegal) is the common downloading and uploading regime of Music on the Internet.

On September 5^th, 2009, The Economist Technology Quarterly carried the story of Jamie Thomas-Rasset. Rasset, a single mother from Minnesota, was accused of sharing 24 songs on Kazaa in 2005. In 2007, the jury found her guilty and awarded statutory damages of $10,000 per song to the record companies.

In June 2009, Rasset was found guilty again in the second trail for the same case and this time the damages rose to $ 80,000 per song.

One of the record labels’ lawyer admitted that even he was shocked. What’s ironical is that had Ms. Rasset stolen 24 DVDs from a music-store, she wouldn’t have faced such severe penalties.

This is not the only example. Last year saw three big court cases- two of them in the United States of America and one in Europe- where music industry lawyers wrestled with the accused of online piracy. This included the case concerned with Pirates Bay, one of the world’s largest file sharing hubs. The music industry was triumphant in all the three law-suits.

These three trails urged us to take a look at the domestic situation. As in a very melodramatic court-room scene I could see myself being prosecuted for my massive uploads and downloads, along with all my friends. I wanted to check and refute or confirm my fears.

Indian Law and Online Content Sharing

Say NO to music piracy

Loaded with questions, we got in touch with Ranjana Adhikari, Legal & Tax Counselor at Nishith Desai Associates. The conversation was an eye opener!

“A suit for infringement can be filed against a person for online piracy, when such unauthorized person does anything, the exclusive right to do which vests with the copyright owner.” These rights are granted under the Copyright Act, 1957. Adhikari elaborates, “Under the Act, the copyright owner, inter alia has the exclusive rights to reproduce and store the lyrical and musical content in any medium by any electronic means and to communicate the works to the public.”

This means if you decide to download/upload ‘Dil to Bachcha Hai ji’ on You-Tube, legally you can be sued by the right holder. Uploading, downloading and storing of such infringing content by an unauthorized person on any peer to peer network or a website shall amount to infringement of the copyright.

Jeez! Scary facts. Well, the only curtain of protection now was the law enforcement in India; the laws and the loops.

Adhikari was a bubble buster here too. “T-Series had moved the Delhi High Court against You Tube and its parent company Google India for allowing a You Tube user to post content from T-series’ repertoire on You Tube. Instead of suing the user who had uploaded the content on the site, T-series sued Google and YouTube. Major revenues of T-series come from manufacturing and selling DVDs, etc. of copyrighted music. T-Series claimed that the display and distribution of songs for free caused them financial losses. The court granted an interim injunction in favor of T-series and gave time to the parties to negotiate a settlement” she informs.

The Pirate Bay

Okay, so the tussle for now is between the giants. So does it mean that the common net-savvy music lover, who shares music for non-commercial purposes is safe from the claws of law?

“The Act does not differentiate between commercial and non-commercial copying of copyrighted material where the remedies, reliefs or penalties are concerned. Irrespective of the motive behind the illegal copying of the material, in case of infringement of copyright under Section 51 of the Act, the right holder can sue the infringer and claim for reliefs like injunctions, damages and accounts for profits,” Adhikari clarified.

Dr. Venkat Iyer, Barrister-at-law, Senoir Lecturer, University of Ulster, mentions ‘Fair Use Provisions’. According to Iyer, “Copyright Act lays down a number of exceptions to the rule against infringement.” These exceptions are:

• For research and private study.
• For criticism, comment or review.
• Use of lecture by pupils for instructional work.

However, the unauthorized use of copyrighted material should be restricted to reasonable quantities.

How fair (or unfair) is the law for non-commercial downloads and uploads?

Be safe than sorry

“I think everyone is entitled to sample music”, mentions an online content provider. “I loved how Radiohead gave away one part of ‘In Rainbows’ album for free, and people who liked it, would automatically buy it. I feel music should be offered free, and if the person likes it he would pay for it.  However there are a lot of people who abuse this, especially those Indians who love free stuff. I like the way iTunes handles this, providing cheap music to those genuine music lovers who wouldn’t mind spending a little”, he elaborates.

Lessons for the Future

As they say, “Say No to Piracy”. We suggest you buy original music, and with so many options available today, we’re sure it won’t hurt your pocket much. At the same time, downloading still remains a good option with a number of bands and music labels giving out free downloadable versions of their releases on their websites.

The amended Section 79 provides for certain safe harbor principles that should be followed by the intermediaries. Ideally, the intermediary should

• Only provide access to a communication system over which third party information is transmitted or temporarily stored; or not initiate or select the recipient or select / modify the information in the transmission.
• Observe due diligence while discharging its duties.
• Remove or disable access to any information, data or communication link controlled by it upon obtaining knowledge or upon being notified of the infringement. Since the standards of due diligence have not been defined under the applicable laws, it could be assumed that reasonable industry standards should be followed.

Thus, creating and maintaining a system where others may post pirated music content may not attract liability whereas actively participating in and encouraging the piracy generally would.

• The recent amendment to Section 79 of the Information Technology Act, 2000 has introduced immunity for ‘intermediaries’ from liability arising from any third party violation of any law subject to certain conditions.
• The essential element which needs to be proved in order to pin liability on an intermediary is control. The erstwhile Section 79 provided this immunity to ‘network service providers’ with respect to electronic messages.
• However, this has been extended to intermediaries whose definition has been widened through the amendment and now inter alia includes any person who provides any service with respect to electronic records.

• There is neither a statutory definition nor any consolidated law addressing the issue of online piracy in India.
• Some provisions of the Copyright Act, 1957 and the Information Technology Act, 2000 broadly cover the law on online piracy in India.
• For websites where music content is stored, it can be challenged that since the infringing works are communicated and displayed to the public on the website platform, the website also independently infringes the exclusive rights of the right holder and is liable for direct infringement.
• For websites which act like central directories, it can be argued that even though the website may not actually make the music content directly available on its site, providing assistance in locating unauthorized copies of the music content, links to download sites, server space, or support for sites that do the above may ‘contributorily infringe’.

Article by Kirti Tarang
Courtesy: Gowree Gokhale (Partner, TMT & IP Practice Groups)