PIRATES IN THE WEB

1. Introduction:

Whoops! The Web is not the web we wanted in every respect 1. It is in this 21st
century, we the people became the Pirates. Yes, some are aware that it’s a crime (i.e.)
Internet Piracy but most are still unaware of this kind of crime even in this well developed
techno-legal society. This article being purely a Doctrinal and non- empirical research work
depends majorly on the sources from the Libraries, Archives, Online materials and various
e-learning sources. This article mainly aims to enlighten the readers with the contemporary
measures available in Inter-national level as well as within the nations to the deprived
producers due to the Internet piracy (colloquially referred as Piracy) or which is
theoretically known as Online Copyright Infringement. Social access to the cultures as well
as the protection of copyright is advocated under Article 27 of UDHR.

“If Protection of Intellectual Property begins to disappear, Creative companies will

disappear or never get started. But there’s a simpler reason: It’s wrong to steal, It hurts
other people and it hurts your own character” – Steve Jobs2.

2. What is Internet Piracy?

The term Copyright is iterated as “Copyright is a right given by the law to creators of
literary, dramatic, musical and artistic works and producers of cinematograph films and
sound recordings. In fact it is a bundle of rights including inter alia, the rights of
reproduction, communication to the public, adaption and translation of work. There could
be slight variations in the composition of the rights depending on the work”3. There exist
two types of infringement primary as well as secondary, Primary Infringement is a real act
of Copying and Secondary Infringement is selling the pirated goods or importing the same.

The term Piracy is defined as an unauthorized reproduction, importing or copying of either

the whole or any part of the work protected by copyright. And the term online piracy is an
illegal act of duplication of licensed or copyrighted material from Internet. The base for
Internet piracy is software. Software is nothing but a collection of related data that provides
instruction to the machines on what to do and how to do. It is a series of instructions joined

1
Tim Berner Lee – Inventor of web
2
Walter Issacson, Steve Jobs 396 (2011).
3
A Hand Book of Copyright Law - Ministry of Human Resource Development, Government of India.
together in a language which is understandable by the programmer or the operator and
translated into a language understandable by the computer. There are three types of
software and they are,

i. System Software
ii. Application Software
iii. Programming Software

There are five main types of Software piracy, they are:

a. Counterfeiting
b. Internet Piracy
c. End user piracy
d. Client- server overuse
e. Hard- disk coding
a. Counterfeiting: This type of piracy is illegal duplication, distribution and/or sale of
copyrighted material with the intent of imitating the copyrighted product.
b. Internet Piracy: This occurs when software is downloaded from the internet. Common
Internet piracy techniques available to the public is in of four ways and they are,
 Pay ware
 Shareware
 Freeware
 Open source
c. End User Privacy: This occurs when an individual uses one licensed copy to
reproduce copies on multiple computers without authorization.
d. Client- Server overuse: This type of piracy occurs when more users access an allowed
license by using a central copy of a program, it is over-use.
e. Hard- Disk Loading: This occurs when a business sells new computers with illegal
copies of software loaded onto the hard disks.
3. How Come Piracy amounts to theft?

The Cambridge Dictionary defines Internet Piracy as “the Practice of using the
internet illegally to copy software and pass it on to other people”. Internet Piracy is all
about non-rival goods and it made the people to have a mindset that their consumption of
 non-rival goods does not prevent anyone from consuming the same4 and thus we people
presume file downloading differently from theft. For a producer it is not the consumption
value of those non-rival goods but the exchange value is that all matters. The presumption
that downloading was morally unacceptable was positively related to the intentions to
discontinue downloading while it is currently the opposite in our generation. Pirating
deprives the market value of the producer’s goods and it is a crime.

4. History and Growth of Internet Piracy:

India enacted its Indian Copyright Act, 1957 after the Berne Convention, 1886 as well
as the Universal Copyright Convention, 1951 since India was a signatory. During earlier
period the limited band-width of dial-up connections made the internet slow and
burdensome to download large files. But the controversy ignited after the commencement
of the peer-to-peer (P2P) file sharing service named Napster in 1999 by the 18 years old
freshman computer science student Shawn Fanning in Re. A&M Records, Inc. v Napster,
Inc5. The napster is used to download the music files for free. Another such service is Bit
Torrent which was originally aimed at users in search of an inexpensive way to swap open
source software online. These kinds of services made piracy to be a ubiquitous cultural
practice which once was used only by professional criminals, now appeased by individuals
who would otherwise consider themselves as law abiding citizens. A UK based poll in
2004, conducted by the BSA, found that 44% of 18-29 years old own pirated intellectual
property. India ranks 4th in the economics with highest commercial value of pirated
software which amounts to the total revenue loss of about $2,739 Million, though it is not
in the list of top 30 countries having highest privacy rates. It is found that 64% of the
software in India are pirated6, which makes the zero piracy rate an impossible thing to
achieve at this rate.

5. Is Torrent Illegal?

The answer to this question is big no. The Government only prohibits downloading or
uploading any unauthorized material or any file which is infringing the copyright of the
work. Otherwise torrenting is always encouraged by many cyber experts.

