CYBER- LAWS

MODULE 1

 Need and Scope of Cyber Law

 Jurisdictional issues in Cyberspace
 US and EU Approach to Personal Jurisdiction: Minimum Contacts Test, Purposeful Availment Test, Zippo
‘Sliding Scale’ Test and Effect Test
 Indian Position on Cyber Jurisdiction

CYBER LAW SCOPE

Cyber: The term “cyber” owes its origin to the term “cybernetics,” which in turn derived from
the Greek word “kubernetes” or governor. Nobert Wiener, an American Mathematician, coined
the term “cybernetic” in the 1940s to describe the theory of communication. Subsequently, the
term “cybernetics” popularly came to be known as “cyber.”Cyber Law: Cyber law is the law that
governs cyberspace. In general, it means the law that governs not only the internet but also
electronic data which may be stored in a standalone computer system. The reason for including
data stored in a standalone computer is one had to include merely communication process
occurring via, the internet; the term would be extremely narrow in scope. This would, in turn,
leave out computer systems from the scope of cyber law, thereby creating confusion as to the law
applicable to regulate electronic data store in a standalone computer. In India, there’s no cyber
law in particular, but there is the IT Act 2000 which provides for the cyber-crimes and the
punishments thereto. The Information Technology Act is a Cyber Crime Act of India. In India,
the bill was finalized by the group of officials headed by the minister of Information Technology
Mr. Pramod Mahajan. Signed by President K.R. Narayanan, the bill was passed in the budget
session of 2000 on 9 May 2000.The salient feature of this bill is that it punishes the persons of
other nationality too if their crimes involve any computer or network located in India.

JURISDICTIONAL ISSUES IN CYBERSPACE

Person has a contact with forum state. There must be close contact of the person with the state
has resident domicile within the state or physical presence in the state at the time of serving the
process of subtotal contain and systematic contact with the forum state that relate to course of
action. Court may acquire personal jurisdiction over nonresident in case of

 State long arm statute provides for jurisdiction under the factual circumstances
 Defendant must have sufficient minimum contact theory with the state such that the
exercise the jurisdiction doesn’t offend traditional fair play to substantial justice
violating the due process closure of the 19 t h amendment of US constitution.

MINIMUM CONTACT TEST

Defendant must avail himself the privilege of doing business in forum state. Cause of action
arises from defendant’s activity in forum state. Exercise of jurisdiction must be fair and
reasonable & mustn’t affect the process of law.

Case : International shoe v state of Washington International Shoe Co. was incorporated in Delaware and
had its principal place of business in St. Louis, Missouri. While the corporation did not have an office in
Washington (“State”), it employed eleven to thirteen salesmen, who were residents of the State and who exhibited
product samples to prospective buyers from the State. The corporation compensated the salesmen in the form of
commissions for any sales from customers they solicited. Due to these business activities, the State issued a Notice

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of Assessment holding the corporation liable for contributions to the State’s unemployment compensation fund by
virtue of the Washington Unemployment Compensation Act. Notice was served via mail and personal service to the
Washington salesmen. The corporation refused to pay, arguing that they were not conducting business in
Washington and thus the State had no jurisdiction over it. They further argued that the service of notice was
insufficient to constitute due process. The trial court ruled in favor of the State and the Supreme Court of
Washington ruled that there was sufficient business activity to hold the corporation liable for taxes to the State. The
corporation appealed the decision to the Supreme Court of the United States.

Issue. Is service of process upon Defendant’s agent sufficient notice when the corporation’s activities result in a
large volume of interstate business so that the corporation receives the protection of the laws of the state and the suit
is related to the activities which make the corporation present?

Held. Yes. Affirmed. The general rule is that in order to have jurisdiction with someone outside the state, the person
must have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional
notions of fair play and substantial justice. For a corporation, the “minimum contacts” required are not just
continuous and systematic activities but also those that give rise to the liabilities sued on. Defendant could have sued
someone in Washington. It was afforded the protection of the laws of that state, and therefore it should be subject to
suit.

Dissent. The state’s power to tax should not be qualified by an ambiguous statement regarding fair play and
substantial justice.

Discussion. This decision articulates the rule for determining whether a state has personal jurisdiction over an absent
defendant via the “minimum contacts” test. In general, International Shoe demonstrates that contacts with a state
should be evaluated in terms of how “fair” it would be to exercise jurisdiction over an absent defendant.

PURPOSEFUL AVAILMENT TEST

 Purposefully or successfully solicit of business from a Foreign Residents

 Established a contact with Foreign Residents

 Associated with other forum state related activity

 Substantial enough connections with foreign state

LONG ARM STATUTE

Non resident who is staying in foreign not a resident can come into fold under this statue can be thrive for
jurisdiction.

Case : Burger King Corp v Rudzewicz 471 U.S. 462 (1985)

Appellant (Burger King Corporation) is a Florida corporation whose principal offices are in Miami. It conducts
most of its restaurant business through a franchise operation, under which franchisees are licensed to use appellant's
trademarks and service marks in leased standardized restaurant facilities for a period of 20 years. The governing
contracts provide that the franchise relationship is established in Miami and governed by Florida law, and call for
payment of all required monthly fees and forwarding of all relevant notices to the Miami headquarters. Appellee
(Rudzewicz) is a Michigan resident who, along with another Michigan resident, entered into a 20-year franchise
contract with appellant to operate a restaurant in Michigan. Subsequently, when the restaurant's patronage declined,
the franchisees fell behind in their monthly payments. After extended negotiations among the franchisees, the
Michigan district office, and the Miami headquarters proved unsuccessful in solving the problem, headquarters
terminated the franchise and ordered the franchisees to vacate the premises. They refused and continued to operate
the restaurant. Appellant then brought a diversity action in Federal District Court in Florida, alleging that the

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franchisees had breached their franchise obligations and requesting damages and injunctive relief. The franchisees
claimed that, because they were Michigan residents and because appellant's claim did not "arise" within Florida, the
District Court lacked personal jurisdiction over them. But the court held that the franchisees were subject to personal
jurisdiction pursuant to Florida's long-arm statute, which extends jurisdiction to any person, whether or not a citizen
or resident of the State, who breaches a contract in the State by failing to perform acts that the contract requires to be
performed there. The Court of Appeals reversed.

ISSUE:

Was out-of-state franchisee subject to jurisdiction in franchiser home state where franchise agreement established
franchiser's home state as the forum for breach of contract actions?

ANSWER:

Yes.

CONCLUSION:

An individual's contract with an out-of-state party cannot alone automatically establish sufficient minimum contacts
in the other party's home forum. Instead, the prior negotiations and contemplated future consequences, along with
the terms of the contract and the parties' actual course of dealing, must be evaluated to determine whether a
defendant purposefully established minimum contacts within the forum. 

The Court held that the exercise of in personam jurisdiction over the franchisee pursuant to the state's long-arm
statute did not violate the due process clause of the Fourteenth Amendment. because the franchisee established a
substantial and continuing relationship with the plaintiff's headquarters in the forum state, received fair notice from
the contract documents and the course of dealing that he might be subject to suit in the forum state, and failed to
demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair.

Zippo ‘Sliding Scale’ Test and Effect Test

Personal jurisdiction is directly proportional to the nature and quality of commercial activity that a business entity
conducts over the internet

It has two parts

Passive : Personal jurisdiction can’t be established

Interactive : Personal jurisdiction established.

