Judicial arrears and case pendency are not a new problem. We have been dealing with these issues and problems for some time now. The setting up of quasi-judicial tribunals was seen as one way of reducing this pendency. Here tribunals would adjudicate disputes based on their thin and defined areas of competence and achieve efficiency in disposal and accuracy in rendering decisions. India’s experience with quasi-judicial tribunals in its introductory stage was with labor and service laws. Hence the Central Administrative Tribunal (CAT) which deals with these disputes was founded in 1985 and was considered one of the initial flag bearers of administrative law in India. With the increased focus on sectoral adjudication there has been a mushrooming of quasi-judicial tribunals which deal with disputes in their specific domains. A tribunal which has been receiving its fair amount of the press is the Competition Appellate Tribunal (CAT) headed by former Supreme Court Justice Hon’ble Arijit Pasayat.

The latest CAT is the Cyber Appellate Tribunal. Even though the Information Technology Act had clear provisions on the establishment of the Cyber Appellate Tribunal way back in 2000 when it the enactment was notified, till recently the seat remained vacant. Only on July 27, 2009 was Hon’ble Justice Rajesh Tandon appointed as the Chairperson of the tribunal and it was christened (Hon’ble Justice R.C. Jain was appointed as the presiding officer way back in 2007 however no decisions came out till recently). A reason for the delay in appointment may have been the absence of litigation in this area of law. However, with the Tribunal releasing some decisions, it seems that litigation on the Information Technology is finally hotting up.

There are a total of 7 decisions rendered by the Cyber Appellate Tribunal which have been posted on the Ministry of Information Technology website (caveat – 6 of the 7 arise from the same bundle of facts). These decisions reveal certain trends and projections which may define the scope of adjudication in this young and growing tribunal. As most tribunals even the Cyber Appellate Tribunal seems to be going through its teething phases, tasting, chewing and rejecting various claims as to the extent of its jurisdiction. All the 7 decisions released have arguments and contentions which have arguments on jurisdiction contained in them. Out of the 7 appeals, 1 is remanded back to the adjudicating officer and the other group of 6 are dismissed for lack of jurisdiction. They are dismissed on the ground that the Appellants filed an original complaint with the tribunal, when the tribunal sits only as a court of appeal. Another issue which comes out quite glaringly is that the Appellate tribunal seems to be quite particular as to the parties which are arraigned. Most of these issues should be decided through discussion with the legal counsel at the stage of filing of the original complaint itself (original complaints are filed with the Adjudicating Officer which has been appointed in each state). Another issue with the 6 appeals which were dismissed was that some of them made the Controller of Certifying Authorities a party even though there were no complaints relating to electronic signatures.

I fail to gather how they can make such a complaint when the function of the controller is limited to regulating other certifying authorities and electronic signatures. I have prepared a table containing the decisions, which list the facts, issues and decisions of all the 7 appeals. They are available at the following link. You can download it here.

p.s. I have not written on the blackberry story because of the complete lack of clarity on it. Everyday there are conflicting media reports and statements by the government regarding the device. I promise to go fishing when the storm dies down.

This is the first of my two part blogpost’s on the proposed ban on blackberry services in India. These series discusses the demand for establishing a blackberry server in India for the interception of communications. I argue that this an indicia of a gradual increase in national security regulation since the Mumbai terror attacks. This post also seeks to examine the privacy concerns and whether the actions and the seemingly inflexible demands of the Indian government are justified. The first blog post does not discuss the blackberry ban specifically but introduces the reader to the causes as well as the gradual trend towards the heightened security climate in India, with regards to telecommunication regulations. It also broadly introduces the legal limits placed on the right of personal privacy. The second part will discuss the technological structure of the blackberry device, the device specific concerns and the developments on this controversy which is developing daily.

