[SPICY IP] Bollywood Piracy: Fighting Technology with Technology

[Amlan Mohanty]

We are all aware of the rampant piracy affecting Bollywood but the scene of crime seems to have shifted to cyberspace in the recent past. Mybangalore directs us to news of how Bollywood has decided to fight the menace with an innovative, yet dubious strategy, which in a single line can only be described as 'fighting technology with technology'.

Although the emergence of new technologies facilitating piracy and online distribution methods has been slightly belated in India, it is fast catching on, with torrents of recent releases readily available with a simple Google search.

Another development I've noticed in the recent past is film makers or production studios themselves engaging in anti-piracy strategies. I'm not sure if this is the right way to approach the problem, given the unpleasant criticism that the producers of Hurt Locker received with their efforts to fight file-sharers distributing pirated copies of the film. Of course, the issue then was clubbing several defendants in a single suit, significantly restricting their right to a fair trial, but that is a subject for another post.

Closer home, the makers of Peepli Live (the Amir Khan) starrer have adopted a similar strategy by hiring a Bangalore-based software firm to do the necessary dirty work. The bane of easy online distribution was all too evident with up to 300 different sites hosting a pirated copy of the movie, within hours of the movie being released. The firm's anti-piracy strategy appears simple - issue take down notices to the sites hosting such pirated content, and if they don't comply, then use sophisticated technology to outdo the technology hosting the content in the first place. We've blogged earlier about the ambiguities in the Indian law concerning notice-and-takedown procedures, so it is not altogether surprising that the firm had to resort to another method.

So what is this 'sophisticated technology' that I qualify as being 'dubious'? Denial-of-service attacks are generally used to prevent access to particular data, but can be extended to even destroy the data residing in the servers, to prevent access altogether. But is such a method legal? As the article also points out, there are provisions under the Information Technology act that criminalise such actions. Specifically, Section 43, sub-clause (i) of the recently introduced Information Technology (Amendment) Act, 2008 states that anyone who '(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;' shall be liable to pay compensation to the person so affected. While this appears to be a mere civil penalty, directing one's attention to Section 66 of the same legislation, we see that it is in fact a criminal offence. Section 66 reads as follows: " f any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both." Of course the terms 'dishonest and fraudulent' have their own qualifications and standards, but in my opinion, it is still a difficult defence for the firm to rely on when there is a clearly lawful procedure available to a party to deal with copyright infringement claims, although admittedly ambiguous and desperately seeking clarification (you may refer to our posts on Section 79 v. Section 81 of the IT Act for further reading).


Thus, while the issue of piracy and liability of intermediaries for copyright infringement needs to be addressed, and quickly at that, perhaps a clarification of the law concerning liability of intermediaries for copyright infringement can prevent such instances of 'online vigilante justice' from becoming the norm.

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Posted By Amlan Mohanty to SPICY IP at 9/16/2010 09:59:00 PM