4
“Le piratage, Pas toujoirs du Vol” , La Libre Belique, Suppl.La Libre Enterprise P.9
5
239 F.3d1004(9th Cir.2001)
6 th
8 Annual Global Software Privacy Study, 2010 Commissioned by Business Software Alliance(BSA) and
International Data Corporation(IDC).
 6. International Conventions on Online Piracy:
6.1 The Universal Copyright Convention:

This convention was adopted at Geneva in the year 1952 by an international conference
under the auspices of UNESCO7. It came into force on 1955 after being ratified by twelve
countries. Its main features are as following: (1) no signatory nation should accord its
domestic authors more favorable copyright treatment than the authors of signatory nations,
though no minimum protection for either domestic or foreign authors is stipulated; (2) all
adhering nations are required to grant an exclusive right subject to compulsory license
under certain circumstances for the balance of the term of copyright.

6.2 Berne Convention8:

Berne Convention for the Protection of Artistic and Literature works (BC) is the first major
international treaty on copyright. BC was concluded in the year 1886 but was amended in
the year 1979. The Main Principles of this convention are national treatment, automatic
protection and independence of protection in the country of origin of work. It sets out
minimum standards regarding the protection of works, rights of authors and the term of
protection. Protected works include “every production in the Literary, scientific and artistic
domain, whatever the mode or form of its expression. Article 9(2) of BC sets three
conditions that regulate the imposition and permissible scope of limitations to copyright.
6.3 The TRIPS Agreement:
Agreement on Trade Related aspects of Intellectual Property Law (TRIPS), It is an annex to
the agreement establishing the WTO (World Trade Organization). It sets out minimum
standards concerning the availability, scope and use of Intellectual Property Rights
including provisions on Copyright and related rights. TRIPS incorporate the obligations
regarding the rights not covered by the BC, namely computer programs, databases and
rental rights.
6.4 The WIPO Treaties:

The 1996 WIPO Treaties comprise the WCT and WPPT. The aim of both treaties is to
adapt copyright and related rights to the digital environment.

7. Provisions available in India against Online Privacy:

7.1 Indian Copyright Act,1957

7
www.britannica.com
8
Global Online Piracy Study: Legal Background Report
In India computer programs are considered under the Literary works under section 2(o)
which was amended in the year 1994, whereas in U.S.A and Japan those where given a
patent protection. But still this act does not attract the Internet Service Providers Liability.
Section 13(1)(a) of the Indian Copyright Act provides protection for all forms Literary
works.
It is on 2012, the Central Government added two Digital Rights Management (DRM)
provision. The main objective of it is to curb digital privacy and to facilitate the
membership of India in WIPO copyright Treaty (WCT) and WIPO performers and
phonograms treaty. And these were incorporated under section 65A and 65B of Indian
Copyright Act, 1957. Since then it was considered to be a civil liability after this provision
it is treated as a crime.

Section: 65A provides Technological protection measures (TPM) used by copyright holders
to protect their work from being pirated.

Section: 65B makes the removal of rights management information without authorization as
an offence. And the punishment under sections 65A and 65B is imprisonment upto 2 years
which also include fine.

But still DRM and John Doe orders suffer a territorial limitation since many servers are
based abroad.

7.2 Information Technology Act,2000:

Section 2(w) of the Information Technology Act defines the term intermediary. This covers
all the online or internet service providers like search engines and ISP’s.

It also deals with online distribution of illicit copies of copyrighted content under Section
66 of this provision, where a person can be punished with the imprisonment of upto 3 years
with fine upto Rs.2 Lakhs.

8. Remedies for Online Piracy:

8.1 Civil Remedies:

1. Interlocutory Injunction.
2. Conversion, Rendition of accounts of Profits and delivery up.
3. John Doe Orders:
 John Doe is a stand-in person for unknown in U.S particularly in copyright infringement
suits against the ISPs. The term John Doe order refers to orders where the identities of the
defendants are unknown at the time of filing of the petition. These orders can be used to
block the whole websites that is suspected to provide unauthorized online access.
4. Take down notice:
Under the Digital Millennium Copyright Act (DMCA) of U.S take down notice will be
issued to the website by the court.

8.2 Criminal Remedies:

 6 months to 3 years of Imprisonment

 Search and seizure
 Fine of 50,000 to 2,00,000
 Delivery up
9. Defense under online piracy:
9.1 Fair Dealing

It permits the reproduction of the copyrighted work or use in a manner leaving out the
exception. Fair dealing also serves as an answer to those fair copyright proponents, who
actively argue that copyright is not being a patent. It is not an absolute right and will
therefore have a balance against user rights. Fair Use in U.S allows any use of a work to be
fair pursuant to a set of factors that aid in decision making process. It offers an open list of
permissible purpose. This defense also offers flexibility at the expense of certainty but still
rigid. In India Section 52 of the Indian Copyright Act, 1957 provides the defense of fair
dealing.

