END-TO-END ENCRYPTION: A SAFE HAVEN FOR COPYRIGHT INFRINGERS

Introduction

With the onset of the COVID-19 pandemic and the subsequent lockdowns which ensued, many businesses were adversely affected. This led to many of them having to adapt to remain economically viable even in these unprecedented times. The newspaper industry, being one which was particularly impacted, was forced to shift from their conventional, physical mode of delivery to one more suited for the times through the distribution of ‘E-Newspapers’. While this did help ensure that distribution continued, it brought with it its own complexities. One such issue of considerable concern was that of the increase in the unauthorised distribution of the said e-papers on social media platforms by private individuals instead of by the newspaper distributors themselves. The above issue being rampant, the Indian Newspaper Society subsequently released an advisory, advising its members to take strict legal action against those downloading, modifying and/or circulating these e-papers.

 

In what seems like a natural consequence of the above mentioned phenomenon, a popular Hindi news publisher, Jagran Prakashan Limited (publishers of Dainik Jagran), upon learning that their e-paper was being rampantly distributed through the online messaging platform Telegram, approached the Delhi High Court to curb the illegal circulation of their e-paper. As per the facts of the case, copies of the plaintiff’s (Jagran Prakashan Limited) e-paper were being disseminated for free on the defendant’s (Telegram’s) online messaging platform, which were otherwise available only to those who subscribed to the e-paper on the plaintiffs website.

 

In an order, dated May 29th 2020, the Delhi High court granted an ad-interim injunction in favour of the Plaintiffs and directed the defendants (Telegram) to make available the information regarding the owners/users of the specified Telegram Channels which were allegedly circulating online versions of the e-newspaper. The defendants were also directed to take down or block the said channels. The impugned order brings up fascinating questions on the copyrights of such freely available e-papers, intermediary liability and the issues posed by end-to-end encryption to the effectiveness of such orders. This article attempts to address the same and highlight how end-to-end encryption has led to the creation of a safe haven for copyright infringers in an attempt to argue for a revision of the current stance on intermediary liability.

 

The question of copyrights with respect to e-papers can be complex due to the differences in the way they are disseminated by the various publishers. The issue is not as pronounced in cases where the e-newspapers are distributed to paid subscribers, or for free to identified or unidentified users under user agreements. It tends to be a lot more evident in cases where the same are distributed free of cost to unidentified users without user agreements. The absence of a user agreement in such cases creates an ambiguity with regards to the right of individuals to circulate such e-copies on social media platforms as well as the right of the aggrieved party to sue in cases of such alleged copyright violations. In such cases, to overcome this ambiguity, the ‘doctrine of implied license’ can be applied to analyse whether there was an implied authorisation to allow for the said circulation.

 

The doctrine of implied license is one which draws its origin from contract law where it was used to ascertain the intent of the contracting parties so as to supplement the main agreement. This doctrine in a copyright context is usually used to allow the licensees to make normal use of the product that is licensed to them. While applying the said doctrine, it also becomes crucial to ascertain the limitations on the use of the product as per the implied licence. In this regard a quintessential test to ascertain the same is to gauge whether the said act (which in this case is the act of circulation) is vital in order to give meaning to the agreement between the parties.

 

The doctrine also requires for various policy considerations to be taken into account in giving effect to the intent of the “reasonable parties”. What this implies is that the doctrine is not just instrumental in ascertaining the subjective intent of the parties but is also a means of introducing the objective standard of reasonability in the relationship between the parties. While the subjective intent supplements the contracts with the true intention of the parties, the objective intent ascribes intention to the parties according to the reasonability measurement under the specific circumstances of the case.

 

In such cases of circulation of e-copies by individuals on social media, the act of circulation would not constitute a vital aspect of the agreement as the agreement to use or read the e-papers can exist without the aspect of their circulation on social media (which is not vital to give meaning to the agreement which pertains to the personal consumption of the product). The act of circulation also fails to come within the ambit of the subjective intent of the parties. This is clearly seen by the fact that the e-papers are meant to be exclusively published and accessed only on the publishers websites. The fact that the publishers only provide the e-papers on their platform and not through other third parties clearly shows the subjective intent to only allow for the personal consumption and not the unauthorised distribution of the product.

