Yashvardhan Rana
Abstract:
It is a well settled principle in the framework of the copyright laws, in the field of intellectual property rights, that one cannot trespass an exclusive right of the originator of a particular piece of work. The principle is in line with a renowned proverb that, ‘there are no free lunches in life’. No individual has got the right to benefit himself, at the expense of the long haul made by the original author, without acquiring the required affirmation of the latter or even accrediting him. It would simply amount to ‘theft’. On basis of this established principle, I would be discussing and analysing the two different landmark judgements, enshrined within the books of two diverse legal systems. The particular piece of work would depict an instance of contrasting treatment of a similar situation by the two judicial systems. The study would show as to how one legal establishment succumbed to committing multiple flaws, in road to passing of a shambolic verdict, shattering the very foundation on which the copyright laws were based, while the other hitting the bull’s eye, in preserving the sanctity of the same. The particular research model enumerates the theoretical aspect, pertaining to copyright laws, coupled with the detailed study of the U.S and the Indian legal establishments, via a critical analysis of the two landmark verdicts namely, ‘VIACOM vs. YouTube’ and ‘SCIL vs. YouTube’ respectively.
Case no.1:Viacom v. YouTube
Appellant – Viacom International, Inc.
Respondent– YouTube, Inc.
Decided on – June 23, 2010.
Citation- No. 07 Civ. 2103
Decided by – U.S. Federal court, San Francisco
Keywords: Copyright,Safe Harbor, rogue enabler, unlicensed, copyrighted material, pirated clips.
Case no. 2:SCIL vs. YOUTUBE
Appellant – Super Cassettes Industries (SCIL)
Respondents – YOUTUBE
Decided on – CASE PENDING
Decided by – Delhi High Court.
Keywords: subsisting copyright, ISPs, copyrighted songs, rank infringement, pirated content.
INTRODUCTION
In the garb of Intellectual property rights, Copyright is a term that has been well established in law relating to an inventor’s exclusive right to protect his own work. Copyright is all about balancing the rights of authors with the rights of the public to use the work without seeking permission or paying royalties. Under copyright, authors have the right to control the use of their work subject to exceptions permitted under the law.
“Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device.” –Lawrence Lessig.
It is appropriate in law that rigid laws are made which can boost economic return on their creativeendeavours that in turn provides a vibrant industry in the fields of music, literature,films and software in particular.
In light of the above quote as put forth by L. Lessig, I would merely demand an answer to a simple query, “Why should I being an originator of a certain piece of work, give away my tough grind, for public usage, without even being accredited for the same?”
With this rhetoric statement forming the premise of my discussion, I would be dealing with the aspect of copyright and copyright infringement in detail.
Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to creator of such original work, to do, authorize, or prohibit certain acts in relation to such work. Copyright law’s perennial dilemma is to determine where exclusive rights should end and unrestrained public access should begin. In the intellectual property domain every area has been given its due, whether it’s trademarks, patents or designs. Similarly, copyrights also enjoy an aura of unique standard, which in no manner should be tampered with.
Thus it assumes supreme importance for authors, artists, architects, composers, music production companies and producers, film production companies, computer programmers and designers.
In case of infringement (or copyright violation) it is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.The essence of a copyright infringement is the use of a work in relation to one or more rights of the copyright owner.
By giving a brief idea about the essence of copyright my intention of describing infringement of the same is of much importance as it would do a great deal to the reader.
GENERAL NOTION
Refers to a legal concept perpetuated by most governments by giving the creator of an original work exclusive rights,usually for a limited period of time. It is an intellectual property form applicable to any expressible form of an idea or information that is substantive and discrete.
SCOPE
It may well be applied to a wide range of creative, intellectual, or artistic forms, or “works”.
Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed derives a sense of understanding with the nitty-gritties of a well -known fact of law. Meanwhile, other laws may impose additional restrictions that copyright does not-such as trademarks and patents.
They are laws which are standardised somewhat through international conventions on the basis of which all the rules and principles are applied within the scope of this form as it is mandatory for a member state to comply with them.
ATTAINMENT OF GOALS THROUGH ENFORCEMENT
The on-going controversies over matters of copyright enforcement and piracy are infected by virulent strains of propaganda and misunderstanding. The entire issue is commonly framed as a battle between content creators and peer to peer file sharers. Let us take the two most extreme views, and refer to them by names they often choose for themselves. At one extreme, there are the defenders of “content owners” who either believe that copyright is a basic property right imperfectly embodied in law or who just believe that treating copyright that way is an important expedient that they should defend. At the other extreme, there are the “copyfighters” who believe that copyright is an authoritarian imposition, establishing harmful monopolies, either as corrupt and immoral support for capitalist plutocrats, or as unconscionable governmental interference in markets that should be free.
The copyfighter faction favours serving the consumer, often whether a given consumer has paid for what he or she consumes or not; strong protections provided by the legal doctrine of “fair use”; and free peer to peer file sharing. They sometimes characterize their counterparts as nothing more than corrupt politicians and fatcat corporate bureaucrats making obscene amounts of money doing nothing but taking egregious advantage of the financial and legal vulnerability of both actual content creators and content consumers.
