MYSPACE V SUPER CASSETTES

Uttara. P. V
1221

T-Series filed an interlocutory application against MySpace alleging primary and

secondary infringement for users uploading the content over which they had

copyright. The claimed they had provided MySpace with a list of data over which it

held copyright. They took the help of Section 14 read with 51 of Copyright Act along

with Section 81 of IT Act to claim infringement and liability of MySpace. It was

contented that there was both primary and secondary infringement. Primary

infringement was contended on a conjoint reading of Section 14 and 51 of the Act due

to communicating copyrighted works of the plaintiff to the public without authority .

The arguments raised for secondary infringement included the contention that

MySpace was aware of the infringement as (1) its contract warns clients against

infringing rights of copyright holders, (2) there was a system of take down notice and

hence there was awareness regarding infringement being possible (3) the softwares

used by MySpace in tracking infringement shows awareness of possibility of

infringement. Further, it was contended that DMCA provisions which were complied

with by MySpace cannot be a defence in this regard it not being the Indian law, while

MySpace fell under the jurisdiction of Indian courts and law given how they conduct

business in India. Consequentially, the DMCE safe harbour in case on absence of

actual knowledge of infringement was inapplicable. It was further contended that on a

cumulative reading of section 79 and 81 of the IT Act, Section 81 has overriding

effect.which says that the rights of under Copyright Act shall have overrriding effect

over the provisions in the former Act. However, it was the contention of MySpace that
there was no actual knowledge of infringment which is requisite as per the safe

harbour provision of Section 79 of the IT Act, and that (1) awareness is not sufficient

(2) there was no knowledge of infringment as T-Series had not provided any

knowledge of infringing content, all that was provided was a list of material over

which T-Series had copyright, which was inadequate to trace infringment. It was

contended that even if there was to be take down of all the material that matched with

the contents of the material provided by T-Series, this could lead to taking down of the

entire of material which by any little stretch matched and that could included both

authorised publication and fair use including parody. Further, it was pleaded that the

fact that Ads were inserted in the videos could not lead to presumption of knowledge,

since it was done through a mechanical process. Further, MySpace sought to justiy its

position by showing how it was merely a licensee of hte user and had no control ove

the content being uploaded and hence cannot be held liable for all infringment. It also

cotended that this particular prayer was non-grantable, as non-specificity of Prayer in

seeking blanket injunction on copyrighted content causes imposition of a impossible

burden.

The High Court in its single bench judgement ordered in favour of T-Series, holding

that the actual knowledge is not necessary for infringment is sufficient, based on a

reading of Section 81 having overridding effect over Section 79 and this entailing that

the the actual knowledge threshold necessitated by Section 51 be fulfilled. However

the application of the this reasoning to the facts of the case was done wrongly as the

the fact of existance of softwares to detect infirngment was reasoned out to show that

there existed infringement. The Division Bench, reversed the verdict, refering to

Youtube v. Viacom, adopted the red flag test to identify infringment. In Youtube v.

Viacom, it was held that it shall not be infringment, if the ISP had done due diligence,
and taken all reasonable steps to prevent infringment, focusing on the take down

notice, it shall not be contended as secondary infrigment. Althhough reasonable,

whemn a literal interpretation of the provisions are done, it seems that the position of

law in India necessitates the higher threshold for awareness as opposed to actual

knowledge. Seen in this context, it seems that the judgdement, up untill there comes

an amendment of copyright act to the effect of incorporation of DMCA provisions

seem flawed.