Can Indian streamers take on piracy? Legal experts break down the challenges - Part 1

OTT platforms in India seem to have finally woken up to the pestering scourge of streaming piracy. Fed up with the plague of illegal streaming of its content, Disney-Star last week filed an FIR with the Bengaluru cyber police against piracy platforms such as TamilMV, Tamilrockers, etc. The million-dollar question is: What is the likelihood of a legal conviction in this case? What are the odds given the pitfalls and lacuna in the current Indian legal framework in addressing the piracy menace?

In this two-part series, AdGully seeks to understand the dark underbelly of streaming piracy and the legal remedies.

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India indeed can take a cue from the strong anti-piracy laws prevalent in other countries. Japan and Britain are two shining examples. The other day, in Britain, a pirate named Steven King, found guilty of providing illegal streaming devices to stream Premier League football content, was asked to pay almost £1 million to the public exchequer. This was in addition to the seven-plus years of jail term King was awarded for masterminding an illegal streaming service called Dreambox, a ‘football piracy ring’.

But can we expect a similar kind of conviction in India, where streaming piracy goes unabated and almost unchecked? The infamous ‘Tamilrockers’ keeps releasing movies within minutes of an OTT release with great impunity and impudence. It is a fact that such dubious elements exist due to the lack of teeth in the legislative framework in India, a country that is bereft of strong legislation and enforcement responses to address pirates, who these days work in the fashion of organised crime syndicates.

Aazmeen Kasad, advocate and Professor of Law, says that the Indian law has not evolved for several years with specific reference to digital piracy, even as the problem continues to grow and cause revenue loss to original content owners.

Delving deep into the Disney-Star case, Aazmeen Kasad says that Disney-Star initially attempted unsuccessfully to file a complaint with the Tamil Nadu Cyber Crime Cell for approximately three months against TamilMV, TamilBlasters, Tamilrockers and PikaShow TV app for piracy/ leaking television (TV), OTT and film content on their platforms and app.

“They have now filed an FIR with the Bengaluru Cyber Crime cell under the Information Technology (Amendment) Act, 2008 (section 66), Copyright Act, 1957 (sections 63 and 65) and the Indian Penal Code, 1860 (section 420). While it is not known as to why they were unable to file an FIR in Chennai, if they have provided sufficient evidence of streaming piracy of their content with the Bengaluru Cyber Crime Cell, and if their complaint is not only against R Kumaravel and R Radhakrishnan, but the platforms and app as well, they should be able to at least secure a dynamic injunction against them that not only blocks existing sites where piracy is ongoing, but also new domains that attempt to circumvent the previous blocking by the ISPs, to be blocked too. The Indian law provides for a maximum of three years imprisonment or fine up to Rs 5 kakh or both for individuals convicted under Section 66 of the IT (Amendment) Act 2008,” explains Aazmeen Kasad.

Have there been convictions?

Aazmeen Kasad recalls a recent case, where the Maharashtra Cyber Crime Unit arrested the CEO of the app ThopTV and also stopped its operations. Earlier this year, she adds, the Delhi High Court ordered the blocking of 34 websites indulging in online piracy by streaming content of Universal City Studios, Warner Bros. Entertainment Inc., Netflix Studios LLC, Paramount Pictures Corporation and Disney Enterprises Inc. via illegal means.

International practices

Streaming piracy continues unabated in India. The likes of ‘Tamilrockers’ is a nightmare for Indian streamers. Many such players operate trans-nationally, making legal conviction impossibility. Recently, a US court ruled that foreign torrent site operators can be held responsible. What prevents stakeholders in India to take on such foreign operators?

Aazmeen Kasad agrees that there is a growing need for the Indian legislation to adopt international best practices with more stringent penalties against digital pirates.

Citing the case of Japan, she says that the Japanese law has legal provisions that deter both uploaders and downloaders of illegal content with imprisonment of up to 10 years and two years, respectively; the recent amendments also could ensure that violators will be fined with up to 2 million yen for any downloading of unlicensed content.

Fighting piracy is a multi-point challenge, says James Clark, GM - Media & Entertainment, GeoComply. “Legal frameworks can be very useful, as demonstrated by the major domestic football leagues in the UK with the dynamic blocking order. However, without such dynamic measures in place, legal actions can be quite slow. As such, technological techniques are generally more effective,” he says.

As a rule, Aazmeen Kasad adds, law operates territorially. “The laws against illegal streaming or streaming piracy in India are currently operational only against operators in India. Should one desire to take on foreign operators who stream content illegally, one needs to identify them and file a case against them in their territorial jurisdiction,” she adds.

