Why SOPA and PIPA got shelved - and why Megaupload shut down

The Stop Online Piracy Act (SOPA) is a United States bill introduced by U.S. Representative Lamar S. Smith (R-TX) to expand the ability of U.S. law enforcement to fight online trafficking in copyrighted intellectual property and counterfeit goods. The PROTECT IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, or PIPA) is a proposed law with the stated goal of giving the US government and copyright holders additional tools to curb access to "rogue websites dedicated to infringing or counterfeit goods", especially those registered outside the US.

These bills have been criticized on several grounds:

Unconstitutional: Both bills contain provisions for ex parte proceedings—proceedings at which only one side (the prosecutor or even a private plaintiff) need to present evidence and the operator of the allegedly infringing site need not be present nor even made aware that the action was pending against his or her 'property.' The bill, if passed would allow individuals to create a blacklist to censor sites when no court has found that they have infringed copyright or any other law. All that one has to do is send a notice This not only violates basic principles of due process of law by depriving persons of property without a fair hearing and a reasonable opportunity to be heard, it also constitutes an unconstitutional abridgement of the freedom of speech.

Vague drafting: Furthermore, both bills are vague as to what constitutes an infringing site. The bills targeted even domestic websites that merely ‘facilitate’ or ‘enable’ infringement. Thus, the bills would also target considerable protected speech on legitimate sites such as YouTube, Twitter, and Facebook. Due to poor drafting such innocent websites will also fall be victimized.

Technical: All domain name servers world-wide should contain identical lists; with the changes proposed, servers inside the United States would have records different from their global counterparts, making URLs less universal.

On January 19, 2012, Megaupload, a website providing file sharing services, was shut down by the US Department of Justice and the Federal Bureau of Investigation which proves that SOPA and PIPA are unnecessary. Following the shutdown of Megaupload, there was a huge attack on the internet, the Department of Justice website was shut down only 70 minutes after the start of the attack. The attack disabled a number of websites, including those belonging to the Justice Department, the FBI, Universal Music Group, the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and Broadcast Music, Inc. Some commentators argued that the denial of service attack risked damaging the anti-SOPA case. However, the shut down of Megaupload proved that current laws are sufficient and that SOPA and PIPA are unnecessary. Looks like Napster re-visited, doesn't it?.

After several online protests such as the English Wikipedia blackout and after several senators who sponsored PIPA, including Roy Blunt, John Boozman, Chuck Grassley, Orrin Hatch, and Marco Rubio, announced that they would withdraw their support for the bill; on January 20 Senate Majority Leader Reid announced that a vote on PIPA would be postponed.


(Also see the Napster Case on Copyright infringement)

Law of Torts (Nothing to do with food)

Tort is basically a word for “wrong” in French. It is a wrong involving a breach of a civil duty towards the public. The 2 elements of a tort are (i) the act, i.e. the physical element which usually compromises of Defamation, Injury Nuisance, Fraud, Trespassing, Misuse of Personal Information, etc and (ii) The mind, i.e. the mental element which is generally an ill intention or negligence.

Retort: In litigation, it is always necessary to put yourself in the shoes of the defending counsel. In a case of torts the defendant’s pleas usually involve inter alia contributory negligence, consent, plaintiff’s default, necessity & private defense, inevitable accident (Act of God), authorization & limitation. Therefore, one must anticipate all these pleas and be prepared with arguments that eliminate all the above pleas.

Remedies: 

1) Damages: Damages are granted in an attempt to put the aggrieved under the same financial position as he would be if the tort had not taken place. It is hard to compute this amount as one has to take into account not only the aggrieved party’s current status but future rises and falls as well. Damages are a ‘matter of right in tort law’. Unliquidated damages are important in cases of tort law. If there is no action for damages then it is not a tort. Types of approaches which the courts employ while granting damages are:-

(a)Aggravated and exemplary damages: Generally granted when the tort is outrageous in nature. Sometimes the judges sympathize with the defendant but since he is at fault and if the damage done is small only nominal damages need to be given. The reason for this is that the Court does not want to legalize the defendant’s actions by letting him go scot-free. This way, the court has favoured the aggrieved, but has also shown it’s own intentions. This approach has been approved by the Supreme Court of India as well.