For all the unsavory things Henry Kissinger has said to Nixon about Indians and Indhira Gandhi in the past, his 1994 book, “Diplomacy” has its highs of eloquence and levels of reason. He uses concepts such as realpolitic and raison d’ etat to explore international relations of countries through the ages and posits his realist analysis on them. The recent controversy of a, “blackberry ban” brings to focus the concept of raison d’ etat. The concept evolved in 17th century France which can be roughly translated to, “for reasons of state” and in Kissinger’s words, it asserts, “that the well-being of the state justified whatever means were employed to further it; national interest supplanted the medieval notion of a universal morality”.

I cannot agree with this completely, for a crude application of this principle, would reduce many a country to a totalitarian regime (remember the perpetual state of war maintained by Oceania in 1984). However, at the same time there is much sense in the “national interest” argument. What makes the concept more relevant to the present discussion is the increased use of technology by terrorists. Recent terrorist attacks in India have revealed an increased dependence by terrorists on emails, mobile and satellite phones to plan, coordinate and execute terrorist attacks.

Parallel to this there is also a growing sense of privacy in India. With higher disposable income and ownership of more material possessions there is growing sense of “my property” from our traditional views of “our property”. There is also a growing penetration of broadband and blogs which highlight these issues increasingly. Whatever be the sources, it is undeniable that modern middle class Indians have a sense of personal privacy. In this background the blackberry issue symbolizes more than just a mere “security issue”, it represents the tension between the competing interests of the state and the individual. First lets examine what has been the trigger of this controversy.

Apprehension and actual harm

Security concerns over blackberry devices were first aired in the corridors of power in 2008. In April I even wrote a short post on the wrangling between the government and the makers of blackberry devices due to the inability of security agencies to intercept some types of traffic data on the device. This is because of the triple DES level encryption employed by blackberry devices. I suggested a key escrow as a way out. My suggestion was more in the domain of a legal solution to any privacy concerns which could be there for Blackberry users. In retrospect it would seem, (if we go by blackberry’s description of its technology) technically impossible (discussion on the technological architecture in part 2).

Then the Mumbai Terror Attacks happened. These were one of the most horrific terror attacks on Indian soil. What differentiated these attacks from previous ones was the level of coordination and damage wrought by 10 terrorists and their handlers. There were news reports that these attacks were planned, coordinated and executed by a reliance on consumer technologies. A post by security expert, Noah Shachtman who writes the popular, “Danger Room” column at wired.com stated that,

“As they approached Mumbai by boat, the terrorists “steered the vessel using GPS equipment,” according to the Daily Mail. A satellite phone was later found aboard. Once the coordinated attacks began, the terrorists were on their cell phones constantly. They used BlackBerries “to monitor international reaction to the atrocities, and to check on the police response via the internet,” the Courier Mail reports. The gunmen were able to trawl the internet for information after cable television feeds to the two luxury hotels and office block were cut by the authorities. The men looked beyond the instant updates of the Indian media to find worldwide reaction to the events in Mumbai, and to keep abreast of the movements of the soldiers sent to stop them. Outside of Leopold’s Cafe, “one of the gunmen seemed to be talking on a mobile phone even as he used his other hand to fire off rounds,” an eyewitness told The New York Times.”

The attacks changed our lax attitude towards national security. I have commented before how the attacks were termed “India’s 9/11”. The comparison was not totally misplaced.  After the attacks both countries discovered their appalling lack of clear command and control structures, information gathering and sharing. Something needed to be done. Our Lok Sabha responded like the US Senate did, rushing through enactments to “strengthen” national security. For reasons of state, new laws were created, old ones were amended, the ones which remained were enforced.

Security regulatory overhaul

This legal upheaval was most visible with regards to telecommunications and internet regulations. The Information Technology Act, 2000 was finally amended and the amended act was notified in late 2009. Along with the amendments came regulations on interception of online communications. I have written on these topics at length in my article balancing online privacy in India which can be accessed at the following link.

