A torrent of bans

Blocking entire web domains hurts genuine users

Late last month, the Madras High Court ordered the blocking of 830 websites (mainly torrent sites) to prevent piracy of a movie, A Flying Jatt, by any "unknown person". Internet surfers who visited the blocked URLs saw a notice that stated: "Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence, including but not limited to, under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957, which prescribe imprisonment for three years and also fine of up to Rs 3,00,000". This has now been amended to the less confusing version: "Infringing or abetting infringement of copyright-protected content under this URL is punishable as an offence under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957…" The original notice was not only badly drafted - the specified punishments exceeded the maximum prescribed sentence under the sections mentioned - but was also absurd. A surfer who "views" a website cannot be penalised anymore than a passer-by can be prosecuted for seeing pirated books sold at a traffic light.

Even though the clarification was useful, such John Doe orders - these bans are often called "John Doe" orders in legal parlance because US courts refer to "unknown persons" as John or Jane Doe - block entire websites and thus prevent the transfer of any content from the website. This is unfair to legitimate users. The BitTorrent technology is a popular method of transferring large files, using peer-to-peer methods, where users share their bandwidth to help the transfer of data. Torrent websites and other file-sharing websites, which use different transfer methods, are repositories of both legitimate and illegitimate content, containing files uploaded by many users. IT industry workers, including independent developers, use file-sharing websites as a convenient means to back up code. Other content - art, text, video and music - is also stored and distributed by people who own the copyrights to that content.

At various times, anti-piracy orders have led to the blocking of popular file-sharing websites such as GitHub, video websites such as Vimeo and Dailymotion, and free software hosting websites such as SourceForge. What is more, often enough such bans stay on indefinitely, without any obvious recourse to appeal. This makes it tedious for a ban to be challenged or modified. Blanket bans of entire domains prevent users from exercising their right to free speech and their right to conduct legitimate commercial activity. Many IT firms work off leased lines and VPNs (or virtual private networks that are created with the use of encryption over a public network) that automatically bypass bans, even in Indian offices.

But the new notice still seems to threaten criminal liability for using torrent technology, since any user in a peer-to-peer system may be accused of "abetting infringement". Thankfully, recent orders by the Bombay High Court were aimed at fine-tuning this process. The Bombay HC served John Doe block orders only on specific sub-sections of websites containing pirated content from the movie Dishoom. The court also asked for a contact email to be added to the notice that pops up so that people can appeal against the blocking of a website. Although the email address provided did not work for many days, at least an improvement was attempted.

On August 24, the same day the Madras HC ordered the blocking of torrent websites, the Bombay HC further suggested the creation of an ombudsman to oversee the process of implementing bans and managing appeals against such bans. Such a system could be of great help. Copyright holders must, of course, be accorded legal protection for intellectual property. However, legitimate users should not be harassed by a shotgun approach. A system, therefore, needs to evolve that protects the rights of legitimate users while preventing piracy.