Saturday, December 18, 2004

The Bazee.com Scandal

Earlier this week Avnish Bajaj, CEO of Bazee.com -- India's ebay-owned leading online marketplace -- was arrested and yesterday denied bail . His offence: his website was allegedly used by an IIT Khargapur student (now suspended and in custody) to peddle pornographic material involving minors. Police are now investigating whether Bazee.com is directly culpable -- therefore have argued for continued detention of Mr. Bajaj.

Mr. Bajaj is an Indian-born American with links to ebay -- needless to say, his arrest has provoked even Ms. Condoleezza Rice to intervene, seeking his safety while in judicial custody.

Many are outraged by this arrest, calling it a witchhunt. They argue that Bazee.com was not party to these illegal transactions, and that it removed the offending content from its site as soon as it was made aware of it. While the latter may be true, we beg to strongly disagree that this is a witchhunt.

First, this is about child pornography -- not about offensive, if otherwise legal,.content. The State has a compelling interest is ensuring that such grievous offences against its citizens are not allowed to go on. All investigation pursuant to this interest are entirely legitimate.

Second, Bazee.com argues that it is merely a communication channel -- much like the telephone -- where third parties conduct business. These third parties are made aware of a code of conduct which specifically bars trade of illegal content. Any legal culpability, therefore, falls on these third parties -- not on Bazee.com.

In light of the compelling Napster rulings in the US, this argument is prima facie absurd. In Napster, it was ruled that the service, which enabled illegal copying of intellectual property on its servers, was itself liable -- even though it wasn't itself copying such material. Napster was subsequently shut down.

The Bazee.com case is much like Napster -- and not like, say, when China or France tries to blame Yahoo! for "objectionable" expression. Free speech is legal, at least, in India and the US, and one could make a political defense of it even in China and France. What possible defense can be made for child pornography?

Because this case appears to us more like Napster than Yahoo, we strongly feel Bazee.com is, at least, party to the case -- and cannot claim immunity merely because it was neither the buyer nor seller of the pornography.

We are also amused by the parallel's made by Bazee.com to the telephone or the mail system. We personally know something about internet businesses and marketplaces -- the central value proposition there has always been that these "new new things" are "game changing" in nature. Sceptics have been told that they don't "get it". Well, if so, and we agree this is so, then to fall back on lame comparison to telephone and mail does not befit the "new new crowd".

Finally, Avnish Bajaj is in judicial custody. Whether or not he would have sought "buzz" this way (likely not, but who knows -- this is what's being investigated), his portal has nevetheless derived enormous publicity from this kerfuffle -- and likely spikes in website traffic. All this "gain" would have come, even if inadvertently, on the back of an exploitative video clip of children -- of which Bazee.com has become an unlikely beneficiary. If Mr. Bajaj is to be detained for a few days so that India can do its job of ferreting out the truth, is it really so damaging? If we were him, we would be more concerned about devising ways to prevent future similar episodes through better monitoring of what transpires on his website, than trying to bring pressure from the US Government to safeguard his well-being. Let law take its own course -- we have argued this for Shankaracharya and we do again for Mr. Bajaj.

And while we are at it, we suggest that the US Government tread very carefully -- this is not a routine issue, afterall US has long shown profound concern about the global menace of child pornograhy, and here too that is the more central issue, not the few days of inconvenience for Mr. Bajaj. If US were to prefer Mr. Bajaj's well-being over the children damaged by this episode, its credibility on the issue will stand badly damaged.

Note: We don't know Mr. Bajaj, but read that he is a fellow IITan. At a personal level, we hope the investigation will reveal that he has done everything above board, that he is an honorable man horrified by how his website has been misused, and that he is committed to preventing similar horrors from ever being transacted on his website.

17 comments:

Bombay said...

Finally I see a sane voice. Well done, for expressing the opinion of the common man on the streets of India.

Icarus said...

