Monday, January 08, 2007


(Text of Speech delivered by Justice Yatindra Singh, Judge Allahabad High Court Allahabad on 31st July, 2005 at Judges' Round Table Conference on IPR held at Kolkata)

In the 1970's, Vint Cerf and Bob Kahn figured out a way of splitting information into small "packets" and sending it from one computer to another in such a way that the packets could be put back together when it reached its destination. This method of splitting information into packets and putting them back together again is called Transmission Control Protocol (TCP). This process can be carried out even if there is a network of computers because every computer has an address called an Internet Protocol (IP) Address, which is made up of numbers separated by dots, and a packet is like a postcard with the address of the sender as well as of the person to whom it is being sent. A computer in the network would figure out whether it has been sent to it or not and if it is not sent to it then it will pass it on in the direction of the computer to which it is being sent. This way of getting a packet to its destination is called Internet Protocol (IP).

A network of computers may be closed or may be connected to other networks and other computers. Internet is a global network of all networks and computers—a universal/ global network—capable of transmitting communication or retrieving information.

Tim Berners Lee was at CERN, European Nuclear Physics research laboratory, which had different computers with different programmes running on it. In the late 1980's, Lee thought about linking information available on different computers in use at CERN so that it would look like a one information system that every one could read. This led to the World Wide Web (the Web).

HyperText Markup Language (HTML) is a language for encoding documents. One of the advantage of writing a page in HTML is that a hyperlink (or link) can be provided to another web page. Every document or site or resource has a unique address called the Uniform Resource Locator (URL). The link may be provided embedding the URL of the other site/page. It is a piece of text that is differentiated from the regular text by a special colour (usually blue) or special formatting (such as underlining). By clicking a mouse or other pointing device on a link, one can view the contents or go into other site referenced by that link. This transfer or retrieval of information takes place according to the hypertext transfer protocol (HTTP). These pages are in a way linked with one another forming a web; they can be anywhere in the world. It is for this reason that this method is aptly termed as the World Wide Web (WWW) or the web. Lee did not invent the hypertext or any other thing; he put them together to form the Web.

This technology was developed at CERN and was its IPR. On April 30, 1993 CERN's directors declared that WWW technology would be freely available to be used by anyone, with no fees being payable to CERN. This decision - much in line with the decisions of the earlier Internet pioneers to make their products freely available - was a visionary and important one. There are many ways of communication and retrieving information on the Internet. The web is one of the methods but the decision to make www technology freely available, has led 'the Web' to be the most powerful and used form of communication and retrieval of information on the Internet. It is so common that we often think that the web and the Internet are one and the same.

A browser is a programme for viewing pages on the Internet. In the 1990's browsers were developed to utilise the Web technology. The linking of one web page to another Web page is the essence of the Web. It enables a Web surfer to connect to other Web pages and retrieve information within seconds. The first page of a web site is called the Home page, which often contains a menu to go to different information available on that site. If the hyperlink is to the home page, it is called linking and if it is to a page inside a Home page, it is called deep linking.

The publication of a site on the World Wide Web is almost universally regarded as tantamount to an implied license to link by any other site. Linking to a site without obtaining prior permission is not only an unquestioned practice, but is even considered to be an advantage to the linked-to site. Advertising is a primary source of revenue for the web site operators and advertisers pay according to the number of hits or number of times a site is visited. Linking may not amount to a copyright infringement. Tim Burners Lee is credited with the invention of Hyperlink. According to him, ‘There is no reason to have to ask before making a link to another site’. He once received an email message asking for permission to link to his site. He declined on the ground that permission was not needed.

However an English court granted an interim injunction in Shetland Times v. Dr. Jonathan Wills and Zetnews Ltd. In a case relating to linking. This case was later mutually settled. A Danish court in July 2002 has also granted an injunction in favour of the Danish Newspapers Publishers’ Association banning news feed service Newsbooster from deep linking to newspaper stories. An appeal against the decision is pending. Let’s consider another type of linking known as the ‘image’ (or IMG) linking.

