Liability of ISP in case of Illegal Downloads

LIABILITY OF INTERNET
SERVICE PROVIDER
FOR ILLEGAL
DOWNLOADS
The problem of copyright infringement is near universal in the world. The
rights of the holders of copyright are being infringed left right and center
in the cybersphere. This essay analyses the issues faced globally and lays
down possible solutions for the protection of copyright and other
intellectual rights over the internet.
Submitted to Prof.
Arpan Banerjee,
By Raunaq Jaiswal
LLM 20151415

RAUNAQ JAISWAL 1
LIABILITY OF INTERNET SERVICE PROVIDER FOR ILLEGAL DOWNLOADS
Contents
Problem of Copyright Infringement over the Internet ......................................................................2
Meaning of Intermediary............................................................................................................... 2
Liability of Internet Service Provider for Illegal Downloads ............................................................ 3
Infringement of Copyrighted Material and Liability of ISP.............................................................. 5
John Doe/Ashok Kumar Orders.....................................................................................................7
Conclusion................................................................................................................................. 10

RAUNAQ JAISWAL 2
Liability of Internet Service Providers for
Illegal Downloads
Problem of Copyright Infringement over the Internet
Adam is resident of Australia. His favorite TV Show, Game of Thrones is telecasted in
Australia 1 year after the series finale. His Facebook Timeline is filled with updates about the
show, from his friends in USA. Unable to hold his curiosity, Adam visits a popular torrent
hosting website, and downloads the episodes.
Theoretically, Adam has just broken the law in the above hypothesis. But the question that
now arises is “who will be held liable for the actions?” Can it be the search engine that
assisted him find the torrent? Or can it be the Internet Service Provider who provided him
with the means to access the internet? Or it can be the Torrent hosting website that provided
him with the data?
Practically speaking, a copyright license holder has three main ways to prevent the (further)
misuse of his property. First, he can file a suit for the disclosure of identities of individuals
who downloaded the files and sue them for damages. Secondly, he can ask the Internet
Service Provider to block the website over which infringing materials are published. Thirdly,
he can ask the courts to grant a John Doe order.
While these methods have been extensively used all over the world, they are not foolproof.
For example, in the first instance, a tech savvy person might use a VPN subscription to mask
his true location. In the second instance, the website owner can simply change its URL name.
Thirdly, the courts have taken a very strict point of view for granting a John Doe order. A
strict policing of the content by ISP is another option, but the amount of content generated in
the cybersphere is simply too large to be regulated.
Meaning of Intermediary

RAUNAQ JAISWAL 3
A simple action to open a website, say Facebook.com, involves the sending and receiving of
“data packets” in the matter of seconds. This World Wide Web activity consisting of sending
and receiving packets of data, over privately owned networks. The service of providing this
Internet Service, is delivered by telecommunication companies known as the
“intermediaries”. The intermediaries own the aforementioned “privately owned network”,
and sell subscriptions to the people, to enable them to use the Internet service. An
intermediary can be a web hosting company, or bulletin board operators or search engines or
service providers, who facilitate and process hundreds of millions of data every day and host
or provide access to literally billions of items of third party content1.
Legislatively, the word intermediary has been defined under section 2(1)(w) of the Indian
Information and Technology Act, as "intermediary" with respect to any particular electronic
message means any person who on behalf of another person receives, stores or transmits that
message or provides any service with respect to that message;2”
Liability of Internet Service Provider for Illegal Downloads
The service provided that an ISP provides can be compared to the service provided by
telecommunication companies. The company that provides you with a connection, is simply
providing you with means with which you can communicate with another person. ISP, in the
same manner is providing you with means to communicate with another computer. The
problem here is who you communicate with your mobile phone or ISP? For example,
wouldn’t it be ludicrous to hold Airtel or Vodafone responsible simply because the thief used
their networks to conspire the theft? Now if you juxtapose this situation with that of the ISP,
you may realize the situation they are in. Section 79 of the Information and Technology Act
which reads as underneath, provides some exemptions to the liability of ISP:
1 Mark A. Lemley, Rationalizing Internet Safe Harbors, 6 J. Telecomm. & High Tech. L. Rev. 101, 102 (2007).
2 Last visited on 10/19/2015
http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/it_amendment_act2008.pdf

