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End To End Encryption: A Safe Place To Piracy Items?

Many businesses were negatively impacted by the COVID-19 pandemic and the resulting lockdowns. As a result, many of them have had to undergo changes to stay afloat in these unusual times. Many businesses were forced to shift from their conventional, physical mode of delivery to online mode which is most suited for the time. While this did help ensure the continuation of business but it brought its own complexities.

One such issue of considerable concern was that of the increase in the unauthorized distribution of pirated content. The newspaper industry is one of those industries which was impacted most due to lockdown and then the practice of illegal e-newspaper distributions adds to their misery. Due to the prevalence of the above issue, the Indian Newspaper Society issued an advisory, advising its members to take strict legal action against those who download, edit, and/or distribute these e-papers.

In May 2021, the Delhi High Court passed an interim order restraining WhatsApp and Telegram from illegally circulating e-papers of the Times of India and its sister-publication Navbharat times on their platform. The Court issued notice to the two apps along with certain individuals who are administrators of groups on their platforms while barring them from circulating e-papers for alleged copyright violations.

The contested decision raises interesting concerns about the copyrights of publicly available e-papers, intermediary responsibility, and the challenges that end-to-end encryption poses to the efficacy of such orders. This article tries to address the issue by demonstrating how end-to-end encryption has created a safe harbour for copyright infringers in an attempt to argue for a change in the present stance on intermediary responsibility.

Implied License
The question of copyrights concerning e-papers can be complicated due to differences in how they are disseminated by various publishers. The issue is less evident when the e-newspapers are delivered to paying subscribers or for free to identifiable or anonymous individuals under user agreements. It is far more evident when the same is supplied for free to anonymous users without user agreements.

The absence of a user agreement in such instances causes ambiguity in terms of the ability of individuals to distribute e-copies on social media platforms and of the aggrieved party's right to prosecute in situations of alleged violations of copyright. In such circumstances, the "doctrine of implied license" can be used to analyse if an implied authorization exists for such circulation.

The doctrine of the implicit license originates from contractual law. This copyright doctrine is often utilized to allow licensees to use licensed goods normally. While implementing this theory, it is also important to assess the constraints on the usage of the goods under the implied license. A quintessence test in this respect is to evaluate whether the act (in this case, the circulation) is important if the agreement between parties is to be meaningful.

Aside from the scope of the agreement being used to determine the legality of such circulations, the provisions of Section 52(1)(a)(ii) and (iii) of the Copyright Act, 1957 also apply in such cases. As per the section, copying or disseminating literary content for the purpose of critique, review, or reporting on current events would not be considered a copyright violation. The common occurrence of persons disseminating the whole e-newspaper for neither of these permissible reasons nor taken the authorization of the copyright holders would hence not be allowed under this law. The same also applies to the current case hence making the said act an infringement of copyrights.

Intermediary Liability on the issues of Copy Rights

Under Section 79 of the Information Technology Act 2000, social Media platforms being intermediaries, are protected from liability for user-generated content. The same holds true if their sole participation in the matter was to provide a communication system over which the material was communicated and they were not responsible for the conception, transmission, or reception of the content. As per the Section, intermediaries can only claim benefits under the clause if they did not have actual knowledge of the disputed material.

In the case of Myspace v. Super Cassettes, the Delhi High Court expanded the application of section 79 to shield intermediaries from responsibility for copyright infringement caused by user-generated material as long as the intermediary's actual knowledge could not be proven. According to the decision, real knowledge may only be determined when the exact location of the infringement is conveyed to the intermediaries.

Shree Krishna International v. Google
was another case that dealt with a similar aspect of intermediary liability for copyright infringement by the circulation of third-party content, where the court held the defendants (intermediary) liable because they did not take down the content despite having "specific knowledge" of the copyrighted infringement.

End to end encryption: a double-edged sword

Another question that emerged from this discussion is the hurdles created by end-to-end encryption for the implementation of court orders or statuary provisions. Most of the famous social media sites feature end-to-end encryption for the privacy of its user, but this creates problems if someone uses this mode of transmission for sharing copyright contents. If intermediaries implement such features that allow for decryption while implementing end-to-end encryption, the same would defeat the purpose of end-to-end encryption.