(b) Parasitic de-impairment: Here, damages are not granted only for losses occurred directly by the tort. For example, if a woman burns her face while working in a plant, she can along with other damages also claim additional damages claiming that because of her current condition her relation with her husband has been forever effected.

(c) Special damages: These are harder to compute. Here, damages are granted for all other losses that may be suffered in the future e.g. Loss of future earnings

(d) Contemptuous & nominal damages: The court sometimes grants the aggrieved ‘the smallest coin of the realm’ i.e. a purely nominal sum such as Rs. 1.

2) Injunction: Injunction is a court order that requires a party to do or refrain from doing specific acts. Injunctions are ‘a matter of discretion’ in tort law. Provisions for permanent injunction are found in Sections 38-42 of the Specific Relief Act in India. It is granted to prevent a party from following a wrongful course or conduct. Example:

·         Interference with possession and business

·         Enforcement of bank guarantees.

·         Legal recovery of taxes

·         In case of private reputation v./s. freedom of press

_______________________________________________________

Also see the article Tortious Liability in the Case of Misuse of Personal Information Keywords:Aggravated and exemplary damages, basics of tort law, injunction torts, law of torts in India, reputation freedom of press, specific relief act, tort law, torts food, defamation, Misuse of Personal Information in torts, law memes

Geographical Indications-Protection within India & at the international level

Geographical Indications (GI) are those which identify a good as originating in a territory, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin

Although the situation of GI protection at the domestic level is somewhat manageable, the same is not true in regards to protection of GI at the international level. For example, on an average around 4 crore kgs of tea per annum is being sold globally as ‘Darjeeling tea’, whereas the actual production of authentic Darjeeling tea is around 90 lakh kgs only.

In 1997 US Rice breeding firm RiceTec Inc. was given a monopoly over various types of rice including some having characteristics similar to Basmati. In 2000, anxious about the potential effects on future exports, India requested a re-examination of the patent. RiceTec, in reply to the request, withdrew a number of claims including that covering basmati type rice. 

The dispute has however moved on from the patent to the misuse of the name “Basmati.” In 1998 the US Rice Federation stated that the term “Basmati” is generic and refers to a type of aromatic rice. In retaliation, US and Indian civil society organizations filed a petition seeking to stop US-grown rice from being advertised with the word “Basmati”. The US Department of Agriculture and the US Federal Trade Commission rejected it in May 2001,. Neither considered the labeling of rice as “American-grown Basmati” misleading, and deemed “Basmati” a generic term.

Also, master craftsmen from Varanasi are being lured to China to produce these imitations with cheaper Chinese silk due to which imitations of the world renowned ‘Banarasi’ sarees are flooding the Indian market over the past several years, particularly in the Surat region of the Indian state of Gujarat. These imitations cost only one‐tenth of the price of an original ‘Banarasi’ saree, and therefore posing a threat to the competition in India. It is for this reason that large section of weavers in Varanasi are now forced to look for other means of livelihood.

By March the year 2010, over 120 GI were registered of which 80 belong to the handicraft category, 31 to agriculture category, 7 to manufactured category and only 2 in food stuff category.

Punishment for Infringement- If the false geographical indication is established, it carries penalty with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but may extend to two lakh rupees under the 'The Geographical Indications of Goods (Registration and Protection) Act’ of 1999 (GI Act).

It is worth noting that unless a geographical indication is protected in the country of its origin, there is no obligation under the TRIPS agreement for the other countries to extend reciprocal protection.

It is worth noting that unless a geographical indication is protected in the country of its origin, there is no obligation under the TRIPS agreement for the other countries to extend reciprocal protection.

Keywords: Geographical Indications India, GI India, indian laws, intellectual property, IPR, 

Deemed Conveyance

Convey title of ownership of property:
Deemed Conveyance in Co-operative Housing Society

What is Conveyance?