Alongwith these amendments there also came regulations on authentication of the identity of the person availing the telecommunication or the internet services. First came regulations on the secure use of WiFi access points. These were issued by the Department of Telecommunications (DoT), on February 23, 2009. The regulations applied to all ISPs serving leased line subscribers, home users, and WiFi hotspots in public places. The objective of the regulation was to prevent misuse of WiFi Internet access and to be able to track the perpetrator in case of abuse. This made it necessary for any internet access provider to enforce a centralized authentication using LoginID and a password for each user. After this, on September 3, 2009 came the regulations on the authenticity of IMEI numbers. The IMEI number which is unique to each cellular handset is paired with a network on activation. This IMEI number is also matched against each handset in an international database. When combined with a local register maintained by the telecom company containing the details of its subscribers, the cellphone was irretrievably linked to a person.

More recently there were regulations made on the sourcing of telecom equipment. These regulations were made due concerns that the equipment which was usually sourced from abroad could have embedded backdoors which could be used for counter intelligence by foreign countries. These regulations established a approval based process where a security clearance would have to be obtained by a telecommunications service provider. Here a pro-forma with details of the name, source and country of the manufacture of the equipment would have to be submitted to the DoT for approval before it could be sourced. A New York Times article examined this issue from the perspective of telecommunication companies which were unhappy with the regulations citing that it would cause delays as well as increase costs (as Chinese telecommunication equipment constitutes the bulk of the sourcing due to the low costs and it would be the most natural suspect class hit by delays in approvals and even rejections). Another story also highlighted a, “memo posted on its Web site on March 18, the Telecommunications Department clarified its security clearance rules, stating that the “operation and maintenance of telecom networks should be entirely by Indian engineers” and adding that the “dependence on foreign engineers should be minimal” within two years from a purchase.” The recent blackberry controversy is only the latest in the  continuous regulatory efforts by the Indian government to strengthen national security. Its not the first and definitely not the last. However, the blackberry controversy in my view is serving an extremely important function.  The privacy argument which has always been generally latent, discussed by academics and staunch civil libertarians, is now ripe for widespread  national discussion.  In the end I see this debate as defining a lot of ground rules on privacy, security policy as well as encryption technologies.

To kick of the next part I discuss why there is such an inexorable demand by the Indian government on blackberries specifically. What makes the technical architecture of the blackberry so difficult to crack? And is there truth to RIM’s (research in motion, the makers of the handset) defenses of “we would (comply), if only we could”!

Image via Wikipedia

The Indian Journal of Law and Technology (IJLT), arguably the one of the best journals on law and technology published in India in its latest issue has published my article on Balancing Online Privacy in India.  Leaving aside my visible bias for the journal, the article examines how courts have responded in cases of state intrusion. To make sense of the law of privacy in India I utilize Daniel Solove’s taxonomy of privacy. One of the points argued, is that courts have molded a procedure for privacy interference rather than a substantive right to privacy itself.  These procedures contain safeguards which seek to protect privacy. However, as it is demonstrated there is a lack of incentive for obeying these procedural safeguards.  In the end I make a case that for all the noise around privacy, a state instrumentality for a privacy breach, rarely faces the music. The complete article may be found on the following link.

