Computers Today, June 1-15, 2000, Networking; Detouring The Access

June 1-15, 2000 NETWORKING

WEB CACHING
Detouring The Access

To offer faster access, most ISPs copy and store popular Web pages on their server. Such 'caching', however, is a criminal activity according to the new Infotech Bill.

By Orijit Das

The rise in Internet usage in India is on the steroid. Currently 225 Internet service providers (ISPs) have been permitted to offer services in the country, of which a large number have already commenced commercial operations. However, the infrastructure in terms of connectivity continues to be a major hindrance to seamless service. Lack of adequate bandwidth and telephone lines makes the surfing slow and frustrating. In order to overcome such bandwidth and connectivity problems, many ISPs in India have resorted to "caching".

What is Caching?

The Internet has become an essential tool of communication amongst even small organisations, businesses and individuals. However, in India the high use of network lines and excessive load on popular servers, along with inadequate bandwidth, generally cause an inordinate delay in downloading information, which frustrates many users. Until the Internet infrastructure is upgraded to facilitate faster transmission of information, a technique called "caching" is used to improve response time for end users. Caching means copying of a Web page/site and storing that copy for the purpose of speeding up subsequent accesses.

There are several levels at which caching may take place, that is, at the level of the computer (the hard drive), at the level of the proxy server, or at the level of the ISP server. Almost all ISPs in India, like their counterparts worldwide, duplicate and store frequently visited Web pages on its servers for improving the response time to end users and to relieve the congestion from its network.

But there are difficulties posed by the current and proposed legal regime to the practice of caching. To follow the debate, it is important to understand some of the advantages and disadvantages of this technology.

Caching enables ISPs to deliver the desired Web pages to its clients with higher speed and lower latency (time lag) and thus reduces wide area network (WAN) traffic. It ensures that the load (that is, the volume of requests) on the servers of origin will be reduced as they can be accessed from the cached servers. This logically means that more people can now access these original sites without increasing the bandwidth or the horsepower of these servers. Caching also ensures that the end user will not be affected by network failures. Even though the source server may be unreachable, the pages will be accessible from the cached sources.

The greatest disadvantage of the process, however, is that the Web page providers lose count of "hits" when users access the cached pages instead of the original pages. Web sites measure one hit for each time an Internet user requests a file from their server. Sites that log more hits can sell more advertising space. Many Web sites provide information free of charge and rely on selling advertising space (such as banners) in order to generate revenue. Since advertising generates their revenue, Web sites prize the number of hits registered on their Web site and dislikes the fact that caching deprives them of this information.

This issue is also very critical in India as currently a lot of the valuation of these Web sites is based on the number of "hits" a site generates. This can reflect in the funding by venture capitalists and may ultimately generate a lower market capitalisation of the dotcom corporation.

Some more related issues are that computers need to be manually configured to access and deal with cached sites; currently caching cannot be implemented totally transparently; and the data received could be stale and obsolete (especially true for stock quotations). Also, most Web sites would like to have a certain degree of access control over the people visiting their Web pages. This is not possible as the servers do not get to see the clients' Internet Protocol (IP) address.

In the light of these advantages and disadvantages, let us examine the legal regime governing caching in the country.

Infringing the Copyright

An author's exclusive right to control the making of "copies" of original work is the fundamental basis of the copyright regime. Caching Web pages involves duplicating other peoples literary and artistic work stored in binary files onto the hardware of the PC/server and may constitute copyright infringement. The Indian Copyright Act, 1957, which was amended in 1996 to include computer programs, grants copyright owners the exclusive right to "... reproduce the copyrighted work, including the storing of it in any medium... to circulate the copyrighted works..."

Such position of law is a reflection of the multi-lateral agreement on copyright-related matter, that is, the Berne Convention for the protection of literary and artistic works, wherein the author has the exclusive right of authorising the reproduction of works protected by the convention in any manner or form. Hence, the position of law is similar in most jurisdictions that are signatory to this Berne Convention and would face the same problems regarding caching.

