Introduction
Today the fast-paced technological developments have a deep impact in our day to day lives. Like any other thing, contemporary technology has its own pros and cons. Although it has made our lives more interesting and easy it has also brought along the ill side of it, especially the cyber-crimes. The use of certain techniques, usually for the purpose of entertainment may pose a legal threat which one might be ignorant about. This piece attempts to shed a light on the issue of legality regarding one such online activity- Torrenting.
What are Torrent and Torrenting?
The word torrent might refer to the metadata files of the file/folder which is to be downloaded. A typical Torrent file does not contain actual content that is to be downloaded but only the information related to that file such as name, size, folder structure, etc.
Torrenting is considered to be a widespread technique to download and share files which are hosted globally, for which all that is required is the internet.[1] It has gained popularity due the reasons such as:
- Downloading and sharing content is free.
- It has a wide variety of latest movies, games, books, music, TV series, etc is available to download as soon as it releases officially and sometimes, even before that. (To all those who already know about it, most of us did watch GoT like that, didn’t we?)
How is it different from regular downloading?
Torrenting is essentially different from typical downloading as it uses peer-to-peer (p2p) file sharing approach where burden is not on any single server. Rather each peer acts as a mini-server, which significantly reduces the network load.[2] This happens with the help of specialized software that takes tiny parts of the file from multiple computers (from all over the world) and assembles them into a complete version. It is pertinent to note that this acts as a loophole for the authorities to trace a single-serve used for cyber-crime or that has violated any legal principles.
Though the activity is not inherently illegal[3], rather it is perceived as a simpler and more convenient way to share content online but there are chances of one end up lending themselves in legal trouble.
Legality under Indian Laws
The legal aspect of copyright infringement and data piracy can be derived from the Copyright Act, 1957 statute. Before we delve into this subject, we need to understand what constitutes Copyright Infringement. Section 51 of the Copyright Act, 1957 provides that when an individual without the permission of the owner of the copyright holder, does an act which is exclusively permitted to only the owner of the copyright and makes copies of the original work of the copyright holder, then it is said to be an infringement of the copyright and is punishable under the statute.
Section 63 of the Act deals with the offence of infringement of copyright which shall be punishable with imprisonment for a term not less than six months extending up to three years and fine not less than fifty thousand rupees extending up to two lakh rupees. Punishment can be less than six months or fine less than fifty thousand when the infringement was not for gains or profits during the course of trade or business.
Also, Section 65 of the Act provides for the punishment for possession of plates. These are tools through which artistic and other files can be copied. Any person who is knowingly using these plates or is in possession of a plate is liable for punishment for 2 years along with fine. Just as there are counterfeiting machines used for the purpose of duplicating currency notes, in the same manner, photocopy machines, computers or laptops can be used for duplicating work containing copyright.[4]
Looking through the prism of plates, we can conclude that when an individual views a torrent file, he does not infringe the copyright just by viewing it, but when the individual downloads the said content from the website and copies it onto different devices in order to spread it, it becomes violation of the laws. This gained ground through the decision by the Bombay High Court in the case of Eros International Media Limited and Ors. vs. Bharat Sanchar Nigam Limited[5], wherein it opined that merely viewing the unlawful copy of the film is not punishable in India. The offense is in making copies, giving in distribution, public exhibition or for sale or hire without the consent and permission of the copyright owner.
Judicial Enforcement
The evolution of judicial jurisprudence around the subject matter of online piracy and streams has been, so to say, modern. The judicial forums have taken active measures, looking for inspiration from other countries in order to lend a helping hand to the copywriter holders and curb the menace of piracy. Blocking a website which is violating the rights of a copyright holder is a tedious task and the anonymous nature of the world wide web, it becomes a cumbersome task to identify the perpetrators and drag them to courts.
So, to provide relief in such matters a John Doe order (aka Ashok Kumar orders) is provided to the copyright holders. It provides the IP holder the right to seek an injunction against an anonymous person(s) who is found to be infringing the property of the holders. It also allows the plaintiff to search the premises and seize evidence of infringement of its rights by unknown defendants. To obtain a John Doe order, the plaintiff needs to establish (i) a prima facie case, (ii) likelihood of irreparable damage if the order is refused, and (iii) balance of convenience in favour of the plaintiff.[6]
As recent as 2019, a decision by the Delhi High Court has further altered the jurisprudence in this area when in the case of UTV Software Communication Ltd. v 1337X.TO and Others[7], it decided that the IP holders can bypass the lengthy process of obtaining an order from the courts and can directly to approach the Joint Registrar of the Delhi High Court (an administrative position) to extend an injunction order already granted against a website to another similar “mirror/redirect/alphanumeric” website which contains the same content as that of the already blocked/injuncted website. This is a historic step in the IP industry and aids the copyright holders to enforce their rights more easily and flexibly and also deters the individuals and groups involved in piracy.
Final Thoughts
When we look at the global map, many countries decided to make this activity illegal in varied forms such as fines and imprisonments.[8] India falls in the category wherein downloading is overlooked. However, even then if the ‘copyrighted material’ is ‘used’ one can be charged with piracy for illegally accessing it. Despite this smart torrenters find ways of escaping the legal brunt by various means (like use of VPN). That being said, torrenting remains risky whether it is legal or illegally. It is time that all the three organs of the state pace up to tackle the issue together in order to ensure the effective and legal use of these online developments.
[1] Is Torrenting Illegal? The Definitive Answer, PIXEL PRIVACY (Jun. 17, 2020, 8:58 PM), https://pixelprivacy.com/resources/is-torrenting-illegal/.
[2] Peter Buttler, What is Torrenting? How Torrent Works? Is It Illegal or Not?, PRIVACY END (Jun. 17, 2020, 6:30 PM), https://www.privacyend.com/what-is-torrenting/.
[3]Gary Stevens, Is Torrenting Illegal in 2020? Can the Gov’t Crack Down on P2P?, CLOUDWARDS (Jun. 17, 2020, 6:07 PM), https://www.cloudwards.net/is-torrenting-illegal/.
[4]Anubhav Pandey, Is visiting a torrent site a crime in India, IPLEADERS (Jun. 16, 2020, 4:45 PM) ,https://blog.ipleaders.in/legality-of-torrent/#:~:text=Visiting%20a%20torrent%20site%3A%20Legal,is%20viewing%20it%20in%20private.
[5]Eros International Media Limited and Ors. vs. Bharat Sanchar Nigam Limited, 2016 Scc Online Bom 6948.
[6]Manisha Singh, Combating Copyright Online Piracy In India: Government Initiatives and Judicial Enforcement, MONDAQ( Jun 17, 2020, 5:45PM) https://www.mondaq.com/india/copyright/901978/combating-copyright-online-piracy-in-india-government39s-initiatives-and-judicial-enforcement.
[7]UTV Software Communication Ltd. v 1337X.TO and Others, 2019(78) PTC 375(Del).
[8] Are Torrents Illegal?, VPNMENTOR (Jun 17, 5:30PM) https://www.vpnmentor.com/blog/torrents-illegal-update-country/.
This Article is Written By Aashvi Shah, 3rd Year B.A. LL.B (Hons.), Student at Institute of Law, Nirma University.
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