Bensusan Rest. Corp. v. King - 126 F.3d 25 (2d Cir. 1997)

Bensusan Restaurant Corporation ("Bensusan") was a New York corporation that owned "The Blue Note," a jazz
club in Greenwich Village, New York Bensusan owned all trademark rights, title and interest in the federally
registered "The Blue Note" mark. Richard B. King ("King") was a Missouri resident who owned "The Blue Note"
club in Columbia, Missouri.In April 1996, King posted a website hosted on a computer server in Missouri that
contained "general information about the club in Missouri as well as a calendar of events and ticketing
information".In addition, King's website contained a disclaimer that stated "The Blue Note, Columbia, Missouri
should not be confused in any way, shape, or form with Blue Note Records or the jazz club, Blue Note, located in
New York. The Cyber Spot is created to provide information for Columbia, Missouri area individuals only, any
other assumptions are purely coincidental"

Issues

1. Whether New York has personal jurisdiction over King pursuant to New York long-arm statute

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 2. Whether exercising personal jurisdiction over King would be a violation of the Due Process Clause of the
US Constitution
The New York long-arm statutes do not permit personal jurisdiction over King.
The District Court held that King's website did not constitute an offer to sell a product in New York pursuant to §
302(a)(2), and that King neither participated in interstate commerce nor expected for his website to have
consequences in New York according to § 302(a)(3)(ii). The Court noted that "it takes several affirmative steps by
the New York resident . . . to obtain access to the Web site and utilize the information there" because the website
provided a Missouri box office phone number to reserve tickets, and required patrons to pick up the tickets in
Missouri.Furthermore, because there was no proof that goods were shipped to New York, § 302(a)(2) did not
authorize personal jurisdiction over King. With respect to § 302(a)(3)(ii), the Court found that King did not derive
substantial revenue from interstate commerce, and King's knowledge that Bensusan's club was located in New York
was insufficient to satisfy the statutory requirements to authorize personal jurisdiction. The Court of Appeals
affirmed the District Court's findings, adding only that § 302(a)(2) required defendants to have committed a tort
while present in New York state. Because King's website was created in Missouri, New York did not have personal
jurisdiction over him.
It would violate the Due Process Clause of the US Constitution if New York had personal jurisdiction over
King.
The District Court concluded that even if N.Y.C.P.L.R. §§ 302(a)(2), (a)(3)(ii) authorized personal jurisdiction over
King, such an act would violate the Due Process Clause of the US Constitution. Due process requires a non-resident
defendant to purposefully establish minimum contact with the state claiming jurisdiction, such that the suit does not
offend "traditional notions of fair play and substantial justice."The Court found that King did not purposefully avail
himself of any benefits that New York offered, and that the mere creation of an informational website was not an act
that was purposefully directed at any one particular state. Specifically, the Court contrasted King's website and
actions with those of the defendant in CompuServe, Inc. v. Patterson,where Ohio was authorized to exercise
personal jurisdiction because the defendant targeted Ohio in subscribing to a network service and sending software
to Ohio. The Court of Appeals explicitly declined to address the due process issue, because the long-arm statute did
not confer personal jurisdiction.
Cybersell, Inc. v. Cybersell, Inc.:The United States Court of Appeals for the Ninth Circuit affirmed the United States
District Court for the District of Arizona's holding that Arizona did not have personal jurisdiction over Cybersell,
Inc., a Florida corporation. The Court examined the facts of Bensusan, and found instructive the notion that
"'interactive' web sites present somewhat different issues" and that "unlike passive sites such as the defendant's in
Bensusan, users can exchange information with the host computer when the site is interactive.

Zippo manufacturing v Zippo dot. com 952 F.Supp.1119

Plaintiff Zippo Manufacturing Company ("Manufacturing"), a Pennsylvania corporation, makes the well-known

"Zippo" pocket lighters. Zippo Dot Com ("Dot Com"), a California corporation, operated an Internet web site that
offered access to USENET newsgroups. Dot Com registered the domain names "Zippo.com," "Zippo.net" and
"Zippo news.com."
Dot Com's contacts with Pennsylvania occurred exclusively over the Internet. Dot Com's offices, employees and
Internet servers were located in California. Dot Com did not maintain any offices, employees or agents in
Pennsylvania. Dot Com's advertising for its service to Pennsylvania residents involved posting information about its
service on its web page, which was accessible to Pennsylvania residents as well as everyone else.Dot Com had
approximately 140,000 paying subscribers worldwide, and approximately two percent (3,000) of those were
Pennsylvania residents.The subscribers contracted to receive Dot Com's service by visiting its website and filling out
an application. Dot Com also entered into agreements with seven Internet access providers in Pennsylvania to permit
their subscribers to access Dot Com's USENET database, including two providers in the Western District of
Pennsylvania.
Zippo Manufacturing filed a five-count complaint against Dot Com alleging trademark dilution, infringement, and
false designation under the Lanham Act and state law trademark dilution claims.Manufacturing's basis of the
trademark claims was Dot Com's use of the word "Zippo" in the domain names in numerous locations in its website
and in the heading of Internet newsgroup messages that were posted by Dot Com subscribers. Dot Com moved to
dismiss for lack of personal jurisdiction.

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Zippo "Sliding Scale" test for Internet jurisdiction
Court uses a three-pronged test for determining whether the exercise of specific personal jurisdiction over a non-
resident defendant is appropriate: (1) the defendant must have sufficient minimum contacts with the forum state, (2)
the claim asserted against the defendant must arise out of those contacts, and (3) the exercise of jurisdiction must be
reasonable.

Millennium Enterprises, Inc. v. Millenium Music, L.P

Brief Fact Summary. Millennium Enterprises, Inc. (Plaintiff), filed suit against Millennium Music, L.P.
(Defendant) seeking damages and injunctive relief for alleged trademark infringement under the Lanham Act. The
Plaintiff is a business incorporated in Oregon with its principal place of business located in Portland, Oregon.
Defendant is a South Carolina corporation.

Synopsis of Rule of Law. The fact that an internet web site could possibly lead to transactions of business with
forum state residents is not, by itself, enough to establish jurisdiction. It is the conduct of the defendant, rather than
the medium utilized by them, to which the parameters of specific jurisdiction apply.

Facts. In addition to operating retail establishments, the Defendant operates an internet web site that sells music
products. However, nothing published on the web site indicates that the Defendants intended to target Oregon
consumers. The web site provides a local map of the location of Defendant’s retail stores and proclaims “Come Visit
Us.”

Issue. Does the operation of an internet web site, without any other connection to a forum state, provide enough
minimum contacts to enable the forum to exercise jurisdiction over a non-resident web site operator?

Held. No. Defendant’s web site, interactive though it may be, is not “conduct and connection” with Oregon giving
defendant “fair warning” so that it would reasonably anticipate being “hauled into court” in the state.

Discussion. Defendant has not taken any action creating a substantial connection with Oregon, nor has it
deliberately engaged in significant activities within Oregon, nor has it created ongoing obligations with residents of
Oregon in a manner related to Plaintiff’s claims. The mere fact that the Defendant has published information on an
internet web site does not render its actions purposefully directed at Oregon. Further, the fact that residents of
Oregon could foreseeable purchase a product from Defendant’s website is not enough to confer jurisdiction.

EFFECT TEST

 Defendant conduct in forum state must affect the forum state

 Intention to do something

Case : Calder v. Jones 465 U.S. 783 (1984)

FACTS

The California resident brought a libel action against a national magazine based in Florida and against its reporter
and magazine's editor, individually. Both reporter and magazine’s editor were served by mail in Florida. They both
moved to quash service for lack of personal jurisdiction. The lower court granted the motion. On appeal, the state
appellate court reversed the lower court order and found jurisdiction. The case was elevated to the Supreme Court of
the United States on appeal.

