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Viewing torrents online not illegal: Bombay HC


Update: When a user initiates a download session via torrents, he/she is downloading a copy of multiple files distributed among several users in a network. After completion of a download via torrents, he/she is also indirectly making copies of a file by uploading (or seeding) files to other users in a torrent network, amounting to infringement.

Earlier: Mere viewing of files via torrents is not illegal, but making copies of copyrighted protected content and distributing them for sale or hire to the public is punishable, the Bombay HC clarified last month, according a to report compiled by SpicyIP.

In an August 24th court order referred by SpicyIP, Justice Patel stated: “The offence is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright–protected material.” However, MediaNama wasn’t able to independently review a copy of the order. The court observed these clarifications after ISPs were ordered to block specific pages and sites, owing to a John Doe order awarded to Eros International—the makers of the movie Dishoom.

Although the court initially denied a John Doe for Dishoom, on 9th August, it awarded John Doe orders only to specific URLs or sub sections of a website that might infringe or already have infringed copyrights in the past. The notice mentioned that even viewing copyrighted content can land viewers in prison. ISPs were also instructed by the court to specify contact details of a Nodal officer, in case the block affected anyone. We pointed out earlier that the email address specified by the notice does not work or isn’t active; this was a serious lapse in order compliance.

Changes to block notice

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Spicy IP reviewed a copy (pdf) of the August 30th order issued by Justice Patel. He noted the following changes to block notices being displayed on sites.

The earlier block notice read: “…Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India…”

This has now been corrected as: “…Infringing or abetting infringement of copyright-protected content including under this URL is an offence in law. Ss. 63, 63-A, 65 and 65-A of the Copyright Act, 1957…”

Tata says it cannot display block notices above 32kb

Tata Communication had earlier challenged the court and requested for a modification of the block notice to remove suit no or judgment no, address of plaintiffs, and relevant court that awarded the blockade. It instead suggested providing a contact detail of the Nodal Officer of Tata Communications (which doesn’t work). The court reluctantly agreed to this, due to shortage of time.

However, Tata now argued in court that the firewall being used by it and several other ISPs did not allow displaying notices or a file in excess of 32 kb, even after compressing the underlying HTML code, as pointed out by SpicyIP. To this, Justice Patel said:

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“..I am most dissatisfied with this. It is difficult to see hos (sic, most likely “how”) affected person’s rights can be allowed to be compromised because of this kind of “technical limitations”…I will not accept that this will continue indefinitely…Tata Communications will forward a copy of this order to their hardware or software suppliers overseas and will impress upon them the need to relax that file size limitation from 32kb to something that is more meaningful and useful. We are attempting here to make necessary information available in the public interest..”

Court suggests creation of ombudsman body to address grievances

After the John Doe order was awarded to Dishoom, one of our readers pointed out to us that his website ‘Madaboutmovies.com’ involved in movie reviews and discussion was blocked by several ISPs, while there was no sort of relief or means to counter the block, since the notice being displayed did not provide any contact information. However, Justice Patel during his judgment noted that the court cannot independently monitor the functioning of whether or not all ISPs have complied to its order.

It suggested creating an office of ombudsman, which will seek to address all grievances and complaints being registered by parties who are affected by the block, or a third party who is looking to challenge the block. This was originally noted by Prof. Shamnad Basheer in a TheWire article. The ombudsman might need to work closely with ISPs and production companies to ensure effective communication between affected parties, added the court.

Note: An earlier version of the story stated that downloading torrents are not illegal. This has been corrected to show that downloading copyrighted content via torrents is equal to infringement.

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