The German Federal Supreme Court (Bundesgerichtshof), (case reference I ZR 140/10 of 19 October 2011- Vorschaubilder II) ruled out the liability of Google’s search engine on copyright infringement claims. The plaintiff in Vorschaubilder II was a photographer who stored his photos in the internet. He had the copyright over it since he took the photos. He later alleged that Google violated the copyright of the plaintiff by showing the said photos while user’s search for “images” in the search engine. That is to say, when a person enters a key word similar to the name of the plaintiff’s photos, the search engine showed the photos of the plaintiff. He alleged copyright infringement because he didn’t authorize Google to use his photos in whatever manner. One of the important properties of Google is, it automatically refreshes the internet database for updating the content. The Court denied the claims of the plaintiff by postulating “implied consent” theory. According to the Court, the plaintiff knew the existence of search engine and their use. By storing the images in the cyber space the plaintiff automatically agrees to the fact that search engines are permitted to use the same to facilitate the search of the users. Thus, the court ruled out Google from copyright infringement.
What this decision prompted I to be the relevance of knowledge, which is an essential element of infringement claims in both trade mark and copyright in India. The plaintiff has to prove that defendant knew that he\she is doing an infringement. Due to the popularity of the internet, scope and volume of infringement has become rampant. At this juncture, it is essential to evaluate the liability of web pages or owner of the server who hosted such infringing material. The above-mentioned case I would relax my criticism because Google only showed thumbnail of the original picture, and hence they are below the radar. However, this is a serious issue especially file hosting cites like mega upload, file tube, etc. flourishing with infringing materials. There was another issue similar to this were in media giant Viacom claimed one billion dollars as damages against Google for hosting infringing videos. Conversely, there was Digital Millennium Copyright Act (DMC) in US, who protected Google and like hosts.
DMC Act, in my opinion, is discriminatory because these kinds of web sites earn a lot of money through advertising. At least, a majority of the files hosted in these sites will be infringing materials. So indirectly they earn money using materials they really have no right to exploit. In my opinion, while interpreting the term “knowledge” benefit has to be given to plaintiff provided he proved that he is the owner of the protected material.
The advent of computer year revolutionized the reach of world and its population. The automatic ability of software to think further complicated the enforcement of law. Now in this scenario what and how should be the term knowledge has to be interpreted? Sometimes this software automatically does things that are in tune with parameters, which might be infringing the IP rights. In this scenario if the defendants take a defense of knowledge, the whole idea of infringement will be defeated.
In favor of YouTube or like file hosts, one of the arguments can be verifiability of copyright over the subject to be posted. If anyone ever attempted to post a video, they will be aware of the time limit which is, in my opinion, very short, and it postulates the presence of less scrutiny from their part. The video or file to be posted must be published in their web site with the description to enable people to file objections before actually publishes on the site. Only if these kinds of steps are initiated from the hoster’s behalf the real defense of “knowledge” should be allowed.
Against “Prior Screening”:
My major concern with “prior screening” proposal would be that it resembles the idea of censorship, albeit through private organization. The proposal sounds innocent but if every video that is uploaded will be screened and removed if the “service provider” (in this case youtube)considers a potential infringement, then will due process/reasonable opportunity to reply will be available to the uploader. And if such a remedy could only be enforced through writ jurisdiction through our courts (which are slow and inaccessible for large section of society, including net users), then wouldn’t it have a chilling effect on speech and creativity itself.
Though ofcourse, at the end, there is feasibility issue as suggested in the post, that whether it is possible to screen the uploads.
Another matter I would like to bring up especially in the context of youtube, filestube, etc is that these websites should not be held liable as spicyip (for instance) could be held liable for hosting infringing content.
Let me explain by an example, let us say, that video of “chikni chameli” in HD format is uploaded by someone from obscure part of north india on youtube and he also saves this file on filestube et al. for everyone to access. In this case, service providers are merely providing “universal non-discriminatory” and freely accessible platform for everyone. It is universal as it functions in the same manner for everyone (be it govt, organizations or individuals). It is non-discriminatory in the sense that anyone who wants to upload and use the facilities of the service provider can access it. And finally it is freely accessible to websurfers.
However, if the same video is uploaded by someone on spicyip then spicyip itself would be guilty. Why? Because unlike youtube etc. there is a strong editorial discretion combined with non-universal and content-preference orientation of the website. That is to say, things that are uploaded and available through spicyip would necessarily involve conscious human decision making on the part of spicyip team.
It is this subtle difference of use, purpose and control over the website that differentiates service providers from bloggers/uploaders and making them liable for an offence in which they had no part in goes against every idea of justice.
Technology is moving ahead and so should laws. Knife is used for murder as well as cooking, however, holding the manufacturer guilty for a murder committed by use of his company’s knife would be naive and unjust.
Hence, I would submit that defense of knowledge, atleast in copyright infringement claims must remain.
Dear Hersh Sewak,
I am not against defense of knowledge. But when courts interpret all i am saying is that prior screening should be accounted for. if a site is hosting and permiting anonymous contents they should be held liable. Youtube like site earn a lot of money by providing ad services and i have seen some of the ads are posted against infringing materials. As of now youtube has implemeted their new policy and removed a lot of infringing videos.
All I am saying is while a judge accept the defnse of knowledge, he should consult whether this person has the right to claim this defense.
Knowledge is essential for criminal liability for copyright infringement, but not at all for civil liability. Please see the proviso to Section 55(1) of the Copyright Act.
Your proposal will make the online company a Judge who will have to decide on whether the content being uploaded is infringing or not. and even after due deliberation, there may be instances where a video would have been allowed but that which is subsequently held to be infringing by a court of law. This probability will kill online companies if due diligence of this level is imposed on them.