Internet Intermediary Liability is no longer the dark horse in the field of technology law. With the increasing controversy around it resulting in the arrest of a CEO of a multinational company, [The Bazee.com case] and in light of the recent amendments to the IT Act, the topic has received much attention, with increasing apprehension from several quarters. Given the contemporary relevance of this topic therefore, it has been chosen as the theme of this year’s edition of Consilience, an annual conference on Technology organized by the Law and Technology Committee of National Law School of India University. The only one of its kind, the conference has, in the past brought together notable legal luminaries like Montek Singh Aluhwalia (Deputy Chairman, Planning Commission), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.,), Mr. Richard Stallman (Founder – GNU Project), Hon’ble Justice Yatindra Singh (Allahabad High Court, India), and have discussed issues relating to “Legal Aspects of Business Process Outsourcing”, and “Free and Open Source Software”. This year’s edition, held on 29^th and 30^th May 2010, is sponsored by the Centre for Internet and Society and Google, will see the attendance of several notable personalities from every field concerned with the topic, notably Hon’ble Justice Ravindra Bhatt, (Delhi High Court, India) for the judiciary, Dr. Gulshan Rai, (Director General Indian Computer Emergency Response Team) and Mr. G. R. Raghavender, (Registrar of Copyrights and Under Secretary, MHRD) from the Government, Mr. Amitabh Lal Das (General Counsel, Yahoo! India) and Rahul Ajatshatru (Counsel, T-Series) to present the industry front, and Prof. Gavin Sutter (Lecturer in Law, QMUL, University of London) Wendy Seltzer, (Fellow, Berkman Center, Harvard University) from renowned academic circles. The keynote address will be delivered by Hon’ble Justice Muralidhar.

The theme of the conference is one which has far reaching implications. The main basis of intermediary liability is the perceived difficulty in bringing the real culprits to justice and also the possibility of the real culprits being unable to pay the damages which will, inevitably be imposed upon them if the cases ever came to court. Hence, with intermediaries having deep enough pockets to pay compensatory costs, the idea of holding them responsible for illegal third party content, access to which is facilitated by such intermediaries has emerged. However, whether imposing such liability has a legal grounding or not, and whether the justification for it withstands the tests of reasonability and other jurisprudential principles remains a matter of uncertainty. Independent of a pure legal analysis, the position of intermediary liability in India today is as stated in S 79 of the IT Act, which provides selective immunity. If intermediaries do act as mandated in the statute, they qualify for immunity. But the law on the subject still remains unclear, with the law preferring to take refuge behind the usage of vague and indeterminate terms like ‘knowledge’, ‘extent of control’, ‘due diligence’ etc which prove to be a veritable minefield for Courts to play with. Usage of such terms, especially when the spectre of liability could involve damages of huge sums of money, results in the inevitable consequence of more uncertainty, with predictable negative consequences. It is not certain whether or not this confusion can be cleared since, as most legal scholars can testify, some areas of law are dependent upon such terms. In a lot of situations, they are faced with the simple impossibility of defining liability with more specificity.

The internet being a medium of high social value, the impact that the current law will have on the costs of using the internet and the entire industry has to be accounted for. Intermediary Liability will affect almost everyone who uses the internet, yet there is surprisingly little academic literature on the subject outside of the reports released by the government itself. Consilience, by bringing together notable legal scholars, government representatives, advocates, industry representatives and Indian academicians, will be a forum where diverse viewpoints from across jurisdiction are expressed and debated upon. By a comparative study of the law in different countries, the conference aims at a consensus that will address the lacunae in Indian law with little scope for indeterminacy. For more information kindly visit the conference website by clicking here.

Thanks to PRS Legislative the Copyright Act Amendment Bill, 2010 is finally online. While glancing through the bill I noticed four provisions which can have direct impact on electronic commerce. The first two are exceptions from Copyright Liability where provisions have been inserted to further shield intermediaries. Here, Sec. 52(1)(b) contains a standard exception from liability in cases of transient and incidental storage of a work. Sec. 52(1)(c)  which will apply to online service providers is more intresting contemplates a notice a takedown provision. The section has the requirment of a court order within 14 days of the orignal complaint from the rights owner to maintain the continued prevention of the delivery of the alleged infringing content.

In the continuing tradition of balance in the copyright universe the next two provisions create liability. However, I get a sense they go a bit further. These two provisions relate to protection of “technological measures” and “rights management information”. For the violation of both these provisions, the sanctions are criminal. With the insertion of Sec.65(b), the circumvention of any technological measure to protect rights under the copyright act will be an offence carrying a penalty of imprisonment for 2 years. There are important limitations to this section as firstly the circumvention should be with an intention of infringment of the statutory rights and secondly the section will only apply for infringment of statutory rights and not contractual rights. Hence with the second limitation will be inapplicable with respect to the extended rights which are usually contained in software licenses.

