Exploring online service providers liability for third party content
Bahaar Dhawan[1]
INTRODUCTION
Due to the economic integration of technologies in the context of the internet , the capabilities of efficient transmission , storage and almost loss free copying of digital media , have become very popular,[2] especially with networks and applications designed to provide facilities to Internet users.[3]It is precisely here that the Network Service Providers[4] play a significant role .
Internet has emerged as the most vital tool for mass communications, breaking of barriers, raising the spectre of unauthorised reproduction of copyrighted material by pirates on a massive scale,[5] while remaining both anonymous and undetectable.[6]
This trend has generated fear of aggravate losses due to free availability and accessibility of intellectual property as has been aptly observed by Curtis E. A. Karnov [7]
“It is in this digital soup and hyper rational environment , that we see the death of the barrier… what we do have is , the network and the death of dichotomy . This is fatal for the legal system, which depends for its life , on the existence of barriers , after all that’s what the law does : it utters the line between this and that , and punishes the transgressor.”
In light of the same it is increasingly difficult to determine liability of service providers because they perform information brokering functions and make it possible to find resources scattered for illegal activities of their subscribers. Amidst this liquidity of transactions and diminishing bounds, internet legislation should not attempt to impose liability baldly without adequate consideration which may created a sense of uncertainty among OSPs who feel they are being made scapegoats through no fault of their own.
Liability of Intermediaries
It is argued that OSPs[8] perform a lucrative function for the Internet, and have the wherewithal to minimize copyright infringement by Internet users since they control the network.[9] Also,the intermediaries [10] are implicated out of sheer pragmatism since it is easy to trace an OSP in less time whose facilities have been used to upload the software. OSP not only have deeper pockets making them more capable of paying the damages but charging them also deters infringement by other subscribers. [11]
On the other hand, ISPs claim they are passive carriers, and therefore should be given some degree of immunity from liability.[12] The service providers facilitate unauthorised copying but this does not amount to authorisation and it would not be sufficient , rather to avoid liability , to ensure that nothing is said or done , whether in marketing literature or otherwise, which could be taken to grant permission or to condone copyright infringement.[13]This is based on the rationale that although power was conferred on the purchaser to copy , it did not grant the right to copy.[14]
The liability for copyright infringement rests on three theories- direct i.e. primary infringement, vicarious and contributory infringement. Vicarious liability arises when a person fails to prevent infringement despite having the ability to control the infringer’s Act and he receives a direct financial benefit from the infringement . [15] This theory is based on the strict liability principle without any regard to mental state or intention. [16]While Contributory liability arises when a person participates in the act of direct infringement and has knowledge of the infringing activity. The question here arises as to which standard should be applied in order to fix the responsibility of service providers. The above positions must therefore be weighed against the Indian laws applicable to the purported liability.
The Indian Copyright Act, 1957 was drafted in complete oblivion of the phenomenon called internet . However, some provisions in the Act could be interpreted to have some bearing on the liability of OSPs. Section 51 (a)(ii) [17] & S. 63 of Copyright Act, 1957 (deals with contributory infringement) which states "any person who knowingly infringes or abets the infringement of copyright …" is made criminally liable. The application of the aforementioned is however tested onouchstone of Section 79 of the IT Act , 2000 which affords protection to an intermediary from any offence or contravention for third party information or data made available by them provided the offence or contravention was committed without their knowledge [18]or there had been an exercise of due diligence to prevent the commission of such offence or contravention. The object behind section 79 of the IT Act is to create a filtering mechanism and limit the liability of ISPs. [19]
This position is comparable to UK which provides exceptions to imposition of liability vide Section 96 – 97 of the UK Copyright , Designs and Patents Act , 1988. In Playboy Enterprises, Inc. v. Hardenburgh [20], it has now clearly been laid down that the standard of knowledge of the infringing activity required to impose liability there shouldbe at least a “constructive knowledge" that infringing activity was likely to take place on their Bulletin boards.
Lacunae In indian laws dealing with intermediary liability
There are plethora of inconsistencies in the Indian laws making them ill equipped to deal with problem of liability for third party content on the internet exhaustively.
For starters, it is desirable to remove the expression "under this Act" under section 79 which fosters limitation of liability being applicable to IT Act alone. This could not be the motive when the Act does not attempt to define the liability of OSPs and as such provisions of Copyright Act aid in imposition of the liability for third party content as well.