RAUNAQ JAISWAL 4
Network service providers not to be liable in certain cases. For the removal of doubts, it is
hereby declared that no person providing any service as a network service provider shall be
liable under this Act, rules or regulations made thereunder for any third party information or
data made available by him if he proves that the offence or contravention was committed
without his knowledge or that he had exercised all due diligence to prevent the commission of
such offence or contravention3.
The contextual interpretation of the words “without his knowledge” and “exercised all due
diligence” implies that the burden of proof rests with the ISP. The word “due diligence” in
reference to intellectual property right has been further elaborated under Rule 3(2)(d) of
Section 79 and reads as follows:
The intermediary shall observe the following due diligence while discharging his duties,
namely
(2) Such rule and regulations, terms and conditions or user agreement shall inform the users
of computer resource not to host, display, upload modify, publish, transmit, update or share
any information that-
(d) Infringes any patent, trademark, copyright or other proprietary rights.4
In other words, this section emphasizes that if it has not been brought to the knowledge of the
ISP (by a red flag notice/notice of takedown) about the infringing content, then the ISP is
exempted from liability. However, if the notice has been served, then the ISP has to conduct a
due diligence of the content, and act accordingly. Section 79 of the IT Act therefore exempts
the intermediaries from liability in certain cases. An intermediary shall not be liable for the
actions of any third party information, data or communication link made available or hosted
by him.
In Religious Technology Center v. Netcom5, the court was of the view that neither the BBS
nor Netcom had directly infringed the Church's copyrights, since neither party had taken any
3 ibid
4 ibid
5 Religious Technology Center v. Netcom, 907 F.Supp 1361 (1995).

RAUNAQ JAISWAL 5
affirmative steps to cause the copies to be made. However, the Court found that Netcom may
be liable to the Church under the theory of contributory infringement by materially
contributing to the infringement of the user. Although the court recognized that there could
be no liability even under the contributory infringement theory unless Netcom knew of the
infringement, the court stated that if Netcom knew or should have known about the presence
of the copyrighted materials on its server and failed to remove them, that failure could
amount to contributory infringement. The notice that the Church provided to Netcom may
have been enough for Netcom to be liable for its failure to act on that notice. Unfortunately,
before this final issue could be determined by the court, the parties settled the lawsuit.6
Recently, the first four episodes of the fifth season of the hugely popular TV show Game of
Thrones were leaked online one day before the Series Premier. The episodes had been
downloaded countless times, leading to a decline in the monthly HBO Now subscribers and
causing a huge amount of loss to the company. In the wake of this catastrophe, HBO has been
sending the ISP’s copyright infringement notices, which they are obligated to pass on to their
subscribers. The suggestion made by the ISP’s here is that they are supposed to threaten their
customers with disconnection of internet services if they continue to persist with the illegal
downloading.
Infringement of Copyrighted Material and Liability of ISP
When a person downloads, uploads or streams a copyrighted material, say song or a movie,
without first procuring a license from the owner of the copyright, he has said to have
infringed his right and the owner can claim damages from him. The question that arises here,
is what will be the liability of the instruments that help him infringe the copyright?
6 As seen on Bitlaw.com,ISP Liability (BitLaw) (2015),http://www.bitlaw.com/internet/isp.html (lastvisited
Oct 20, 2015).

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Section 51 (a) (ii) of the Indian Copyright Act reads as follows:
‘Copyright in a work shall be deemed to be infringed, when any person, without a licence
granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in
contravention of the conditions of a licence so granted or of any condition imposed by a
competent authority under this Act … permits for profit any place to be used for the
communication of the work to the public where such communication constitutes an
infringement of the copyright in the work, unless he was not aware and had no reasonable
ground for believing that such communication to the public would be an infringement of
copyright.7’
In this context, the words “any place” can mean to imply whether work is provided with a
link to an external server, or stored directly in a server or any storage machinery or telecom
devices whether located at the ISP’s place of business, can be brought to the meaning of “any
place”. With respect to the words “permits for profit”, ISPs charge their customers a fee for
using the Internet service.
From the above interpretation, it can be seen that ISPs come under the ambit of the Section
51 of the Indian Copyright Act, 1957. Further, the ISP would be liable for infringement,
unless and until he can prove that either he had no knowledge about an act, or he had fulfilled
the “due diligence” obligations as stated in Rule 3 of Section 51 of the act.
In Super Cassettes India Limited vs YouTube8, some users of the website youtube.com had
uploaded certain songs, the Copyright of which was held by Super Cassettes. Super Cassettes
sued Google India, which owned YouTube.com, for the infringement of copyrights held by
7 As seen on copyright.gov.in,Indian CopyrightAct (1957),
http://copyright.gov.in/documents/copyrightrules1957.pdf (lastvisited Oct20, 2015).
8 Insertcasecitation.Casewas settled in 2011