10. Landmark Judgments in Online Piracy:

 UTV Software Communication Ltd and Others Vs 1337X. TO and others9:

Judgment of this case came out recently, the learned senior counsel and the learned
AMICUS CURIAE in this case bring out the various nuances of John Doe Order. Various
kinds of website blocking10:

 Internet Protocol (IP) address blocking

9
CS COMM—724/2017 Delhi High Court (10 Apr,2019).
10
CS (COMM) 724/2017 & others ITIF(Information Technology and Innovation Foundation)
  Domain Name Server (DNS) blocking
 Uniform Resource Locator (URL) blocking
 Deep Packet Inspection (DPI) based blocking

The learned amicus curiae:

“20…………He submitted that there was a serious concern associated with blocking
orders that would prevent access to legitimate content in the cases of copyright.
21. According to him, Courts all over the world have considered the effect of over-blocking
and have held that in order to ensure proper balance between the implementation of
blocking injunctions and rights of the third- parties, it is essential to make sure that these
blocking injunctions are proportionate. The proportionality principle, according to him, is
designed to ensure that interferences with rights is justified as being no more than necessary
to protect the rights or to achieve other legitimate goals.”11
 Microsoft Corporation Vs Vijay Kaushik and Another12 :

Three types of compensation were awarded to the company for copyright infringement by
the respondents.

1. Actual damages

2. Exemplary damages

3. Damage to the good will and reputation

11. Organizations working against Online Piracy:

 Business Software Alliance (BSA)

 Department of Telecommunication(DoT)
 The Software and Information Industry Association (SIIA)
 Ministry of Electronics & Information Technology (MEITY)
 National Association of Software and Service companies(NASSCOM) – Anti –
Privacy Hotline
 National Cyber Crop Committee for cyber Hacking
 National Information Technology Security Centre

11
https://indiankanoon.org/doc/47479491/
12
https://indiankanoon.org/doc/203957/
 12. Conclusions and Suggestions:

Though we have various provisions and various measures to curb the copyright
infringement we still fall far beyond the technological reach when it comes to Online
Piracy. Some measures to grab out this issue may be the inclusion of various layers of
liabilities on the copyright infringers from the base (one who really works as a master
mind) till the End users and spreading awareness about the online piracy.

13. Layers of Liabilities:

13.1Primary Liability: Online acts infringing Copyright

The following are the acts which amounts to primary liability for one who access by any of
these methods, Downloading, (Passive) – streaming, stream- ripping, uploading, hyper
linking, sale of kodi boxes, soft-lifting, other types of unauthorized use13. The one who
involves in any these kinds may be charged and punished as per the available provisions of
law it may either criminal charges or civil liabilities which may be given on analyzing the
ratio of damage. Website blocking is not to eliminate the online piracy altogether but to
alter the consumers’ willingness to find the mirror websites or new websites. An URL
specific order should not affect the remainder of websites.

13.2Secondary Liabilities for Internet Service Providers:

The ISPs acts as a central clearing house for user access to the Internet, of which the
network settings can be modified so as to discard users request to access IP addresses for
blocked sites. Safe Harboring Provisions for search engines and ISP’s should be enacted.
ISP’s must be required to use copyright filtering facilities so as to give access to the users
only on the authorized works.
13.3Consumers Liability:
Even today End users or the beneficiaries of this online piracy are still beyond the reach,
and hence to hinder the growth of this alarming mass it fine may be imposed.
14. Abbreviations:
 BC – Berne Convention for the Protection of Artistic and Literary Works
 DNS – Domain Name Server
 DRM – Digital Rights Management
 IDC - International Data Corporation

13
Page 7 of Global Online Piracy Study : Legal Background report.
 IP – Internet Protocol
 IVIR - Institute for Information Law at the University of Amsterdam
 TRIPS – Agreement on Trade Related aspects of Intellectual Property Law
 UDHR – Universal Declaration of Human Rights
 URL – Uniform Resource Locator
 WCT – WIPO Copyright Treaty
 WIPO – World Intellectual Property Organization
 WPPT – WIPO Performances and Phonograms Treaty
15. References:
 8th Annual Global Software Privacy study,2010 Commissioned by BSA&IDC
 “La piratage, pas toujoirs du vol”, La Libre Belgique, suppl. La Libre Enterprise
(translated)
 Global Online Piracy Study Legal Background Report – https://www.ivir.nl
 How website blocking is curbing Digital Privacy without breaking the Internet by Mr.
Nigel Cory Associate Director, Trade Policy
 North Carolina Journal of Law & Technology Volume 18, Issue 1: October: 2016 –
Copyright Law and Digital Piracy: An Economic Global Gross National study.
 S.K.Verma & Raman Mittal, Legal Dimension of cyberspace – Indian Law Institute,
New Delhi.
 Teenage Kicks or Virtual Realty – Internet Piracy
 Types of Piracy : https://www.symntec.com/en/uk/about/legal/anti-piracy/types-
piracy
 www.indiankanoon.com
 www.caselawmine.com
 https://www.livemint.com/
 https://www.siia.net/
 https://www.google.com/amp/s/www.wired.com/2016/08/internets-safe-harbor-just-
got-little-less-safe/amp
 https://www.google.com/amp/s/yourstory.com/mystory/brand-protection-and-john-
doe-orders-5p25enjl1z/amp
 www.britannica.com