After an eight year-long copyright battle, Suneel Darshan, proprietor of the Shree Krishna International film production company, has won a copyright infringement suit against Google India and YouTube LLC. The District court of Gurgaon has awarded damages of Rs. 50,000 in favor of the production company and has restrained Google and YouTube from displaying the disputed content on its platform. The allegation on the part of the petitioners, as reported by the Economic Times was concerned with various sound recordings, cinematograph films and audio-visual songs which were alleged to have been reproduced on the defendants platform without an authorization or a license in lieu of the same. The stand of the defendant, according to the report was based on the core argument of them merely being an intermediary platform for communication and storage of information without charge, and that they had no prior knowledge of such content being infringing content, with them not being capable of evaluating every user generated or user uploaded content for infringement on their own and apply filters with respect to the same. The court has been reported to have noted that the defendant (YouTube) was supposed to take down the content after being informed of the supposed infringement by the plaintiffs to be immune from secondary liability, under the Information Technology Act and Rules thereunder, however the stance of the defendant stating that the proper take-down request procedure, with specifications of the specific URL’s which are being claimed to have been infringing, was not complied with or produced, is not sufficient to render this claim of infringement invalid. The court has also reportedly stated that the defendant by virtue of being aware of the title of the content had the burden upon itself to locate the URL’s and take down the allegedly infringing content.
This decision, as can be found herein, has been appealed in the Punjab and Haryana High Court and has been prima-facie admitted by the bench. The core grounds taken by the appellants at this stage were:
- Status of YouTube as an intermediary under section 2 (1)(w) of the IT act, 2000 and the consequent claim to safe harbor
- No notice had been sent to these platforms, by the caveators/respondents, in furtherance of section 51 (a)(ii), prior to filing a civil suit alleging infringement
- No URL was provided in furtherance of the judgment in My Space and yet a blanket injunction and damages against this intermediary platform was granted in the impugned judgment
- Finally, 15 of the 18 works claimed to be owned by the caveators had already been assigned to Shemaroo, which was not even a party to the original suit.
Upon hearing the same, the HC has admitted the matter and put it for listing within six months ordering “no coercive steps” in furtherance of the impugned judgment to be taken, effectively granted a stay in the interim. The copy of the order can be found here.
AN ANALYSIS OF THE INTERMEDIARY LIABILITY JURISPRUDENCE WITH RESPECT TO CONTENT HOSTING WEBSITES
We have extensively covered the Intermediary Liability jurisprudence in OTT platforms (here) and E-Commerce platforms (here) previously on the blog. Instead of reiterating the same, this post seeks to evaluate the procedure of notice and take-down highlighted and to be followed, as is relevant to the case mentioned above.
In India, an Intermediary has been widely defined under section 2(w) of the IT Act, 2000, to include ISP’s as well as hosting websites under the domain of facilitators of communication of digital information. Upon harmonizing safe harbour provisions provided under section 79 and 81 of the IT act, with the Copyright Act, the Delhi HC in the case of My Space v Super Cassettes, had held that provision of a notice for take down using the specified procedure provided by the hosting website as encapsulated by Section 51, would be sufficient to establish actual knowledge. Hence, if the hosting intermediary has actual knowledge, in accordance with this decision and continues to host such infringing content, then it will be liable for copyright infringement under Section 51 (ii). The appropriate course of action in the case of an intermediary of the nature of YouTube and Google, which includes tons of user generated content on its platform, is for the copyright holder to request and send in a notice for take down as per the procedure prescribed by the intermediary platform or via other legitimate mediums, specifying the location of the infringing content. The time frame provided has been held to be 36 hours to take the content down and claim safe harbour. Further rule 3(2) (d) of the IT rules, which provide for a provision of extension of information to the users through terms and conditions that infringing content shall not be hosted needs to be fulfilled for the intermediary to claim such a safe harbour.