RAUNAQ JAISWAL 7
them. It was the contention of Google that because of the large amount of data generated by
users on a daily basis, it was impossible to police it effectively. The courts granted an interim
injunction against YouTube, refraining it from keeping infringed data online9.
In Super Cassettes India Limited vs Myspace Inc.10, content which infringed the copyright of
SCIL, were uploaded by some users of MySpace.com on their timeline. T-Series notified
MySpace about the infringing content on their website, but still the material continued to be
available for the users. T-Series alleged a case of primary infringement under section 51(a)(i)
of the Copyright Act as well as secondary infringement under section 51 (a) (ii). It also
alleged that this had affected its revenue. The court went into the question of ‘actual
knowledge’ stating that the defendants had specific knowledge of the plaintiff’s works since
they were provided a list of their titles and updated works from time to time. The court did
not lay down any rule in respect of the ‘knowledge’ component and more significantly, they
failed to lay out any standards in respect of the notice and take down requirements. It was
held by the court that the act of modification of works, by inserting ads etc. excluded the
defendants form the purview of Sec. 79 (2) (b) of the act and hence MySpace failed to satisfy
the requirement. The court also remarked that MySpace failed to exercise “due diligence” and
that it should have done a ‘preliminary check in all the cinematograph works relating Indian
titles before communicating the works to the public rather than falling back on post
infringement measures’11.
John Doe/Ashok Kumar Orders
9 Amlan Mohanty, The Death of Safe Harbour for Intermediaries in India for CopyrightInfringement? Spicy IP
(2011),http://spicyip.com/2011/08/death-of-safe-harbour-for.html (lastvisited Oct21, 2015).
10 ibid
11 The Centre for Internet and Society, Super Cassettes v. MySpace (2012),http://cis -
india.org/a2k/blogs/super-cassettes-v-my-space(lastvisited Oct21, 2015).

RAUNAQ JAISWAL 8
A “John Doe/Jane Doe/Ashok Kumar” order is an ex parte injunction against unknown
persons. For such an injunction to be granted, the Plaintiff has to establish a prima facie case
that there is a reason to believe that his copyright will be infringed which will lead to
substantial material loss. Such an injunction helps the owner of the copyright to enforce the
law against potential pirates in the cybersphere or in the case of Billy Joel Armstrong, against
people who were selling counterfeit merchandise of his band, and thereby causing a
significant loss of revenue to the official marketing partner.
In R.K. Productions vs B.S.N.L12, the plaintiff was the owner of the copyright of the movie
“3”, which contained the popular song “Why this Kolaveri Di”, which was India’s most
watched video on YouTube at that time. The plaintiff wanted the court to grant an injunction
to block video streaming websites such as dailymotion.com and vimeo.com from streaming
the movie. The court ruled that the entire websites shall NOT be blocked. But the URL where
the infringing file is kept shall be blocked.
Similarly, the court granted a similar injunction in Singham13 against 24 unknown Ashok
Kumar’s, because the plaintiff, Reliance Media, was apprehensive that movie will be copied
on DVD/CD and will be distributed and shown on TV by individual cable operators, thereby
causing a substantial loss in revenue to the production house. The judge said and I quote as
follows:
“In the facts of this case as detailed above, in my view plaintiff has succeeded in making a
prima facie case in its favour. Plaintiff has exclusive copyright over the film "Singham"
which is yet to be released. In case, CD, DVD, Blue-ray, VCD are made by unidentified
persons and distributed and shown on cable TV, DTH, internet, MMS, Tapes and CAS,
12 R.K. Productions v.BSNL Ltd and Ors.O.A.No.230 of 2012 in the High Court of Madras
13 RelianceBigEntertainment Pvt Ltd vs Jyoti CableNetworks & Ors in CS(OS) No. 1724 of 2011