The Act also does not provide the extent of the term due diligence which makes the scope of the same ambiguous. In Bazee.com case we have witnessed how despite removal of the objectionable content from the auction site, the person in charge was arrested thus the standard of due diligence must be stated.
Under the IT Act, 2000 no categorisation of OSP/ISP/NSP has been attempted despite the view that liability has be imposed having regard to the functions performed by the service provider in order to give a meaningful disposition to infringement cases. In the absence of this categorisation different ISPs under section 79 could be held liable under the IT Act, 2000 for the contents over which they have little control or have played no role.
There is also an omission to expressly absolve the liability of ISPs committing literal infringement due to the architecture of the system,[21] because the caching algorithm[22] or by establishing pointers which are established to locate information resources on other computers.
Caching may be explained as the numerous acts of reproductions that are made during transmission on to the server of the hosting sight provider , as digitised packets which are repeatedly stored and forwarded. Access provider may choose to cache content retrieved from the world wide web on his own installations , in order to speed up further retrieval by his customers.
In the above scenario ,the intermediary unwittingly aids in reproduction of copyrighted or access of defamatory material during transmission.The intermediaries must be statutorily guarded against the above since it is clear that the temporary copies made are an essential ingredient of the technological process facilitating transmission of the work / infringement despite there being no independent economic motivations.
Reference in this context may be made to the UK laws wherein immunity from caching has already been enumerated in Section 28A and paragraph 1 A of Schedule 2 of the CDPA Act, 1988.Temporary acts of caching and browsing are also protected under the Recital 33 of the Directive on the Harmonisation of certain aspects of copyright and Related Rights in the Information society (2001/29/EC)
The future of Intermediary Protection in India
The newly proposed sub section (1) of Section 79 is on the same lines as the EU Directive on E-Commerce 2000/ 31/ EC which has clarified the rights of Internet Service Providers involved in E-Commerce to foster hassle free movement of “Information Society Service’ . It provides protection from civil and criminal liability for the provision of information services, hosting , conduit and from the general obligation to monitor, as long as it is for the purpose of transmission.
Section 85 which provides for offences by companies and the person in charge , is being amended to provide for punishment only in case of contravention being proved with the knowledge/connivance of the person in charge and if there was a proven omission to prevent the same. Moreover, now ‘Cyber Cafes’ are also being brought under the ambit of Section 87 of the IT Act which will divide and distribute liabilities.
On the down beat , myopic recommendations of parliamentary standing committee which seeks to raise the liability of internet service providers holding them responsible for all blogs, emails, Orkut scraps, web searches, IM messages and other internet activity performed by their customers or subscribers, is purporting to replicate Chinese provisions in India . The Chinese government has extensive filters in place to automatically block content that contains "offensive" keywords like "Tibet", "Democracy". Consequentially, ISPs will actively block stuff that they consider even 0.01% illegal to stay out of the legal loop leading to undesirable form of censorship. This will indeed follow as the ignorant ISPs in India have committed similar mistakes before when they banned access to blogger in India though the government had issued a circular for blocking just a dozen blogs.
It has imposed tight rules for the Internet service providers monitoring data exchanged online and block sensitive stuff before it even reaches the government routers. It is contended that the intermediaries cannot be expected to cut through brick and stone to absolve themselves of this burden of liability. [23]
Conclusion
The role of the intermediaries, the masqueraded gatekeepers needs to be recognised as the facilitators of dissemination of information thus there is a dying need for express provisions prescribing liability of service providers .A survey of technology laws around the globe, like the Digital Millennium Copyright Act 1998 ; the Anti-cyber squatting Consumer Protection Act 1999, The Copyright Amendment (Digital Agenda) Act 2000, (Australian law ) will help to correct some of the latent deficiencies of the Indian laws.
In an attempt to make the Indian laws more explicit, The I.T. Act must address the financial aspect of the transaction, and the relationship between an ISP and a third party known as the horizontal approach, in order determine the identity of the violator. The American concept of contributory infringement can also be incorporated into the Indian Act. Unlike India , the U.S. Courts have not granted any general immunity to the service provider but impose liability on the service providers depending upon the degree of control and knowledge of the infringing activity, peculiar to every case (non- horizontal approach), which clearly is the need of the hour.
India should also develop on the conduit theory ,[24] i.e. intermediaries restrict their activities to providing a conduit for information and do not engage in acts relating to the content like initiating transmission or selecting receiver of the transmission or modify the content which will entitle them to the benefit of the “ intermediaries exception ” absolving them of any liability for third party’s conduct [25].