In light of the compelling Napster rulings in the US, this argument is prima facie absurd. In Napster, it was ruled that the service, which enabled illegal copying of intellectual property on its servers, was itself liable -- even though it wasn't itself copying such material. Napster was subsequently shut down.It's your argument that's absurd here. Napster allowed millions of pirated songs to be downloaded over its network without ever lifting a finger to stop any of it. Bazee allowed one illicit item to be posted without its knowledge, and took it down soon after the company became aware of it.

If the Indian government's idiotic standards were applied to online auction sites elsewhere, the CEO of just about every online auction site on the planet would be in a jail cell right now. India only embarrasses itself and turns away needed foreign investors when it plays witness to a charade like this.

Richard Moriarty said...

Your "no-harm-done" attitude concerning the arrest of this man is insane. If every person who owned a tool or business that was used for evil by a third party were arrested, people would be afraid to start online business, and that's just bad news. This man was allegedly unaware of the going-ons of his webspace. To even make him a suspect is unfounded.

Jim Satterfield said...

Icarus has it right about the absurdity of your comparison of Napster to bazee.com. For all practical purposes the entire purpose of Napster was to enable the violation of copyright. Napster was never able to prove any overriding non-infringing use of their service. In addition the files being sold by the individual who abused bazee's service never resided on the bazee servers. There was only an offer to send them to the winning bidder. There is no valid comparison between the services offered by Napster and those offered by bazee or eBay and abused by the real criminal in this case.

PureData said...

Was money used in the transaction? Did the issuer of the currency provide the means to commit the transaction? Who issued the money? Was it not the government of India? Who runs the Treasury? Why is this person not in Jail??

I find it Ironic to note that Napster is now used to "legitimately" sell songs.

Does this mean that Bazee.com will be allowed to legally sell this filth in the future?

ed said...

Hmmm.

Interesting. This could potentially kill the e-commerce business in India. What's even more curious is the level of liability that might extend outwards to supporting vendors. If this company didn't host it's own servers, and used (as an example only) IBM as it's commercial host, then does IBM have some residual liability and culpability both civil and criminal? If the software was written by an outside consulting firm is that company also held liable?

And how far does this potential liability extend outside India's borders? If EBay hires an Indian consulting firm, for a project in another country, that damages an Indian citizen, can that citizen then apply this scenario to EBay's CEO?

R. said...

I must also throw my hat in with those that disagree. While Indian law is obviously different from that of U.S. law it can be argued that arrest should not be the primary form of investigation. Bail should theoretically only be denied those deemed dangerous to the public or flight risks. As for the dangerous part, Bajaj obviously did not create the pornographic material or offer to sell it. If the CEO is responsible, what about those that create the site, update it, maintain it? The CEO obviously doen't toy with the intimate day to day operations but instead with the larger business transactions and strategy.

Investigation should not be used as an argument for detention in and of itself. In fact, there should be hurdles for authorities to jump, such as warrants to investigate. Files from servers could be copied and searches of records and observation of business being conducted to investigate culpability.

Bajaj's civil liberties are as important as the minors abused in the material. Especially in light of that fact that a directly responsible suspect has already been identified. This instance if allowed to stand will allow the government to arrest and investigate anyone remotely involved in any crime. The government may even break the law to test cupability or impede unfriendly business interests. The ultimate question is does detention in any way increase the ability of the government to investigate culpability? I believe the answer is no. Detention only serves as a means of harrasment.

Tom Paine said...

My guess is that Avnish Bajaj didn't pay off the right politician in India's "business paradise".

This is a bureaucratic shakedown, pure and simple. It makes India look like another third-world banana republic.

Vulgorilla said...

If I were getting ready to start a business in India, I would now be looking for some other country to start it in. This is the same as holding the phone company responsible, and liable, for an obscene phone call. Insanity! ..... but then again, government exposes itself as just plain S T U P I D.

mad anthony said...

Napster is not yet the law of the land - a similar case about another file sharing program, Grokster, is making it's way to the supreme court - and so far the lower courts have ruled that the networks were not infringing, despite being used primarily for pirated content.

