After the cessation of the Sepoy Mutiny one captured rebel, being led to the gallows, pointed to the telegraph line and valiantly declared, “there is the accursed string that strangles us”.[1] The accursed string that he referred to was actually the communication and the electricity lines by which we are surrounded now-a-days. The internet, a composition of several thousand networks[2] is the fastest growing network in history.[3] Internet activity is composed of packets of data, which are sent over privately owned networks. In the coming time, the internet population is expected to multiply manifold.
The reason for its rapid growth is in the two main purposes it serves, the specific function of serving as a communications medium making end-to-end communications[4] possible and the general function where it acts as an information system allowing its users to create, store and access data.[5] This process is facilitated by intermediaries, which provide the infrastructural backbone for such communications. Intermediaries are the entities that undertake the process of establishing such infrastructure due to high investment costs. The reason for the large number of entities in today’s age can also be attributed to the cost factor.
The creation, storage and accessing of data over a network puts enormous burden on the entities involved in undertaking such tasks. Over extremely large networks the intermediaries are unable to monitor the data which is being accessed, created or stored on their server. The intermediaries are capable of taking down the illegal content but the argument put forward against such move is that it hampers the right of free and expression of the users of the network. If we see from the viewpoint of the intermediaries, they are also correct in saying that they take down the content on the ground of governmental sanctions and morality. The legal position should make it clear that the intermediaries should not be absolved from their licensing obligation but it also important to make sure that it is done in a regulated manner so as to rule out any arbitrariness.
Black’s Law Dictionary defines a ‘safe harbour’ as “a provision (as in a statute or regulation) that affords protection from liability or penalty.”[6] In the physical world, intermediaries such as publishers are held responsible for the content published by the authors. However, in the electronic world, Internet Service Providers(ISP’s) are the ones who carry the data, and do not exercise direct control over the content though, they, potentially, have some, level of control. In order in sustain electronic transactions in the future, it is extremely necessary to clarify the limit of the liabilities of such intermediaries.
LIABILITY OF INTERNET SERVICE PROVIDERS IN INDIA
The Information Technology Act, 2000 provides that a network service provider is not subject to criminal or civil liability for third-party material for which or to which the provider merely provides access.[7] According to the principle of equality, where internet service providers engage in activities which are similar to those of other data carriers such as telephone companies and post offices, they should also be treated in the same way in respect of such activities. But, Section 81 of the IT Act 2000 provides that “the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970.” Therefore we can see that Section 81 acts as a proviso to Section 78 which means that network service providers will, continue to be liable for their own content, or third-party content that they adopt or approve of.
The extent of the safe harbours allowed under the Indian Act is limited. Firstly, it provides an ambiguous definition of intermediaries which does not lay down the scope of their function thus making it difficult to assess their liability. Secondly, it limits the extent of the safe harbours to “this Act, rules or regulations made thereunder”[8] leaving intermediaries vulnerable to civil and criminal litigation under the provisions of other enactments. It has been noted in this respect that “it appears to move India some, but only some, steps toward the convergent standards for ISP liability”.[9]
OPINION OF THE JUDICIARY ON ‘SAFE HARBOUR’ IN INDIA
The first time that the Indian judiciary dealt with the question of ‘safe harbour’ for Internet Service Providers was in the landmark case of MySpace v. Super Cassettes[10] In this case, the court agreed with the view that S.81 acted as a proviso to S.79 and the non-obstante clause contained therein has an overriding effect. This would mean although an intermediary may gain immunity under Section 79 by satisfying all the necessary requirements, an individual can still proceed against the intermediary using provisions of the other statues such as Copyright Act or Patents Act.
The Court in this case observed that “Section 79 is, thus, meant for all other internet wrongs wherein intermediaries may be involved including auctioning, networking servicing, news dissemination, uploading of pornographic content but not certainly relating to the copyright infringement or patent infringement which has been specifically excluded by way of proviso to Section 81.”
Further, in the case of Vodafone India Limited v. Bharti Airtel Limited and others[11] that Court held stated that “it was bound to give a literal interpretation to the law and if it were to extend the ‘safe-harbour’ provision in Section 79 of the IT Act to ISPs for copyright infringement it would render null and void the ‘proviso’ to Section 81 which was inserted via an amendment to the Act in 2008.”
Thus, the provisions relating to ‘safe harbour’ in India is still quite volatile which in turn lead to pathetic conditions of intermediaries. The Indian legislature should undertake the task of clarifying its stand on this subject in a swift manner thereby reducing the hardships which are being faced by the intermediaries in this time.
