A Rear View of the YouTube case

The Delhi High Court recently passed an order of interim injunction against YouTube and its parent company Google against the business practice of Youtube of earning profits at the expense of a rightful copyright owner. YouTube is facing quite a few legal battles for its business plan for copyright infringement. The recent being a suit filed by T-series in the Delhi High Court. The Delhi High Court issued notice and summons against YouTube and Google, Inc and passed an interim order restraining them from reproducing, adapting, distributing, communicating, transmitting, disseminating or displaying on their websites or otherwise infringing in any manner any audio visual works in which the Super Cassettes Industries (hereinafter referred as SCIL) owns exclusive, valid and subsisting copyright. The business model of YouTube allows, encourages and profits from use of copyrighted work uploaded on the website without obtaining any license or permission from the rightful copyright owners and without paying them any royalty. The profits from this business model, which is based on copyright infringement, are enormous.

The arguments on the basis of which the injunction order was passed were:
YouTube and Google profit at SCIL's expense by showing SCIL's songs for free to the public, while displaying advertising on the screen and collecting revenue from the advertisers based on the number of hits on the site.

SCIL’s revenue comes from manufacturing and selling DVDs, CDs and audio cassettes of its copyrighted music and from royalties collected by licensing the copyrighted music to hotels, restaurants, television companies, radio stations, telecom operators and internet websites. YouTube LLC and its parent, Google Inc., have on their website YouTube.com been showing videos of SCIL’s copyrighted songs without SCIL’s license or permission.

It will be interesting to see what defense YouTube takes when the case comes up for hearing in February next year.

The grounds which might be highlighted by YouTube to avoid copyright infringement during the hearing are as follows:
# Whenever a user uploads any videos on YouTube the following message appears to avoid copyright infringement “Do not upload any TV shows, music videos, music concerts, or commercials without permission unless they consist entirely of content you created yourself. Please refer to our Copyright Tips page for some guidelines and links to help you determine whether your video infringes someone else’s copyright.”

# Moreover nearly 3, 00,000 to 5, 00,000 videos are uploaded daily on YouTube. Giving regard to the number of videos that are being uploaded everyday it is not technically possible for the website to make such filters that would restrict uploading of copyright protected material.

However the other side of the story is that, Google has in the past objected to provisions in India's Information Technology Act 2000 which make intermediaries such as ISPs (Internet service providers), website hosting companies, search engines, e-mail services, and social networks, liable for their users' content.

Ironically, many other Internet operations such as MySpace, TorrentSpy, DailyMotion and Break.com have set up filtering systems to block copyrighted material. Google is a $158 Billion company with arguably the most advanced search technology in the world. The argument that they cannot block pirated content because of technological or financial reasons is laughable.

With the passing of this restraining order, the onus appears to now be on Google and YouTube to prevent users from uploading T-Series content. The other thing is - if this becomes a permanent injunction, then it sets a precedent in India which will impact other videosharing sites, including Rediff’s. We need to wait and watch for the decision of the Delhi High Court as its decision might change the total scenario of IP Law.

The  author can be reached at: shachipunani@legalserviceindia.com