The information on a torrent file is read by a P2P (peer- to –peer) file software. The most popular ones of this software are uTorrent and BitTorrent which allow users to track and download many different files over the P2P network in order to finally down that the song you wanted. A P2P network is an online network of computers wherein two or more computers share information with each other without using a separate server computer.
The torrent file is similar to a key to a lock. In order to download content, a torrent file is required. The BitTorrent software then opens this torrent file and reads its content and looks for ‘seeders’ who are sharing the corresponding files. Seeders are people who possess the file of the content that the downloader is looking for. The BitTorrent system attempts to establish a direct link with these seeders and once this connection is established, the download initiates. These files are downloaded in small fragments. Once all the fragments have been downloaded, they are reassembled to provide the downloaded with the final, complete content.
Since the last few years, the Indian government has blocked many websites including some torrent downloading websites. One might have come across a notice on a blocked site worded as follows:
“This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of up to Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact firstname.lastname@example.org who will, within 48 hours, provide you with the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance.”
This warning has been misrepresented and misinterpreted by some media networks which have led to false rumors that even visiting these blocked sites can subject the visitors to the penalty of three years jail term and the fine of Rs. 3 lakh.
It should be stated blatantly that these rumors are false and untrue.
Legality of Torrents in India
It should be noted that nowhere in this notice is it stated that visiting the blocked website would subject the user to such penal liability. The words used in the notice are ‘viewing, downloading, exhibiting or duplicating an illicit copy of the contents’. This means that only if some person by using some means views the blocked content, or downloads it or make an illegal copy of it or put it up for other people to see will be liable for the punishment of three years and the fine of Rs.3 lakh.
This also implies that one is safe for as long as they are only visiting the blocked site. But if one downloads contents from these websites for distributing to the public or illegally streams and watches the content from these websites, then they shall be liable to punishment.
The main reason why the government has taken action against torrent websites is that they are often a hub for copyright violations because of illegal download and distribution of copyright-protected content.
When someone infringes upon the rights of the exclusive right holder by making copies, distributing to the public his copywrited content like movies, music, books or computer software, then such a person shall be liable for a penal penalty of imprisonment up to 2 years and a fine of up to Rs. 3 lakh.
Torrents by themselves are not illegal. In fact, some software developers allow people to download their software files by using torrents. As long as the person who has exclusive rights to the content has given permission to make use of torrents for its download and distribution, there is no reason for such action to be illegal. However, if one is downloading torrents without authorized public viewing or distribution, then such use of torrents shall be illegal. Section 63 of the Copyright Act clearly states that the offence of copyright infringement is not in viewing the content but in distributing, renting or hiring without authorization. As per section 53, infringing a copyrighted work with the knowledge that such an act would infringe the copyright or assist a person to infringe copyright is an offence punishable by law. Infringement of copyright includes the acts of copying, distributing, publically performing, recording, translating or making an unauthorized adaptation of original copyrighted works, without first taking the permission of the owner of the copyrighted material.
The means by which digital copyrighted filed are copied are called plates. Anyone found in the possession of plates or has been knowingly using them can incur a jail term of up to two years and can be imposed as fine as well. Needless to say, replicating a file, for instance, a music file, which has been downloaded from the torrent, is a crime. Even the act of transferring this file to the pen drive from the hard disk is problematic. When someone visits a torrent website, there is no duplication of the copyrighted content; they are only viewing what is on the website. There is no violation of the law up to this point. Now, if the person downloads a file and starts to make copies of it and sending them to other devices, that would amount to a copyright infringement and therefore will attract a penal punishment.
What this means is that the Copyright law does not apply to the mere viewing of content on a torrent website. Copyright infringement under the Act is limited to unauthorized possession, production, performance and distribution of the copyrighted work but the viewing of it.
Section 52 of the Copyright Act lists down all the acts involving copyrighted that are exempted from being considered as infringing. One of such acts includes fair dealing of the protected work for private use and research purposes. The law does not give a definition to what exactly ‘fair use’ includes but it can be interpreted to mean that as long as the downloading and viewing of a video or music piece is for personal use and entertainment only, then it may not be considered a violation of copyright laws. However, the provision explicitly also states that fair dealing by use of a computer programme will not be considered an exception.
Section 63B of the Copyright Act, 1957 says that if one uses computer software illegally then they can be imprisoned for up to three years and fined up to two lakh rupees. This means that if someone downloads a computer programme through torrents and then uses this programme to carry out and promote their own trade or business, then they can be held liable under this section. Again, only visiting the torrent website and viewing the content of the programme is not an offence in itself.
Section 63A provides for punishment for an offence that has been committed for the second time or has been committed multiple times.
Section 65 makes it a punishable offence to possess a plate for the purpose of infringing copyrights. A ‘plate’ is a device that is used for reproducing or printing copies of a copyrighted work. It can be any tool or matrix that is used to record the sound of the copyrighted work as well. A place can also include any mold, stone, negative, or any equipment that is to be used for the purpose of making copies of the original work. Downloading or viewing of a work cannot be considered as possessing a plate in order to make copies of the original work within the definition of ‘plate’ and hence section 65 cannot be made applicable to downloading or viewing content on a torrent website.
Section 65A of the Copyright Act, 1957 says that any person who intentionally bypasses the technical barriers put in place to protect the rights of the person holding the copyright to the content can be imprisoned for two years and also subject to a fine. This provision is often applied in cases of hacking wherein one gain unauthorized access to secured digital content. This section also makes it an offence to use software and proxies to gain access to blocked websites or torrents. Accessing torrent websites that are not blocked by the Indian government is not a violation of section 65A since the key term here is that they should be blocked already by the government. Section 65A is applied directly to the cracks that are required in order to install pirated software. As per this section, any person who uses a crack in order to bypass activation requisites or the license key of a computer programme can be held liable under Section 65A. This section is also applicable to instances of hacking into subscription-based websites like Apple Music or Netflix in order to bypass paying the subscription fee.
Future of torrents in India
All over the world, governments have been coming down harsh on torrents and torrent service providers because of the bad reputation of copyright infringement and piracy that torrents have attained. But even though new torrent websites are put up the moment one is taken down by the state and that blocked torrents are easily accessible using VPNs (Virtual Private Networks), the future of torrents seem to be that of a struggle: the latest blow to the torrent community was the pulling down of Kickass Torrent, one of the leading torrent distributor. In addition to this, within India, courts have generally been following the trend of blocking websites as a preventive measure against copyright infringement and once a website gets blocked, it remains blocked for a long time in India.
So while it is settled that visiting a torrent site and downloading content for personal use will not be a violation of law per se, one can still be held liable for copyright infringement if the owner of the exclusive rights to, say, a movie, files a case against such a person. In such cases, the court will proceed with the assumption that the downloader of the movie was aware that the movie was already copyrighted since movies do contain a watermark marking them to be protected under copyright law. However, it is to be noted that there are not many cases where downloaders have actually been prosecuted by the court for downloading movies from the internet. Since going to court for every download of a movie from torrents is a time and money consuming task, it would be more efficient for the copyright owner to have the websites hosting the copies of the movie blocked or taken down by way of court orders or takedown notices.
It is also to be noted that there is no obligation on part of the police authorities to send a warning notice to the person suspected of infringing copyright if a formal complaint has not been filed. Any police officer above the rank of a sub-inspector has the authority to seize the unauthorized copies of the copyrighted work as well as the tools and devices used to copy or replicate it and no warrant is required to obtain from the court for seizing such articles.