The Delhi High Court passed a brief interim order restraining Youtube and Google from reproducing, adapting, distributing, communicating, transmitting, disseminating or displaying on their websites or otherwise infringing … any audio-visual works in which the plaintiff [SCIL] owns exclusive, valid and subsisting copyright.
SCIL alleged that YouTube and Google have made available web-content of copyrighted material owned by it, in the form of music videos, song clip, etc., without license or permission, BS reports.
SCIL claims that the business model of YouTube allows, encourages and profits from use of copyrighted work uploaded on the website without obtaining any license or permission from the rightful copyright owners and without paying them any royalty, according to this report.
According to reports from http://www.contentsutra.com, a news site covering Indian digital content market (where this news item was first sighted), T-series – a market leader among Indian music labels – is very actively protecting its copyrighted material, particularly against websites that have allegedly been streaming such content.
There is a complaint pending against Rediff.com, for example, in the Delhi High Court, where the SCIL has alleged copyright violation in re web-video clips of songs from two Hindi films. (Rediff provides this information in an application filed before the US Securities and Exchange Commission here; see the report here.
SCIL has also obtained an interim injunction against Santabanta.com from streaming content from movies in which T-Series has copyright.
Google does not seem to have made any official comments on this order as yet, according to this report.
The same report draws attention to something related, though:
Google recently expressed concerns about India’s IT Act, and proposed amendments to section 79 that deals with the liability of internet intermediaries (neutral hosts of information such as internet service providers, search engines, etc).
Under the existing section, an intermediary is liable for any offensive material/data published on its site, unless they can prove that (a) the offence was committed without its knowledge or (b) that it had exercised all due diligence to prevent the commission of such an offence.
Google and YouTube could have probably taken refuge in this provision as defence in the case filed by SCIL. However, as Shamnad points out, and rightly so, liability under the IT act as it stands now does not extend to copyright infringement (it extends only to offences under the IT Act).
But just to ponder beyond this particular lawsuit for a bit, and see what Google thinks about India’s IT policy generally…
The IT (Amendment) Bill 2006, proposes that an intermediary will no longer be liable for third party information, data or communication link made available by it. Naturally, Google supports this proposal wholeheartedly.
(NB: The Indian legislature’s insistence on referring to the internet intermediary in the masculine is an amusing but annoying habit, which I have liberally replaced with what I believe to be the more appropriate neuter.)
However, the Indian Parliament’s Standing Committee on IT disapproves of this proposal equally strongly. In its September 2007 report, not up as yet on their site, but available in scanned form elsewhere states that:
[W]hen [a] platform is abused for transmission of allegedly obscene and objectionable contents, the intermediaries/service providers should not be absolved of responsibility. The Committee, therefore, recommend[s] that a definite obligation should be cast upon the intermediaries/service providers in view of the immense/irreparable damages caused to the victims through reckless activities that are under taken in the cyberspace by using the service providers’ platform. Casting such an obligation seems imperative…
Google, in its public policy blog, has taken a pointed jab at the Committee for these observations. Rishi Jaitly, a Policy Analyst at Google, says (in the same post linked earlier):
For intermediary websites to be held liable for the “reckless activities” of others is fundamentally unjust, ignores the origin of the content, misunderstands the size and scale of the Internet, and fails to appreciate the great benefits yielded to the vast majority of Indian users by these information platforms.
…It would be technologically infeasible for ISPs and web companies to pre-screen each and every bit of content being uploaded onto our platforms… More importantly, imposing such a burdensome standard would crush innovation, throttle Indian competitiveness, and prevent entrepreneurs from deploying new services in the first place, a truly unfortunate outcome for the growth of the Internet in India.
Strong words, those. But this is part of a larger debate about what is the best way to deal with liability over online content. A Stanford Public Law Working Paper by Mark Lemley recommends a middle path based on the trademark model.
But all of this becomes entirely redundant if one begins thinking about where the future of the Internet lies: how does one deal with anonymous networks, for example, where, potentially, any form of liability might vanish completely? Or am I being too fanciful? But I shall leave that for another post…
Fantastic post, Sumathi:
A couple of quick comments–that really don’t add much–but I’ll shoot anyway…:
1. ISP liability under the IT act as it stands now does not extend to copyright infringement (it extends only to offences under the IT Act)
2. In any case, it seems like the order is directed to both “primary infringement” as well as “secondary infringement”.
3. But can we place much reliance on this extremely short, non speaking order?? and this crazy tendency of granting ex parte injunctions in complicated cases.