The second section which is inserted is more problematic in my opinion as Sec. 65(b) which reads as protection of rights management information. Alongwith the section defintiion clause 2(xa) is also bieng inserted, which defines “rights management information”, as “(I) title of the work; (2) name of the author; (3) the name and the address of the owner of the rights; (4) terms and conditions regarding the use of the rights”.  Here any person removing or altering the rights management information will be liable for the 2 year imprisonment. Hence, the section seeks to extend the rights of idenitification and ownership while providing for penalties in itself. There are no exceptions under this section and it applies absolutely. In my view this section will generate considerable litigation.

For those who are intrested in reading the bill, click here.

Most litigation lawyers are aware of the incredible power of interim orders. These orders acquire a heightened status due to the prolonged delays which beset our adjudicatory institutions. Often these delays morph interim orders into perpetual ones. Hence, they turn from merely protecting the rights of the Plaintiff to offending the interests of the Defendants.  A popular legal metaphor, “of a shield being used as a sword” aptly describes this situation.

Alongside this realisation is the growing sense that interim orders when granted ex-parte are susceptible to being obtained by chicanery. The discovery of the slight of hand by Courts is often belated due to the procedural hurdles which complicate the task of vacating such ex-parte inunctions. Here the negative effects may stretch beyond the defendants to the society at large. Here the concept of “deadweight loses” becomes pertinent. “[D]eadwieght loses” may be defined as a net loss of social welfare  which occurs where there is an errant transfer of wealth from a party which is entitled legally to a non-entitled party. Ofer Grosskopf’s excellent article,  “Economic Analysis of the Irreparable Harm Concept in Preliminary Injunctions” explains this problem. He states that even when a court cures this errant transfer inter-se  the private parties the public remain losers for the interceding period. There is no remedy or method for restitution for the public during the period when the injunction was improperly in place, putting a bar on the purchase of a good or the use of a service.

To bring the above thesis closer to our LCD screens, let us consider the example of internet content. Internet content is in the majority of cases, publicly accessible for a low transaction cost. It serves as a huge public  library of information,  opinion, data and knowledge. Here the public injury caused by an injunction blocking content will be tremendous. Recently the Delhi High Court, in the case of E2 Labs v. Zone-H being CS(OS) 2305/2009 blocked the domain Zone-H.com by way of an ex-parte interim order dated 04.12.2009. Since the Defendants are foreign nationals they did not appear subsequently and the interim order continued. Hence the defendant’s website which carried articles critical of the Plaintiff, E2 Labs remains blocked.

The case has caused a heated debate in cyberspace with several commentators questioning the bonafides of the plaintiff, E-2 Labs. There is also an article which is carried out in the Deccan Chronicle prior to the date of the injunction and the court case in which the Defendant has placed allegations on the Plaintiffs. The comments tell a version of the story in which the Plaintiff is not completely above board. Moreover, there are some deeply critical comments by students who have attended ethical hacking courses organised by the Plaintiff. These courses seem to have been marketed by using the Defendants name and image.

While recognising that relying on such anonymous comments may be erroneous, since they may be sponsored or authored by the private parties, this case clearly demonstrates the public injury which is caused  due to blocking of content on the internet. This concern has been in the Ministerial Order on Website Blocking dated 7th July, 2003. It states in para 4, “as already noted there is no explicit provision in the I.T. Act, 2000 for blocking of websites. In fact, blocking is taken to amount to censorship…. [after listing cases where freedom of speech may not extend]…websites may not claim constitutional right of free speech… Blocking of such websites may be equated to “balanced flow of information” and not censorship“. This concern and respect for internet content is restated in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Under the Rules a request can be made by any person to block a website which offends any Indian Law.The same level of deference should be accorded by Indian courts when ordering the blocking of a website since the interest’s to be balanced are not purely private.