One best way for the Court to overcome the problem created by end-to-end encryption is to issue John Doe orders. A John Doe order is one in which an injunction can be issued against someone whose identity is unknown at the time the order is issued. It safeguards the copyright owner's rights in situations where a copyright infringement by an unknown offender is imminent. This gives copyright proprietors a way to pursue legal action against anonymous copyright infringers without needing to know who the alleged infringers are.

These orders not only protect against claimed infringing actions by unknown persons, but also prevent future infringements by forbidding all unknown classes of people from engaging in the alleged infringing activity. The aggrieved party (copyright holder) now simply needs to serve a copy of the order on the infringing party instead of having to file a fresh suit for an injunction, which greatly reduces the delays that typically occur in such situations and would save the plaintiff a significant amount of time and money. As a result, the delay is much reduced, and the harm caused by the infringement is greatly reduced.

One conceivable solution is to extend the applicability of the 'Inducement rule' from the United States to India. The rule is a type of "secondary liability" established by a US court in the MGM v. Grokster case. According to the rule, an intermediary can be held responsible for aiding or encouraging copyright infringement indirectly. While implementing the same in its original form may not be entirely possible, an adaptation of the same may be highly useful in building a more effective and powerful copyrights security mechanism.

Way Forward
Copyright infringers have found safe refuge on social media sites that provide end-to-end encryption as they exist now. This is partly because of the total anonymity offered to users, and partly owing to the lack of responsibility of the intermediaries who are, in effect, implicitly facilitating and permitting copyright infringement.

While measures such as John Doe orders may assist to relieve the situation to some extent, the present system has to be rethought to solve the issue of anonymous piracy, particularly on platforms where even intermediaries are unable to determine the people's identity. Given the rise in the dissemination of copyrighted content on social media platforms, it's also crucial to re-examine intermediary responsibility in end-to-end encryption. Unless action is done to this effect, social media platforms like WhatsApp, Telegram, etc. remain safe havens for copyright infringers, at the expense of copyright holders.

End-Notes:
  • https://thewire.in/media/newspaper-delivery-coronavirus-police-lockdown
  • https://www.business-standard.com/article/companies/circulating-newspaper-pdfs-illegal-via-social-media-hurts-journalism-ins-120121101125_1.html
  • https://www.newslaundry.com/2020/05/04/newspapers-want-to-stop-free-circulation-of-epapers-is-it-a-good-idea-in-a-pandemic
  • https://www.livelaw.in/news-updates/delhi-high-court-restrains-whatsapp-telegram-from-illegally-circulating-copies-of-times-of-india-navbharat-times-e-newspapers-174624
  • https://epaper.thestatesman.com/download/newspaper/2675536
  • https://spicyip.com/2020/05/fact-checking-the-fact-check-the-legality-of-sharing-e-papers.html
  • https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266083
  • https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1266083
  • https://copyright.gov.in/documents/copyrightrules1957.pdf
  • https://www.indiacode.nic.in/bitstream/123456789/13116/1/it_act_2000_updated.pdf
  • https://indiankanoon.org/doc/12972852/
  • http://iprmentlaw.com/wp-content/uploads/2019/12/Shree-Krishna-Judgment-Dt.-27.09-1.2019.pdf
  • https://spicyip.com/wp-content/uploads/2016/10/Taj-Television-Ltd.-Anr.-v.-Rajan-Mandal-Ors..pdf
  • https://web.law.duke.edu/cspd/papers/epubs/IPCasebook2014-Ch14.pdf
  • https://cyber.harvard.edu/people/tfisher/cx/2005_Grokster.pdf
  • https://www.investopedia.com/terms/s/secondary-liability.asp


    Award Winning Article Is Written By: Mr.Rishabh Dwivedi & Mr.Satyam Dwivedi
    Awarded certificate of Excellence
    Authentication No: MR206787912158-08-0222

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