IMG Linking
IMG linking makes use of ‘in-lined’ images. In-lined images are graphics that are visible on the screen as part of a Web document’s main body (as opposed to being within a separate window), but which originate at a source other than the site that stores the document being viewed. Thus in an IMG link, the images (minus the text contents) originating on one website may appear as part of the other web page. If there is a copyright or trademark in those graphics then difficulties will arise and it may be illegal.

Every information or resource on the web has an address. This is called Uniform Resource Locater (URL). One can reach that resource/page/site/information by typing its URL on the browser. The URL of the Yahoo website is The first element of a URL is the 'transfer protocol'. On the Web, this is almost invariably ‘http’. The last three alphabets on the right side (.com in this example) are called the ‘top-level domain’ (TLD). It stands for commercial. There can be other TLDs like ‘.edu’ reserved for educational institutions, ‘.gov’ is the TLD reserved for government entities, and ‘.net’ is the top-level domain reserved to networks. Countries also market two letters Country Code Top Level Domains (ccTLD) reserved for them for use of business and companies in that country.

The resource/page/site/information is available on the computers that are permanently attached to the Internet; they are called servers. They also have an address. It comprises four groups of numbers separated by decimals. It is called the ‘Internet Protocol Address’ (IP address). The URL of a resource has to contain the IP address also but it is hard to remember the IP address as it is numeric. The Domain name system (DNS) makes it easier to remember by allowing a familiar string of letters (domain name) to be used instead of the arcane IP address. It is a mnemonic device to make the addresses easier to remember. In Yahoo's case, the IP address of the host where the site is hosted is; its domain name is and they correspond to each other.

Earlier, one domain name used to point to one and only one IP address. However with the increase in use of the Internet, websites have also increased the number of their servers to facilitate access. These servers contain same information and provide the same services however their IP addresses are different. In such a case one domain name will point to many IP addresses. A server may host more than one website and in that case another domain name may also have the same IP address. Is the use of a domain name that is a trademark or the popular name of another, illegal?

The question whether one can use the trade name of another as a domain name has arisen in India. The Bombay (Rediff Communication Limited v. Cyberbooth, AIR 2000 Bom 27) and Delhi High Courts (Yahoo! Inc. v. Akash Arora, 1999 DLT 285) have taken the view that the domain name serves the same function as a trademark and is not a mere address or like finding a number on the Internet and, therefore, it is entitled to the same protection as a trademark. They have granted injunctions restraining the defendants from using names similar to the plaintiffs’ trade names as their domain names.

The other question involved in the above mentioned cases, whether there can be a trade mark in respect of services, may not arise in future as the Trade Marks Act 1999 now specifically incorporates ‘services’ {section 2(zb) of the Trade Marks Act}. It was not there in the Trade and Merchandise Marks Act, 1958. The other important change in the Trade Marks Act from the older Act is a wider and detailed provision defining what constitutes infringement (section 29 and 30). These amendments have been made in view of article 15 and 16 of the TRIPS. In India infringement of trademark (like that of copyright) is a penal offence and civil remedies of injunction and damages are also available.

The question 'whether the trade name of another can be used as a domain name or not has' now been settled by the Supreme court in the M/s Satyam Infoway Ltd vs. M/s Siffynet Solutions Pvt. Ltd: JT 2004 (5) SC 541 (SatyamInfoway case). It has affirmed the view of the Bombay and Delhi High Court. The Supreme Court held,
  • A domain name distinguishes trade or service to the Internet users. A domain name has the characteristics of a trademark and can lead to an action of passing off.
  • Similar domain names may be a ground of complaint and similarity of the domain names is to be decided on the possibility of potential customers being deceived by them.
  • The defenses available against a complaint are also similar to those available against an action of passing off under the trademark law.

Uniform Domain Name Dispute Resolution Policy (UDRP)
At present, the Internet Corporation for Assigned Names and Numbers (ICANN) is responsible for managing and coordinating the DNS to ensure that it continues to function effectively by overseeing the distribution of unique numeric IP addresses and domain names. ICANN has introduced seven new extensions namely, .aero, .biz, .coop, .info, .museum, .name, .pro. A company or organization, called registry, under contract with ICANN manages TLDs. But they do not sell domain names to the public, that task is handled by other accredited companies, called registrars, who collect a fee for each name and pay a portion of it to the registry.