Part of the propagandizing that goes on involves inventing new terms, or misapplying old terms, to confuse the nature of copyright law in the minds of the general public. By calling copyrightable and patentable materials “intellectual property”, for instance, there is a strong correlation drawn between copyright infringement and theft where no such correlation exists by nature. Contrary to the implications of terms like “intellectual property”, copyright is not a matter of property law : it is a government enforced monopoly on the manufacture and distribution of copies of a particular work. The key difference lies in the fact that in the case of copyright infringement a copy is made of the original without permission, while in the case of theft the original is actually removed from its possessor. This difference is recognized in law, by inculcating a different scenario in the minds of people as a truly acceptable form that one can relate to.
Regardless of one’s feelings about the matter of whether copyright enforcement is justified, it makes little sense to cover our ears, close our eyes, and ignore the facts that face us. In the end, if you want to make money by providing content for others’ consumption in years to come, you are going to have to start recognizing the increasing difficulty of maintaining a state of artificial scarcity enforced by copyright law. Strict copyright enforcement is not quite obsolete yet, but obsolescence is definitely nipping at its heels free to copy.
Another important fact that brings to our notice is that copyrights are generally enforced by the holder in a civil court, but there are also criminal infringement statutes applied in some jurisdictions.
The mechanism of establishing central registries are kept in some countries which aid in claims of proving ownership, registering does not necessarily prove ownership, nor does the fact of copying necessarily prove that copyright was infringed.
EXCLUSIVE RIGHTS
OWNER – Owner or author as defined under the act-
“Author” means –
• In relation to a literary or dramatic work, the author of the work;
• In relation to a musical work, the composer;
• In relation to an artistic work other than a photograph, the artist;
• In relation to a photograph, the person taking the photograph;
• In relation to a cinematographor sound recording the producer; and
• In relation to any literary, dramatic, musical or artistic work which is computer-generated, theperson who causes the work to be created;
The phrase “exclusive right” means that only the copyright holder is free to exercise those rights, and others are prohibited from using the work without the holder’s permission.
There are several exclusive rights that typically attach to the holder of a copyright:
• To produce copies or reproductions of the work and to sell those copies (mainly electronic copies)
• To import or export the work
• To create derivative works (works that adapt the original work)
• To perform or display the work publicly
• To sell or assign these rights to others
• To transmit or display by radio or video
FAIR USE AND FAIR DEALING
Copyright does not prohibit all copying or replication. In my view a new theory should be put into place that reconceptualises fair use as a collective user right in copyright law relating to public interest which has not yet unleashed its full energy to a certain extent.
There are four non-exclusive factors to consider in a fair use analysis. Those factors are:
I. The purpose and character of your use
II. The nature of the copyrighted work
III. What amount and proportion of the whole work was taken, and
IV. The effect of the use upon the potential market for or value of the copyrighted work.
The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has further reduced fair use to a procedural right enjoyed by each user of copyrighted works, significantly diminishing the substantive value of fair use in protecting the public interest.
In my view, fair use should instead be redefined as a collective right held by the public which facilitates and enhances their participation in communicative actions which in turn provides a method to achieve the purpose of ensuring the public’s access to copyrighted material and promoting the public welfare. Therefore, copyright owners’ rights are not untrammeled; they are subject to important exceptions and limitations or, as itis called in the American system, the “fair use” doctrine.
With the coming of the digital era, there arises a conflict between the fact that new digital technologies provide incentive to the free flow of ideas, knowledge and information, and the fundamental design of copyright law which is to limit the unauthorized flow of copyrighted works.
In that context, “fair use” is more needed to promote User-Generated-Content (creative activity without a business structure); to promote remix, mash-up culture which can create a wider creative space; to ensure the freedom of speech (and freedom of expression in general); and to protect privacy.
Furthermore, the protection of created works and their creators must always be balanced with the guarantee of public interest and fundamental freedoms. Fair use is designed to maintain such balance. The growing use of contracts and application of technological measures may threaten the fair use doctrine thus cause an unprecedented break in the balance inherent in all intellectual property system.
PIRACY
Copyright piracy is a phenomenon prevalent worldwide and to that effect a highly important aspect in the area of research that I would be dealing in regarding the case-laws. It is considered to be the illegitimate use of materials held by the copyright. Thus like any other theft which leads to loss to the owners of the property, besides economic loss, piracy also adversely affects the creative potential of a society as it denies creative people such as authors and artists their legitimate dues primarily targeting the software, music and film industry.
Furthermore, the main area of research put forth in my generalised study would be dealing with the comparison of two important case-laws embarking a new set of dimension in this field of law.
U.S.Context: VIACOM vs. YouTube
Case background
An ideal legal system has to perform plethora of functions, in their quest to enforcement of justice and restoration of equality. The following case in discussion sketches a pivotal picture in the books of justice. As far as the theoretical aspect of the case is concerned, it undoubtedly carves out a niche for itself, due to its negative impact upon the law professionals and legal aspirants.
The case enshrines a perfect reflection of the fact that, even the best legal systems at times, succumb to err in their judgement.
