Held plaintiff entitled to injunction as copyright cannot be violated as it vest statutory right in plaintiff by cat and mouse game of load and deleting offending videos. ”  unknown persons were trying to violate Copyright of Plaintiff as it had been pointed out in plaint that, different videos had been posted by Defendant No. 1 on platform of Defendant No. 2, which on request of Plaintiff were disabled. Subsequently, it had been pleaded that, ostensibly Defendant No. 1 had again reposted these videos.

MIPR 2018 (2) 0076= MANU/DE/1H71/2018

 

IN THE HIGH COURT OF DELHI

 

Rakesh Kumar Mehta

v.

 

Dushyant Kumar and Anr.

CS (COMM.) 1622/2016 DECIDED ON: 13.03.2018

Judge

Jayant Nath, J.

Counsel

For Appellant/Petitioner/Plaintiff: J.P. Gupta, Adv.

For Respondents/Defendant: Hemant Singh, Mamta R. [ha, Pranav Narain and Shruttima, Advs. for Defendant 2

Case referred

Myspace Inc. vs. Super Cassettes Industries Ltd., MANU/DE/3411/2016: 2017 (69) PTC 1 (Del): 236 (2017) DLT 478: MIPR 2017 (1) 274

Acts/Rules/Regulations

Copyright Act, 1957

Information Technology Act, 2000

Information Technology (Intermediary Guidelines) Rules, 2011

Rule 7

Issues and Findings

Copyright – Injunction – Rule 7 of Information Technology (Intermediary Guidelines) Rules 2011-

Held plaintiff entitled to injunction as copyright cannot be violated as it vest statutory right in plaintiff by cat and mouse game of load and deleting offending videos.

”  unknown persons were trying to violate Copyright of Plaintiff as it had been pointed out in plaint that, different videos had been posted by Defendant No. 1 on platform of Defendant No. 2, which on request of Plaintiff were disabled. Subsequently, it had been pleaded that, ostensibly Defendant No. 1 had again reposted these videos. This process of disabling videos and re-loading had been going on for some time. Unknown entity could not be permitted to defeat Copyright rights of Plaintiff in this manner, i.e. by reloading video after it was disabled by Defendant No. 2 on request of Defendant No. 1. In view of peculiar facts and circumstances of present case, it would be appropriate that, a direction was passed to Defendant No. 2 to give details and to provide information to extent that, such information or data was in its possession and readily available and resolved to India about identity of person who had uploaded these URLs which had already been disabled by Defendant No. 2 on instructions/notice of Plaintiff that, they were violating Copyright of Plaintiff. Suit disposed off.”

JUDGMENT

JayantNath J.

