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Blocking Websites for the Sake of Bollywood

The Indian Music Industry is all guns blazing after obtaining an order from the Calcutta High Court against the popular website Songs.pk. It is now going after more than a hundred websites allegedly indulging in piracy of Bollywood songs. This piece will provide an insight on the state of the anti-piracy movement in India and what the future possibly holds.

Method of Blocking Websites 

The order is directed against close to 400 internet service providers in India (Medianama has the list of the websites sought to be blocked). For those unfamiliar with the term, Internet Service Providers (or ISP’s) provide internet access to individuals or businesses over cable or wireless (for example Airtel, BSNL, Reliance etc.). The order directs ISP’s to use any of the following three method to block access to the websites:

  • DNS name: This entails restricting access to the website based on the domain name itself. For example, “www.songs.pk” could be blocked. This could sometimes be circumvented by typing in untranslated IP address itself (a series of numbers, as opposed to alphabets) in your browser’s address bar.
  • IP address: A domain name represents an IP address. For example, the domain name www.songs.pk may have the IP Address “85.103.2.14”. So ISP’s could block access to the IP address itself. However, the IP addresses may be changed, masked or anonymised.
  • Deep Packet Inspection: This is a more invasive form of URL blocking in which the data/content is actually investigated.

Ineffectiveness of Blocking

There are two main issues with the blocking of entire websites based on a claim for copyright infringement. Firstly, this method is ineffective, and second, it is not legally tenable.

On the question of effectiveness, I need hardly point out the ease with which website owners can manoeuvre around such blocking methods. As an example,  www.songs.pk has already resurfaced as www.songspk.pk (and will continue to hope from domain to domain) avoiding all access restrictions. The cycle will continue so it is ultimately a futile exercise.

On the second issue, one could refer to this article on Bollywood’s blatant disregard for legal procedures prescribed for the blocking of websites. Instead of using the provisions contained in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, media houses and film producers have bypassed statutory mechanisms and obtained ‘John Doe orders’ restricting access to entire website for the sake of a few infringing links.

These issues stand alongside the larger philosophical objection to blocking access to websites in the first place, which is a radical measure and should be used cautiously. A cursory glance at the IT Rules governing website blocking indicates the need for ‘procedure’ and ‘safeguards’, both of which seem to have been slighted in this case.

Moreover, there is an inherent fallacy in blocking access to an entire when only some files on the website are infringing, which is akin to closing all shops in Connaught Place because a few shops in Palika Bazaar sell pirated D.V.D’s (more on that here).

Legal Alternatives Finally Emerging

That said, the Indian music industry has taken steps towards creating an ecosystem that supports legal purchases of Bollywood tracks. Take for example the launch of Flipkart’s online music store ‘Flyte’, which offers single-song downloads at a price ranging from INR 6-15 based on their freshness in the market. The idea of convenient online single-song purchases, popularised by iTunes, is an important development for Bollywood in the era of digital distribution. In an interview with Medianama, Saregama’s CEO even proposed making piracy sites ‘go legit by paying a license fee’. All of this is encouraging, but the current state of affairs is still worrying.

Reasons for Concern

Firstly, recent developments such as the proposal for a Stop Online Piracy Act (SOPA) in the U.S. has confirmed the fear that record labels continue to lobby for maximalism in copyright enforcement and will not rest till such measures are introduced into law. Unfortunately, this seems to be a worldwide trend. While India is a nascent market, with no SOPA-like legislation in the pipeline, the surge in dubious court orders coupled with the tendency for intermediaries to over comply with takedown notices is ominous.

Secondly, the wide scope of the order (more than a hundred websites have been identified) would invariably include non-infringing websites as well. Just ask Yahoo and Microsoft India what it is like to be wrongly impleaded in a suit (both companies were made party to a suit in the Delhi High Court on the issue of objectionable content, but were later removed on the ground that they are not social networking sites). If Vinod Rai can go wrong with just 22 parties, surely the chances multiply when it is in the hundreds.

Lastly, this current practice of obtaining ex-parte injunctions (where the defendant does not appear in court) with directions for the website to be blocked immediately, denies the right of website owners to be heard, thereby violating the basic principles of natural justice. Similar provisions were introduced in the SOPA Bill and David Post, in this insightful article, does a thorough job of dissecting the legal infirmities in this approach.

Where will the demands end? 

Saregama’s CEO also stated that file sharing websites are the next target. This is an even bigger concern since the differences in service providers are less clear not always known to judges. For example, BolloywoodMP3Free might be an obvious piracy haven, but Google Drive and DropBox are also considered file sharing website with possibly infringing content.  Blocking websites based on unsubstantiated claims of infringement are a dangerous precedent, certain to produce a chilling effect on new file sharing sites that do not want to risk potential liability and business losses if the trend continues. With the success of such orders, it may not be long before Indian courts begin passing grossly restrictive measures such as mandatory filtering and access restrictions. One should bear in mind that the European Court of Justice ruled that such an order violates the privacy of users, their right to receive and impart information and restricts intermediaries’ right to freely conduct business. But we can only hope that Indian courts will defer to the ECJ’s judgement, despite completely ignoring the US position on intermediary liability for copyright infringement (see our analysis of the Myspace case) and this is not a case of ‘give an inch, take a mile’.

About Amlan Mohanty

Amlan is a lawyer based in India. He engages in research, writing, speaking and teaching at the intersection of technology, law and policy.