A Deemed Conveyance is a unilateral conveyance, granted under the Maharashtra Ownership Flats Act, 1963 (MOFA), in favour of the legal entity i.e. Co-operative Society, apartment or a company in case the promoter (builder) fails to deliver the title i.e. grant a conveyance to such entity.

Contents

1.Importance of Property Conveyance

A conveyance deed is a document that conveys the title of ownership of a property from the original owner to the ultimate purchaser. All the flat owners must obtain conveyance deed for their structures, to become true owners of the entire structure and land attached to it. 

A conveyance deed transfers the ownership rights from the developer or the landowner to the flat owners. The first and foremost objective is to become the legal owners of the entire property. Obtaining free and marketable title of the property is the most important objective. 

When a particular person or society has paid full consideration and is in possession of the property but the title documents are in the name of the original owner (developer or landowner), the purchaser does not have a free and marketable title of the said property. It is only after obtaining the conveyance that the buyers derive free and marketable title over the property. 

Here are some advantages of obtaining the conveyance deed from the developer:

a)                   Getting the proper title Retaining additional FSI, if any

b)                   Property will be free and marketable

c)                   Loan can be raised by mortgage

d)                   Permission for reconstruction possible

e)                    Construct additional floor/s by TDR Receive compensation on development

2. Reasons for Deemed Conveyance of Property

The Promoter (Builder) is lawfully obliged to convey the land and the building within 4 months of formation to the society or any legal body of the flat purchasers.  However, it has been observed in many cases that such Conveyance has not been executed. Some of the main reasons on the part of the flat purchasers are ignorance regarding the subject matter, lack of knowledge regarding the importance of Conveyance and non-co-operation amongst the members of the society.

In light of the above, the State Government of Maharashtra has amended the Maharashtra Ownership Flats Act, 1963 (MOFA) and provided for the deemed conveyance in favour of the legal bodies.

Conveyance of Housing Society

3.Procedure

The flat purchasers after forming a Co-operative Society shall approach the competent authority for obtaining a unilateral deemed conveyance in favour of the legal entity i.e. Co-operative Society, apartment or a company. The competent authority on receipt of such application shall within reasonable period but in any case, not later than six months subsequent to making such examination as are deemed necessary and after verifying authenticity of the document submitted and after giving the promoter reasonable opportunity of being heard and on being satisfied shall issue a certificate to the sub-registrar or any other appropriate registration authority under the Registration Act 1908 certifying that this is a fit case for enforcing unilateral execution of conveyance deed, conveying the right title and interest of the promoters in the land and building in favour of the applicant as Deemed Conveyance for the Housing Society or Building. When some such submissions are made by the Society or the Company or association or apartment owners to the Sub Registrar or the appropriate registering authority on the basis of the certificate issued by the competent authority along with the unilateral instrument of conveyance, shall notwithstanding anything contained in the Registration Act 1908 issue summons to the promoters as to why unilateral instrument should not be registered as deemed conveyance and after giving the promoter reasonable opportunity of being heard may on being satisfied that it is a fit case for unilateral conveyance register instrument as deemed conveyance. The process of Deemed Conveuyace takes about 6-8 months.
In case of Deemed Conveyance, the earlier the better, because later on it will be difficult to find the original builder/owner. If the builder/owner is deceased then each of her/his legal heirs must be found, which is an insurmountable task if they are not even in the country.

The Laxminarayan Cooperative Housing Society in Ghatkopar was the first society to get deemed conveyance in February 2011. The Society had three storeys and 35 tenants. (Also see the TOI Article) 

In or about Januray 2012, the  City and Industrial Development Corporation of Maharashtra Ltd. (CIDCO) made it compulsory for co-operative societies in Navi Mumbai to have conveyance deed executed in favour of the society for a transfer No Objection Certificate (NOC) from CIDCO.

