Copyright V. Privacy – Flash, Airtel, GitHub and Tejesh

Tejesh, based out of Bangalore, had allegedly discovered that browsing  on Airtel’s 3G network was being slowed down by code that helps Airtel generate revenue from data services offered by the telecom service provider. After making the discovery, Tejesh posted the code along with screen shots on Git Hub. In response, Flash Networks, the owner of the code sent a cease and desist notice to Tejesh alleging copyright infringement. It also sent a DMCA take down notice to Git Hub, following which Tejesh’s post was taken down.
One of Tejesh’s main claims seems to be that the code was being inserted without the user’s consent or permission, giving rise to  privacy and confidentiality issues. Though Airtel claims that the tool is being piloted to assess data usage by consumers, the stand may not alienate privacy and confidentiality concerns. Having said that, owing to the non-existence of a strong privacy and confidentiality regime in India, and fine lines in the lengthy contracts used by telecom service providers, Airtel may not find it very difficult to dodge a  privacy/confidentiality claim even if Tejesh’s allegations hold water. So, Airtel has nothing much to worry, and will probably wait for the issue to pass.
Coming to the copyright infringement allegation against Tejesh, who is being represented by Alternative Law Forum, it may not be very easy for him to get away by claiming that publishing third party code with modifications is a common practice or industry protocol. The objective of spreading public awareness as claimed in the notice by Tejesh may not augur well for him. While it is possible for him to claim that he is criticizing or commenting on the code with public interest in mind, and that his use is fair use, it might be a stretch even for the public interest friendly Indian courts.
For all this is worth, the dispute may most probably end in a court. Except for Flash, whose code was exposed, no one has something very serious at stake. Both sides have strengths and weaknesses, and it might suit both parties to  resolve the issue out of court. Let us wait and watch if that is what will eventually happen after the storm is over.