4. google/youtube have been sued unsuccesfully in the US. and its therefore fascinating that an indian judge gives an ex parte injunction–and doesnt bother to explain his reasons!! So perhaps those that want to do google in should begin outsourcing their lawsuits to india!!
Shamnad: thanks for your comments.
1. oops. Yes, I overshot myself there when I said Google could take this as a defence. I shall correct it in the post.
However, I believe, there needs to be some form of agreement on internet intermediary liability, and issues of safe harbour; otherwise we will continue to see accusations such as these thrown around periodically.
2. I am convinced of the secondary infringement argument, where the alleged offender has usually dealt in articles that have breached copyright. But to me, the case for primary infringement, where the alleged offender is supposed to have reproduced or translated copyrighted work without the author’s consent, seems less obvious. In the case of third-party information being published, there is usually the notice-and-take-down practise, where if infringement is brought to their notice, the material is taken off the site. I don’t know whether similar notices were sent to YouTube in this case – I presume they were. I would like to know what, if any, their response was.
3. Ahh. That is a sensitive subject, and diplomatic correctness demands I restrain my observations to a bare minimum. 😀 It is true that the order is short, and that it was passed ex parte. It is also suggested (I haven’t manged to verify this, but only have another blog post elsewhere as proof) that SCIL has won a similar injunction against santabanta.com, and has similar cases against rediff.com. So the company has been extremely enthusiastic in ensuring that its material is not illegally available online. The court has been equally enthusiastic in entertaining these cases ex parte. Qua order, it is valid. But it will be interesting to see whether and how Google complies.
4. I agree – the order is entirely too short, and perhaps ridiculously so, for a case that could set an interesting precedent in Indian copyright law. I would have definitely liked to see the judge’s comments on the matter. And hehe, yeah: “Any anti-Google folks out there?, send your lawsuit to India”, could well be a message coming from this case. I don’t have information on this, but I see that it is a 2007 Interim Application. (I don’t know when exactly). But it’s interesting that an interim order was passed so quickly on an alleged offence of this scale, with little or no explanation.
One thing, not in response to Shamnad’s comments, I wanted to add: it surprises me that papers haven’t picked up this story as yet. The few articles that I have spotted are on internet or media related websites; and Business Standard has run a news report with a Mumbai dateline (which is funny, considering its a Delhi High Court judgement), which seems to be based on a press release/statement by SCIL. I would have thought this judgement is big news for most papers.
T-series talking about Intellectual property is ironic to say the least
# Vijay: Ironic or not, I believe what T-series practices is their own business. But in this case, they are merely exercising their rights as copyright holders, like anyone else would. Any party that finds T-series infringing or otherwise violating their intellectual property is surely equally entitled to take them on.
Rishi Jaitly’s following comments seems to contradict their (Google/youTube) recent policy announcements on automatic copyright filtering tool:
“…It would be technologically infeasible for ISPs and web companies to pre-screen each and every bit of content being uploaded onto our platforms …”
Am I missing something ?
For more info, refer to this blogpost on this tool:
http://www.copyrightings.com/2007/10/googles-policy-chief-on-youtube.html
/Ram
#Ram: Thanks for drawing attention to this. I didn’t know YouTube was beta-testing a copyright filtering tool.
[For those of you not in the know, check out: http://www.youtube.com/t/video_id_about%5D
Yes, it would seem contradictory to what Rishi Jaitly has said, but I have a couple of observations:
1. I believe Jaitly was objecting directly to the recommendations of the Parliament Committee, which he thinks are too harsh on intermediaries.
2. I couldn’t see the McLaughlin video that is linked in the blogpost you linked to, because of technical issues here. I’m no computer expert, but the way I see it, filtering tool automatically pre-screens and flags uploaded content that matches content identified as copyrighted by the owner. So the onus still remains on the owner to provide information about copyrighted content. The internet intermediary is still not liable in this matter. Am I right in drawing this conclusion?
3. It’s still being beta-tested, and there are already issues of fair-use that have cropped up, so there is time yet to see how the filtering mechanism will evolve before it’s put to regular use.
What’s your take?
Sumathi,
First, excuse me for the late reply.
2. Yes, the content owner has the responsibility to determine but am unsure if the “intermediaries” can wash off their hands so lightly. Future litigations should provide us with the leads !
Additionally, I would like to draw your attention on the following. I have not had time to read through the “principles” and “examples” from EFF:
Fair Use Principles:
http://www.eff.org/issues/ip-and-free-speech/fair-use-principles-usergen
Fair Use Examples;
http://www.eff.org/pages/UGC-test-suite
/Ram
Hi,
Can anyone tell me where I can find a copy of the order/judgment or the name of the case. “Manupatra” did not help too much.
Thanks!