The reason as to why I have gone on to classify YouTube and Google as a passive intermediary is that they:
- Do not initiate the transmission of the third-party information
- Do not select the receiver of such transmitted third-party information
- Do not select or modify the transmitted third-party information
As has been noted in the previous posts, the Delhi High Court Division Bench in the case of My Space had opined that intermediaries were to be held liable only when they have specific actual knowledge of such infringing material and have not taken any steps to remove such content thus far. The reasoning for the same was that an intermediary cannot be held liable to continuously identify and remove each piece of infringing material uploaded on their platforms due to it being virtually impossible to pre-screen and verify all information hosted on them. Defining this concept of actual knowledge rather broadly, the court had further held that a notice and takedown process is the standard for ‘actual knowledge’ to attract contributory liability. It must be noted that this differs from the ‘actual knowledge’ standard adopted by the Supreme Court in Shreya Singhal v Union of India, which read in a requirement of knowledge of a court order directing the removal of certain content. The court in My Space went on to note:
“In Shreya Singhal, Section 79(3) with Rule 3(4) of the Rules were read down to mean receipt of actual knowledge from a court order or on being notified by the appropriate government. However, this was in respect of restrictions under Article 19(2) of the Constitution of India. The Supreme Court was conscious of the fact that if millions of requests for take down are made, it would become difficult for intermediaries (such as Google) to identify legitimate requests. In the case of copyright laws it is sufficient that MySpace receives specific knowledge of the infringing works in the format provided for in its website from the content owner without the necessity of a court order.”
Further a clarification was brought in to these rules and published which specified that the intermediary upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature, shall act within thirty six hours and initiate appropriate action as per the law. It is to be noted herein that such intermediaries themselves cannot be tasked with identifying infringing content from legitimate content as this may have a chilling effect on free speech (as noted in the Myspace (para 62) judgment as well). The United Nations’ Joint Declaration on Freedom of Expression on the Internet recognizes the critical role of reasonable limits on liability, stating that “intermediaries should not be required to monitor user-generated content and should not be subject to extrajudicial content takedown rules which fail to provide sufficient protection for freedom of expression.”
The Draft IT (Intermediary Guidelines) Rules 2018 have also been criticised by stakeholders and policy organisations on its EU’esque inclusion of the provision of automated tools by intermediaries to remove such infringing content, as violative of freedom of speech and expression. (Read more Here)
Nevertheless it is important in the context of the above mentioned case to analyse the form in which the Notice and Takedown mechanism needs to be brought in to effect, to balance between the rights of the copyright holders and the “conduit” intermediaries, without having an adverse effect on Free Speech.
THE NOTICE AND TAKE DOWN MECHANISM AND ITS FORM
In the reported case discussed above, an important ruling of the court is concerned with the procedure to be followed for notice and take down, and the obligation of the intermediary in lieu of the same. The core of this concern revolves around the question of whether the notice of take down issued by copyright holders needs to fulfil any formalistic requirements or not. The case is not clear as to whether any formal steps were fulfilled by the copyright owner, and only mentions of an intimation about the content being infringing, without even providing for the URLS’s therein, having being sent to YouTube. The court, although has upheld this informal mechanism and awarded for damages, however the IT rules and a policy analysis point out the viability of the opposite stand and highlight the importance of specific information being furnished by the copyright holder, for an effective obligation upon the intermediary to take down content to come into being.
Section 52(c) of the Copyright Act also provides for a notice and takedown mechanism, wherein copyright owners could request intermediaries to remove protected content from their platforms for a minimum period of 21 days (or for a longer period in case of a court order mandating such requirement). As per this provision, intermediaries on being satisfied are required to remove content within 36 hours of being intimated. This notice and take down process should protect the rights of the users of these platforms and cannot be ambiguous and unreasonably favouring the copyright owners.
YouTube on its platform, clearly provides for a copyright complaint mechanism and a form which can be accessed to provide for complaints upon these issues. These can be viewed and accessed here and here. Youtube has further stated on its platform that it accepts free form copyright infringement notifications, submitted by Email, fax, and mail, however it specifies certain information which is imperative to be specified for a notice and take down action to be initiated. This has been mentioned herein and includes:
- The Contact Information of the Copyright Owner alleging infringing content
- A description of the work that is believed to having been infringed
- Each allegedly infringing piece’s specific URL
- A statement stating : “I have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law” and that “The information in this notification is accurate, and under penalty of perjury, I am the owner, or an agent authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”
- A physical or electronic signature of the copyright owner or the representative acting on behalf.