List of Documents Required for Deemed Conveyance 

The following are the documents  required for Deemed Conveyance, to be submitted with Form VII:

From Society Records

• Copy of Society Registration Certificate
• List of Members & their Share Certificate Details
• Copies of Registered Agreements (Chain of Registered Agreements in case of Re- Sale) for all
• Flats/ Shops with Stamp Duty & Registration Receipts & Index II of all the Registered
• Agreements
• Death Certificate of Land- Owners, wherever necessary
• Title Devolution Statement of all the Flats/ Shops
• Registered Partnership Deed of the Partners of the Developer Firm
• Development Agreement/ Conveyance Agreement between Land- Owners & Developer



Building for Deemed Conveyance, India

• Power of Attorney given by Land- Owners to the Developer

Land Revenue Records

• 7/12 Extract
• Village Form No.6
• Property Card
• City Survey Map
• N. A Order
• U. L. C Order
• Latest Property Tax Paid Receipt
• Latest N. A. Tax Paid Receipt

From BMC Records

• BMC Approved Plan
• BMC (IOD)
• BMC (Commencement Certificate)
• BMC (Building Completion Certificate)
• BMC (Occupation Certificate)
• BMC (Latest Property Tax Paid Receipt)
• Location Map

From Professionals

• Survey Report – From an Architect
• 30 Years Search Report & Title Certificate – From an advocate

Keywords: Deemed Conveyance for Housing Society or Building notification, What is conveyance, conveyance law, property conveyance, deemed conveyance deed, list of documents required for deemed conveyance of housing society or building.


CIDCO, deemed conveyance, List of Documents Required for Deemed Conveyance, mowing the law, procedure for conveyance, vikrant shetty, what is conveyance, co-operative Housing Society, conveyance, indian laws, Land, maharashtra ownership of flats act, mowing the law, property, Real Estate, tax, Transfer of Property Act, 

Jail Visits- How to apply for a bail - Bail Application Format

Many law colleges arrange Jail Visits for students, where students can interact with inmates and prepare various types of bail applications for them.

If a college is arranging for a jail visit in India, the students are allowed to prepare four Types of Bail Applications:

1. Cash bail: When a bail has been set and the inmate is ready to pay the amount
2. Cash reduction: When the bail amount cannot be paid and the inmate wishes that the amount be reduced.
3. Deportation: When the inmate has entered the country illegally and does not possess a passport, the deportation application is made in order for her/his transfer.
4. Personal bond: Also known as "release on recognizance bond," is a promise to appear in court on all future court dates related to an inmate’s case as well as a promise of good behavior if the court allows you to remain free. However, the inmate must deposit a certain amount as surety which will be forfeited in the case of default of the two conditions. In order to apply for a personal bond the inmate must be a resident of the same city as the jail.

Requirements: The most important detail that is required is the U.T. No. (Under trail number) which can be found on the U.T. card carried by any inmate who is still under trial. With that number the inmate’s other details such as name, age, date of arrest, police station in which complaint was made, section under which the inmate is charged, etc. can be found in the records maintained in the jail’s judicial department. However the detailed facts of the case should be taken from the inmate personally. If it is the inmates first offence then mention that in the application for bail, it gives him/her an added advantage.

For students: The first thing you need to ask is whether the inmate already has a lawyer, if yes, then move to the next inmate.

Secondly, you can only apply for petty offences e.g. theft, violation of laws in the R.P. Act.

Third, identify what it is that the inmate wants. Many students do not understand which type of bail application is to be filed among the four.

Secondly, only ask the inmate necessary questions. Don't get personal. Always maintain a certain level of professionalism. And try not to get fascinated by their amazing stories.

Abu Salem meme: Before and After
Arthur Road Jail meme: Building muscles since 1926

How to apply for bail: Most law students do not know how to apply for a bail in India. Some colleges only give out the format of application for bail (which is almost same in all states of India). There are hardly any sites online where you an find the bail application format. Sample formats of a cash bail application and personal bond application can be found below:

Sample Cash Bail Application Format: 

IN THE COURT OF THE ______EXERCISING THE POWERS OF __________ AT __________

Application No.:______ of 20__

Applicant/Suspect 

Versus

Respondents 

Application for _____(Name + Under trial Number)___ on charges ______

MAY IT PLEASE YOUR WORSHIP:-

1. That the applicants/suspects have been kept in police custody since ______ by the SHO of Police Station: ______ on the suspicion of likely to commit a cognizable offence under Sections of IPC. 