The executive must be properly manned and technologically equipped to handle the cases, says Abhiishek Bhaduri, advocate at Bombay High Court. “Trial needs to be quick and every person guilty of engaging in actions of movie piracy must be punished and/or reformed/ sensitised. At present, the judiciary is not equipped to arrest and stop the growing menace of movie piracy,” says Bhaduri.

According to him, without due execution by the executive, any law passed by the legislature would be reduced to a mere paper legislation.

“In light of focus of the subject, that is, movie piracy, the executive needs to take steps that it is widely circulated among the people that movie piracy is a punishable offence. That movie piracy is something that is against the morals of the society and the long terms harms supersede the short-term benefits. The executive forces need to be vigilant and alert in order to root out all attempts at infringing the copyright of the movies,” Bhaduri adds.

Aazmeen Kasad feels that the WIPO (World Intellectual Property Organisation) needs to address this issue urgently, given that it is a global and a cross-border issue. “To my mind, it is one that needs international courts to be set up exclusively to deal with the issue of cross-border piracy of copyrighted content and to enable original content creators to file complaints against foreign operators,” she says.

Blocking ISPs

Google of late has voluntarily been helping rights holders to tackle online piracy. It recently removed a batch of ‘pirate site’ URLs from its results in countries such as the Netherlands, after local ISPs were ordered to block them. Court orders are required for making ISPs to block such piracy sites. Are the Indian laws lax or courts slow to respond in this regard? Is there any global model worth emulating in India?

Google has been supporting original content creators by removing illegally uploaded copyrighted content from its platforms such as You Tube, says Aazmeen Kasad. She asserts that the Indian laws do provide for punitive action against violators of copyright laws.

“Unfortunately,” she adds, “given the huge backlog of cases in our courts, the time taken in executing the law acts as a huge roadblock, preventing swift justice and for law violators to be deterred from illegally streaming content.”

“Given the above, global models such as Freemium (a relatively new business model where both free and paid for alternatives are available), software product keys, obfuscation, DRM, region-specific price rates, SEO cleaning, software water-marking, tamper-proof software, etc., may be explored by content providers,” she adds.

In the recent past, many Asian countries have implemented legislation to fight piracy. Vietnam passed a regulation on penalties for IP-specific online violations. Malaysian Intellectual Property High Court also passed a law against illicit streaming. Where does India stand, and what needs to be done from a legislative point of view?

According to Aazmeen Kasad, a joint study by US digital services company Akamai and MUSO, a tech company that provides anti-piracy solutions, released recently noted that India ranked third in accessing piracy websites in 2021, just behind the US and Russia.

Aazmeen Kasad attributes the lack of sufficient punishment to the increasing cases of piracy. “India amended its Information Technology Act 2000 in the year 2008 to address this issue. But with penalties such as imprisonment spanning for a  maximum of three years and a fine of Rs 5 lakh, it does not appear to be a strong enough deterrent for offenders of the law, especially when most of them are out on bail, pending the investigation of the case,” she says.

In contrast, the lawyer adds, the Japanese law has legal provisions that deter both uploaders and downloaders of illegal content with imprisonment of up to 10 years. Recent amendments also could ensure that violators will be fined with up to 2 million yen for any downloading of unlicensed content.

The VPN problem

Recently, a slew of Hollywood film studios moved court against VPN services, pointing out their role in piracy. Is banning or regulating VPN apps and limiting the file-sharing capacity of apps like Telegram a way out in stemming streaming piracy in India?

James Clark feels that it can be effective. He says: “It is widely acknowledged, yet sometimes have to prove that VPNs are complicit in their role in helping consumer access things online that they should otherwise not be accessing. This includes pirate video streams through to indecent images of children. Further control on VPN providers would help reduce the amount of illegal activities that take place. Around a third of all Internet users uses a VPN, and of those 51% of them uses VPNs to access better entertainment content. No doubt there is another portion of them using VPNs for nefarious activities, leaving a small minority using VPNs for legitimate reasons.”

Dilip Chandra, Vice President, Product & Analytics, aha, notes that recently, new rules issued by India’s cyber security watchdog CERT-In has made it mandatory for companies offering VPNs to store user data for at least five years and report unauthorised access.

“VPN service providers will now be required to report cyber incidents to CERT-In and maintain certain data of the users as part of the policy. Anti-piracy laws have surged the use of VPNs, but the execution of the policy can make it easier to track people who use them to hide their internet footprint,” Chandra says.

Aazmeen Kasad points out that with technology constantly evolving, offenders are outsmarting the enforcement agencies and anti-piracy solutions providers.

Given that India and Indians are respected globally and regarded as a much sought-after means for developing software solutions, India should champion the cause of generating updated anti-piracy solutions for copyrighted content as also amend its law, and adopting global best practices to address this burning issue, Aazmeen Kasad says.

(Tomorrow: Part 2 – What the industry says)