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.

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.

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.

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.

Summer Internship Program 2010……

For 10 weeks each summer The Berkman Center for Internet & Society at Harvard University swings opens the doors of its big yellow house to welcome a group of talented, curious, and energetic full-time interns who are passionate about the promise of the Internet and issues related to media and journalism, civic engagement, policy, identity and privacy, education, technology, the developing world, law, and more. The interns team up with Berkman projects like Herdict, Cooperation, Digital Natives, Law Lab, Internet & Democracy, or the OpenNet Initiative, where they have an opportunity for deep and substantive involvement in project operation.  Performing topic-based research; drafting and editing blog posts, papers and other written outputs; conducting outreach, developing partnerships, and maintaining relationships; exploring project and research design; and undertaking academic responsibilities of all kinds both independently and collaboratively are part of the Berkman summer intern experience.  Specific tasks and experiences vary depending on interns’ skills and project needs.

In addition to contributing to project based work, summer interns participate in special events and lectures with Berkman faculty and fellows, engage each other through community experiences like the weekly interns discussion hours, and each year innovate for themselves new opportunities for fun and learning, like organizing debates, producing podcasts and other media outputs, and hosting book clubs and cookoffs (!).

The word “awesome” has been thrown around to describe our internships, but don’t take our word for it. Zack McCune, a summer intern from 2008, had this to say: “it has been an enchanting summer working at the berkman center for internet & society.  everyday, i get to hang out with some of the most brilliant people on the planet. we talk, we write (emails), we blog, we laugh, we play rock band. and when things need to get done, we stay late hyped on free coffee and leftover food. it is a distinct honor to be considered a peer among such excellent people. and i am not just talking about the fellows, staff, and faculty, though they are all outstanding. no, i mean my peers as in my fellow interns, who are almost definitely the ripening next generation of changemakers.”

Eligibility:
* Internships are open to students enrolled across the spectrum of disciplines;
* Internships are open to students at different levels of academic study including undergraduate, graduate and PhD. programs;
* Summer interns do not have to be affiliated with Harvard University;
* We welcome summer interns from universities across the world, however we can not pay international students who have not yet received an undergraduate degree.

Time Commitment: Summer internship positions are full time (35 hours/week), and the summer program runs for 10 weeks from June 1 to August 15.

Payment: Interns are paid $11.50 an hour.  Please be forewarned that stipends may not be sufficient to cover living expenses in the Boston area. No other benefits are provided, therefore interns must make their own housing, insurance, and transportation arrangements.

For additional info please refer to… http://cyber.law.harvard.edu/getinvolved/internships#summer

The success and popularity of the creative commons license is symptomatic of the growing sentiment of Internet users and authors against the expansionary nature of intellectual property law. The creative commons license allows the authors of creative works to license out of default copyright provisions and allows greater rights to the users of their works. The creative commons license is not the only one kind of license and there exist several such licenses. The different between the creative commons license is its wide implementation due to its user friendliness.

The standard form creative commons license comes in several flavors and allows authors to pick and choose which rights they want to grant the users and which they want to retain. Aiding this process are pictorial representations which help an artist choose the license. Such a pictorial representation is called by the creative commons website a, “human readable contract” (as opposed to a lawyer readable contract??).

The success of the license calls into question the implementation of, “human readable contracts” on an industry wide level (by industry I mean the online services industry). Such a system would help be a great alternative to the process of making an online user of the service scroll through a page of contract terms, which are either incomprehensible or too long to read. In most situations a subscriber sees the long flowing paragraphs as walls between him and the service and wants to get it out of the way. An analysis of the data would reveal that if a website requires a sign up the user just quickly wants to avail the service and will rarely go through the terms.

A consumer society administered system, with a standard form of such terms matched with pictures would go a long way in making substantial assent to the terms presumptively existent. On the sign up besides the “human readable contract”, the service provider can also provide the subscriber with the actual terms of the contract and then avoid any quandary in court. This system will be mutually beneficial to both online service providers as well as subscribers. It will be especially helpful to online services which sell different services on the basis of different contract terms, such as online car insurance companies. Also litigation prone online services, where the validity of the acceptance and the lack of agreement between the parties always comes in to issue.