RAUNAQ JAISWAL 9
plaintiff will indubitably suffer irreparable loss and injury. For the forgoing reasons,
defendants and other unnamed and undisclosed persons, are restrained from communicating
or making available or distributing, or duplicating, or displaying, or releasing, or showing,
or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie
"Singham" in any manner without proper license from the plaintiff or in any other manner
which would violate/infringe the plaintiff's copyright in the said cinematograph film
‘Singham’ through different mediums like CD, DVD, Blue-ray, VCD, Cable TV, DTH,
Internet, MMS, Tapes, Conditional Access System or in any other like manner”.
As a result of this ruling, torrent hosting websites were blocked from hosting torrents of the
movie. Here, it was the duty of the ISP, to check whether the websites were hosting
infringing content or not.
Possible Solutions to counter copyright infringement
 Blocking the URL at source: - In Richmond vs BskyB14 and others, the Plaintiff was
the owner of the famous jewelry brand “Cartier” and the defendants were a
consortium of ISP providers. The contention of the plaintiff company was that its
products catalogues were being counterfeited and sold online by various websites
over the internet. The websites were selling counterfeit Cartier products at a high
discount, duping a number of people in UK into believing that the products were
genuine. The contention of the Plaintiff was that this was leading to a loss of goodwill
to its brand. It demanded that the websites that were selling the fake products be
blocked by the ISP. Justice Arnold noted that in trademark cases, as in copyright
cases, however, the court said that rights owners must show that three threshold
conditions have been met: Are the ISPs involved intermediaries? Are the operators of
14 Cartier,Montblanc and Richemont v BskyB, BT, TalkTalk,EE and Virgin,EWHC 3354 (2014).

RAUNAQ JAISWAL 10
the targeted websites infringing? Do the operators use the ISPs’ services to infringe?
Claimants met all three, the judgment said. In addition, they showed that the relief
requested was necessary, effective, dissuasive, and not expensive or complex, struck a
“fair balance” between fundamental rights and was proportionate.
 Three Strike Rule: - As a solution to the problem of copyright infringement, I propose
a “three strike rule” to those who repeatedly download copyrighted material over the
internet. For this hypothesis to be successful, the ISPs should first of all collect a
percentage of the annual subscription amount as deposit for the service. The first time
a person downloads or disseminates illegal material over the web, the ISP on getting
prima facie evidence should impose either a deterring penalty or termination of
internet service or both. To reimburse the copyright holder, the ISP can simply pay
them from the deposit. For subsequent illegal download or dissemination, the ISP can
terminate the connection of the person involved for a period ranging from 3 months to
6 months, while also blacklisting him in the master framework so as to warn other ISP
as well. For the third warning, the internet connection of the customer should be
revoked for a period from 1 year to 2 year.
Conclusion
The pirates have always been one step ahead of the regulators of the Internet. In 2012, when
the United States Congress recommended to implement the “Stop anti-piracy act” (SOPA)
and “Protect IP Act” (PIPA), there were widespread protests against the forthcoming
regulations. The problem here was not that the measures in the legislations were aimed to
provide more stringent penalties for copyright infringement, but that they aimed to moderate
the peoples’ freedom of speech across the cybersphere. Eventually, fearing at the thought of

RAUNAQ JAISWAL 11
having their wings clipped, industry bigwigs, such as Google and Wikipedia joined the
protests, with Google showing a censored logo on its iconic website, while Wikipedia
redirected its website to the SOPA and PIPA legislations.
The artists put a lot of hard work and money into their art, and it’s grossly unfair that their
works are being infringed with such impunity. Even if they take the matter to the court, it
usually takes a year or two to dispose of the matter.
Apprehending people who infringe copyright over the World Wide Web is extremely
problematic. First, the person infringing it, can be in another country. Or, he may be using a
VPN to mask his location, which will make it virtually impossible for the authorities to pin
the blame on them. Either ways, it cannot be ignored that while the problem of piracy is
global in nature, the legislations are domestic in nature. To tackle the problem of copyright
infringement, the whole world has to unite against the cybersphere effectively.
Proving negligence on the part of the ISP in allowing its services to be used for posting
negligent statement or for facilitating the communication of viruses may be difficult. In the
case of Alexander Lunney v.Prodigy Communications Corp, the US Supreme Court
dismissed the suit against the ISP after an impostor using a 15-year-old boy's name sent
threatening, profane and posted vulgar bulletin messages. In dismissing the action the
Supreme Court upheld the decision of the New York Court of Appeal which stated that the
Prodigy was not negligent in failing to prevent the impostor from opening the account using
Lunney's name (Reuters, 2000)15. However, proving fault in the electronic environment on a
specific defendant is extremely difficult as there are a number of parties ranging from
manufacturer, service provider, ISP, portal site operators, search engines to Internet
15 Jawahitha Sarabdeen, E-Consumer Redress Mechanism for Negligence in Malaysia: A Survey Analysis,
IBIMABR 1-14 (2010) at page 5.

RAUNAQ JAISWAL 12
Operators. Even if he happens to prove fault, still he will not be able to recover any damages
if the defendant is insolvent16.
16 Supra note number 15 at page 1.

Liability of ISP in case of Illegal Downloads

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