US Needs To Change Its Policy Towards Foreign IPRs Violations

In a recent episode of copyright violation by a blog author, Wordpress.Com was contacted to remove the copyright violating posts. However, like in the past, Wordpress kept on repeating sending of a DMCA notice and refused to take appropriate action.

Meanwhile, the author of the blog was also contacted who tried to delete the offensive posts but they remained intact. He decided to delete the entire blog to comply with copyright law requirements of India.

This is not what was required to be done but the DMCA policy that Wordpress was following resulted in this situation. This also shows how not taking a timely action by Wordpress.Com has resulted in the deletion of an entire blog that was otherwise good and informative.

All of you may be aware of the stringent IPRs protection regime of United States (US). In order to protect the local interests of individuals and organisations residing and operating in US, laws like Digital Millennium Copyright Act (DMCA) 1998 were enacted. In fact, new laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act) and the "Stop Online Piracy Act (SOPA) have also been proposed.

However, is US equally anxious to protect intellectual property rights (IPRs) of residents and organisations located in other countries? For instance, US and India are both part of TRIPS Agreement that imposes similar rights and obligations towards IPRs upon all members states. If US and companies/websites like Wordpress.Com fail to respect and protect IPRs of individuals and companies of other countries, it is clearly a violation of TRIPS Agreement obligations.

Internet intermediaries like web site hosting services, Internet service providers, and search engines that link to materials on the Web have to perform due diligence in order to get benefits of safe harbour under DMCA. Section 512(c) of DMCA limits the liability of service providers for infringing material on websites (or other information repositories) hosted on their systems. It applies to storage at the direction of a user. In order to be eligible for the limitation, the following conditions must be met:

(a) The provider must not have the requisite level of knowledge of the infringing activity, as described below.
(b) If the provider has the right and ability to control the infringing activity, it must not receive a financial benefit directly attributable to the infringing activity.
(c) Upon receiving proper notification of claimed infringement, the provider must expeditiously take down or block access to the material.
(d) In addition, a service provider must have filed with the Copyright Office a designation of an agent to receive notifications of claimed infringement.

Under the knowledge standard, a service provider is eligible for the limitation on liability only if it does not have actual knowledge of the infringement, is not aware of facts or circumstances from which infringing activity is apparent, or upon gaining such knowledge or awareness, responds expeditiously to take the material down or block access to it.

The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider’s designated agent. Failure to comply substantially with the statutory requirements means that the notification will not be considered in determining the requisite level of knowledge by the service provider.

Here lies the real problem as the Internet intermediaries in US have considered a safe harbour provision as a mandatory requirement to remove copyright violating posts. DMCA provides an enabling provision that protects intermediaries from copyright liability if they follow due diligence. DMCA never claims that Internet intermediaries like Wordpress.Com cannot remove offending posts or materials even if knowledge about the same has been brought to their express knowledge. This seems to be a big loophole that US Internet intermediaries are exploiting while denying IPRs protection to foreign nationals. If this is the approach of US Internet intermediaries, there is nothing wrong if other countries block access of the websites of such intermediaries in their respective countries for not respecting their copyright laws and other IPRs laws.

Online Copyright Infringement Liability Limitation Act (OCILLA) was passed as a part of the 1998 DMCA and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

These provisions may be good for US citizens and organisations but are real hindrance for foreign nationals and IPRs holders. Why should a foreign national or organisation comply with alien jurisprudence when there is a clear case of IPRs violation? There must be some mechanism where such cases can be resolved outside DMCA and OCILLA.

Article 41(2) of TRIPS Agreement provides that procedures concerning the enforcement of IPRs shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. The provisions of DMCA and OCILLA seem to be not in strict compliance of Article 41(2), at least regarding foreign nationals. The Department of Justice of United States must ensure that an alternative, effective and easier method is available to report copyright violations by foreign nationals and companies and the liability of online service providers (OSPs) in US must be accordingly modified.

Is DNS Redirection A Viable Solution For Preventing IP Violations?

Of late, use of information and communication technology (ICT) for protection and strengthening of intellectual property rights (IPRs) has come into picture. ICT is used not only in a preventive manner but also in a curative and retaliatory manner.

Few months before it was reported in media that an Indian company was paid by the film industry to get copyrighted works removed from the Internet. The company openly admitted launching of Denial of Service (DoS) attacks against torrent sites that refuse to comply with takedown notices.

However, the use of ICT for protection of IPRs must be done in a legal manner and that also to the extent justified by the situation. The adopted measures must produce legitimate and legalised disabling and reasonably destructive effects and they should never exceed the limits prescribed by various laws across the world.

Domain name system (DNS) is the latest battle field for IP protection seekers. Malware writers are using the DNS cache poisoning attacks to manipulate DNS services. On the other hand, IP holders are contemplating using DNS redirection for protecting their IP rights.

For instance, US government is planning to use DNS redirection by acting at the behest of a coalition of interests looking for ways to defeat online piracy of music, movies, and other intellectual property. The US government is taking this drastic step as a part of the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP Act) in the Senate, and it's House counterpart, the "Stop Online Piracy Act (SOPA)."

These Acts/Bills would require DNS server operators in the US to replace the correct IP address for a website with an alternate address provided by the Attorney General's office, if the website was "infringing". The definition of infringing is distributing illegal copies, counterfeit goods or anti-DRM technology.

While the views of ICANN are still not available yet regulating and manipulating DNS redirection in this manner is not a viable option. There are better techno legal methods to achieve the task where a balance between IP holders and Internet users can be achieved. Let us see how developments take place in this regard.