Another concern which arises is the reluctance of a foreign defendant who operates an Internet business to appear before an Indian Court. I have discussed this matter at length in another blog post on the exit of Google from China. The defendant in the instant case echoes the sentiment by stating :

Roberto Preatoni admin@zone-h.org said,

….Well, I don’t live in India, I think it’s more of your problem to sort out how this has happened and if it has happened legally.
Regards from Zone-H

The sequitur to be derived from this discussion on net public loss and the reluctance of a foreign defendant to appear in an Indian Court is quite simply that Indian Courts should consider the nature of the medium they seek to regulate. The Internet provides great promise of gain as well as loss. Here injunctions to block websites are powerful weapons and they may not be granted readily or easily.

On any given day I am offered a Russian mail order bride, Viagra Prozac and other controlled drugs from Canadian pharmacies, win a billion Euros in a British lottery and asked for assistance to set up a fund transfer for the progeny of deposed despots from Nigeria. Beyond this spam, once a month I also receive an email from my bank, which informs me of my account statement.

A copy of the judgment can be accessed by clicking here.

P.s. The reason I do not use the term of art, “phishing” throughout this post is that I find it phonetically irritating. A hat-tip goes across to Naavi for providing the link to the judgment.

With Google exiting china we can hardly hide our glee. It seems the tiger may finally steal a march over the dragon. Pop nationalistic sentiment may rise in some newspaper columns and talk shows calling it a victory of models of government. The model’s of government debate which is intertwined with foreign investment is not new. Prime Minister, Dr. Manmohan Singh has been quoted in a CNN interview as stating that, “[b]ecause India adopts democratic system, India develops not that rapidly as China does.” For me this is a wider issue which cannot be settled with reference to the exit of Google from China.

For me, a more relevant, immediate and natural factor which comes out are the limits and allowances of private autonomy afforded to foreign investors to run a business especially in high technology industries. Online businesses are special, they are not your ordinary brick and mortar stores, by their very nature they are global and the subjection of a national regime which is unique is counterintuitive for them. When that national legal order, demands high compliance costs, change in technological and business models, the online service will just shift, rather than stay. Here it may seem cynical, but the determinant for economic domicile seems to be a balance between the quantifiable costs against the potential gains.

As a country we do not have to gloat at Google’s exit from China. As a country which is continuously threatened by terrorism, we routinely have calls for strengthening legal provisions. Here potential technological misuse is used as rationale for imposing burdens on online service and technological providers. These are the same compliance costs which made Google leave China. This is more than mere apprehension and was visible recently when the government concerned about the encryption in Blackberry devices sought the universal decryption key for all messages and devices on Blackberry.

India is also in several respects a country where a thin level of protection is afforded to online service providers. The amended Section 79 of the information technology act does improve upon the level of protection (by way of exception from liability) which is provided to online service providers however they can still be subjected to a long and arduous trial (there is no bar to suits against them, only exception from liability). Moreover, the section relies on antiquated statutory language, where it says, the information should not be, “selected” or “initiated” for communication by the intermediary. Most social media services, aggregate data and present information and it is debatable when such cases come to trial as to what protection will be afforded to intermediaries. What I sense is that such legal provisions will due to their ambiguity promote some level of self-censorship to avoid any legal action.

The exit of Google for China should lead us to an examination to our internet policy and what forms of costs are being leveled on online service providers by our legal system. In my opinion, it is better than badgering Google’s India staff with questions of the, “what this means for India” variety. A start is posing the same question to ourselves.

From the early 1980’s to the late 1990’s bollywood as a content production industry believed religiously in the application of “formulas” and “equations” for achieving success at the Box-Office. Rajshree Productions was one of the movie production houses which routinely used to practice this arithmetic. In the 1994 movie “Hum Aapke Hain Kaun” (Who am I to you?), it effectively employed the theme of, the complexity and the conservatism of the Indian joint family, adding to it, the aspirational depiction of the opulent north Indian wedding. However, this equation would have remained incomplete without a musical score to reel in the public. The musical score, sung by Lata Mageshkar had the intended effect with one of the songs from it, “Didi tera dewaar Deewana” (Sister your brother-in-law is crazy) becoming the vox populi (or song populi?) of North India.

