Indian Court Says Service Providers Are Liable For Users' Copyright Infringement
from the safe-harbors-be-damned dept
We’ve talked many times about the importance of the various safe harbors in the DMCA and the CDA, in the US, in protecting service providers from liability for actions by their users (e.g., YouTube should not be legally responsible if one of its users uploads an infringing work). Other countries have not been nearly as strong on this, though many seem to recognize the basic reasons to not make service providers liable. Unfortunately, it looks like India may have just done away with such safe harbors in a recent decision. Amlan Mohanty alerts us to the detailed writeup he just did about a <a href=”http://spicyipindia.blogspot.com/2011/08/death-of-safe-harbour-for.html target=”_blank”>lawsuit against MySpace in India, and the reasoning of the decision, which definitely appears to wipe out protections for intermediaries and suggests they’re perfectly liable for actions of their users.
I’m certainly not an expert on Indian law, but it really sounds like yet another case of bad legal drafting by lawmakers, in which they approved two laws that seemed to contradict each other. The end result is pretty ridiculous, as was some of the reasoning. For example, the court claimed that because MySpace put in some tools to deal with infringement, that could show it had “knowledge” of infringement. In other words, it seems that according to this ruling, a company is safer in India (though not in most other countries) if it has no policies and no tools to deal with infringement, so that it can claim no knowledge. That’s ridiculous.
However, the court builds on this form of “knowledge” to say that the law requires a site to block infringement if it has such knowledge… In the US, this (mostly, with one exception) means actual knowledge of specific infringing works via a DMCA takedown notice. But, in this ruling the court appears to say that the general knowledge, proved by the mitigation tools, means that MySpace has an obligation to find and block all infringing works, based on just a list given to them by rights holders. Separately, they claim that because MySpace put ads into the videos at issue, it showed that they were reviewing the videos, and thus should have reviewed them for infringement. That such ad insertions are likely automated (and most certainly not done by copyright law experts) does not seem to occur to the court.
Then there’s this whopper. The court apparently decides that MySpace must do 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.” Yup. There go any safe harbors. If you’re a service provider online with Indian users… you may want to beware…
Filed Under: copyright, india, safe harbors, secondary liability
Companies: myspace
Comments on “Indian Court Says Service Providers Are Liable For Users' Copyright Infringement”
So this applies to EVERY site and EVERY possibly copyrighted work?
This will go well.
“Hey [Some IP Address here], I know you requested information from our server, but you’re going to have to give us a few months to scan the entirely of the material that you have requested before we allow the connection to go through. Just let us scan every published work ever made and we’ll get those packets sent to you within the next 6-8 weeks”.
Or they can just blanket ban all video files to be safe. And when no one hears about a new movie, so they don’t attend the studios can feel safe in blaming it all on piracy.
It takes nerves of steel to do this, but Google did it against that newspaper consortium that wanted to be paid back for what Google “stole” from them, and then whined when Google just dropped them to be safe from the litigation.
Because in all honesty… its My[______] its not exactly a high traffic site.
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Still won’t stop people from using DesiTorrents though. India is going to find it quite difficult to stop people from finding content.
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Or they can just blanket ban all video files to be safe.
Until other copyright holders come knockin’. Best to just have a blanket ban on Internet…safer that way. However, I guess ultimately that might be the goal, as they’ll have less riots that way.
I weep for India…it is sad that greed beats out humanity every time. Eventually we as a collective are just going to have to stand up and tell them we aren’t going to take it any more.
You spin me right 'round
By that logic then, the state should be liable for any of the wrong doings of any of it’s citizens and companies. I love circular logic. It’s all the rage in politics around the world.
"ad insertions are likely automated" -- FOR PROFITS.
That makes a DIRECT connection between Myspace and the infringing content. Doesn’t matter if IS automated, they put their stamp on it, they OWN IT in eyes of viewers, so they’re responsible for ALL of its content. Don’t know how much that weighed with the Indian court, but I’d burn ’em for it. The decision seems about right, and I like it if stops ADS being placed in SOMEONE ELSE’S CONTENT.
Re: "ad insertions are likely automated" -- FOR PROFITS.
No.
Re: "ad insertions are likely automated" -- FOR PROFITS.
THERE you are. You had us worried for a while, there.
Re: "ad insertions are likely automated" -- FOR PROFITS.
Did someone tell Ootb this is India and not the US?
Re: "ad insertions are likely automated" -- FOR PROFITS.
DIRECT IS OWN IT ALL ADS SOMEONE ELSE’S CONTENT.
That is about all I got from your discussion.
You realize there is a price to pay for free, even if you are not paying it directly, right? Google pays it with server farms. Facebook pays it with server farms. Others pay Amazon to host it.
Is the 8 seconds that the commercial runs before you get to see the video you selected really that horrible of a price? And, you might just see something that interests you, or you could do like I do and just read comments sections while waiting for the commercial to finish.
Hit me kind of hard...
I just want to stop for a second and draw attention to the first few lines, and the fact that in less than 15 years the DMCA has gone from a monster piece of legislation to one of the few protections available. Ponder that for a second, because it hasn’t changed…
Re: Hit me kind of hard...
Wow… We have internet freedoms based on one piece of bad legislation to fend off even MORE bad legislation.