LICRA vs yahoo

The case at hand is a civil suit concerning the responsibility of internet corporations for content posted by users on
their websites. The defendants were Yahoo!, Inc (hereinafter “Yahoo! US”), a US corporation incorporated under
the laws of Delaware and its affiliate, Société Yahoo France (hereinafter “Yahoo! France”), incorporated under the

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laws of France, (hereinafter both referred to as “Yahoo!”) Yahoo US! offers online services accessible by internet
users worldwide. Yahoo! France offers such services in the French language targeting local users. Among the
services provided, Yahoo! runs an auction website where users can post items for sale and other users worldwide
can place bids. Yahoo! warns users that they must abide by its rules and refrain from selling items and entering into
prohibited transactions under the applicable domestic law.
UEJF and LICRA, two French non-profit organizations fighting anti-Semitism (hereinafter the “Plaintiffs”), filed a
civil complaint against Yahoo! US and Yahoo! France before the Tribunal de Grande Instance de Paris. UEJF and
LICRA  alleged that Yahoo! allowed the posting of illegal items, including Nazi paraphernalia and Third Reich
memorabilia, in violation of Article R645-1 of the French Criminal Code. This provision prohibits to “wear or
exhibit” in public uniforms, insignias and emblems which “recall those used” by (i) an organization declared illegal
in application of Art. 9 of the Nuremberg Charter, or (ii) a person found guilty of crimes against humanity.
The High Court of Paris, in its judgment of 22 May 2000, upheld the claim filed by UEJF and LICRA. The Court
ordered Yahoo! US to take all the measures necessary to dissuade and prevent access to auctions for Nazi
memorabilia and content supporting Nazism. The court ordered Yahoo! France to warn users that, should Yahoo!’s
search results include content prohibited under French law, they shall refrain from accessing such content to avoid
incurring legal sanctions.
Yahoo! US and Yahoo! France challenged the competence of the High Court of Paris and, in any case, requested the
court to reconsider its decision since compliance would be technologically impossible. However, on November 20,
2000, the High Court of Paris, after gathering expert opinions, reasserted its competence, confirmed its previous
decision and established a 3-month deadline for compliance. As a result, Yahoo! amended its auction guidelines and
warned its users that the sale of items prohibited under Article R645-1 of the French Criminal Code is not allowed.
Panavision International vs. Toepen 141 F.3d 1316

Panavision International, L.P. (Panavision) (plaintiff) owned the Panavision trademark and attempted to register the
domain name Panavision.com. However, Dennis Toepen (defendant) had already registered Panavision.com.
Panavision’s counsel sent a letter to Toepen informing Toepen that Panavision held a trademark in the name
Panavision. The letter also demanded that Toepen stop using the Panavision.com domain. Toepen offered to sell the
domain name to Panavision. Panavision refused the offer and sued Toepen, claiming that Toepen use of
Panavision.com was an unlawful dilution of Panavision’s trademark. Toepen argued that a domain name is simply
an address used to locate a web page. According to Toepen, a user who visited Panavision.com and saw no reference
to Panavision would not be likely to conclude that the web page was related in any way to Panavision. Thus, Toepen
claimed that his use of Panavision.com could not be considered a dilution of Panavision’s trademark. Panavision
filed a case in California and benefit was given to Panavision.

Anti cyber squatting act: it was held that Dennis Toepen can’t register any other domain name including
Panavision.com . Dennis Toepen is a cyber squatter

INDIAN JURISDICTION

Banyan Tree Holdings Limited vs Mr. M. Murali Krishna Reddy & Anr. CS (OS) 894/2008
The Plaintiff is a company having its registered office at Singapore whereas the Defendants 1 and 2 are at
Hyderabad. Defendant no. 1 is the promoter of the Defendant no. 2 company. The Case of the Plaintiff.The Plaintiff
claims that it is part of a group of companies involved in the hospitality business. Since 1994 it adopted and used the
word mark „Banyan Tree‟ and also the banyan tree device. It is claimed that on the account of the extensive and
continuous use by the Plaintiff of the said mark and device in relation to its business, they have acquired secondary
meaning, have become highly distinctive and have come to be associated with the Plaintiff and its sister concerns.
The Plaintiff maintains the websites www.banyantree.com and www.banayantreespa.com since 1996. The said
websites are accessible in India.  It is not in dispute that the Plaintiff does not hold a registration for the said mark
and device in India. Its application for registration is stated to be pending. Since the year 2002, the Plaintiff has, in
collaboration with the Oberoi Group, been operating 15 spas across India. In October 2007, the Plaintiff learnt that
the Defendants had initiated work on a project under the name „Banyan Tree Retreat‟. The Plaintiff has averred that
the word mark and the device adopted by the Defendants in relation to their retreat is deceptively similar to that of
the Plaintiff. The Plaintiff states that the Defendants have advertised their project on their website
www.makprojects.com/banyantree. The Plaintiff alleges that the use of the said mark and device by the Defendants

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was dishonest and was an attempt to encash on the reputation and goodwill of the Plaintiff and was calculated to
cause confusion and deception among the public by passing off the services of the Defendants as that of the
Plaintiff. Accordingly, the present suit was filed by the Plaintiff for an injunction to restrain the Defendants from the
use of the said mark and device.The learned single Judge has, in the referral order dated 11.8.2008, noticed that the
plaintiff has in para 30 of the plaint claimed that this Court has the territorial jurisdiction under Section 20 of the
Code of Civil Procedure, 1908 (CPC) to entertain the suit. According to the Plaintiff the Defendants solicit business
through use of the impugned mark "BANYAN TREE RETREAT" and the Banyan device in Delhi. It is stated that
"the Defendants have presence in Delhi through their website http://www.makprojects.com/banyantree.html which
is accessible in Delhi." It is further contended that "the said website is not a passive website. It not only provides
contact information but also seeks feedback and inputs from its customers through an interactive web-page."
Further, the Plaintiff submits that the services of the Defendants are being offered to the customers in Delhi "also
because of the ubiquity, universality and utility of the features of the Internet and the World Wide Web and hence
the cause of action has arisen within the jurisdiction of this Court." The referral order

Module 2
2.1 Introduction to Cyber Crimes
2.2 Cyber Crimes vs. Conventional Crime
2.3 Classification of Cyber Crimes
 Crime against Organization (Govt., Firms, Companies and Society at large)
 Crime against Property
 Crime against Persons

2.4 Cyber Crimes under IT Act

2.5 Cyber Crimes not listed under IT Act

Cyber crime is not an old sort of crime to the world. It is defined as any criminal activity which takes place on or
over the medium of computers or internet or other technology recognized by the Information Technology Act. Cyber
crime is the most prevalent crime playing a devastating role in Modern India. Not only the criminals are causing
enormous losses to the society and the government but are also able to conceal their identity to a great extent. There
are number of illegal activities which are committed over the internet by technically skilled criminals. Taking a
wider interpretation it can be said that, Cyber crime includes any illegal activity where computer or internet is either
a tool or target or both. The term cyber crime may be judicially interpreted in some judgments passed by courts in
India, however it is not defined in any act or statute passed by the Indian Legislature. Cyber crime is an
uncontrollable evil having its base in the misuse of growing dependence on computers in modern life. Usage of
computer and other allied technology in daily life is growing rapidly and has become an urge which facilitates user
convenience. It is a medium which is infinite and immeasurable. Whatsoever the good internet does to us, it has its
dark sides too. Some of the newly emerged cyber crimes are cyber-stalking, cyber-terrorism, e-mail spoofing, e-mail
bombing, cyber pornography, cyber defamation etc. Some conventional crimes may also come under the category of
cyber crimes if they are committed through the medium of computer or Internet.

Definition of Cyber Crime

The Indian Legislature doesn’t provide the exact definition of Cyber crime in any statute, even the Information
Technology Act, 2000; which deals with cyber crime doesn’t defined the term of cyber crime. However in general
the term cybercrime means any illegal activity which is carried over or with the help of internet or computers.

Professor S.T. Viswanathan has given three definitions in his book The Indian Cyber Laws with Cyber Glossary is
as follows - 1 Any illegal action in which a computer is the tool or object of the crime i.e. any crime, the means or
purpose of which is to influence the function of a computer,

2 Any incident associated with computer technology in which a victim suffered or could have suffered loss and a
perpetrator, by intention, made or could have made a gain,

3 Computer abuse is considered as any illegal, unethical or unauthorized behavior relating to the automatic
processing and transmission of data.

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Cyber crime is unlawful act wherein the computer is either a tool or a target or both Cyber crimes can involve
criminal activities that are traditional in nature, such as theft, fraud, forgery, defamation and mischief, all of which
are subjects to the Indian Penal Code. The abuse of computers has also given birth to a range of modern crimes that
are addressed by the Information Technology Act, 2000.