With the mass success of the musical score came a mass wave of piracy. Most of the counterfeit product was alleged to originate from Super Cassettes Industries, (which was a major vendor of blank audio-tapes) under its brand T-Series. These practices were often alleged by business rivals against T-Series, when they sought to discredit the meteoric rise of its owner the Late Gulshan Kumar from a mere fruit juice seller to a to a major manufacturer of blank media and retailer of music. Whatever be the case and the allegations, it was certain that T-Series as a company and as a brand was built by stretching the legalities of Copyright law in India. The alleged piracy caused in the “Hum Aapke Hain Kaun” gives rise to a dispute and the decision in Gramaphone Company v. Super Cassettes Industries, reported at 58 (1995) DLT 99, evidencing this claim.

The case illustrates the business model of T-Series as it existed in the inception of the company. T-Series, would take a successful commercial song, get it sung by the several lesser known signers on its retainer creating a “version recording” of the song and then sell it at a fraction of the price. It would achieve this by exploiting what rights owners called a glaring lacuna in the copyright act, which allowed such “version recordings” on the service of a notice on the rights holders and payment of a statutory compulsory licensing fee. Taking advantage of this provision, T-Series flooded the market with “version recordings”, with the sales of the version recording often exceeding the total sales of the rights holders themselves.

However, in the case of Gramaphone Company v. Super Cassetes Industries, T-Series exceeded this legal allowance. In its effort to increase sales of its version recording of the songs of “Hum Aapke Hain Kaun”, it not only created a “version recording” but also had the lead stars of the movie printed on its inlay card alongwith the title of the movie. Here trademark law stepped in for the rights holders where copyright law deserted them and they got an injunction enjoining t-series. The relevant holding of the case is as follows :

I propose to vary the injunction that was made exparte by saying that the defendants are not to use in the carton or inlay card or any other packaging material a design, colour scheme, layout and get up similar to that of the plaintiffs; not in the title to use the words “Hum Aapke Hain Kaun” simplicities or any combination of words including “Hum Aapke Hain Kaun” which would be calculated to lead to the belief that the defendants’ record was the plaintiff’s record.

The case marked a major turning point for T-Series which took the decision as a signal of the times to come. It realized had become a big fish in the market and would no longer be able to deftly navigate the hazards in the copyright tank. T-Series began making its business models cleaner and more conventional by purchasing the copyrights in the sound recordings. By all accounts T-Series even after the untimely and tragic death of its founder Late Gulshan Kumar continued to remain successful and is a major and legitimate music label in India.

The first question is answered quite simply, yes. Lessigs works, Free Culture and The Future of Ideas provides a ready reckoner of case studies and illustration of how a certain amount of “piracy” is always caused due to transformative business models and technologies. Even the second question is affirmatively answered by Lessig, as he demonstrates that early infringers often after obtaining commercial success, begin legitimate models of media production with concomitant costs. To protect these costs these early pirates argue for the same legal protections which they initially avoided and against the legal exemptions which they initially availed. He further states that granting an indulgence to the broad theories and interpretations for the protection of intellectual property rights may harm innovation in the marketplace of ideas.

The pattern of copyright litigation initiated by T-Series shows the tendency of startups on becoming accepted by mainstream institutional frameworks and gathering critical mass and finances to “innovate” legally and then succumbing to the same exertions of legal power which they circumvented initially. Another recent example is Apple’s IPhone patent litigation against HTC. It is a documented fact that Apple as a startup was “heavily inspired” from the revolutionary graphic user interface invented at Xerox Parc Labs. Now it seeks to block competing products to the IPhone through a broad interpretation of its patents.