  1. Present suit is filed by the plaintiff seeking a decree in favour of the plaintiff and against the defendants for permanent injunction thereby permanently injuncting the defendants from reposting the videos including the 101 video lectures as already posted and from further posting any other video under any name or guise on the website of defendant No.2 or any other social media or publically accessible online platform. Various other reliefs are sought including a decree against defendant No.1 for grant of damages of Rs.1,00,00,000/- for the unauthorised and illegal use of the original literary work of which the plaintiff is the author and holds a copyright thereof.
  2. The case of the plaintiff is that he is the owner and author of original literary works contained in the video recording of the classes/lectures of the Chartered Accountancy Course delivered by him on V-Sat platform while teaching students. Defendant No.1 has claimed himself to be a Chartered Accountant and has admitted that he has posted the videos unauthorisedly under a channel named proclaimed as “CA-ROCK” on YouTube. It is pleaded that defendant No.1 has infringed the copyright of the plaintiff. Defendant No.2 is said to be a website/service platform owned by Google Inc named YouTube LLC.
  3. As far as defendant No.1 is concerned, on 17.1.2017 the submission of defendant No.1 was noted that he is willing to suffer a decree of permanent injunction restraining defendant No.1 from reposting the plaintiff’s videos including 101 lectures which were posted earlier on any of the websites. The suit hence survives only against defendant No.2.
  4. This court on the same date, namely, on 17.1.2017 had noted the submission of learned counsel for defendant No.2 that defendant No.2 will remove all infringing videos as are specifically intimated to defendant No.2. It was also noted that URLs earlier intimated have also been removed.
  5. Pleadings have been completed in this case. The matter was fixed for framing of issues. On 05.01.2018, this court noted that prima facie none of the prayers in the suit would survive against defendant No.2.
  6. I have heard learned counsel for the parties. It is not disputed by learned counsel appearing for the plaintiff that the offending videos have all been disabled/deleted by defendant No.2. Learned counsel appearing for defendant No.2 has also stated that whenever information is given about any offending video in future steps would be taken in terms of Information Technology (Intermediary Guidelines) Rules, 2011. However, for the present suit he submits that 101video lectures which is subject matter of the present suit have been disabled/deleted. This fact is confirmed by learned counsel for the plaintiff.
  7. Learned counsel for the plaintiff has stressed that the present plaint was filed based on the apprehension that it was defendant No.1 who has posted these URLs/videos on the site/platform of defendant No.2. However, he submits that as per the plaintiff other than defendant No.1 there are other entities who have also posted on the platform of defendant No.2 certain video lectures which violate the copyright of the plaintiff. It is urged that defendant No.2 has disabled such content which have been uploaded but defendant No.2 should also provide the identity of the person who has uploaded the said offending material on the platform.
  8. It has been put to learned counsel for the plaintiff that a perusal of the plaint does not show specifically any averments as to which URL has been posted by defendant No.1 and which by some other person. Further no such relief has also been sought in the prayer clause. Learned counsel for the plaintiff has pointed out that some of these URLs have also been loaded after filing of the suit and hence he submits that unless full details are provided by defendant No.2 it would mean that in future also the offender would continue to upload material on the platform of defendant No.2 which would mean that the plaintiff would have to repeatedly approach this Court for relief. He further points out that various URLs have been disabled by defendant No.2. But some miscreant has again re-posted the video in which plaintiff has a copyright on the platform of defendant No.2. He submits that this process is going on for some time.
  9. At this stage, learned counsel for the plaintiff submits that he will be satisfied if the identity of the persons who have uploaded these URLs is revealed to the plaintiff which have been disabled by defendant No.2 on the request of the plaintiff. Learned counsel has confirmed that in the present suit no damages or costs have been claimed against defendant No.2.
  10. Rule 7 of the Information Technology (Intermediary Guidelines) Rules 2011 reads as follows:-

“(7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing stating clearly the purpose of seeking such information or any such assistance.”

  1. Hence, on a lawful order the intermediary has to provide information for the purpose of verification of identity or for prevention of violation of any law.
  2. The Division Bench of this court in Myspace Inc. vs. Super Cassettes Industries Ltd., 2017(69) PTC 1 while dealing with the provisions of the IT Act, Copyright Actand the Information Technology (Intermediary Guidelines) Rules noted as follows:-

“62. Though prima facie MySpace is not liable for secondary infringement, yet there is no gainsaying that infringing works are on its website. The court is under a duty to device an equitable relief suited to the facts when liability has not been ascertained fully. At the same time precious independent talent would suffer without due recognition and monetary incentives given that monies performers would have received by licensing content are now available freely without payment. Despite several safeguard tools and notice and take down regimes, infringed videos find their way. The remedy here is not to target intermediaries but to ensure that infringing material is removed in an orderly and reasonable manner. A further balancing act is required which is that of freedom of speech and privatized censorship…….”

  1. In my opinion, in the present case it appears that some unknown persons are trying to violate the copyright of the plaintiff as it has been pointed out in the plaint that different videos have been posted by defendant No.1 on the platform of defendant No.2, which on the request of the plaintiff were disabled. Subsequently, it has been pleaded that ostensibly defendant No.1 has again reposted these videos. This process of disabling the videos and reloading has been going on for some time. The unknown entity cannot be permitted to defeat the copyright rights of the plaintiff in this manner, i.e. by reloading the video after it is disabled by defendant No.2 on the request of defendant No.1. Keeping in view the peculiar facts and circumstances of this case it would be appropriate that a direction is passed to defendant No.2 to give the details and to provide information to the extent that such information or data is in its possession and readily available and resolves to India about the identity of the person who has uploaded these URLs which have already been disabled by the defendant No.2 on instructions/notice of the plaintiff that they are violating the copyright of the plaintiff.
  2. The plaintiff will within four weeks from today forward to learned counsel for defendant No.2 the details of URLs which were disabled by defendant No.2 on the request of plaintiff which violate/infringe the copyright of the plaintiff. On receipt of such information defendant No.2 will take steps as noted above to provide information to the plaintiff through the learned counsel within four weeks. Needless to add the plaintiff would be free to take steps against the persons so mentioned by defendant No.2, as per law.
  3. Suit stands disposed of on the above terms. All pending applications, if any, also stand disposed of.

 

Add a Comment

Your email address will not be published. Required fields are marked *