ICANN has provided a procedure to resolve domain name disputes. It has come out with a Uniform Dispute Resolution Policy (UDRP). It is applicable to the existing TLDs as well as to the seven newly proposed TLDs by ICANN. It is also applicable to those ccTLDs who have accepted the UDRP. India has been given .in ccTLD; we have also accepted UDRP. This policy is incorporated in all agreements with the registrars and all persons who have obtained domain names. It sets out a legal framework for the resolution of disputes between a domain name registrant and a third party (i.e. a party other than the registrar) over the abusive registration and use of an identical or confusingly similar domain name. In case of a complaint, the dispute is compulsorily referred to a service provider but the decision by them is not final and the aggrieved person can go to a court of law.

Cyber Squatting & Typo Squatting
‘Cyber-squatting’ is the registering of sites with famous names in the hope of selling them at a profit. ‘Typo-squatting,’ is using a minor variation of its name to divert customers who mistype it. These practices are illegal.

Air France has a website Alvaro Collazo, a Uruguayan owner has another website, Air France raised a dispute that he was guilty of ‘Typo-squatting’. WIPO, a service provider under UDRP, in July 2003 held that the use by Collazo of a ‘typographical misspelling’ of the Air France trademark showed that he had registered his site in bad faith, to create confusion and make money by offering links to other commercial domains. Other ‘typosquat’ sites held illegal by a service provider include, a corruption of the New York Stock Exchange’s, and, dropping only a “t“ from the name of the global business newspaper.

Information is retrieved on the Internet with the help of search engines. They locate Web sites that match the user’s particular area of interest. It is done by typing a keyword query into the search engine, and the programme searches its database and returns a list of results. The results returned by search engine programmes are a list of hyperlinks related to Web pages. In finding out relevant Web pages, search engines make use of metatags. In this regard legal complications may arise in two different ways. But before we discuss the legal complications, let’s understand what a meta-tag is.

We come across different kinds of tags in our daily life; they could be identification or name or price tags. They provide key information about the things that they are attached to. Similarly tags in HTML offer a small piece of information/instructions about how the content of a web page may appear. It is mentioned within angled brackets i.e. in the following sentence:
This is bold faced
B stands for bold and is a tag that shows from where boldfaced letters are to begin. Ending tags are preceded by / and show where it ends. Tags are basic text coding techniques in HTML that provide display instructions to the browser as to how that web page should appear.

Meta means beyond the ordinary or usual and is sometimes used for anything which is about itself: metatags provide information about the contents on the web page, rather than how the contents of that page should appear. They are information about the information on the web page. They are located within a specially designated portion of the HTML code, which generates the page and are hidden from normal view but are read by search engines.

One of the meta-tags is keywords, where one mentions words that describe the contents of the web page. They are read by the search engine, matched with the keywords typed in the search engine and then the page with its link would appear in the search result. One kind of legal complication is the improper use of trademarks belonging to another. If one improperly uses trademarks of others as a metatag to associate oneself with them then this may result in a trademark violation. Some of such suits have been filed by Playboy.

The other legal complication is a kind of selling of trademarks. Search engines earn revenue through advertisements. These advertisements keep on changing and often appear when a particular topic is searched. If one wants to have information about a product by typing the trade name on to the search engine, then the result may be a hyperlink to the home page or other information about that product. But at this time the search engine may show an advertisement of a competitor. This is because it is so arranged by the site running the search. It is a kind of selling of metatags or improper use of trademark by the site running the search. Courts still have to decide on the legality of these issues. Two such suits against search engines are,
Lauder filed a suit against Excite as the advertisement of Fragrance Counter appears when a search for Lauder is conducted.
Playboy has filed a suit against Excite and Netscape as an advertisement of appears if search for Playboy or Playmate is conducted.