If you search eBay, you can find plenty of illegal stuff - pirated software, movies, ect. eBay does pull them down eventually, but it takes them time to find the stuff. I don't think it's fair to hold them accountable unless it is obvious that they are aware of the content and do nothing about it.

Prasenjeet said...

This case is bad enough that we don't need confuse it by adding child porn to the mix. Technically this isn't about child pornography, but about consenting adults since IIRC India's legal age of consent is 16 and I believe these kids were older than that.

submandave said...

The points about the mis-analogy to Napster are quite valid, but allow me to offer a real-world example. A fairground or large building is made available for a flea market or swap meet. All authorized sellers understand the rules and agree, but one person chooses to sell drugs at his stall. When the proprietors of the hall find out what he is doing they kick him out and call the police. Are they then liable for the illegal activity that happened there?

This does not make sense. Not only are you asking an individual to assume a risk far in excess of his control, by punishing the owner of teh auction house you are actually creating an incentive for him to hide from the authorities any illegal activity of which he becomes aware. The long-term effect of such enforcement would be an impedance to small-scale personal commerce in favor of brokered transactions, where the facilitator is forced to serve as middle-man to ensure legality of the transaction. While this will likely incidents of illegal sales, it will also reduce the total number of sales than can be handled while also ensuring the prices are higher.

Ashish Hanwadikar said...

The Bazee.com CEO's arrest is unjustified.

Blog Wart said...

Napster was found to be liable because it centrally controlled the directories of what shared files were available and therefore could be said to have knowledge of the content being made available for download. Bazee cannot be said to have knowledge of the contents of a videotape that its staff did not -- and could not -- review a priori [in advance]. It is therefore inappropriate to presume any negligence or liability on the part of Bazee, its employees, or its management and therefore inappropriate to hold any of same in custody. Of course it is perfectly appropriate to consider Mr. Bajaj et. al. as material witnesses -- but that does not justify jailing them any longer than is neccesary to establish the above facts (which would not appear to be in doubt.) Contrast Napster to Gnutella, which does not centrally store its directories, and you will find that Gnutella is permitted to operate where Napster was found to be liable. Of course the liability of individual Gnutella host-owners (like that of bazee.com sellers) is a different matter.
We would not jail the phone company president for someone's obscene phone calls, we would not jail the postmaster for obscene snail-mail, we would not jail the grocery store manager if somebody pinned a centerfold to his community bulletin board (probably the closest analogy) nor would we jail the manager of Disney world if someone mooned us from the top of Cinderella's castle.

Random Gemini said...

Blog Wart is right. Bazee can't be held liable for this, when they made the rules plain and they do not keep track of the items that are made available for sale on their site. All Bazee is, is a portal. The same was absolutely NOT true for Napster.

shivamit said...

the orginal article on this page is outright rubbish and i find ALL the analogies ridiculous and 'amusing'.

child porn or not, the issue has been warped beyond what it should really focus on. arresting the CEO has driven the focus away from the real deal at hand. bajaj is NO WAY accountable for what happens in every nook and corner of his website inspite of several disclaimers/warnings posted.


without caring to look any futher i'd say that this page is obviously maintained by juveniles who seek to derive sublime, orgasamic even, pleasure from just 'debating' blindly.

i know how it feels, i was there once, trying to make it on debating circuits. i'd force myself to come up with arguments just to present a side to a case and make the debate lively.

this article achieves nothing, but provides an insight into how stupid people can get.

SHANKAR said...

BAZEE IS RIGHT TO THE EXTENT OF PROVIDING A VERY GOOD PORTAL BUT HOW IT IS USED ALSO IS TO BE TAKEN CARE OF. CHECKS AND REGULATORS SHOULD BE PROVIDED TO CONTROL LIKE I CANNOT HAVE THE BEST VEHICLE IF ONLY THE ACCELERATOR IS PROVIDED. I ALSO REQUIRE A CLUTCH,A HAND BRAKE AND A BRAKE SYSTEM. AND ABOVE ALL A GOOD CONTROL POLICY. SHANKAR

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