Re: Hit me kind of hard...
Why do you have to go posting depressing crap like that?
What I find amusing is when a Spanish court finds Rojo to be legal, it is somehow enlightened. When an Indian court finds for copyright holders, there is some sort of screw up.
Talk about one sided!
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Wait wait wait! Are you telling me that people can agree with some reasoning and disagree with other reasoning? This changes everything!
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bu… but… Pirates!
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Having different opinions about different things should be illegal. Anything else is one sided! Think of the children!
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So . . . you’re accusing Mike of having a consistent opinion?
I’m sure he’s distressed at the news.
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You are correct – and what is “troubling” (to use a Techdirt term) is that it makes it abundantly clear that his opinion is clouding his ability to separate out good from bad.
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Ah. I’ll amend my previous statement:
“So . . . you’re accusing Mike of having a consistent opinion that differs from your own?
I’m sure he’s distressed at the news.”
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Chris, actually my concern is that if he is such a blatant cheerleader in things like this, where else does he have his finger on the scale to make things match his desired results?
I don’t care that he has an opinion different from mine, I just get concerned that it is being presented in a slanted manner, with little regard for telling all of the truth.
How many articles about how the NYT paywall would be a huge failure? A dozen, maybe more? How many about how successful it has been so far? 1, and that 1 still couldn’t accept the idea that it was working, even a bit.
If it’s about business models that work, shouldn’t we be crowing this great new step? Oh, no, wait, it fails the “free” test.
So I wonder, how many other articles, how many other subjects are either ignore or “colored” to suit the desired result, rather than discussed for what they are?
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Chris, actually my concern is that if he is such a blatant cheerleader in things like this, where else does he have his finger on the scale to make things match his desired results?
I still don’t understand your complaint.
If tomorrow, the supreme court releases an opinion saying that police officers can search your house anytime they want, for any reason, and without any oversight, I would call it a terrible ruling. If instead, the supreme court decides that the 4th has been trampled on too much already, and that our rights need to be strengthened, I would call that a fantastic ruling.
How is that “having my finger on the scale”? Are you saying everybody should paint every ruling in a neutral light, regardless of their opinion? That makes no sense. This is an opinion blog.
Do you also go onto Yelp and complain that some people have good things to say about some restaurants, and bad things to say about other restaurants?
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Chris, the issue is that while this is an opinion blog, much of it is treated as fact. Mike is famous for linking his own comments and claiming he has already proven something, and often uses the term “debunked”.
Mike often talks about great business models, and how things work in the new world. Much of his stuff is based on the “free”, and the infinite, and how you can’t make money selling the infinite, and you should sell the “scarce”. He considers information to be infinite. Yet, there is the NYT, charging for access and racking up 10 million in sales. That pretty much pokes a sharp stick into the basic theories that Mike works from.
It’s no longer a question of opinion, but rather than the foundation of “facts” that Mike works from has crumbled in at least one corner, if not more. So now the “debunked” stuff that he works from as the foundation of his opinions has be shown to be somewhat less than true in all cases.
Having an opinion is fine. But when you state an opinion, you have to accept that other people will have the opposite opinion. It is only opinion, not fact. Mike thinks not only that he is right, but works with it like facts. the NYT proves his “facts” to be wrong, so he ignores them.
In the end, my concern is that many here fall for Mike’s stuff fully, and they go around in the comments acting like it’s natural law and the truth of the universe. We know now that Mike can (and has been) wrong, about human nature, business models, and the whole “infinite” universe. What does he have left?
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Opinions can do that. It’s called faith, which is something copyright proponents have a lot. Despite all evidence in contrary, they still believe that copyright is the way to go.
I sincerely don’t mind that. People are free to believe what they want. But that doesn’t change the underlaying reality, and gives them no right to impose their views on others.
Not to mention...
Not to mention we can agree with some reasoning and then disagree with it later in a virtually identical situation! Freedom of logic!
Possible Fix
Maybe MySpace should just block all video going to any Indian IP address, complete with a short explanation. Then sit back and wait for the fun in Indian parliament.
Re: Possible Fix
One little problem. The text on the screen could be part, if not all, of the script which is copyrighted by the video owner. Thus, all text should be block in case a movie script is written on the website. What about pictures. Pictures also have copyrights. Despite most people’s use of pictures from the net without artists consent, it still belongs to the original owner unless copyright says otherwise. So on the basis that the picture might be a copyrighted picture, we should block them too. But wait, there’s more. Audio. That audio clip that keeps playing in the background could be copyrighted. So for the sake of protecting the artists, we must block all audio on the site in case it turns out to be copyrighted music.
So what are we left with, a big white screen (and a better website in my opinion)
Speaking from personal experience, this is just the way it is in India. If you could have done something and did not the bureaucracy will go after you – that it would be cost prohibitive is not a defence. The courts often agree.
perhaps MySpace should pull out of India, along with just about every other social network site? maybe just leave India totally isolated and pull everything net related out of India? see how they handle that!
Isn’t this like blaming the owner of a property because the renter was doing something illegal even if the owner had no knowledge of what was going on?
If this is the case, then the government would be responsible for all of the drug sales in the government subsidized housing.