What’s the solution to YouTube’s infringing tactics?

Very recently Sumathi had informed us that the Utube-Tseries litigation may end because the parties seem to be headed for an out of court settlement. SpicyIP however was curious about how other countries are dealing with the growing complaints of copyright infringement against online content providers and decided to research a little on it. We dug up some mildly interesting material.
Apparently late in 2007 Google Video had been held liable for copyright infringement of a documentary called ‘Tranquillity Bay’ by the High Court of First Instance of Paris. France has indeed been a punishing jurisdiction for Google. Earlier in 2005 Google’s revenue spinner Adwords had been sued successfully for trademark infringement by Louis Vuitton in a French Court. In the current case Google Video was hosting the documentary film on its site and the producer had notified Google of the infringing content after which Google removed it. The problem was it kept happening and every time the producer would have to inform Google. French law has provisions similar to the safe harbour provisions under the DMCA to protect the online service providers who take adequate steps to remove infringing content from their site. In this case however the French Court ruled that the plaintiff was under an obligation to notify Google only the first time it noticed the infringing content. After that it was the duty of Google to take adequate steps to remove the infringing content and Google had failed in this respect because of which it could not claim the safe harbour protection of French Law. The judge then ruled that Google had to implement an adequate filtering mechanism to ensure that it stopped infringing material before it was posted. Google infact has been testing a filtering mechanism for quite some time now but has allegedly been dragging its feet over implementing adequate filtering mechanisms. Judgements like this one will hopefully quicken the pace of development of Google’s filtering software. For an excellent analysis of the judgement please visit the website copyrightfrance.blogspot.com.
Normally French judicial decisions would not carry much precedential value in Indian Courts since France is a civil law country but it bears noting that this case seems to be the only decision regarding Google Video in the world. The only other high profile litigation is the You-Tube Viacom litigation which is still pending in Court. What is interesting about the judgement is that the Court’s direction to implement an adequate filtering software is quite similar to that of a Los Angeles Court in a case last year regarding a P2P file-sharing network called Morpheus. The LA Court in that case held that the service provider had to implement adequate filtering mechanisms to ensure that copyrights were not infringed. The Court went so far as to appoint its own technical expert to advice it on the technical issues. For a more detailed analysis of the decision please click here.
Both these decisions mark a trend towards increasing the responsibility on content providers to ensure that copyrights are not violated. No longer can online service providers such as Google escape liability by claiming that it is merely a host and thus exempt from liability. It will be interesting to see how an Indian Court would tackle the issue given the lack of provisions as wide as the DMCA ‘safe harbour’ provisions in the Indian IT Act.