2. That the applicants submit that they are innocent and have neither any intention of committing any such offence nor have ever committed any such offence. The applicants have been falsely implicated in the said case by some person with vested interest to harass the applicant.

 
3. That by keeping the applicants/suspects under custody and arrested the applicants have been deprived of their valuable fundamental right of liberty by abuse of legal provisions and process of law by the complainant. 

4. That the applicants are willing to furnish surety and bail bonds to the satisfaction of this Ld. Court in case they are ordered to be released on bail. The applicants are also willing to join the investigations and bind himself by the terms and conditions laid down by the law or by this Ld. court. It is further submitted that the applicant is not at all required for the investigations and the investigations are over. However, if the applicant is required for investigation, the applicant/suspect undertakes to be present as and when required in accordance with the law. 

5. That neither any recovery is to be effected from the applicant nor the applicant is in a position to temper with the prosecution evidence. The applicant will associate with the investigation when ever required to do so.

It is, therefore, most respectfully prayed that:- 

(a) that the I may be ordered to be released on bail and this application for bail may kindly be allowed; 

(b) that till the decision of this application interim bail may be granted to the me; 

(c) Such other orders be also passed in my favour as deemed fit and proper in the facts and circumstances of the case and in the interest of justice. 

(City)

Dated this ___ day of ____20__                                                       

                

                                                                                       

_______________________

  (Applicant)

-----------------------------------

Sample Personal Bond Application Format: 

FORM NO. 13

Bond for Good Behaviour 

 WHERES I, _______ .(name, inhabitant of (place) _______ have been called upon to enter, into a bond to be of good behaviour to Government and all the citizens of India for the term of _______.(state the period) or until the completion of the inquiry in the matter of __ pending in the court of _______ . I hereby bind myself to be of good behaviour to Government and all the citizens of India during the said term or until the completion of' the said inquiry; and, in case of my making default therein, I hereby, myself to forfeit to Government the sum of rupees _____. 

(City)

Dated this ___ day of ____20__ 

_______________________

(Applicant)

[Now you know how to apply for a bail in India. Go bail your friends out now!]

-Vikrant Shetty


Keywords: Jail visits in  India, Bail application India, How to apply for bail in India, Bail application format india, Types of Bail Applications in India,, how to apply for bail in india,  personal bond india, types of bail applications, sample bail format, application for bail, law students, memes

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Labels:
bail application format india, how to apply for bail in india, jail visits, jail visits india, mowing the law, personal bond india, sample bail format, types of bail applications, 

Introductions-

Hello everyone,

Mowing the Law

I'm a student of Government Law College.

Before you slap your heads and say 'Not another Indian legal blogger!',  I feel its important that you understand 3 points:

1. Nothing in this blog amounts to legal advice
2. I do not consider myself smarter or better anyway then my other colleagues. I make this blog as one place where all may share their respective views. I welcome contribution of legal/law-related posts from any of my readers.
3. When in doubt, refer to the first two points.

Submission Guidelines: Font type- Times new Roman. Font size 12, Double-spacing, One inch margin on each side.  Word limit: 500-1500. 

To be attached to an e-mail addressed to mowingthelaw@gmail.com along with a cover  sheet containing your personal details and an authorization letter allowing me to publish your contribution on my blog and a statement that you will not have it published anywhere else ONLINE. However, publishing in a journal, magazine, etc. or submitting for any competition is permitted. Subject of the e-mail should be 'Submission-Mowing the Law'.

If you wish to remain anonymous kindly mention it in the body of your e-mail. Rest assured your details will be safe with me.

Contributions can range from essays, book reviews, case notes to even legal satire. Footnotes are usually discouraged in blogs. But I for one encourage it.

Thank you for your time! Hope you make the most of my legal blog. If you have an Indian legal blog of your own then do let me know. I am an avid reader of Legal Blogs written by Indian Law students. And those are some of the best legal blogs, even better than those written by professional lawyers!

-Vikrant Shetty


Keywords: Best Law blogs in India, Indian law bloggers, best Legal blogs India, 

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