The importance and viability of the provision of the same can be inferred from Rule 75 of the IT rules which state that a notice must at a minimum contain the following:
(a) the description of the work with adequate information to identify the work
(b) details establishing that the complainant is the owner or exclusive licensee of copyright in the work
(c) details establishing that the copy of the work which is the subject matter of transient or incidental storage is an infringing copy of the work owned by the complainant and that the allegedly infringing act is not covered under Section 52 or any other act that is permitted under the Act
(d) details of the location where transient or incidental storage of the work is taking place
(e) details of the person, if known, who is responsible for uploading the work infringing the copyright of the complainant
(f) undertaking that the complainant shall file an infringement suit in the competent court against the person responsible for uploading the infringing copy and produce the orders of the competent court having jurisdiction, within a period of twenty-one days from the date of receipt of the notice.
These rules in its provision (d) talk about the mandatory provision of the “location” of the infringing content and where it is stored or accessible on the web and on the intermediaries platform. The Delhi High Court in My Space has interpreted the term location, for the purposes of these take down notices to be synonymous with the “URL” of the work as can be seen in para 68 (c) (i) of the judgment. This was done specifically due to a claim by My Space stating that:
“….once the content was uploaded on the Internet, a unique address was generated called the Uniform Resource Locator (URL). Every time the content was shared, a fresh URL was created and since the Internet was a vast space, countless URLs holding the same content could be created. This resulted in a scenario where removing infringing content became impossible. Therefore, once the original owner of the works intimated MySpace about the content and its location, it would become much easier to remove it.” (Para 10)
This determination in My Space is clearly contrary to what the Gurgaon District court has held in the above mentioned Shree Krishna v. Google India and YouTube LLC case, which renders the decision clearly per incuriam and devoid of an analysis of this judgment by the Delhi High Court. It has clearly ignored the principle that the intermediaries should not be required to ensure that they have the capacity to identify users Suo moto, which goes against the principle of a mere conduit and the large scale nature of the internet space in Shreya Singhal v UOI. Even the Bombay High Court in the case of Balaji Motion Pictures v. BSNL has required that the plaintiffs submit specific infringing URL’s.
From a policy perspective as well, intermediary platforms face limited resources and the fear and risk of losing safe harbour protection if they fail to expeditiously remove content. This has resulted in a steam of requests being sent which are overbroad, without any instant recourse (or a counter-notice mechanism) for the users of the platforms, resulting in the chilling effect on Freedom of speech. Certain fundamental due process requirements must be adhered to, to avoid such excessive overbroad requests being in existence.
Prior to 2009, online intermediary platforms accepted notices primarily via email, with additional provisions for postal mail and fax. Starting with Google in 2009, a few large platforms began to develop online forms to standardize notice submission and expedite their handling. This standard due-process mechanism is definitely beneficial and more transparent in its action, thriving to avoid such overbroad claims and a violation of free speech, thus balancing copyright protection and the Right to Freedom of expression adequately. The benefits from a policy stand-point include:
- Pre-coding statutory requirements of digital signature and undertakings as well as presence of contact details, to filter out defective notices not complying with mandatory statutory procedural requirements, as mentioned under Rule 75 of the IT Rules.
- Helps the management of customer service staff and avoids an open-ended approach to such notices. It effectively limits the amount of information that is to be checked and forms a template checklist which has to be followed by the staff of the intermediaries while avoiding confusion and providing for a simple template to be analysed and confined to.
An imprecise location pointer is the most challenging and resource intensive aspect of a takedown notice. While responding to imprecise requests, intermediaries may struggle or find it impossible to locate the allegedly infringing material on their site or to know whether what they have identified (on the basis of the imprecise specification provided) is truly infringing or not. Even in the United States, the Digital Millennium Copyright Act recognises the importance of the URL being specifically furnished in notice and take down requests. It is a challenging exercise to identify infringing content when the page targeted includes on itself non infringing content as well.
It will be interesting to see if this decision is appealed and what turn it takes upon an appeal.
Image Source: Here