 

Additionally, the act of circulating the newspaper on social media platforms would also not constitute the objective intent of the parties as it causes a decrease in revenue to the news provider. By distributing the e-newspapers independent of the publishers on social media platforms, the number of people viewing and visiting the news providers’ websites decreases. This can have a massive impact on the ad revenue of such news providers who obtain revenue through advertisements featured on their website. In light of the same, the act of distribution in such cases, by causing a direct loss to the party, would not satisfy the objective standard of reasonability and would not come under the ambit of the implied license.

 

Hence, by applying the implied license doctrine even e-newspapers which are freely available without user agreement, even to unidentified users, may be afforded protection under copyright law when hosted online on the publishers websites. This may change if the e-papers are allowed for publication on platforms other than the publishers websites as the subjective and objective intent analysis becomes more ambiguous. In the current case, such considerations do not emerge as the e-newspaper which was disseminated by the plaintiff on their website, was accompanied by a clear disclaimer forbidding the circulation of the e-newspaper. Additionally, the e-paper was accessible only by registered users and the plaintiff’s website also had a supplementary security measure by which download of the e-paper was prevented.

 

Apart from the scope of the agreement being used to ascertain 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 circulating literary material, for the purpose of criticism, review or reporting of current events would not constitute a copyright infringement. The general phenomenon of circulating the whole e-newspaper by individuals for neither of these permissible reasons and without the authorisation of the copyright holders would hence not be permissible under the act. The same also applies to the current case hence making the said act an infringement of copyrights.

 

Intermediary Liability in Copy Right Issues

Social Media platforms, being intermediaries, are protected under section 79 of the Information Technology Act 2000 from liability for user generated content. The same applies only if their only role in the same was providing a communication system over which the content was transmitted and if they were not responsible for the inception, transmission, or reception of the content. As per the Section, intermediaries can only claim benefit under the
clause if they did not have actual knowledge of the impugned content.

 

The same aspect of safe harbour from intermediary liability under section 79 of the Information Technology Act 2000 has also been affirmed by the Delhi High Court in the case of Myspace v. Super Cassettes. The High Court in this case extended the application of the said section even to protect intermediaries from liability for copyright infringement created by user generated content as long as ‘actual knowledge’ of the intermediary could not established. As per the judgment, actual knowledge could be ascertained only when the specific location of the infringement is communicated to the intermediaries. Another case that dealt with a similar aspect on intermediary liability for copyrights infringement by circulation of third-party content was Shree Krishna International v. Google, where in the court held the defendants (intermediary) liable as they did not take down the content despite having ‘specific knowledge’ of the existence of such copyrighted infringement.

 

While in the current case, the plaintiffs did send an e-mail to the defendants (Telegram) informing them about the copyright infringements along with the specific channels where the same was occurring, the defendants still cannot be held liable for their failure to  take action on the Plaintiff’s notice. This is mainly as an e-mail cannot be used to prove actual knowledge. While the courts have begun to accept non-physical notices, as is seen in the case of SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav, the same would not include normal e-mails within its ambit. In the SBI case the Bombay High Court accepted the service of notice via WhatsApp since the aspect of specific knowledge could be established. The court’s reasoning was that one could ascertain that the notice was ‘duly served’ via WhatsApp as blue ticks appear once the message was delivered to and opened by the receiver. It is important to note that the court held it to be reasonable to hold the receiver liable only if it could be proved that the message was opened by the receiver. This same feature is not present on normal e-mail services hence making it hard if not impossible to currently establish specific knowledge in cases where a notice was sent via a normal e-mail service. The same applies even in the current case and Telegram would not be held liable unless it can be undeniably proved that the e-mail was both delivered and opened by them.

 

While this is the stance currently, with the emergence of applications such as ‘MailTrack’ (which allow users to receive real-time notifications on whether their e-mails were opened by the recipients), e-mails in the future, which employ such services, could also be given a similar status to that of WhatsApp and serve as valid non-physical notices.

 

End-To-End Encryption: A Double-Edged Sword

Another conundrum that can be seen to emerge from the current discussion on the case is the hurdles posed by end-to-end encryption to such court orders. While the court in this case has ordered the defendant, Telegram to make available the information regarding the participants or admins of the specified Telegram Channels (which were allegedly circulating online versions of the e-paper), the implementation of the same becomes questionable in light of the end-to-end encryption feature of the messaging platform. In case of online platforms such as Telegram which feature end-to-end encryption, the intermediary themselves has no means of tracking the senders or viewers of such content, hence preventing the effectuation of such court orders. This was also recently emphasised by WhatsApp before the Madras High Court where they stated that it was impossible for them to track the sender of messages due to the end-to-end encryption their platform featured.