Another plausible solution is that the OSP s could take unilateral measures such as strictly enforcing an acceptable use policy , or restricting access to file sharing networks , However , this comes with a risk , that is, damaging the ISP commercially if end users opt to simply go to competitors.[26]
Failing to plan at this stage will lead to a unintended plan to fail. Thus, the above recommendations can be incorporated in India to make intermediary liability more accountable since any blanket balding imposition of laws at this juncture without perceiving its consequences could prove detrimental to the development of the institution of Internet as a whole. .
[1] 5th year B.B.A., L.L.B student of Symbiosis Law School
[2] Tim Jahnke & Juregen Seitz , “ Digital Watermarking and its impact on Intellectual Property Limitation for the digital age”, [2005] Journal of Electronic Commerce in Organisation (3) 1 at p.72
[3] Graham J.H. Smith & Simon Chalton, Internet Law And Regulation 1, 3 (2d ed. 1999).
[4] These are companies or corporations that enable clients to connect to the Internet. Services include facilities to create client literature or other articles and make them available over the Internet to the general public termed as"value-added service", provide an email account and access to the web; facilitation to upload files to the ISP's publicly accessible servers, enabling users to access these files, web page hosting etc.
[5] Eric Hayden ,” online Sevice Provider Liability : The latest US Copyright Conundrum”, [1996] , 7(70, 274- 279
[6] V.K. Unni, Internet Service Provider's Liability for Copyright Infringement - How to Clear the Misty Indian Perspective, 8 RICH. J.L. & TECH. 13 (Fall 2001) at http://www.richmond.edu/jolt/v8i2/article1.html.
[7] Supra
[8] This article will refer to Online Service providers, Internet Service Provider & Network Service providers as OSPs collectively since in the Indian context no distinction has been made between Online service providers or Internet Service Providers.
[9] Observed in the Information Infrastructure Task Force inter alia, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 118 (1995).
[10] An “Intermediary” has been defined under Section 2 (w) of the IT Act however the proposed section 79 for the 2005 Amendment Act includes in it s ambit telecom service providers, web-hosting service providers, internet service providers, search engines including online auction sites , Online market places , and Cyber Cafes.
[11] V.K. Unni, Internet Service Provider's Liability for Copyright Infringement - How to Clear the Misty Indian Perspective, 8 RICH. J.L. & TECH. 13 (Fall 2001) at http://www.richmond.edu/jolt/v8i2/article1.html. last visited on 18th August 2009
[12] See (statement of Roy Neel, president and chief executive officer, U.S. Telephone Association).
[13] See, Mike Conadi , “ ISP Liability and File sharing Networks, Tax Planning International E- Commerce , [203], 5(5), 5-9.
[14] CBS Songs Ltd. V Amstard Consumers Electronics Plc (1988) 11 IPR 1 ; Also refer CBS Inc v. Ames Records & Tapes Ltd. Case
[15] Gershwin Publ'g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
[16] 17 U.S.C. § 501(a) (2000). Also refer to Religious Technology Center v. Netcom. 907 F. Supp 1361 (N.D. Cal 1995).
[17] Section 51 of The Copyright Act, 1957 :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.
[19] Raman Mittal, “Liability of Internet service providers for copyright infringement”, www.Cyber Smart.in, Last visited on 16th August, 2009
[20] 17 U.S.C.S. § 512 (Law. Co-op. 2001)
[21] Carolyn Oddie , “ Copyright protection in digital age”, Information Management & Computer Security, [1999] (7) 5 p.239
[22] Kamiel Koelman , Bernt Hugenholtz, “ Online Service Provider liability for copyright infringement”,Paper presentation by the World Intellectual Property Organisation at Geneva 9-10 December 1999.
[23] See Amit Agarwal,Internet Censorship - Will India Become Another China, last visited On October 17, 2007
[24]Para 2.4(1) (b) of the Canadian Copyright Act;Also refer Society of Composers , Authors and Music Publishers of Canada v. Canadian Association of Internet Providers 2 S. C .R.427,2004 SCC 45 ( The Tariff Case).
[25] Sunny Handa & Alexander Matheson , “ Copyrght law and the Internet”.
[26] Gavin Sutter , “ Don’t shoot the messenger ? The UK and Online Intermediary Liability”, International Review of Law Computers and Technology, [2003], 17(1), 73-84
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