Cyber Squatting & Copyright

Cheatsheet Content

Concept of Domain Name Definition: Name-cum-address on the internet for a person or entity. Serves as an identity on the internet. Internet uses Internet Protocol (IP) addresses/numbers. Every domain has a suffix (Top Level Domain - TLD) indicating its category (e.g., .gov, .edu, .org, .com). Web servers use a Domain Name System (DNS) to translate domain names to IP addresses. Cybersquatting Definition: Registering a domain name that is a trademark or very similar, in "bad faith." Made illegal in the US by the Anti-Cybersquatting Consumer Protection Act (1999) . Motivations: Smear reputation by misdirecting users to obscene sites. Financial gain by "parking" domain names with pay-per-click ads or setting up similar businesses. ICANN's Uniform Domain Name Dispute Resolution Policy (UDRP) (1999) addresses cybersquatting. Approved UDRP service providers include WIPO, CPR Institute, E-Resolution, and National Arbitration Forum. Dispute Resolution by WIPO Panel Appointment Procedure Single Panelist: Appointed by WIPO Center if both parties agree. Three-Person Administrative Panel: Appointed by WIPO Center if one or both parties designate 3 panelists. WIPO tries to appoint nominees from parties. Third (Presiding) Panelist appointed from a list of 5 candidates based on party preferences. Respondent pays half fees if they choose a three-member panel; otherwise, Complainant pays. No Response from Respondent: WIPO Center appoints panel based on Complainant's designation (1 or 3 panelists). Outline of Dispute Resolution Procedure Complaint received and checked by approved provider. Forwarded to respondent within 3 calendar days after fees received. Respondent must reply within 20 days (extensions possible). If no reply, decision based on complainant's submission. Administrative panel appointed (usually one). Panel considers submissions and makes decision within 14 days. Fees: Complainant pays if one panelist; evenly shared if respondent demanded 3. Dispute can be settled/compromised at any time. Salient Features of UDRP Policy Expeditious (usually within two months). Simple rules of procedure. Complaint can relate to multiple domain names if respondent is the same. Lawyers not necessary. Proceedings conducted online. Does not bypass legal remedies. Fair, independent, and competent. Intellectual Property (IP) Definition: Creations of the mind (inventions, literary/artistic works, designs, symbols, names, images). IP rights protect creators' interests by giving them property rights. Categories: Industrial Property: Inventions (patents), trademarks, industrial designs. Copyright: Literary and artistic works (novels, poems, films, music, drawings, paintings, photos, sculptures, architectural designs). Works with Copyright & Meaning of Copyright (India) Governed by The Copyright Act, 1957 , applicable to physical and cyber worlds. Section 43(b) of IT Act, 2000: Copying, downloading, or extracting data without owner's permission incurs damages (up to one crore rupees). Copyright subsists in: Original literary, dramatic, musical works Cinematograph films Sound recordings "Subsists" means to remain in force or effect. Copyright is a bundle of exclusive legal rights. Copyright does not subsist if: Substantial part of film is an infringement. Sound recording is infringed. Copyright owners have exclusive rights for: literary/dramatic/musical works, computer programs, artistic works, cinematography films, sound recordings. Copyright extends to the work's form, not the idea. Computer Software Governed by India's Copyright Act, 1957; included as literary works. Computer Program: Set of instructions causing a computer to perform a task. Levels of Computer Languages: Source code: Human-readable (English-like). Object code: Compiler-generated. Copyright Ownership and Assignment Author is not copyright owner in cases like: Work created in course of employment. Photography taken. Speech delivered. Works for government or international organizations. IT companies typically own copyright for software developed by employees through employment contracts. Employee must inform employer of any work developed outside employment. License of Copyright Section 30 of Copyright Act, 1957 allows copyright owner to grant interest by written license. License: Mere permission; licensee does not become owner (e.g., software purchase). Exceptions to Copyright Act: Lawful possessor of a computer program can make copies/adaptations: To utilize the program for its supplied purpose. To make backup copies for temporary protection. Software Licenses Prohibit: Copying, distribution/transfer, modification, adaptation of code. Copyright Term & Foreign Works Indian government extends Copyright Act to works published in other countries via Section 40 orders. International Copyright Order, 1958: Applies Copyright Act, 1957 to works from countries covered by Berne convention, universal cryptograph conventions, or phonograph convention. Copyright Infringement, Remedies & Offences Definition: Unauthorized or prohibited use of copyrighted works. When is copyright infringed? (Section 51) Without license, doing anything exclusive to copyright owner. Permitting for-profit public use of work where communication infringes copyright (unless unaware). Making for sale/hire, selling/letting for hire, displaying/offering for sale/hire by trade. Distributing to prejudicially affect copyright owner. Exhibiting in public by trade. Importing infringing copies into India. Explanation: Unauthorized copying/reproduction/commercial exploitation of a program is infringement. Using copies without permission that affects owner is infringement. Exceptions in the Copyright Act 1957 - (Section 52 - Fair Dealing) Fair dealing with literary, dramatic, musical, artistic works (not computer programs) for: Private use (including research). Criticism or review. Making copies/adaptations of a computer program: To utilize the program for its supplied purpose. To make backup copies for temporary protection. Fair dealing for reporting current events (literary, dramatic, musical, artistic works): In newspapers, magazines, periodicals. By broadcast or cinematograph film/photographs. Criteria for Fair Use Substantiality of quantity and quality of copyrighted material used. Effect on the value of the copyrighted work. Punishment Knowingly infringes/abets: Imprisonment: 6 months to 3 years. Fine: Rs. 50,000 to Rs. 2 lakhs. Not for gain: Below statutory minimum. Second conviction: Imprisonment: 1 to 3 years. Fine: Rs. 1 lakh to Rs. 3 lakhs. Copyright Protection on the Internet Section 43(b) of the Copyright Act 1957 Applies to physical and cyber worlds. IT Act 2000 introduced Section 43(b) for IP protection in electronic world. Without permission, downloading/copying/extracting data from computer systems/networks liable for damages up to one crore rupees. Copyright Notice, Disclaimer & Acknowledgement No notice of ownership required in India. Disclaimers: Statements specifying/delimiting scope of rights/obligations. Acknowledgement: Declaration authenticating legal instruments, preventing false/fraudulent executions. Downloading, Hyper-linking & Framing Linking: Primary means for internet users to navigate web-sites. Connection between content of two files (or parts of a file). Can link to different files on same or different websites. Framing: Link to another site displayed within a window or frame. Liability of ISPs for Copyright Violations (US) Section 79 of IT Act, 2000: Network service providers not liable for third-party info/data if they prove lack of knowledge and due diligence. Five Copyright Infringement Liability Limitations for Service Providers: Transmitting, routing, providing connections to infringing material ("transitory digital network communications"). System caching. Information stored by a user ("user storage" limitations). Linking/referring users to infringing material ("information location tools" limitations). Disabling access or removing allegedly infringing material in good faith. Napster and its Cousins Founded by Shawn Fanning, pioneered peer-to-peer MP3 file sharing. Cases against Napster (RIAA lawsuits): RIAA (Recording Industry Association of America) represented music labels. Argued copyright infringement (right to reproduce, right to distribute). Napster users' downloads meant copying onto their computers. Napster users could upload files for others to procure. RIAA later targeted individuals with large databases. Arguments in favour of Napster: CDs overpriced. Exposure for unsigned bands and new music. Acts as an Internet service provider. Does not know content of shared files. Arguments against Napster: Facilitates piracy, business based on others' copyrighted work without permission. Violates copyright law and Federal Copyright Laws. Computer Software Piracy Definition: Unauthorized copying, installation, redistribution, or sale of software. Major problem for software industry. Losses due to piracy: Jobs, higher costs for software industry (higher prices for legitimate customers), taxes, dampens innovation. Strategies to reduce piracy: Remove import duty, reduce prices. Awareness/training for law enforcement. Media campaigns. Strict implementation of NASSCOM Code of