SAFE HARBOUR UNDER THE U.S. LAW
The law relating to ‘safe harbours’ in the United States is governed by the Digital Millennium Copyright Act (‘DMCA’) which was enacted in October 1998, to remove some of the uncertainty for the provisions relating to innocent transmission, caching or storage of infringing materials by an online service provider. However, liability for circumstances not falling within the DMCA requirements remains an open question.[12]
A person can be liable for the infringing conduct of another under either a vicarious or contributory infringement theory.[13] A party may be liable for contributory infringement if he or she has knowledge of the infringing activities of another, and induces, causes or materially contributes to that infringing conduct.[14] A party may be liable for vicarious infringement if he-or she supervises and controls the direct infringer and benefits from the infringement.[15] This are the ambiguous and arbitrary limitations which put in the internet service providers in a dilemma regarding what content would be covered under the purview of being infringing.
Title II of the DMCA is entitled as the Online Copyright Infringement Liability Limitation Act (‘OCILLA’). The OCILLA created a new Section 512 to the Copyright Act which provides for several limitations of liability for copyright infringement by an ISP due to innocent transmission, caching or storage of infringing material placed on the ISP’s system by a third party.[16] In addition, the OCILLA imposes certain affirmative obligations upon an ISP to qualify for a ‘safe harbour’.[17]
The OCIILA contains two definitions of an ISP. For the safe harbour concerning transitory communications, a ‘service provider’ is defined as ‘an entity offering the transmission, routing or providing of connections for digital online communications, between or among points specified by a user, of materials of the user’s choosing, without modification to the content of the material as sent or received.[18] For the remaining four safe harbours, a ‘service provider’ is broadly defined as ‘a provider of online services or network access, or the operator of facilities therefore, and includes an entity described [in the first definition].[19] In short, if a ‘copyright infringer’ qualifies as an ISP and its conduct comes within one of the ‘safe harbours’, the OCILLA limits the ISP’s liability for copyright infringement.[20]
OPINION OF THE JUDICIARY ON ‘SAFE HARBOUR’ IN THE U.S.
In Playboy Enterprises v Frena[21], Playboy brought a copyright infringement action against Frena, a computer bulletin board service (‘BBS’) operator, because Frena had provided the BBS on which illegal copying was done.[22] Subscribers uploaded and downloaded graphic files scanned from Playboy’s copyrighted magazines.[23] Although Frena itself did not participate in the downloading or uploading of files or even have knowledge of the existence of the files, the district court found that Frena was liable for direct infringement.[24] The court held that Frena’s intent was irrelevant, and concluded that Frena was liable for supplying a product containing unauthorised copies of copyrighted works even though its product was simply the BBS.[25]
The court in Religious Technology Center v. Netcom On-Line Communications Services Inc. (‘Netcom’) came to a quite different result.[26] The Religious Technology Centre (‘RTC’) brought an infringement action against Netcom (an OSP), Erlich (a Netcom subscriber and ex-member of the RTC), and Klemesrud (a BBS operator) for Erlich’s posting of copyrighted materials on a bulletin board.[27] Thereafter, RTC brought a motion for a preliminary injunction and Netcom brought a motion for summary judgment on the issue of infringement. The court determined that neither Netcom nor Klemesrud was directly liable for copyright infringement because neither of them had performed any affirmative conduct, except for providing access to the Internet and providing access to the newsgroups on the BBS. The court reasoned that all Netcom did was maintain a system that automatically forwarded messages received from its subscribers without any intervention on Netcom’s part. In addition, Netcom lacked control over the information since screening all the transmitted materials would be difficult if not impossible for Netcom.[28] Furthermore, the court noted that the fact that Netcom’s system had made temporary copies of the works did not mean that Netcom copied the works.[29]
It is quite glaring from even a brushed reading of above cases that the United States judiciary has recognised the principle of ‘safe harbour’ in a more extensive and liberal sense as compared to that of India.
COMMENTS:
The internet has become an indispensable medium for communication on an international scale, owing to its tremendous growth and expansion over the past few decades. With the passage of time, the concept of intermediaries cropped with the transmission of information on such a large scale. We have also seen a lot of change in their functions in the past few years. However, by imposing unreasonable liability on them, that too, when they act as a mere channel for the transmission of information, this growth and expansion is being threatened. This excessive liability is also not justified if seen in the background of liabilities imposed on telephone and postal carriers.