Type of Cyber crimes i) The Computer as a Target:-using a computer to attack other computers. e.g. Hacking,
Virus/Worm attacks, DOS attack etc.

ii) The computer as a weapon: - using a computer to commit real world crimes. e.g. Cyber Terrorism, IPR
violations, Credit card frauds, EFT frauds, Pornography etc. Cyber crimes are regulated by Cyber Laws or Internet
Laws. Technical Aspects Technological advancements have created new possibilities for criminal activity, in
particular the criminal misuse of information technologies such as

Three Major Categories of Cyber crimes

 CYBER CRIMES AGAINST PERSONS

 Crimes that happen in the Cyber space against persons include various crimes such as transmission of child-
pornography, cyber harassment, cyber stalking, cyber bullying, cyber defamation, revenge porn, email
spoofing, cracking, carding, SMS spoofing, pornography, credit card frauds, online libel / slander, cyber
smearing, trafficking, financial frauds, identity theft, etc.

 CYBER CRIMES AGAINST PROPERTY

 Cyber crimes against property includes computer vandalism, IPR violations, cyber squatting, typo squatting,
cyber trespass, DDOS attacks, worm attacks, hacking, transmitting viruses, intellectual property theft,
infringement, etc.

 CYBER CRIMES AGAINST GOVERNMENT

 Cyber crimes against government are serious in nature as it is considered as an act of war against the
Sovereignty. Cyber crimes such as cyber terrorism, cyber warfare, pirated software, possessing of unauthorized
information, hacking into confidential military data are some of the real dangers that Governments face these
days.

Characteristics of Cyber Crime

The Concept of cyber crime is very different from the traditional crime. Also due to the growth of Internet
Technology, this crime has gained serious and unfettered attention as compared to the traditional crime. So it is
necessary to examine the peculiar characteristics of cyber crime.

1. People with specialized knowledge – Cyber crimes can only be committed through the technology, thus to
commit this kind of crime one has to be very skilled in internet and computers and internet to commit such a crime.
The people who have committed cyber crime are well educated and have deep understanding of the usability of
internet, and that’s made work of police machinery very difficult to tackle the perpetrators of cyber crime.

2. Geographical challenges – In cyberspace the geographical boundaries reduced to zero. A cyber criminal in no
time sitting in any part of the world commit crime in other corner of world. For example a hacker sitting in India
hack in the system placed in United States.

3. Virtual World –The act of cyber crime takes place in the cyber space and the criminal who is committing this act
is physically outside the cyber space. Every activity of the criminal while committing that crime is done over the
virtual world.

4. Collection of Evidence - It is very difficult to collect evidence of cyber crime and prove them in court of law due
to the nature of cyber crime. The criminal in cyber crime invoke jurisdiction of several countries while committing

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the cyber crime and at the same time he is sitting some place safe where he is not traceable.

5. Magnitude of crime unimaginable- The cyber crime has the potential of causing injury and loss of life to an
extent which cannot be imagined. The offences like cyber terrorism, cyber pornography etc has wide reach and it
can destroy the websites, steal data of the companies in no time.

Cyber crime Conventional crime

Jurisdiction comes into play Jurisdiction has no role to play

Mens rea is an important concern Mens rea is not important

Evidence is difficult to find Not difficult to find evidence

Physical presence not necessary Physical presence necessary

Case Law- Syed Asifuddin and Ors. V. The State of AP. & Anr., 2005CriLJ4314

FACTS OF CASE:|
Tata Indicom employees were arrested for manipulation of the electronic 32-bit number (ESN) programmed into cell
phones that were exclusively franchised to Reliance Infocomm.

The court held that such manipulation amounted to tampering with computer source code as envisaged by
section 65 of the Information Technology Act, 2000.

Case Details:

Reliance Infocomm launched a scheme under which a cell phone subscriber was given a digital handset worth Rs.
10,500/- as well as service bundle for 3 years with an initial payment of Rs. 3350/- and monthly outflow of Rs.
600/-. The subscriber was also provided a 1 year warranty and 3 year insurance on the handset.

The condition was that the handset was technologically locked so that it would only work with the Reliance
Infocomm services. If the customer wanted to leave Reliance services, he would have to pay some charges including
the true price of the handset. Since the handset was of a high quality, the market response to the scheme was
phenomenal.

Unidentified persons contacted Reliance customers with an offer to change to a lower priced Tata Indicom scheme.
As part of the deal, their phone would be technologically "unlocked" so that the exclusive Reliance handsets could
be used for the Tata Indicom service.

Reliance officials came to know about this "unlocking" by Tata employees and lodged a First Information Report
(FIR) under various provisions of the Indian Penal Code, Information Technology Act and the Copyright Act.

The police then raided some offices of Tata Indicom in Andhra Pradesh and arrested a few Tata Tele Services
Limited officials for reprogramming the Reliance handsets.

These arrested persons approached the High Court requesting the court to quash the FIR on the grounds that their
acts did not violate the said legal provisions. like TATA Indicom.

Issues rose by the Defense in the case:.

1.It is always open for the subscriber to change from one service provider to the other service provider.

2.The subscriber who wants to change from Tata Indicom always takes his handset, to other service providers to get
service connected and to give up Tata services.

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3.The handsets brought to Tata by Reliance subscribers are capable of accommodating two separate lines and can be
activated on principal assignment mobile ( NAM 1 or NAM 2). The mere activation of NAM 1 or NAM 2 by Tata in
relation to a handset brought to it by a Reliance subscriber does not amount to any crime.

4.A telephone handset is neither a computer nor a computer system containing a computer programmed.

5.There is no law in force which requires the maintenance of "computer source code". Hence section 65 of the
Information Technology Act does not apply.

Courts Observation:

1.As per section 2 of the Information Technology Act, any electronic, magnetic or optical device used for storage of
information received through satellite, microwave or other communication media and the devices which are
programmable and capable of retrieving any information by manipulations of electronic, magnetic or optical
impulses is a computer which can be used as computer system in a computer network.

2.The instructions or programmed given to computer in a language known to the computer are not seen by the users
of the computer/consumers of computer functions. This is known as source code in computer parlance.

3.A city can be divided into several cells. A person using a phone in one cell will be plugged to the central
transmitter of the telecom provider. This central transmitter will receive the signals and then divert them to the
relevant phones.

4.When the person moves from one cell to another cell in the same city, the system i.e., Mobile Telephone
Switching Office (MTSO) automatically transfers signals from tower to tower.

5.All cell phone service providers have special codes dedicated to them and these are intended to identify the phone,
the phone's owner and the service provider.

6.System Identification Code (SID) is a unique 5-digit number that is assigned to each carrier by the licensor. Every
cell phone operator is required to obtain SID from the Government of India. SID is programmed into a phone when
one purchases a service plan and has the phone activated.

7.Electronic Serial Number (ESN) is a unique 32-bit number programmed into the phone when it is manufactured by
the instrument manufacturer. ESN is a permanent part of the phone.

8.Mobile Identification Number (MIN) is a 10-digit number derived from cell phone number given to a subscriber.
MIN is programmed into a phone when one purchases a service plan.

9.When the cell phone is switched on, it listens for a SID on the control channel, which is a special frequency used
by the phone and base station to talk to one another about things like call set-up and channel changing.

10. If the phone cannot find any control channels to listen to, the cell phone displays "no service" message as it is
out of range.

11. When cell phone receives SID, it compares it to the SID programmed into the phone and if these code numbers
match, cell knows that it is communicating with its home system. Along with the SID, the phone also transmits
registration request and MTSO which keeps track of the phone's location in a database, knows which cell phone you
are using and gives a ring.

12. So as to match with the system of the cell phone provider, every cell phone contains a circuit board, which is the
brain of the phone. It is a combination of several computer chips programmed to convert analog to digital and digital
to analog conversion and translation of the outgoing audio signals and incoming signals.

13. This is a micro processor similar to the one generally used in the compact disk of a desktop computer. Without
the circuit board, cell phone instrument cannot function.