The law is also unclear whether the search engines are responsible to police trademarks in paid search. According to the search engines the advertisers themselves are responsible for the keywords and ad text that they choose to use. However, they are willing to perform a limited investigation and respect reasonable requests to remove trademark terms from the bidding process. Some examples are,
  • Google is a search engines. It has been asked by the American Blind & Wallpaper Factory (the Company), an interior decor specialist, over the sale of keyword-advertising within search results that appear on Google. The Company has insisted that Google stop selling keyword phrases that the Company claims violate its trademarks. Google is willing to comply to part of the complaint and says that it could block advertisers from buying keywords that directly infringe on the Company’s trademarks, including ‘American Blind Factory’ and ‘Decorate Today,’ but is unable to comply to some of the descriptive phrases like ‘American wallpaper’ and ‘American blind’, that the Company wishes to protect. In this regard, Google has sought declaration of its liability in a court in November 2003.
  • A French court on Dec. 16, 2004 ruled that Google infringed on the trademarks of Le Meridien by allowing the hotel chain's rivals to bid on keywords of its name and appear prominently in related search results.
  • Geico is an insurance company. It charged Google with violating its trademarks by using the word "Geico" to trigger rival ads in sponsored search results. Geico claimed that the practice diluted its trademarks and caused consumer confusion. The U.S. District Court for the Eastern District of Virginia granted Google's motion to dismiss this trademark-infringement complaint. The judge said that "as a matter of law it is not trademark infringement to use trademarks as keywords to trigger advertising".

Questions also remain about a search engine’s responsibility to give trademark holders visibility in search results based on keywords related to their trademarked terms, regardless of payment. Last year, Mark Nutritionals filed lawsuits against Yahoo-owned Overture, AltaVista, FindWhat and Kanoodle for alleged trademark infringement and unfair competition. The outcome of these suits will help in defining law in this area.

Framing is a tool used by some web sites. This tool provides a means for dividing a Web site into separate windows: each window is displayed in a separate portion of the Web browser screen and functions independently to display an individual Web page. This is done by providing links to other sites. A user can view another site’s contents within a small area of the initial site, without actually leaving it. Framing is similar to an IMG link - but unlike an IMG link that views graphics only - frames allow the entire site to be viewed on the initial site. This may have the following effects:
  • One can see a framed site but the browser’s computer does not change the address. It continues to display the address of the initial site. This may confuse some casual Internet users.
  • The advertisements appearing on a framed site must co-exist with the ads displayed on the borders of the initial site thereby changing the visual impact of the ads on the framed site.
  • It changes the way the framed site intends its materials to appear. This may involve a copyright violation.
  • There may be a trade mark violation of the framed site as it is shown on the site of the initial site.

Let me explain this with the help of pictures. These pictures show the website of the Allahabad High Court as it was earlier. It is no longer there. The official website of the Allahabad High Court was as follows:

The menu is on the left side and one of the tab is 'web links'. If you go into this tab; it used to look like this.

If you go into any web-address then it used to look like this. Let's enter into one of the websites namely the website of the US Supreme Court. It used to look like the following picture.

Here is the Home site of the US Supreme Court. If you see the web address it is that of the Allahabad High Court and the picture at the top is of the Allahabad High Court. This has not changed. The home page of the US Supreme Court is framed in the Allahabad High Court website. It is no longer there; now framing has been removed and an independent link has been provided.

The law in this regard is yet to be settled. One such case was Washington Post v. Total news however it was mutually settled. But to avoid any liability, one should not frame, but provide an independent link to the home page. In case one has to do it then prior permission may be taken and any liability as to the contents of the framed site should be disclaimed.

Should a party rush to a court of law for linking or framing violation? There are technological means to stop linking and framing; they are cheaper too. And if a party fails to adopt them then a court may consider this against them while awarding damages. It would be better to adopt technological means rather than to go to a court of law.

Indexing of files is necessary before files may be shared. Peer to peer networking and different kinds of indexing methods have been explained by the first appellate court in MGM Vs. Grokster (the Grokster case). The Court held as follows:
‘In a peer-to-peer distribution network, the information available for access does not reside on a central server. ... each computer makes information available to every other computer in the peer-to-peer network.... Because the information is decentralized in a peer-to-peer network, the software must provide some method of cataloguing the available information’
At present, there are three different methods of indexing:
  • a centralized indexing system, maintaining a list of available files on one or more centralized servers;
  • a completely decentralized indexing system, in which each computer maintains a list of files available on that computer only; and
  • a “supernode” system, in which a select number of computers act as indexing servers.'