In light of the above mentioned legal regime, it is apparent that caching can encroach on the rights of most of Web site owners as in most cases they are the copyright holder. Firstly, caching implicates the copyright holder's reproduction rights because it reproduces a copy into another server. Secondly, caching implicates the public display, public performance and circulation rights of the copyright holder. Hence, the site owner can sue on the grounds that he is the owner of the copyright.

Caching and the IT Bill

The Information Technology Bill, 1999, which has just been passed by Parliament, seeks to establish a set of comprehensive rules to govern electronic business. As far as the liability of the ISPs is concerned, the Bill clearly states that an ISP shall not be liable "for any third party information and data made available by him", if he proves that the offence was committed without his knowledge or that he had exercised due diligence to prevent the commission of the offence. Although the Bill does not specifically deal with the concept of "caching" per se, the same can be read into the Bill, which provides stringent punishments for committing cyber crimes.

Under the new legal framework, any person who without the permission of the owner or any other person in charge accesses, downloads, copies or extracts any data from a computer system or network, including information or data held or stored in any removable storage medium, shall be liable to pay damages of Rs 10 lakh. Since ISPs cache the data without express permission of the owner of the Web page, under the provisions of the Bill it would be possible to punish the person who indulges in caching.

Caching and Privacy Rights

Most caching systems log each and every request they receive from their subscribers and have the ability to log the sites visited by the subscribers and the pages downloaded by them. This provides the ISP the opportunity to analyse and monitor browsing activity of the subscribers. In other words, this may be used to "spy" on the subscribers and monitor their browsing activity.

In India, in the absence of any specific legislation providing for the protection of privacy like the Interception of Communications Act, 1985, Data Protection Act, 1998 in the UK or the EU Data Privacy Directive, the rights of privacy of the subscribers come under the fear of violation. In the absence of any legislative provision, the only safeguard for the subscribers is the ISP licence that the Department of Telecommunications (DOT) issues to the Net service provider. Under this licence, the ISPs are barred from violating the privacy rights of the subscribers.

However, to provide adequate safeguards, it is essential that the law should specifically provide for data protection and prevention of interception and monitoring of communication.

It is also possible that the information cached by the ISP is stale or that there are bugs in the caching product, which causes the data to be cached improperly. This may prompt the subscribers to sue the ISP for "deficient service" within the meaning and purview of the Consumer Protection Act, 1986 and subscribers will have the right to approach the consumer courts.

Removing the Catch

ISPs are, by their very nature, passive organisations. They provide the means and method by which the subscribers operate. In the near future the number of Web sites on the Net is likely to register a sharp increase, this will make caching and its awareness more heightened. Liability regarding caching is all the more impeding since millions of bits of data traverse the Internet everyday.

The benefits of providing faster access and reducing the burden of providing greater bandwidth in an increasing "bandwidth hungry world" are obvious. On the other hand, the legal regime is clear that such activity is punishable.

The enforcement may not have commenced in the country and other emerging jurisdictions with the same rigour and force as in the United States, but the threat of a copyright infringement or the fear of committing a computer crime looms large over the service providers.

This will eventually prompt the ISPs to cease caching, rather than risk facing criminal action or a lawsuit with pecuniary liability. This could mean that every request for a Web page would have to be procured from the original site. This will result in a manifold increase in data flow, which could clog the limited bandwidth of the Internet. The imperative need of the hour is to have clear legislative guidelines to the above problem.

In the world of the Web, where connectivity is important, caching is sine qua non to the Internet. Soon, globally, the ISPs are likely to resort to more sophisticated and efficient means of caching of popular Web sites to serve their clients more effectively and have a competitive edge over the other ISPs. Currently, many investors and venture capitalists no more rely on the "hits per page" model for valuation. In such a scenario, an exception should be carved into the legal regime to permit caching and free the ISPs of potential liability.

Such an exception should, however, create an obligation upon the ISPs to refresh the cached pages to ensure that updated information is served to the subscribers. It would be ideal if the government permitted the Internet service providers and the owner of the Web sites to resolve the matter contractually, rather than rely on legislation that brand caching as a criminal activity.

Orijit Das is a Consultant with PricewaterhouseCoopers

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