14. When a Reliance customer opts for its services, the MIN and SID are programmed into the handset. If some one

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manipulates and alters ESN, handsets which are exclusively used by them become usable by other service providers

Ranjit D Udeshi V State of Maharastra

One of the four partner of the book stall is a case in which a Constitution Bench of the Indian Supreme Court
engaged with precisely these issues.D.H. Lawrence’s Lady Chatterley’s Lover was banned. Certain booksellers
were found with copies of the book, and prosecuted under S. 292, IPC that, inter alia, criminalizes the sale and
possession of obscene books. The petitioners made two arguments in court: first, that S. 292 was unconstitutional
since it violated Article 19(1)(a); and secondly, in any event, Lady Chatterley’s Lover was not an obscene book
within the meaning of the provision. While reading the judgment, it is important to keep apart Article 19(1)(a) [the
scope of the right to freedom of speech and expression] and Article 19(2) [reasonable restrictions upon that right],
especially since it appears that the Hon’ble Court did not do so. 

FIROS VS STATE OF KERALA

In the year 1999, the government of Kerala along with Centre for Development of Imaging Technology (C-DIT),
Thiruvananthapuram came up with an idea to provide a single window for bill collection. The project was
conceptualized as a pilot project and if the software was successful in some districts then there was a plan to roll it out
throughout the state. Microsoft Corporation, the world-renowned technology company, offered to develop the
software for the Kerala government without any consideration.The appellant was part of the ‘Microsoft Developer
Forum’ and was given the task of developing the software. The appellant stated that after initial work was completed,
the software was tested at one of the centers and was a success.The government informed the plaintiff of its plan to
implement the software throughout the system and requested them to undertake the maintenance and customization of
the software.The controversy, in this case, arose when the appellant found out that the respondents were transferring
essential rights to a third party which was a breach of contract as per the appellants. Sensing a threat to his literary
work, the appellant filed an application to register his copyright.Meanwhile, one of the respondents, Microsoft
Corporation, filed criminal as well as civil suits against the appellants and prevented him from registering his
copyright in respect to the ‘disputed computer system’.

The battle before the Courts The respondents filed various cases against the defendants. In one of the suits, the
Centre for Development of Imaging Technology prayed that the ‘disputed computer software’ be declared their
exclusive property. The reason provided by the respondents was that the Microsoft Corporation offered to build the
software free of cost and the appellant who was working with Microsoft cannot claim any rights as they were
governed by a service agreement entered between the respondents and the appellants.

The High Court of Kerala, where the case was filed heard the contentions of all the parties and opined that
notification issued by the state government was not bad in law and refused to quash it. The Learned Judge also
directed the authorities to stop the copyrighting process that was initiated by the respondents. As per the order of the
court, the respondents were directed to withdraw all the cases that were filed by them against the appellant. However,
a condition was set by the court according to which the appellant should accept the decision of the Court and convey
the same to respondents in 1 year.Aggrieved by the order of the Single Bench, the appellant approached a Division
Bench of the same court and appealed the decision. The main argument advanced by the appellants before the
Division Bench was that the learned Judge failed to interpret Section 70 of the Information Technology Act correctly.
The operating part of Section 70 is reproduced below:-

70. Protected System. -

(1) The appropriate Government may, by notification in the Official Gazette, declare any computer resource which
directly or indirectly affects the facility of Critical Information Infrastructure, to be a protected system. The petitioner
claimed that the software built by him was a literary work according to the Copyright Act and is therefore protected.
While challenging the ‘disputed notification’, the petitioner stated that the notification should have been issued only
after all pending suits were settled by the court. The Division Bench disagreed with the contentions that were raised

11
by the petitioners and stated that harmonious interpretation of both the Acts (Copyright and Information Technology)
was necessary. The court was of the opinion that ‘government works’ as defined by Copyright Act was correct to
declare the software as ‘protected system’ because the software was developed for the government. The software was
already implemented throughout the state, and any legal proceeding in relation to the use of it will cause unnecessary
hindrance to the state government and its citizens.

Appellant moves the Supreme Court

When the appellant was not able to get a favorable order from the lower courts, he moved the Supreme Court. While
arguing the matter before Supreme Court, counsel for the appellants advanced the following arguments:-

• Interpretation of Section 70 of the Information Technology Act was challenged again and a special reference was
made to the amendments that were made to the Act in 2009.The counsel stated that the power vested in the state to
declare any ‘government work’ protected was bad in law and it was unfair to the appellant whose intellectual property
was at stake.

• References were also made to various provisions of the Copyright Act and it was contended that the appellant was
the person who developed the ‘disputed software’ and as its creator, he should be granted a copyright on the
software.The respondents stated that the 4th respondent, Microsoft Corporation, had offered to develop the software
free cost. It was also stated that the appellant was duly reimbursed by the respondents for the work that was done by
him. As per the respondents, Microsoft Corporation was the first owner of the software as it was them who gave the
necessary support and infrastructure for the implementation of the idea. Respondents also stated that as the appellant
was paid for the work that he had undertaken, he was more like an employee/partner but cannot claim to be the first
owner.

The decision of the Court

While deciding the case, the Supreme Court considered the validity of section 70(1) of I.T Act and observed that the
government can only declare only those systems ‘protected’ which are very important for the functioning of the state
and as per the Learned Judge the software in question fits the bill.While deciding whether the notification issued by
the government of Kerala declared the ‘disputed software’ protected was bad in law, the court observed that as the
parties were bound by the Memorandum of Understanding, the appellants cannot claim to be the first owner. As per
the Judges, the appellants cannot be considered the first owner as the software was developed for/with Microsoft
Corporation as partners and from the onset the respondents were bound by the terms of the agreement entered
between by the parties.The Supreme Court agreed with the decision of the High Court and dismissed the matter.

Different types of crime which isn’t listed in IT ACT but treated as offence

1) Trojan horse method: A Trojan horse or Trojan is a type of malware that is often disguised as legitimate software.
Trojans can be employed by cyber-thieves and hackers trying to gain access to users' systems. Users are typically
tricked by some form of social engineering into loading and executing Trojans on their systems.

2) Logic bombs : it simply means a code which is inserted on the software system intentionally that will set off a
malicious functions when a specified condition i.e. specific time are met.

3) Computer viruses : stands for segments of codes that are able to perform malicious act and insert copies of
themselves into other programs in the system and into the disk planes in the computer

4) Worms : independent programmes that may can transmit copies through telecommunication network

Techniques

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1) Data diddling : changing data before/after or during input changing contents of databases

2) Salami Technique : diverting small amount of money from a large amount of accounts nominated by the system.
Small amounts can;t be located

3) Spoofing : unauthorized access to the computer resource over the network in order to gain communication from
unknown source. Spoofing can apply to emails, websites, phone calls

4) Super zapping : using a system programme that can bypass regulate system control to perform unauthorized act

5) Scavenging : unauthorized access to the website by searching through the residue after a job has been done on
computer

6) Phising : To trick for giving away the confidential personal information such as credit card number, bank
account details by using fake websites.

Module 4 Digital Signature

What is a Digital Signature and why do I need it?

Simplistically put, a digital signature is an electronic form of a physical world hand-written signature. Instead of
applying to paper documents, digital signatures are applied to electronic documents. A digital signature, like
physical signature, has a dual function, being that of integrity and non-repudiation. Since the digital signature is
unique and is only in the possession of its holder, the person cannot repudiate his digital signature on the electronic
document. Since encryption technology is used in digital signatures, any tampering with the document immediately
invalidates the digital signature, thus preserving integrity of the document.

What are Symmetric and Asymmetric encryption?

Encryption algorithms can be broadly classified into two categories: symmetric and asymmetric. Symmetric
algorithms use the same key to lock and unlock a document whereas,Asymmetric algorithms use two different keys:
when one is used to lock a document only the other can be used to unlock it.

Symmetric keys are usually large random numbers. Asymmetric keys are usually generated in a set of pairs called
key pairs. The best-known asymmetric encryption algorithm is the RSA algorithm.

What is a key pair and how is it used?

