Three Years in Jail for Torrenting in India? Unlikely!

Ray Walsh

Ray Walsh

August 25, 2016

Torrenters in India have this week suddenly been confronted with a message that has got many of them feeling pretty terrified. The message that suddenly appeared on most popular websites informs citizens that downloading copyrighted content could land them a three-year jail term.

The act of blocking sites that provide pirated content and torrents is nothing new in India, where the government has been actively restricting sites since the year 2000. Those websites are banned using the Information Technology Act, the central Indian law for dealing with cybercrime and digital commerce.

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Censorship in India

Before last year, the High Court in Delhi had banned 219 websites for providing access to copyright infringing material. In August of 2015, however, a new decision to ban pornography sites led to the banning of another 857 websites. Those blocks are enforced by ISPs, who act on behalf of the court order to stop people accessing any website that the court decides is banned.

Now, in addition to a heavily censored Internet, Indian citizens are being faced with a disturbing message that tells them they could face a huge fine or three years in prison for torrenting copyrighted material,

india block-1Since websites started being blocked around 5 years ago, users attempting to access blocked website such as The Pirate Bay had been presented with a message that said the site was blocked under the directive of the Department of Telecommunications (DoT). What is troubling about the new message, however, is that the government appears to have decided to begin penalizing people for piracy.

Prison or Fine – Just for Visiting?

On Monday, India Today reported that simply visiting a blocked website – without downloading anything – could be enough to land you a fine. Experts in India, however, have now put those fears to rest. Apar Gupta, a New Delhi attorney of law, made the following comments,

‘Certain news reports indicate that people may be prosecuted for mere access to websites due to the notice by Tata Telecommunications not being phrased properly. The sections which are referred in the notice do not criminalize mere access in isolation.’

Though, Gupta did admit that the confusion has arisen due to the fact that ‘the notice is not properly worded.’

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India’s ‘John Doe’ Cases

The reason for all the confusion is because of a number of recent ‘John Doe’ cases in India. In June, the producers of a number of films, including Azhar, Housefull 3, Waiting and Veerappan were awarded the right to have any website they believe to be pirating their content blocked by Indian ISPs. The court order read as follows,

‘Should the Plaintiffs find any actual instance of piracy or infringement, the Plaintiffs will be at liberty to immediately take action without having to move this Court once again. For this purpose, the Plaintiffs will be entitled to take assistance of the Police Authorities in the area(s) concerned. These authorities shall act on production of an authenticated copy of this order.’

Despite the fact that this does give copyright holders broad powers to have websites closed down by ISPs, without needing to get further court approval. The reality is that the new message does little to change the actual legality of downloading content in practice.

Not much has changed

In fact, the main body of text in the message quotes India’s 1957 Copyright Act, and there is zero evidence that the government plans to start going after individual users who download a Pirated movie. Even one of the particular film-makers’ that have been granted shutdown powers by a ‘John Doe’ order.

Furthermore, although the Indian court system does appear to be handing content producers more and more shut down powers – the situation has been far from black and white.

Star India case

In 2014, Star India Pvt Ltd (an entertainment company owned by 21st Century Fox) was granted the power to shut down 73 entire websites that provided access to pirated content that it owns. Early in 2015, however, the DoT put in an appeal on behalf of the citizens of India. That motion said it was unjust to block entire websites, and stop people accessing content that was not specifically in breach of Star India’s copyrights. People should be able to access the other content that is on the website, the DoT said.

In March of this year that appeal was granted, but it was short lived. Star India once more contested the claim, and at the beginning of August 2016, Star was once more handed the power to get whole sites blocked by ISPs. From the court order,

‘In relation to websites which have hardly any lawful business and which are in entirety or to a large extent indulging in piracy, merely blocking a URL where the infringing content is located not an effective solution.’

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A way around the blocks?

For anyone that wants to continue to access blocked websites, VPN services are a vital tool. A VPN allows people to spoof their IP address to another country – regaining access to restricted sites. In addition, reliable VPNs offer industry standard encryption. This means that neither the ISP or the government know what sites have been visited; nor the pirated material that might have been downloaded or watched.

With regards to Torrenting, in particular, a VPN provides another layer of protection as well. Whenever you download using the BitTorrent protocol, the way it functions means that everyone on that swarm can see your IP address. That means that anyone else downloading the same Torrent can discover your IP. This is highly dangerous, as one of those users could be the copyright holder itself – snooping around. A VPN means that not only are you encrypted safely from your ISP, but that your IP address is also that of the company server which acts as a proxy. Keeping your identity nice and safe.

With that in mind, a VPN is a valuable resource for privacy and anonymity that is well worth considering: Though, of course, we don’t explicitly endorse pirating copyrighted material. With that said, as long as you have a good kill switch to stop your IP being leaked, you should be safe to download anything you wish!

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