The Napster Case
The Napster case was the first to come to the courts in peer to peer networking. Shawn Fanning (high school nickname Napster a reference to his nappy hair) wanted to share the music in his computer with his friends. He thought of developing a software so that the music in one computer could be exchanged with another. No other person thought it to be a good idea. He, still in his teens, left his college to create this software. Now Music in MP3 format can be transferred with the help of Napster. In order to do it, one has to download it (provided free of cost on registration) and install it in the computer. This enables the computer to log on to the Napster server. When a request is made, the Napster server searches other users online who may have that music file. If there is one then Napster puts both computers directly in touch with each other so that music files can be downloaded. It is P2P file sharing. The Napster server merely puts computers directly in touch with each other but the copyrighted music does not go through its server i.e. it does not receive or contain illegal music at any time. It merely permits transfer of music files (MP3 format) from one PC to another PC. Napster is using the first method of indexing namely a centralised server. At one time there were about 25 million Napster users. They could download music files, which might have been the copyright of others, free of cost.

Several record companies filed a suit against Napster restraining it from engaging in or assisting others in copying, downloading, uploading, transmitting or distributing copyright protected music without the express permission of its rightful owner. According to Napster it is merely a space-shift similar to a time-shift in the Sony case (see End note-1) and it seeks expansion of the ‘fair use’ doctrine articulated in that case. The District court of the Northern district of California has granted a preliminary injunction against Napster from engaging in or facilitating the copying, downloading, transmitting or distributing of the plaintiffs’ copyrighted musical compositions.

Napster filed an appeal and obtained a stay order. During the pendency of the appeal it also settled the case with most of the companies by agreeing to pay a fee. The appellate court partly allowed the appeal {Napster- I (239 F.3d at 1027)} and sent the case back. The appellate court held that Napster’s products were capable of substantial or commercially significant non-infringing uses and contributory liability could be imposed on Napster only to the extent that it,
  • receives reasonable knowledge of specific infringing files;
  • knows or should know that such files are available on the Napster system; and
  • fails to act to prevent illegal distribution of the copyrighted works.

The district court on remand required the record companies to give Napster notice of specific infringing files, and then required Napster to continually search its index and block all files containing the particular works at issue. The record companies appealed, arguing that Napster should be required to search for and to block all files containing any protected copyrighted works, not just those works which the record companies have been able to provide. This order was upheld {Napster-II (284 F.3d at 1095-96)} holding that the plaintiffs have to bear the burden of providing notice to Napster of copyrighted works and files containing such works before Napster has the duty to disable access to the offending content.

The KaZaA Case
KaZaA is a Dutch company and distributes P2P file sharing software like Napster. However their software - unlike Napster’s - is neither limited to MP3 files nor do they have a similar technology. It employs a third method of indexing the files. A suit has been filed against KaZaA in the US. During the pendency of this suit, a Dutch copyright group filed a suit against KaZaA, in Holland to stop it from offering file sharing software or face a daily fine of $124,000. The Dutch Supreme Court in December 2003 upheld a decision of the court below and held that KaZaA cannot be held liable for copyright infringement of music or movies swapped with its free software. The suit against KaZaA is still pending in the US however another suit against Grokster and StreamCast (the Grokster case) has been decided. Now the suit against KaZaa in US may be decided on the same terms as the decision in the Grokster case. Let's consider the Grokster case.

The Grokster Case
Groskter and StreamCast Networks also distribute file sharing software. Grokster licenses ‘FastTrack’ technology from KaZaA. StreamCast was earlier licensing ‘FastTrack’ technology from KaZaA but now it uses ‘Morpheus’ its branded version of Gnutella (see End note-2). Grokster, as is the case with KaZaA, employs the third method of indexing the files; whereas Gnutella and StreamCast employ second method of indexing files. The entertainment companies filed suit against Grokster and StreamCast in the US. The suit of the Entertainment Companies and their first appeal in the case against Grokster and StreamCast were dismissed. The first appellate court held:
  • The software technologies are capable of substantial or commercially significant non-infringing uses and the software distributors cannot be liable for constructive knowledge of the infringement.
  • Napster employed the first method. StreamCast and Grokster employ the second and third.
  • Napster could avoid the download. Neither can Grokster nor can StreamCast avoid it even if they closed down their doors and deactivated all computers within their control: users of their products could continue sharing files with little or no interruption.