A key pair comprises of two keys.. Each key comprising of very large numbers, say 200 to 300 digits in length that
are mathematically linked. The keys are named as “Private key” and “Public key”. However, the same key cannot be

used to lock as well as unlock. Rather than using the same key to both encrypt and decrypt the data, public key
encryption uses a matched pair of encryption and decryption keys. Each key performs a one-way transformation on
the data. Each key is the inverse function of the other; what one does, only the other can undo.

A Public Key is made publicly available by its owner, while the Private Key is kept secret. The key pair can also be
used to send private/secret messages. To send a private message, an author scrambles the message (encrypts) with
the intended recipient's Public Key. Once so encrypted, the message can only be decoded with the recipient's Private
Key

Hash function : it is used for creating digital signature along with asymmetric key algorithm. It is an algorithm
which is used for calculating hash value. It can be calculated for any size of data

Module.6: IPR issues in Cyber Space

6.1 Internet specific challenges to IPR

6.2 Copyright Issues in cyberspace
6.3 Trademark Issues in cyberspace

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6.4 Dispute resolution system of Domain Names Disputes (Internationally and Nationally)
6.5 Liabilities of Intermediaries
TRADE MARK ISSUES ON THE INTERNET: DOMAIN NAME DISPUTE & RESPONSE OF LEGAL
SYSTEM

Trade Marks have their roots in the common law „passing off‟ a claim in tort which first appeared in the early
nineteenth century. It allowed business enterprise to protect the goodwill it has established in its trading name or
brand identity to raise an action in tort against anyone who damages that goodwill by causing the public to confuse
their brand, product, or service with that of the claimant.

3 essential elements for passing off:-

1. Establishment that the claimant has goodwill in: the name, brand, or identity in question;

2. That there has been a misrepresentation (by the defendant) and

3. That misrepresentation has caused damage to the claimant‟s goodwill.

Domain name system (DNS)

1. Domain name is the unique address to one website In the absence of such system- to name websites, there
would have been total chaos inside the huge & complex world of internet, leave alone trying to locate your
website. With the Domain Name System (DNS) one can create your desired name for your website which
when entered into a web browser leads to your website.
2. Domain Registration has become an industry and there are number of domain registrars who running it as a
business
3. DNS is the system of global navigation used on the internet. DNS is a kind of address where the web portal
of a particular organization or individual is located.

4. DNS request will be entertained only if there is a valid IP address.

5. Each Computer and each Website has been given a number14 and name15, respectively.

6. Domain Name consists of:

 Top Level Domain
 Second Level Domain
 Third level domain
7. The crucial aspect of a domain name is the second level domain, since they are available on a first-come
first serve basis, and may be obtained by any one of a number of domain name registries.
8. There is a private corporation responsible for the registration and assignment of the (secondary) domain
names. ( In India, ICANN- Internet Corporation for Assigned names and numbers) and .INRegistry, is the
official Registrar of Domain Name in India for “.in” extensions, working under National Internet exchange
of India (NIEI)
9. TLD is divided into two: gTLD (.org) & ccTLD (.in)
Examples of Top Level Domain (TLD) name /(Primary Domain Name)

 .com
 .org
 .ac
 .net
Examples of Secondary Domain Name (SDN)
 kiit.
 tata.
 myntra.
 aiims.

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Examples of Tertiary Domain Name (Sub-Domain Name)
 .firm
 .res.
 .gov
 .law.
Examples of ccTLD23 (Country Code Top Level Domain Name):
 .in
 .uk
 .au
 .uae

Trade Mark and Domain Name: similarities and difference

 Domain Name represents Trade Mark of a company in case there is. In case of an individual or any entity
without any Trade Mark, Domain Name can still be given and be protected as an address of the
Organization/website.

 From the perspective of a company, as to how DN is important facet of part of business of a company, in
MTV Networks Inc. v. Curry(867 F Supp 737, 741 (E.D. Va. 1997) ) it was observed that “a DN
mirroring a corporate name may be a valuable corporate asset, as it-facilitates communication with a
customer.

 Domain Name frequently represents a company’s intellectual property in the form of Trade Mark.

 “Trade Mark” according to Section 2 (zb) of The Trade Marks Act, 1999: “a mark capable of being
represented graphically and which is capable of distinguishing the goods or services of one person from
those of others and may include shape of goods, their packing and combination of colors.”

 In Laxmikant V. Patel v. Chetnabhat Shah ( [2002] AIR SC 275 ) It was held that, a mark includes
amongst others things, name or word also.

 In Tata Sons Ltd. v. Monu Kosuri and others ([2001] PTC 432) the Court affirmed that DNs are not just
internet addresses and must be protected akin to a Trade Mark

 Trade Mark of a Company serves a variety of functions ranging from advertising to guaranteeing quality.

 Important Point: Trade Marks can be registered as Domain Name of a company. Eg.:
www.shriramfinance.com

 So, with inception of internet it was possible that a particular company despite having its own Trade Mark
registered, its domain name could be registered as Trade Mark of someone else, thereby preventing
trademark owners from establishing web sites using their own mark. Those are known as „Cyber squatters‟

 Now, so as to keep the reputation and maintain the brand name in the market, for a company or any
business houses, it has become necessary to firstly register their Trade mark and then the Domain Name of
the company attached with the or representing the virtual address of the company.
Domain name disputes
Cyber squatting : Cyber squatting is an act of a defendant
 to incorporate someone’s registered trade mark in the domain name of the defendant or
 to imitate the similar domain name of plaintiff as that of Defendant or
 to incorporate the deceptively similar domain name of the plaintiff to create likelihood of confusion in the
minds of consumer or user.
In the high-profile case of Yahoo Inc. v Akash Arora & Anr. (1999 IIAD Delhi 229), a lawsuit was filed by the
plaintiff against the defendants seeking a decree of permanent injunction restraining the defendants from operating
any business, selling, advertising and/or dealing in any services or goods on the internet or otherwise under the
trademark and/or domain name ‘yahooindia.com’, or any other trademark and/or domain name that is identical with

15
or deceptively similar to the plaintiff’s well-known trademark “Yahoo!”.It was the defendant’s contention that the
“Yahoo!” trademark/domain name purportedly belonging to the plaintiff was not at the time registered in India and
therefore could not be used as a basis for an action in relation to trademark infringement.The defendant also argued
that the word “Yahoo!” is a general word that is neither unique nor invented and as such, did not possess any
element of distinctiveness.It was further submitted that since the defendants had been using a disclaimer all along,
there was no deception and hence no action of passing off could be taken against the defendants.The Court gave its
decision in favour of the plaintiff and granted the injunction against the defendants. It was held that the service
rendered by the plaintiff on the internet had become recognized and accepted globally. The Court agreed that though
“Yahoo!” was a dictionary word, it had acquired sufficient uniqueness and distinctiveness so as to enable the
plaintiffs to be protected against passing off.

Profit grabbing : try or attempt to take profit from someone else domain name or reputation.
Rediff Communication Limited v Cyber booth : In that case, the defendant had registered the domain name
‘radiff.com’, which was similar to the plaintiff’s domain name ‘rediff.com’. Deciding in favour of the plaintiff, the
Court was of the opinion that the high importance and value attached to a domain name makes it a major corporate
asset of any company. It went on to state that a domain name is much more than an internet address and as such, is
entitled to protection equal to that afforded to a registered trademark.

Tata Sons Ltd v Manu Kosuri & Ors. Another high-profile case involves the Tata Group, a multinational
conglomerate. In Tata Sons Ltd v Manu Kosuri & Ors. [IIIAD Delhi 545, 90 (2001)], the defendant registered a
series of domain names incorporating the well-known trademark “TATA”.The Court, in delivering judgement,
referred to Rediff Communication Limited v Cyberbooth and Yahoo Inc. v Akash Arora & Anr., both mentioned
above, and held that internet domain names are not merely internet addresses but are in fact corporate assets that are
extremely important and valuable and as such, are entitled for protection equivalent to that afforded to registered
trademarks.

