Copyright

GOOGLE’S MILITANT APPROACH TO COPYRIGHT LAW


SpicyIP had posted a couple of weeks ago, on the first case of copyright infringement against Google’s U-Tube in India. The plaintiffs in this case are T-Series a company which grew in the face of a daunting monopoly (of HMV) because of its daring, pro-active approach to copyright law. Google itself is a veteran of several such battles on the IP front in the Western world. Google News, Google Image Search, Google Book Search Project, Google Search Engine have all been targets of several lawsuits alleging copyright infringement. More often than not Google wins these battles or settles them before judgement.
One of the primary reasons for Google’s phenomenal growth is its militant approach to copyright law. Departing from conventional IP strategies of first negotiating with the copyright owner to secure the licensing rights, Google’s IP strategy is basically to first violate the copyright of certain content and then later negotiate with the owner of the copyright content and share advertising revenues with them. Even as late as last month Google refused to join an online copyright pact with other content providers. What is even more shocking to copyright owners is Google’s audacity in actually offering the copyright owners an opt-out policy an e.g. The Google Book Search Project. The effect of this policy is that Google deems all content as fair until the copyright owner informs Google that he no longer wishes to be a part of Google’s program. This essentially amounts to an implied license. The concept of implied licenses has been upheld in the Google v. Field case where the basic search engine function of Google was held not to violate copyrights because of the fact that there was a prevalent industry practice on the internet whereby the copyright owner could specifically obstruct the Google search engine from indexing his website. The implied license defence obviously cannot be applied to those copyright infringements where copyright owners are not in a position to prevent the potential infringements. In such cases Google falls back on the classic copyright defences of ‘fair use’, as in the case of the Google Book Search Project, which by the way, is also being sued by the Author’s Guild of America.
The usual defences that Google employs in U-Tube cases, in America, including the $1 Billion suit filed by Viacom against it, is the ‘safe harbour’ provision of the Digital Millennium Copyright Act – 17 U.S.C.§512(c)(1)(B). As per this provision all internet content providers are exempted from secondary liability for potential offences if they have complied with the conditions of the ‘safe harbour provision’ i.e. 1.) The content has been stored and uploaded by a user 2.) Google must have a policy to bar repeat infringers 3.) Google must designate an agent in the Copyright Office to issue ‘takedown’ notices regarding copyright infringed material. As SpicyIP already reported India doesn’t yet have such a ‘safe harbour’ provision, and the policy makers are still in the middle of a heated debate on this issue. So then on what line is the current T-Series case going to proceed?
The facts in the present case are – a U-Tube user posted T-Series copyrighted content on U-Tube. One obvious step is for T-Series to proceed against the use who posted the content in the first place. Under Section 51 of the Indian Copyright Act, 1957, this would be deemed to be an act infringing the copyright of T-Series by the User. Under Section 63 the user would be fined and imprisoned. Obviously T-Series is not going to be interested in pursing such small fry especially when the wording of Section 63 includes the word ‘abets in infringement’. They would be more interested in suing Google which has much deeper pockets. In this regard it is worthy to note that T-Series was actually in talks with Google on arriving at a revenue sharing agreement and just as Viacom slapped a suit on Google as a part of its negotiating strategy it is very likely that even T-Series is using this lawsuit as a negotiating tactic.
Presuming however that T-Series does intend to follow up the lawsuit; the important question is whether it is possible for T-Series to establish the secondary liability of U-Tube? There are two theories of secondary liability in the context of copyright infringement – contributory liability & vicarious liability. The important elements of contributory liability are 1.) the presence of a primary infringer 2.) knowledge on part of the contributory infringer of the underlying primary infringement & 3.) a material contribution on the part of the contributory infringer to facilitate the secondary infringement. An example of this is the various bulletin board services online which were extensively sued for contributory infringement.
Vicarious liability on the other hand occurs only when an online content provider has the right and ability to control the user and obtains a financial benefit from the infringing action of the user. The difference between the two is the degree of ‘control’ over the primary infringer.
The American Supreme Court has had an opportunity to adjudicate several cases on this issue the most famous being the Betamax case where Sony was being sued by Universal Studios for a selling a technology, the VCR, which could be used to making copies of movies thereby violating the copyright of Universal Studios. The other important American cases in the context of the internet are Napster and Grokster both of which relate to online peer to peer file sharing.
To the best of my knowledge there is no Indian case on the issue and it would be really interesting to see how an Indian court decides the issue. Hopefully this current case will speed up a policy decision on the issue of exemption of liability for content service providers over the internet.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

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