[pp.int.general] Fwd: [SPICY IP] The Death of Safe Harbour for Intermediaries in India for Copyrigh...

[Amelia Andersdotter]

nuff said

-------- Original Message --------
Subject: 	[SPICY IP] The Death of Safe Harbour for Intermediaries in 
India for Copyrigh...
Date: 	Sat, 6 Aug 2011 08:52:49 -0700 (PDT)
From: 	Amlan Mohanty <mohanty.amlan at gmail.com>
Reply-To: 	mohanty.amlan at gmail.com
To: 	spicyip at googlegroups.com



**
Continuing from my previous post 
<http://spicyipindia.blogspot.com/2011/08/death-of-safe-harbour-for.html>, 
in this post, I will cover the decision of the court in the case of 
MySpace v. Super Cassettes and its reasoning for the same. I will devote 
a section specifically to the issue of the interpretation of S.79 and 
S.81 of the IT Act which has a significant bearing on the immunity 
available to intermediaries for hosting content that infringes copyright.

*DECISION OF THE COURT*

*I.**Authorising infringement of works*

The court by making a reference to S. 14 and S.51(a)(i) of the Copyright 
Act,  noted that infringement is the doing of any act, which the owner 
of the work is permitted to do, by any person not authorised to do so by 
the owner. The court noted that ‘/the  act  of  authorizing  is  
something  more  than  merely  providing means  with  knowledge  and  
require  further  active  participation  of  the person than that of the 
permitting the place for infringement.’ /The court made an important 
distinction between the authorisation which would fall within S.51(a)(i) 
and (ii), the latter requiring actual knowledge and reasonable belief, 
and the former involving the participation of the defendant and exercise 
of control, besides knowledge. After going through several English 
precedents on this point, the court found that  the  question  of 
authorisation required further proof of participation, which could only 
be determined at the trial stage and hence, refused to deliberate 
further on the issue of violation of S.51(a)(i).

<http://t2.gstatic.com/images?q=tbn:ANd9GcQC2pZE80lyPn4fXWKZJxAPrPQdy31Lp6a3f4DIHjUgwzHAXn93>

**
*II.**Permitting for profit, a place for communication of infringing 
works to the public*

The court made reference to S.51(a)(ii) and tried to define the scope of 
“/any place”/ as required under the Indian Copyright Act. It juxtaposed 
this phrase with “/place of public entertainment/” as used in  the UK  
Copyright  Act,  1956. The court inferred that this indicated that the 
India legislature intended to broaden the scope to not only include 
places of public entertainment,  but any other place as well. It also 
referenced the later UK  Copyright  Act, 1988 which repealed the 1956 
Act, which provides for two kinds of infringements separately, namely 
“/place  of   public   entertainment/”   and   “/infringement   caused   
by   use   of   an  apparatus/”. This shows knowledge of two distinct 
types, and although the Indian legislature has not included the latter, 
the court reasoned that this meant ‘/any place/’ was of wider amplitude 
and hence included places on the internet such as MySpace, and not just 
places of entertainment.


*III.**Issue of Knowledge on the part of MySpace*

The knowledge requirement is important in view of the exception provided 
for under S.51(a)(ii) of the Indian Copyright Act which states that 
there will be no liability where the defendant ‘/was not aware and had 
no reasonable ground for believing/’ that the works were infringing. The 
court however, completely dismissed the arguments advanced by MySpace on 
several grounds:

First, it stated that the very fact that MySpace had developed and 
installed remedial tools to deal with infringement showed that they at 
least had an apprehension of infringement. It also dismissed the claim 
that this was done, keeping in mind the requirements under the DMCA, by 
observing that the post-infringement curative measures provided for 
under the DMCA are sufficient in the American context, but not in the 
Indian legal sense. Now, I find this to be an incorrect reading of the 
Indian law since S.79(3)(b) of the IT Act makes it very clear that an 
intermediary shall not be held liable if it ‘/upon  receiving  actual  
knowledge,  or  on  being  notified/’ of the unlawful material, it 
/’remove[s] or disable[s] access to that material on that resource 
without vitiating the evidence in any manner/’. I don’t see anyone 
reasonably arguing that this is not in the form of a post-infringement 
remedial measure, much like the DMCA.  Second, the court goes into the 
question of ‘actual knowledge’ stating that the defendants had specific 
knowledge of the plaintiff’s works since they were provided a list of 
their titles and updated works from time to time.  Third, the fact that 
it obtained a license from users to modify content to insert ads and 
such indicated that they had knowledge of the content of the works. 
Fourth, the court found that its India-centric operations are also a 
clear indication of the knowledge of infringement.