Conduct. Knowing use of infringing copy made an offense. Digital Signatures Importance of Signature Depiction of name/mark for identity/intent. Ensures identification and authentication. Provides binding evidence and security against forgery. Concept of Digital Signature System for e-commerce confidence. Electronic signature authenticating sender's identity and ensuring unchanged message content. Cannot be imitated, ensures original signed message arrived (non-repudiation). IT Act, 2000 defines Digital Signature as authentication of electronic record via electronic method/procedure (Section 3). Authentication of electronic records: Subscriber authenticates record by affixing digital signature. Uses asymmetric crypto system and hash function. Public key can verify electronic record. Private key and public key are unique to subscriber, forming a key pair. IT Act 2000 recognizes asymmetric crypto system and hash function. Asymmetric Crypto System Definition: Cryptography using a pair of keys to encrypt/decrypt messages. Transforms plaintext into unintelligible ciphertext without reverse decryption key. Involves a key pair: Private key: Used to create digital signature (encryption). Public key: Used to verify digital signature (decryption), freely available. System of Hash Function Cryptographic hash function: Deterministic procedure taking data block and returning fixed-size hash value. Accidental/intentional data change alters hash value. Data to be encoded is "message," hash value is "message digest" or "digest." Creation of Digital Signature Signer applies hash function to electronic record. Hash function computes standard-length hash result (unique). Signer's software transforms hash result into Digital Signature using signer's private key. Resulting Digital Signature is unique to record and private key. Digital Signature attached to record and stored/transmitted with it. Original code Message data Variable size Original copy of data transmitted across the network Hashing algorithm Fixed-length digest or hash value Signature algorithm Private key Digital signature Authentication of Digital Signature New hash result computed from original record using the same hash function. Verifier checks if: Digital Signature created with corresponding private key. Newly computed hash result matches original result transformed into Digital Signature. Verification software confirms if: Signer's private key was used (public key verifies signature). Electronic record was unaltered (hash results match). Digital Signature Certificate (DSC) Issued by a Certifying Authority (CA) (public or private). Electronic "credit card" establishing credentials for e-commerce. Contains: Name, serial number, expiration dates, public key, CA's digital signature. Procedure for DSC Issuance Applicant applies to CA with particulars. Application form provided by CA. Form accompanied by fee (e.g., up to Rs. 25,000, varies by applicant class). Application accompanied by a certification practice statement (CA's practices, applicant's intended use). CA accepts or rejects application (reasons recorded if rejected). Conditions for Granting DSC CA must be satisfied that: Applicant holds private key corresponding to public key in DSC. Applicant holds private key capable of creating digital signature. Public key in certificate can verify digital signature affixed by applicant's private key. Before issuance, CA must: Confirm user not on compromised list. Comply with Certification Practice Statement. Comply with privacy requirements. Obtain consent to publish on directory service. Subscriber deemed to accept DSC if they publish or authorize its publication (to persons, repository, or otherwise demonstrate approval). Indian Evidence Act of 1872 vs. Information Technology Act, 2000 Status of Electronic Records as Evidence Definition of 'Evidence' (Indian Evidence Act, 1872): Oral (witness statements), Documentary evidence. 'Evidence' (Amended by IT Act, 2000): Oral evidence, and all documents including electronic records for court inspection. Modifications/Substitutions by IT Act: Section 17: 'oral or documentary' becomes 'oral or documentary or contained in electronic form'. Section 34: 'entries in books of account' includes 'those maintained in an electronic form'. Section 35: 'record' becomes 'record' or 'electronic record'. Section 59: 'contents of documents' includes 'contents of documents or electronic record'. Sections 39 and 131 substituted for electronic records. Peculiar Characteristics of Electronic Records: Copy practically indistinguishable from original. Original record in computer memory, making primary evidence production