Satyam infoway v siffynet solutions: The Respondent (Sifynet Solutions (P) Ltd.) had registered domain
names http://www.siffynet.com and http://www.siffynet.net which were similar to the Plaintiff’s domain
name http://www.sifynet.com. Appellant (Satyam Infoway Ltd.) had considerable reputation in the market and had
registered the name ‘Sifynet’ and various other names with the Internet Corporation for Assigned Names (ICANN)
and WIPO. The word ‘Sify’ was first coined by the plaintiff using elements from its corporate name Satyam
Infoway and had a very wide reputation and goodwill in the market. The Appellant was incorporated in the year
1995 and had registered its various domain names using the prefix ‘Sify’ in the year 1999. The Respondent started
carrying on its business under the above stated domain names since 5th June, 2001.
On coming to know of use of the word ‘Siffy’ by the Respondent, the Appellant filed a suit in the City Civil Court
against the Respondent on the basis that the Respondent was passing off its business and services by using the
appellant’s business name and domain name. An application for temporary injunction was also filed. The City Civil
Court Judge decided in favor of appellants and allowed the application for temporary injunction on the following
grounds:

 The balance of convenience was in favor of the Respondent;

 The business of the Appellant and Respondent was dissimilar;
 The Respondent had invested a large amount in establishing its business and has enrolled 50,000 members,
 The Respondent would be put to greater hardship, inconvenience and irreparable injury.

Hence, the Appellant filed a Special Leave Petition before the Supreme Court.

ISSUES: 
1) Whether a domain name can be said to be a word or name which is capable of distinguishing the subject
of trade or service made available to potential users of the internet.
2) Whether internet domain names are subject to the legal norms applicable to other intellectual properties
such as trademarks.

16
 3) Would the principles of trademark law and in particular those relating to passing off apply?

JUDGEMENTS
Issue no. 1
Issue no. 1 was answered in the affirmative and to come to the conclusion, the Hon’ble supreme court gave the
following reasons:

 With the increase of commercial activity on the internet, a domain name is also used as a business
identifier;
 Domain name identifies the specific internet site;
 As more and more commercial enterprises trade or advertise their presence on the web, domain names have
become more and more valuable and the potential for dispute is high. Whereas a large number of
trademarks containing the same name can comfortably co-exist because they are associated with different
products, belong to business in different jurisdictions etc, the distinctive nature of the domain name
ISSUE NO. 2 & 3
Issue No. 2 & 3 was commonly answered in the affirmative as they were interlinked and to come to the said
conclusion, the Hon’ble Supreme Court gave the following reasons:

 The use of similar domain name may lead to diversion of users as ordinary customers seeking to locate the
functions available less than one domain name may be confused with another domain name which may
offer dissimilar services. Thus, the customers may conclude misrepresentation, which will result in loss of
customers.
 Further, a use of similar domain name has all the ingredients of a passing off action, such as preservation of
reputation and goodwill, safeguarding the public, misrepresentation by the defendant, loss or likelihood of
loss. Thus, the Hon’ble Supreme Court held that that a domain name may have all the characteristics of a
trade mark and one can also file an action for passing for the same.
ICANN came in the year 1998 it stands for internet corporation for assigned names and numbers which authorize or
give you an arbitration panel .indrp .nixi

Indrp - file application today on NIXI any discrepancy send it back to the complainant to make the changes and
submit it within 3 days to make the necessary changes. If there’s no change then it will be send it to the defendant
within 3 days followed by defendant has to reply within 5 days with proper explanations. If he doesn’t reply then it
will be rejected or over called. .in registry- NIXI has 3 members in the arbitration panel if the reply comes then the
arbitration panel will fix the appointment and all the hearing will be done in 60 days. Exceptional case is allowed to
30 days ( extension means within 3 months) if either of the party aggrieves then re apply can be happen after 5 days
formal notice will be served of the hearing.

COPYRIGHT INFRINGEMENT IN CYBERSPACE

Linking

 Linking usually appears as highlighted, underlined text or picture, resulting in immediate delivery and view
of another file.

 It‟s a connection between two different files.

Linking allows quick access to specified information with the help of internet. Links are of two kinds: surface
linking and deep-linking. A link is just a URL, the Internet addresses of a website and is not copyrightable and can
be used only for the purpose of navigation.

B. INLINING

 In-lining is a composite webpage that contains series of links to other websites, on the website of the

17
 defendant.

 While browsing the composite page, „the page‟ directs the browser to the original website/source (which
has been combined in the composite page).

 The viewer cannot distinguish that the work/content belongs to which website (composite page or original
page).
C. FRAMING

 In framing, a website is usually framed in such a manner (into the another website) that the URL, logo and
the Domain Name of the original website is not displayed.

 Framing could be termed as an aggravated form of linking since web pages (of plaintiff) can be couched
and surrounded by the Domain Name, logo and URL of the Defendant, on his own website by creating an
independent window.
Case : Washington Post Co. v. Total News, Inc. (97 Civ. 1190 (SDNY)

In this case it was observed that plaintiff ( Washington Post Co) filed a suit for copyright infringement and
trademark dilution against defendant (Total News) because the defendant has a website named as
www.totalnews.com which was the source for all the news around the world and at the same time Washington post
company has website where the link of the plaintiff’s website get hyper linked and redirected to
www.totalnews.com when someone wants to click Washington posts.

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)

Defendant Napster, Inc. designed and operated a peer-to-peer (P2P) file sharing network allowing users to search,
access, and download audio recordings stored in MP3 digital file format on their own or others’ computers.
Plaintiffs, corporate music producers, complained that Napster users obtained copyrighted works from each others
networked computers without copyright holders’ authorization. Napster asserted that the service had legitimate
purposes: sampling works in deciding whether to make a purchase; accessing works the users already owned (space-
shifting); and receiving authorized distributions of copyrighted works. Plaintiffs alleged Napster was liable for
contributory and vicarious copyright infringement as a result of its operation of the P2P network. The district court
granted plaintiffs a preliminary injunction, finding in part that Napster’s P2P file-sharing service was not a fair use
of copyrighted works.

The Ninth Circuit held that the district court did not err in ruling that transfer of digital files through Napster’s
service was not fair use. The court deemed the purpose of the use non-transformative, noting that courts are reluctant
to find fair use where the original work is merely re transmitted in a new medium. The court also found the purpose
to be commercial, concluding that recurring exploitative copying constitutes commercial use when made to avoid
the expense of buying an authorized copy and that users also received other copyrighted works in exchange for
making their own files available for download. Additionally, the court found that the nature of the works was
creative (as opposed to fact-based) and that the file-sharing process generally involved copying works in their
entirety, both weighing against a finding of fair use. Regarding the market effect, plaintiffs introduced sufficient
evidence to show that Napster caused a reduction in audio CD sales and hindered plaintiffs’ ability to enter the
digital sales market. The court also found that the lower court did not err in determining that downloading for
sampling purposes is a commercial use. It determined that, even if users ultimately buy the recording, free
promotional downloads are highly regulated by the recording industry. Furthermore, the court found that the users
who downloaded for sampling purposes were actually less likely to purchase an authorized copy. Regarding space-
shifting, the court remarked that courts have only permitted space shifting by the original user. Napster
impermissible allowed space shifting between different, subsequent users.

Note : Fair dealing was not there under section 52

 Article 11 of WIPO Copyright Treaties: Obligation of state parties concerning “technological

18
 measures”:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of
effective technological measures that are used by authors in connection with the exercise of their rights under this
Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the
authors concerned or permitted by law.
Section 65A :

(1) Any person who circumvents ane “Effective technological measure‟ applied for the purpose of protecting any of
the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment
which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall prevent any person from,-
(a) doing anything referred to therein for a purpose not expressly prohibited by this Act:
Provided that any person facilitating circumvention by another person of a technological measure for such a purpose
shall maintain a complete record of such other person including his name, address and all relevant particulars
necessary to identify him and the purpose for which he has been facilitated; or
(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or
(c) conducting any lawful investigation; or
(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network
with the authorization of its owner; or
(e) operator; or
(f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a
user; or
(g) taking measures necessary in the interest of national security.
 Management of Copyright in Digital Environment-Rights Management Information (RMI):

Presence of copyrighted work in digital environment has become inevitable keeping in view following bundle of
copyrights (exclusive rights) in a given work:

1. Right of reproduction

2. Right of adaptation

3. Right of distribution

4. Right to communicate

5. Right to use it in any medium

6. Making derivative rights

 It has made the reproduction, distribution and communication of works easier and within the competence of
ordinary individual. New copies can be made with ease, speed and with absolute fidelity to the original and
transmitted over vast distances and dispersed to millions of people in a few minutes or even seconds.