However, a question does loom as to how much do the service providers want us to know about the terms of a contract, their policies as to targeted advertising as well as the personal data they collect about us. Though if such a system is adopted it would be immensely popular with subscribers. To be popular with lawyers it just would have to change its name to, laymen readable contracts.

Though the paper is a work in progress, it throws up the following interesting and counterintuitive points:
a)    For most customers the primary motivation to outsource the work to a vendor was to save costs however, only one of the contracts contained a savings provision. The author notes in the draft of the paper which was circulated, “[m]ore puzzling (atleast to me) is the infrequency of contract terms that guarantee savings to a client or expressly tie vendor compensation to actual realized savings. Only one agreement in the sampkye adopts this sort of guarantee clause—- explicitly conditioning its fees on the ability to achieve benchmark saving rates.”
b)    The geographic location of the vendor does not lead to a great variance of managerial difference in contracts but the nature of business does.
c)    Offshoring is also seen increasingly as a regulatory arbitrage play where even though firms may not admit it but they move there operations abroad to escape local rules or regulations. The most common and widely circumvented regulatory instrument, is taxation.

Prof. Geis also made mention of the recent reports on financial irregularities at Satyam and stated that the incident may have an effect on material terms in contracts especially the clauses governing the escrow provisions.

The amendment was portrayed as a substantial anti-terror legislation and was passed alongwith 7 other bills in 17 minutes on the last day of the monsoon session of the Lok Sabha. This should not be mistaken for efficiency as the amendment was languishing as a bill before parliament for more than 2 years. However, it is not entirely through accident that serendipitously legislators realized, the teething flaws in the IT act were bad cavities.

What is perceptible is that sometimes legislations are shown to be ostensibly anti-terror to make them more amenable. The motive behind such a strategy is simple but effective, it whittles opposition and belittles debate. In a climate vitiated by a terror attack, a legislator does not want to appear quibbling over semantics of an anti-terror legislation or at worst appear unpatriotic. This strategy was effectively employed in the United States to overcome the opposition of a large number of local banks to the Check Clearing for the 21st Century Act (Check 21 act), a proposed law which allowed the electronic processing of checks. These local banks derived substantial processing charges on physical checks and successfully prevailed over their congressmen in blocking the legislation. This changed after 9/11 when there was total suspension of air traffic to and from New York and physical checks could not be transported to their destination. Seeing this as an opportunity Check 21, a purely fiscal statue was portrayed as an anti-terror legislation and passed through the Senate to become law.

A similar route has been taken to amend the Information Technology Act. The Information Technology Act is based on the UNCITRAL Model Law on E-Commerce, essentially aimed to facilitate the growth of electronic commerce. Even though the Act substantially deviated from the model law and introduced a chapter on offences it was limited to criminalizing behavior which jeopardized online commerce. Ever since the original act was passed a need was felt to augment the body of laws regulation online behavior, some proposed an amendment to the Information Technology Act and some preferred a separate enactment addressing the discrete issues which arose out of the increased role of internet in work and play. In 2005 there was an expert committee constituted which tendered a highly detailed draft law with revisions in trackchanges, no less. There were more reviews and further reports and finally in 2006 a Bill to amend the IT act was introduced in parliament.

Throughout this process the scope and the contents of the proposed amendments differed substantially however a common thread ran through them, they did not contain any anti-cyber -terrorism offense and it was not modeled as an anti-terror amendment. Even if belatedly legislators realized that the general offences in the IPC were inadequate to convict a cyber-terrorist and added a specific section through the amendment the utility of such a provision is doubtful. At best such a specific section prescribes an offence and a penalty and does little to bolster the information gathering framework which requires augmentation. This brings us to the second stated objective of the, “anti-terror” amendment, the addition of a provision on interception of electronic communications. Contrary to popular belief the Government ever since the enactment of the IT Act had the statutory power to intercept electronic communications.  The Bills and the reports merely attempted to amend the section, to harmonize it with a Supreme Court judgment and provide safeguards in cases if interception. Irrespective of the final version of amendments to the IT Act passed by parliament calling it “anti-terror” would be a stretch even a Russian gymnast would not attempt.