Again, there appear to be some infirmities. For one, I don’t see how 
merely having an Indian presence or focus shows knowledge of infringing 
activities. On the point about attributing knowledge to them since they 
insert ads, isn’t is possible that this is an automated system, where 
the ads are placed at the beginning of the video and there is no one 
actually going through the content to flag it as infringing? Neither 
does the court lay down any real standard in respect of the knowledge 
requirements, which is something I really hoped to emerge from this 
case. No reference was made to the ‘red flag’ test [Viacom v. Youtube] 
<http://ipkitten.blogspot.com/2011/01/letter-from-amerikat-i-viacom-v-youtube.html> 
which is particularly worrisome since the Intermediary Guidelines under 
the IT Act provide no guidance in this regard either. More importantly, 
the court failed to lay out any standards in respect of the notice and 
take down requirements. In dismissing the post-infringement remedies, it 
failed to respect the very basis of dealing with copyright infringement 
claims in the age of the Internet. I find no merit in the contention 
that a post-infringement remedy does not make up for the harm caused to 
the rights holder, since we are well aware of frivolous takedown notices 
issued by such companies, and hence a notice and takedown system serves 
the purpose of maintaining the balance of rights holder and user interests.

*IV.**Interpretation of S.79 and S.81 of the IT Act*

The court agreed with the view that S.81 acted as a proviso to S.79 and 
the non-obstante clause  contained therein has an overriding effect. 
This implies that although one may satisfy the requirements under S.79 
of the IT Act that grants immunity to intermediaries, an individual can 
still proceed against the intermediary using provisions of the Copyright 
Act or Patents Act.

As an arguendo, irrespective of this overriding effect, the court found 
that the act of modification of the works, by inserting ads etc. 
excluded the defendants from the purview of S.79(2)(b) of the Act and 
hence it failed to satisfy the requirements. It also remarked that 
MySpace failed to exercise due diligence and that it should have done a 
‘/preliminary check in all the cinematograph works relating Indian 
titles before communicating the works to the public rather  than  
falling  back  on  post  infringement  measures/’.

*The more significant implication of such a ruling however is that it 
recognises that the IT Act no longer protects intermediaries against 
copyright infringement claims*. The court observed that  “/Section  79  
is,  thus,  meant  for  all  other  internet  wrongs wherein 
intermediaries may be involved including auctioning, networking 
  servicing, news dissemination, uploading of pornographic content but 
not certainly  relating  to  the  copyright  infringement  or  patent  
infringement which  has  been  specifically  excluded  by  way  of  
proviso  to  Section  81.”/ Of course, one cannot really blame the court 
in this respect since the language used in S.81 appears to be clear and 
a non-obstante clause to boot, leaves little by way of interpretive 
freedom to the judges. If they had ruled any differently, I fear they 
would be charged with judicial activism and accused of encroaching on 
the legislative domain.

The court also noted that the Copyright Act itself grants certain 
exceptions and an intermediary could avail of the same to escape 
liability. While this is certainly true, this is also true of the 
American system wherein valid defences may be made against an 
infringement claim, and yet, the DMCA grants specific immunity to 
intermediaries for copyright infringement cases. The court found not 
only the DMCA, but the WCT and WPPT to be inapplicable to this case, 
even in terms of persuasive value, which, while understandable to some 
extent, eliminates even the slightest possibility of ensuring that 
immunities granted to intermediaries are uniform across the world.

The court also relied on the argument that reading S.79 to include 
copyright infringement claims would create a ‘/conflict between the acts 
of infringement by way of permitting the place for profit provided under 
Section 51 (a) (ii) and Section 79 which saves the intermediary from 
liability/’. However, I would argue that S.51(a)(ii) covers more than 
just internet intermediaries and merely because they are granted 
additional protection, does not in itself render S.51(a)(ii) ineffective 
or create disharmony.

The court, in this case, found MySpace guilty of primary copyright 
infringement under S.51(a)(ii) and passed an order restraining the 
defendants from dealing with the plaintiff’s works, including modifying 
them, adding advertisements, or making profits from the same, without 
enquiring about the ownership of the works. As regards future works, it 
directed MySpace to delete the works of the plaintiff as and when they 
are notified by them.

I began this post with the title ‘/Death of safe harbour for 
intermediaries for copyright infringement/’, but now I wonder if there 
was any life to begin with. Perhaps ‘/still-born/’ would be more 
appropriate. For those of us who believe in the rights of the 
intermediaries and were hoping against hope for a favourable 
interpretation of the IT Act, this decisino comes as a crushing blow, 
and I fear at this stage, an amendment is the only remaining option.


--
Posted By Amlan Mohanty to SPICY IP <http://spicyipindia.blogspot.com/> 
at 8/06/2011 09:22:00 PM --
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