Safe Harbour is based on the underlying principle that intermediaries cannot be expected to regulate the vast amount of data stored on their servers which is shared everyday throughout the world, particularly when glaring technical and economic impracticalities exist.
The Indian laws with regard to the issue of the extent of liability of the ISP’s are still not settled. The problem arises when the question of determining the yardstick to evaluate out the ISP’s liability arises. In the light of the provisions of the DMCA, the degree of involvement of ISP including the power and control exercised by it can be said to be the real test for ascertaining an ISP’s liability. The legislature should also sincerely make an effort not hold ISP’s liable where they are not at fault as they act only a messenger of information, although I accept this fact that it should also be ensured that ISP’s do not escape liability by giving false and lame reasons. This solution to this conflict is that it is necessary for the Indian laws to provide for a system of classification of ISP’s on the basis of the nature and amount of data carried by them in order to ascertain the extent of liability to be imposed on them. Also, the Indian legal system should incorporate the concepts of direct, contributory and vicarious infringement while distinguishing the liability to be imposed on different ISP’s.
It is to be noted that in order to avail safe harbour protection for the liability of ISP’s, special provisions containing the procedure to do so should be incorporated. In U.S., the DMCA lays down a comprehensive procedure for ISP’s to obtain the benefits of safe harbour protection. Section 512 of the DMCA, in addition to defining the scope of safe harbour for ISP’s also sets out the specific conditions and exemptions for the application of the same. As compared this, in India there a sheer lack of clear and specific procedure to avail the benefits of safe harbour protection. In addition to this, there are two defences which are available to ISP’s in India namely, ‘lack of knowledge’ and ‘due diligence’, both of which are very vaguely defined. Thus, the Indian legislations must be amended or re-written so as to include proper, adequate and well-defined safe harbour provisions with proper procedure to avail the same.
ENDNOTES:
[1] M. Gorman and Sir William O’Shaughnessy, ‘‘Lord Dalhousie, and the Establishment of the Telegraph System in India’’, (1971) 12(4) Technology and Culture 581
[2] American Civil Liberties Union v Reno, 929 F. Supp. 824, 830–831 (E.D. Pa. 1996)
[3] M. Leiner et al., ‘‘A Brief History of the Internet’’, December 10, 2003, Internet Society
[4] J. H. Saltzer et al., ‘‘End-To-End Arguments in System Design’’, in Innovations in Internet working (Craig Partridge ed., 1st edn, Artech House, Norwood, 1988), pp.195–206
[5] J. R. Okin, The Internet Revolution (1st edn, Ironbound Press, Maine, 2005), p.92
[6] Black’s Law Dictionary (7th edn., 1999), p.1336
[7] Section 78 of the Information Technology Act, 2000 states: For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be laible under the 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 contravention.
Explanation – For the purposes of this section –
(a) ‘network service provider’ means an intermediary;
(b) ‘third party information’ means any information dealt with by a network service provider in his capacity as an intermediary.
[8] Section 79, Information Technology Act, 2000
[9] Ibid.
[10] Judgment pronounced on 29th July, 2011
[11] Judgment pronounced on 30th October, 2012
[12] 17 USC § 512
[13] Sony Corp v. Universal City Studios, 464 US 435, 104 S Ct 774, 785 (1984).
[14] Metzhe v The May Dept Stores Co., 34 U SPQ 2d 1844, 1847 (WD Pa 1995)
[15] Ibid.
[16] The OCILLA effectively limits liability for copyright infringement for certain conduct of an OSP by creating five safe harbours’. The five ‘safe harbours’ involve the following conduct: (1) data conduct activities; (2) caching; (3) storage of information; (4) information location tools; and (5) take downs of allegedly infringing materials.
[17] The OSP must: (1) adopt and reasonably implement a policy for terminating subscribers who are repeat infringers; and (2) accommodate and not interfere with ‘standard technical measures’ used by a copyright owner to identify and protect copyright works.
[18] 17 USC § 512(k)(1)(A)
[19] 17 USC § 512(k)(1)(B)
[20] 17 USC §§ 512(j)
[21] 839 F Supp 1552 (MD Fla 1993)
[22] Id. 1554
[23] Id.
[24] Id. at 1559
[25] Id.
[26] 907 F Supp 1561 (ND Cal 1995)
[27] Id. at 1365-66
[28] Id. at 1371-72
[29] Id. at 1368
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