The entertainment companies filed an appeal before the US Supreme Court. The US Supreme Court allowed the appeal in July 2005. The judgements of the courts below were set aside. The case was remanded to the trial court for further proceedings in accordance with the observations in the judgement. The question involved was,
Under what circumstances is the distributor of a product capable of both lawful and unlawful use liable for acts of copyright infringement by third parties using the product.
The US Supreme Court distinguished the The Sony case holding that
'[in the Sony case], the evidence showed that the principal use of the VCR was for "time-shifting," or taping a program for later viewing at a more convenient time, which the Court found to be a fair, not an infringing. ... There was no evidence that Sony had expressed an object of bringing about taping in violation of copyright or had taken active steps to increase its profits from unlawful taping.'

The Court held that:
'one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.'

In the Grokster case the US Supreme Court referred to the competing claims of the copyright holders on the one hand and innovators on the other hand in the following words.
'The tension between the two values is the subject of this case, with its claim that digital distribution of copyrighted material threatens copyright holders as never before, because every copy is identical to the original, copying is easy, and many people (especially the young) use file-sharing software to download copyrighted works. This very breadth of the software's use may well draw the public directly into the debate over copyright policy, Peters, Brace Memorial Lecture: Copyright Enters the Public Domain, 51 J. Copyright Soc. 701, 705-717 (2004) (address by Register of Copyrights), and the indications are that the ease of copying songs or movies using software like Grokster's and Napster's is fostering disdain for copyright protection, Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 724-726 (2003). As the case has been presented to us, these fears are said to be offset by the different concern that imposing liability, not only on infringers but on distributors of software based on its potential for unlawful use, could limit further development of beneficial technologies. See, e.g., Lemley & Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stan. L. Rev. 1345, 1386-1390 (2004); Brief for Innovation Scholars and Economists as Amici Curiae 15-20; Brief for Emerging Technology Companies as Amici Curiae 19-25; Brief for Intel Corporation as Amicus Curiae 20-22.

There is footnote at this place of the judgement. It is as follows:
'The mutual exclusivity of these values should not be overstated, however. On the one hand technological innovators, including those writing file sharing computer programs, may wish for effective copyright protections for their work. See, e.g., Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 750 (2003). (StreamCast itself was urged by an associate to "get [its] technology written down and [its intellectual property] protected." App. 866.) On the other hand the widespread distribution of creative works through improved technologies may enable the synthesis of new works or generate audiences for emerging artists. See Eldred v. Ashcroft, 537 U. S. 186, 223-226 (2003) (Stevens, J., dissenting); Van Houweling, Distributive Values in Copyright, 83 Texas L. Rev. 1535, 1539-1540, 1562-1564 (2005); Brief for Sovereign Artists et al. as Amici Curiae 11.'

US Supreme Court answered it in favour of the copyright holders. Were there other ways to sort out the problem - common standard ... format .... or a different kind of business module? Has the court weighed too heavily against the technology? Well, the future will tell us.

End note-1: Sony Corporation had made VCRs (called VTR) that could record TV programmes. This has changed the way we watch TV. One can, with the help of a VCR, record programmes, which may be copyrights of others and see it at a later time. The copyright owners sued Sony Corporation. Their suit was dismissed. Their allegations were,
Individuals have used the VCRs to record some of the owners’ copyrighted works on the TV.
These individuals had infringed the copyrights and
Sony Corporation was liable for such infringement because of their sale of the VCRs.
The US Supreme Court dismissed the suit and in Sony Corporation v. Universal City Studios, 464 US 417 held that:
The time shift for watching the TV programme for private viewing was fair use and it does not infringe copyright.
A manufacturer is not liable for selling a staple article of commerce that is capable of commercially significant non-infringing uses.

End note-2: Gnutella is open source software where a central server is not involved. It neither has any office, nor any server. One merely has to install it on a computer and send a message. The message goes to another online computer with Gnutella that in turn forwards it to other similar online computers. This goes on till one finds a computer that has the required file then the two computers are directly connected and the file can be downloaded. It is not restricted to MP3 format: it works on all kinds of files. There isn’t any central server; it is decentralised; and neither any index of available file is maintained on any centralised server (or computer) nor any file goes through such server.

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