difficult. Subsection (2) of Section 63 and clause (d) of Section 65 allow secondary evidence of electronic records (printouts, floppy, CD, etc.). Section 63 (Secondary evidence): Copies made by mechanical processes ensuring accuracy. Section 65 (Secondary evidence for documents): Given when original is not easily movable. Section 32 (Relevant fact by dead/unavailable person): Statements in ordinary course of business are relevant. Proof and Management of Electronic Records Admissibility of Computer Outputs Document proved by primary evidence (document itself). Secondary evidence only in exceptional cases (e.g., original not in possession). Electronic records classified as: Original electronic records: Primary evidence. Computer output: Secondary evidence. Section 65B (Admissibility of electronic records): Electronic records (printed on paper, stored, recorded, copied in optical/magnetic media) are deemed documents if conditions met, admissible without further proof. Conditions for computer output (sub-section 2 of 65B): Computer regularly used to store/process info for activities. Info regularly fed into computer. Computer operating properly (or malfunctions not affecting accuracy). Info in record reproduces/derived from info fed into computer. All computers used for a period constitute a single computer for this section. Relevancy and Admissibility Evidence must be relevant to the fact to be proved. Relevant fact: Something that happened, no versions. Evidence given for existence/non-existence of facts in issue and other relevant facts as per Indian Evidence Act. Section 34 (Entries in books of accounts): Relevant if regularly kept in business, but not solely sufficient to charge liability. Facts in issue: Facts from which rights, liabilities, disabilities necessarily follow. Admissibility: Permissibility to adduce evidence. Adduce: Cite as evidence. Probative Value of Electronic Evidence Weight given to evidence, judged by facts/circumstances. Value decided by court. Computer evidence types: Real evidence: Calculations. Hearsay evidence: Information from external sources. Derived evidence: Result of real and hearsay evidence (e.g., interest/balance calculations). Oral Evidence (Section 60) Must be direct. If refers to seen fact, witness states they saw it. If refers to heard fact, witness states they heard it. If refers to perceived fact, witness states they perceived it. If refers to opinion, witness states their opinion and grounds. Proviso: Expert opinions in treatises can be proved if author dead/unavailable/unreasonable to call. Proviso: Court may require production of material thing if oral evidence refers to its existence/condition. Reliability of computer-generated evidence is crucial due to e-records characteristics. Original and copy of electronic record are practically indistinguishable. Electronic records can be tampered with by replacement/rewriting, unlike paper. Virus is a common sickness for e-records, unlike diseased paper. Proving Digital Signature Mathematical technique to validate authenticity and integrity. Indian Evidence Act, 1872 (amended by IT Act 2000): Fact that digital signature is of subscriber must be proved (unless secure). Section 73A (How to verify digital signature): Person/CA produces DSC. Any other person applies public key from DSC to verify signature. Proof of Electronic Agreements DEFINITION DIGITAL SIGNATURE SENDER PRIVATE KEY SIGNED MESSAGE PUBLIC KEY RECEIVER HASH ALGORITHM HASH VALUE Section 85C of Indian Evidence Act: Court presumes information in accepted DSC is correct (unless contrary proved), except unverified subscriber info. Court presumes secure digital signature implies intent to sign/approve electronic record. Whether a digital signature is secure is a question of fact, subject to evidence. Electronic record: Data, record, or data generated, image. Electronic form: Info generated, sent, received, or stored in media. Data: Representation of information. 85A Presumption as to electronic agreements: Court presumes electronic record with digital signatures was concluded by affixing signatures. Proving Electronic Message Electronic messages are electronic records, have status of documentary evidence. Section 12 of IT Act: Acknowledgment of receipt of an electronic record. Proof of these ingredients identifies originator and addressee. Section 12 (Acknowledgement of receipt): If originator hasn't specified form, acknowledgment not required. If method stipulated, and not received within time, deemed not sent. Factual questions for electronic messages: Originator identity, receipt, message identity, unaltered content, contents.