 

While it may be argued that such intermediaries must implement such features that allow for decryption while implementing end-to-end encryption, the same would entirely defeat the purpose of end-to-end encryption. A similar argument was rejected by the Supreme Court of India, as is seen from the case of Facebook v. Union of India, where in the court held that decryption, if made easily available, would abridge the fundamental right of privacy. Hence, the current issue lies at a stalemate wherein imposing decryption would defeat the purpose of end-to-end encryption and the right to privacy; whereas allowing for end-to-end encryption would decrease the effectiveness of such laws or orders made to hold copyright infringers accountable.

 

One possible way to mitigate the difficulties caused by encryption is for the courts to also issue John Doe orders. A John Doe order is one where in an injunction can be enforced against an individual whose identity is not known at the time of the issuing of the order. It protects the rights of the copyright owner in cases where there is an imminent threat of a copyrights infringement by an unknown infringer. This provides an avenue for copyright holders to take action against anonymous copy right infringers without needing the identity of the alleged infringers.

 

These orders not only guarantee against alleged infringing activities by unknown individuals but also prevent potentially similar infringements from taking place in the future by prohibiting all unknown classes of people from carrying out the said infringing activity. This significantly helps in circumventing the delays that normally exist in such cases as the aggrieved party (copyright holder) now only needs to serve a copy of the order upon the infringing party instead of having to file a new suit for an injunction. Hence, it drastically mitigates the delay and decreases the damage caused by the said infringement.

 

Implementing the same in the current case along with the existing order could further help provide a safeguard to newspaper distributors against such forms of illicit distribution via unknown individuals in the future. The John Doe order if passed could be used against future offenders who distribute the e-copies of the newspaper on social media platforms and would save the plaintiff a lot of time and money in the process. However, while this is a possible alternative suggested to help increase the effectiveness of court orders in such scenarios, it does not, in any way, counteract the ill effects of end-to-end encryption with respect to copyright protection in its entirety.

 

Conclusion: The Way Forward

While the Telegram judgment is a step forward is addressing the issue of copyright infringements faced by newspaper publishers with respect to their e-newspapers, it also highlights the ineptitude of the current system in addressing the issues of copyright infringement on online platforms with end-to-end encryption. Social media platforms featuring end-to-end encryption as they stand today have developed into a safe haven for copyright infringers. This is partly due to the complete anonymity provided to the users and partly due to the lack of liability of the intermediaries who are, in essence, indirectly facilitating and permitting the commission of such copyright violations. The indirect facilitation on part of the intermediaries can be established in light of the fact that such media platforms attract users by advertising and introducing such features as end-to-end encryption, complete anonymity and the complete absence of oversights or safeguards.Additionally, this is further established when the above aspects are viewed along with the fact that the platform also features a file sharing mechanism whereby users can share files to
multiple users at the same time. This makes the platform comparable to the software ‘Grokster’ (the makers of which were held to be liable for indirectly facilitating the commission of copyright violations in the USA in the case of MGM v. Grokster on similar grounds).

 

While methods such as John Doe orders do exist which could help alleviate the situation to an extent, the current system needs to be rethought to help address the issue of piracy by anonymous individuals especially on platforms where in even the intermediaries are unable to ascertain the individuals identities. Given the increase in the distribution of such copyrighted material on social media platforms, it also becomes extremely important to reconsider intermediary liability in cases of end-to-end encryption.

 

One possible way to address this would be to extrapolate the application of ‘The Inducement rule’ from the US to India. The rule is a form of ‘secondary liability’ that was established by the US court in the case of MGM v. Grokster. As per the rule an intermediary can be held liable for indirectly facilitating or promoting the copyright infringement. While adopting the same in its original manner may not be completely feasible, an adaptation of the same may be extremely beneficial in creating a more efficient and robust copyrights protection regime. Unless any measures to this effect are taken, social media platforms such as Telegram will continue to constitute as safe havens for copyright infringers, much to the detriment of copyright holders.

 

Aditya Krishna

The Author is a third year law student from Jindal Global Law School, and is currently pursuing his B.A. LL.B. (Hons.). He has a keen interest in Intellectual Property Law, Technology Law, Constitutional Law, and Criminal Law.

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