 This has spread widespread unauthorized use and has increased piracy of copyrighted work materially
affecting the economic interest of the owners.

 So as to make USERS aware of whom work belong and under which system it has been protected, attempts
are being made to secure work by displaying “certain information” surrounding the work as a „caution
note‟ for the users or viewers or readers to use, read, view, or deal with it by keeping in view information
surrounding the work. This is in the form of data identifying the information of the work‟. This data is
classified as “Rights Management Information.
This is being considered as suitable in the sense it helps in serving following purposes:

1. Proving ownership/authorship

2. Making a case of infringement

3. Displays information as to License, if any

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 4. Preventing users to deal with the work with restrictions (terms & conditions)

5. Allow consumers to rely on the accuracy of the information by creating a feeling of security in transacting
online.

6. Confidentiality

7. Content integrity

8. Record of transaction

Article 12 (2) of WIPO Copyright Treaty (WCT) defines “Rights Management Information”:
 information which identifies the work, the author of the work, the owner of any right in the work, or
information about the terms and conditions of use of the work, and any numbers or codes that represent
such information, when any of these items of information is attached to a copy of a work or appears in
connection with the communication of a work to the public.
 Obligation State Parties to Provide legal protection to RMI: (Article 12 (1): contracting states are
under obligation to provide legal remedies for: any kind of removal or alteration of any of the above
information as well as distribution of or communication to the public of copies of work with such removals
or alterations.
 India and Copyright Act, 1957: Though India has not adopted WCT yet it has amended the Copyright
Act, 1957 by inserting two parallel provisions to this effect:
Section 2 (xa): Rights Management Information
 the title or other information identifying the work or performance;
 the name of the author or performer;
 the name and address of the owner of rights;
 terms and conditions regarding the use of the rights; and
 any number or code that represents the information referred to in sub-clauses (a) to (d),
 but does not include any device or procedure intended to identify the user
Section 65B: Protection of Rights Management Information:
 Any person, who knowingly,-
 (i) removes or alters any rights management information without authority, or
 (ii) distributes, imports for distribution, broadcasts or communicates to the public, without authority, copies
of any work, or performance knowing that electronic rights management information has been removed or
altered without authority,
 shall be punishable with imprisonment which may extend to two years and shall also be liable to fine:
 Provided that if the rights management information has been tampered with in any work, the owner of
copyright in such work may also avail of civil remedies provided under Chapter XII against the persons
indulging in such acts.
Case : Super Cassette Industries v. MySpace Inc.

The Plaintiff – Super Cassettes Industries, is involved in the business of music distribution and film producing. The
plaintiff claims to be the owner of several sound recordings, cinematography films, songs, etc, they also claim to
possess 20,000 non-film Hindi songs and 50,000 songs in various regional languages. It is largely dependent on the
exploitation of its copyright, as this exploitation benefits the plaintiff monetarily enabling it to carry on its various
business activities. The plaintiff claims that exploitation of its copyright is done by granting public performance
licenses by it, for which they receive a certain amount towards royalty. There are two defendants in this case;
defendant 1 is MySpace Inc which is based in the United States of America and it is stated to be a social networking
and entertainment website. It is also said to offer a variety of applications for activities such as sharing; viewing
music, images, cinematograph works etc. Defendant is the owner of MySpace Inc, defendant 1, which is stated to
be a division of News Corporation, Fox Interactive media which offers border free online network which caters to its
customers by providing various tools. The plaintiff claims that in year 2007 there was a non-disclosure agreement
signed between the plaintiff and the defendants, following which there were discussions with regard to the
defendants procuring a license from the plaintiff to display the plaintiff’s copyrighted material. However the talks
between the two parties fell through and the plaintiff’s copyrighted material was still available on the website of the

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defendants without any license from the plaintiff.  In 2008 the defendants suggested to the plaintiff that it register for
its risk management tool program (one of the three important safeguards provided by the defendants) via email. A
legal notice wherein the plaintiff stated its rights was sent to the defendants on 20.02.2008, and the reply to that
notice was sent by the defendants on 12.03.2008. In the reply notice the defendants had assumed that the
copyrighted material of the plaintiff had been taken down and that the material would not be available online again.
In December 2008, the plaintiff had discovered that the defendants had not removed the plaintiff’s copyrighted
material from its website despite the assurance that the same would not be available on their website. Dissatisfied
with the assurances of the defendants the plaintiff filed the present suit before the Delhi High Court; the plaintiff
also sought interim relief before the same court.

 ISSUES:

1. Whether the act of the defendants of publishing the plaintiff’s copyrighted work on its website without any
license or authority would amount to infringement under Section 51 (a) (i) the Copyright Act, 1957?
2. Whether the act of the defendants of providing a place for its users to communicate work to the public for its
own profit would amount to allowing the place to be used for infringement under Section 51 (a) (ii) of the Act?

RULE OF LAW:
Section 13 of the Copyright Act, 1957 lays down in what work copyright exists and in what work it does not.
Section 14 of the Act, defines the rights of the copyright owner. What would amount to infringement has been given
under section 51 of this Act. Section 51 (a) (i) lays down that a copyright in a work shall be considered to be
infringed, when any person does any act without a license given by the owner of the copyright or Registrar of
Copyrights under this Act, or   if he does any act in contravention of the conditions given in the license which was
so granted to him or contravenes any condition imposed on him by any competent authority, where the exclusive
right to do such an act vests exclusively with the owner of the copyright under this Act. Section 51 (a) (ii) lays down
that when a person provides for profit any place to be used for communicating to the public, such communication
can be regarded as infringement unless that person is not aware and he also has no reasonable grounds for believing
that such communication to the public will amount to infringement.

HELD:
The court found in favor of the plaintiff with regard to infringement under Section 51 (a) (ii), it said that the
defendant’s acts could be considered to be prima facie infringement with regard to this provision of law.  With
respect to the defendant’s role of authorizing infringement under Section 51 (a) (i) the court held that this issue was
not clear from the matter presented before it, however, there was clear knowledge on the part of the defendants of
what they were communicating. The court also stated that when the plaintiff informed the defendants about its
copyrighted material, the defendants became aware not only of the mode of infringement but also the rights of the
plaintiff, and the defendants cannot  after becoming aware continue to  do the same acts in relation to the work for
which no permission has been given to it. If the defendants fail to do what is necessary then they will be placed in
the position of an ordinary infringer under Section 51 (a) (i) and in such a case the question of authorization
becomes irrelevant. The court also passed an interim direction and order, restraining the defendants, agents,
representatives, servants, officers or any other persons on the defendants behalf from modifying the plaintiffs work,
by adding advertisements, logos, sponsorship to the plaintiffs work and making any profits in any manner, by
uploading the same to their webpage without any inquiry into the ownership of such work, the defendants were also
ordered not to make such work available to the public on their webpage. With regard to future work of the plaintiff
being uploaded on the defendants space by those persons other than those mentioned earlier, the court held that, as
and when it comes to the plaintiffs notice that any of its copyrighted material is available on the defendants website,
the plaintiff shall give the defendants a detailed list of the songs and films available on its website and the
defendants shall take action to remove the same within one week from the date of such communication. The court
also ordered the defendants to take action to check the ownership and up dations in the work of the plaintiff through
its own efforts and to remove any infringing material or offending content once it gains knowledge of such work
being available on its website.

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