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Rethinking Intermediary Liability

Two recent developments, from opposite ends of the world, have reignited the debate on India’s flawed intermediary liability regime. The first is a recent order of a US appellate court in the heavily publicised Youtube-Viacom copyright suit. The second development comes from closer home and pertains to the call for annulment of the Intermediary Guidelines, in a motion proposed by a Rajya Sabha MP, and a writ petition filed in the Kerala High Court, challenging the same guidelines.

 

Taking these development together, it becomes apparent that while US law on the legal immunity for internet intermediaries is progressing quickly, the concurrent Indian law is replete with ambiguities. That said, the Rajya Sabha motion and the writ petition certainly provide an opportunity to complete discard the guidelines. This would allow policy makers to start afresh with the benefit of hindsight and cross-jurisdictional experiences. This could not have come at a better time, with service providers desperate for a clear, comprehensive and reasonable document on this issue.

 

Safe Harbour Provisions in India

 

The biggest worry for online service providers in India is the lack of clarity on the legal immunity available for copyright infringement claims. This question was explored in the recent MySpace case. Unfortunately, the decision rendered safe harbour provisions in the IT Act inapplicable to intermediaries such as YouTube and MySpace in respect of copyright infringement claims, making it clear that they did not have any protection from the very beginning.

It is extremely troubling that even in the year 2012 Indian law is equivocal on the immunity available to internet companies for copyright infringement claims. This is in stark contrast to the position in the US and elsewhere. The US Second Circuit left no ambiguities and made it clear that the DMCA safe harbour provisions would be available to Youtube for both, direct infringement (also known as ‘primary infringement’) and secondary infringement. US law appears to be adopting a cautious but progressive approach, in effect trying to define the contours of the legal immunity and the conditions that must be met to qualify for it.
This is crucial point for comparative analysis since the MySpace decision holds the intermediary liable for primary copyright infringement under Section 51(a)(ii) of the Indian Copyright Act. As such, there is a pressing need for reform in the interpretation of copyright laws and technology laws to support innovation.

 

The Knowledge Standard

 

The criticism of the MySpace decision is rooted in some unreasonable assumptions and the lack of any judicial guidance on what the knowledge standard is or should be. In essence, this would make clear what conditions are to be met to qualify for safe harbour protection by taking recourse to Section 79 of the IT Act. While it is reasonable for the court to hold that that MySpace had ‘actual knowledge’ of infringing titles, especially for those titles that were brought its attention, the lack of any discussion on the scope of the term and its difference with general knowledge, was found wanting in this decision.

On the other hand, the Second Circuit made detailed observations about the different types of knowledge that may disqualify an intermediary from claiming such protection. As explained by Eric Goldman, there are three main types of knowledge an intermediary might possess:

1) Actual knowledge of specific acts of infringement – This is a subjective standard and is specific to the case at hand as well as the type of internet intermediary in question (whether a search engine, market place, social networking website etc.). For example, in MySpace, the fact that it was notified of infringing titles (irrespective of whether they were given URL’s of these files) according to the court, meant that they had ‘actual knowledge’.

2) Red-flag knowledge – The court calls this an objective standard, which means a ‘reasonable man’ test is used to determine whether the intermediary had sufficient knowledge, which would disqualify it from obtaining the immunity. That is to say: even though it did not have actual knowledge, could it have known that the posted content was infringing?

3) Wilful Blindness  – Here, there is no actual or red flag knowledge, but could still disqualify an intermediary. In the Youtube case, the question was whether internal mails between employees referencing infringing clips and discussing whether or not to remove it immediately is sufficient proof of wilful blindness. This was a relevant factor even in the Megaupload dispute, where leaked e-mails were sought to be used as evidence against the company.

Indian courts have completely disregarded the aspects, especially the need for a ‘red flag test’. Even the MySpace case glides over this point. For the sake of clarity and certainty in the law, courts must elucidate on what constitutes ‘constructive knowledge’. This could as easily have come from the bench as much as from an Executive Order or legislative amendment. Hopefully, the on going case in the Delhi High Court with respect to‘objectionable’ material posted on social networking websites will provide some guidance. That apart, some of the more appalling rulings in the MySpace decision (discussed here) presents a fit case for a complete makeover of Indian intermediary laws.

 

More John Does

 

The need for a new intermediary liability regimes becomes even more significant given the recent trend of ‘John Doe orders’, to ‘restrain rampant piracy’. (see Prashant Reddy’s post on a John Doe order passed by the Madras High Court). Not only do such ordersbypass statutory procedures under the Intermediary Guidelines, but producers and media houses also use pressure tactics to ensure compliance. With a clear legal regime on intermediary rights and responsibilities, there would be no need for extra-statutory measures such as John Doe orders. For example, with clear direction on the doctrine of ‘wilful blindness’, there would be no need for music labels to request the blocking over a hundred websites, again on copyright grounds. One would imagine that a reformed law would recognisethe difference between legitimate services like YouTube and clearly unlawful websites like Songs.pk that profit from infringing activity.

The Unanswered Questions

 

Hopefully, policy makers will keepthe following issues in mind when they go back to the drawing board. That said, not everything needs to be decided by the Executive. There is certainly a role for the judiciary and the technicalities and tests can be expounded by the courts.

thinking

  • Do the safe harbour provisions extend to acts of primary and secondary infringement? 
  • Can provisions of the Indian Copyright Act override the safe harbour provisions contained in Section 79 of the IT Act? If so, what is the rationale for excluding copyright and the basis for classification, when immunity exists for defamatory and obscene content?
  • What are the different knowledge standards and what is the standard of proof in the case of intermediary liability? Are there any specific acts that would disqualify an intermediary from claiming immunity in copyright infringement cases?
  • Is the 36 hour period for compliance with content removal requests a reasonable period?

(Image from the public domain)

A version of this article was first published on SpicyIP.

About Amlan Mohanty

Amlan is a lawyer based in India. He engages in research, writing, speaking and teaching at the intersection of technology, law and policy.