The verdict delivered by Justice Stanton within the confines of the U.S. Federal court, blessed the unethical state of play on the internet. It completely tormented the very foundation on which the copyright laws were based. It attacked one of the cornerstones of the Intellectual Property Rights, by favouring the respondents, in regard to their acts which set the exclusive rights of the petitioner on recluse.
Facets of the case
Viacom, an owner of a popular cable channel such as-MTV, Comedy Central, Nickelodean had filed an appeal against Google, an established internet service engine. The allegations levied against the respondents was that YouTube, a component of Google had built up its reputation as the most gauged site, by milking unlicensed use of copyright protected video clips obtained from professionally produced shows such as-The Colbert Report and The Daily Show, thereby causing huge monetary loss to the parent company. On the pretext of this contention, the appellant seek damages.
Rebuttal
Various allegations were levelled and were simultaneously countered, in this particular case, which ran for a span of over 3 years. I would however, confine my discussion to, stating the contentions put forth by Viacom’s general counsel and their respective treatment by the District Judge, Louis Stanton.
Viacom’s lawyer Michael Fricklas,disputed that YouTube, an entity of Google was engaged in rampant copyright violation, when he stated “Mostly YouTube behaves”.
The major allegations levied by the counsel, on behalf of appellant was that, copyright protection is essential for the survival of the creative industries and it should be considered illegal, if others build their market, via the material stolen from them.
Moreover, he went a step ahead, accusing YouTube of having Malafide intentions, in not trying its level best to keep the illegal content off its site, with the aid of copyright protection tools.
In response to the allegations levied by Viacom, Justice Stanton in favour of Google, stated that the respondents have not indulged in any copyright violation after they virtually removed all the copyright protected clips in compliance with the mass takedown notice, slapped upon them by the appellant.
He also inferred that the claim put forth by the media company may merely be a case of sour grapes, as they were defeated in their quest to overtake YouTube.
Judgement
The U.S. Federal Court benched at San Francisco delivered its verdict in favour of the respondents, Google. It dismissed the lawsuit before the trial, on the ground that YouTube had acted bona fide, in removing the illegal copyright protected material in response to the mass takedown order, slapped upon them by the owner, thereby, refraining themselves from constituting any copyright infringement.
Critical Analysis
The case would undoubtedly go down the history books as being one of the darkest chapters of the U.S. legal system. It was definitely a shambolic experience. The err in judgement was not committed once, but twice.
The gravity of the verdict delivered by the court was immense. It rendered the copyright laws a stature of being a facade. The judgement was passed, interpreting that no infringement occurs if the illegal content is promptly removed, when notified of a violation. This however fails to negate the fact that an infringement has already taken place and, even worse an exclusive right has already been trespassed.
According to me, the U.S. Federal court, failed to preserve the sanctity of the copyright principles. My assertion is based upon the following instances from the case itself;
When the court based its judgement, upon the interpretation of a 12 year old law that no copyright infringement occurs as far as the illegal content are promptly removed when notified of a violation, it fails to realise that a violation has already taken place. To make it even worse, the exclusive rights of the originator is already tampered with. YouTube had Ab-initio indulged into copyright infringement by broadcasting the professionally created videos of Viacom, without obtaining their required affirmation or reimbursing them in form of any royalty.
Also, in an embarrassing chain of events that culminated before the court, there was clear evidence depicting the owners of the disputed site, personally to have been involved in the process of infringement. The evidence, basically was an e-mail, written by one of the co-owners of the site, Chen to his partner, jawed, requesting the latter to refrain himself from uploading stolen videos on the site, as it would make it very difficult for them to prove their innocence. Thus, it’s crystal clear, that the owners had knowingly committed an offence of theft.
YouTube, on being sold to Google had developed a system that helps flag copyright violations, when videos are posted. But, herein, YouTube fails to appropriately implement the copyright detection tools and intentionally succumbs to uploading the illegal content on its site. This validates the presence of Mens Rea on the part of the respondents.
Moreover, YouTube deprives Viacom of their deserved dues, by showcasing their professionally created videos, without obtaining any licence or reimbursing them, in form of a royalty. Thus, they go about minting money, through the hard toil, made by the originator, Viacom, without even accrediting them.
Finally, apart from Viacom, there are various other instances wherein, other search leader’s own executives have gone to the extent of branding the video sharing service, ‘a rogue enabler of content theft’. This was in accordance with the documents unearthed in other copyright cases.
Indian Context: SCIL vs. YouTube
Case background
While the US approach, to copyright laws, as discussed earlier, turned out to be a muddled one, resulting this case be deemed as a revolution.
The Delhi High Court has, in its own way done a huge favour, to the copyright laws & principles. The judgement passed by the court is apt in this case, as it deems to have been spot on, in preserving the exclusive rights of the copyright owners & thereby restoring their faith in the legal system. This also sets up an ideal example for the evolving legal aspirants & established law professionals.
Facets of the case
SCIL, an owner of a reputed music label, T-series, moved the Delhi High Court against the respondents, YouTube, a component of Google, on account of rank infringement. Basically, YouTube LLC & its parent Google Inc. have on their website (Youtube.com), been showing aides& SCIL’s copyrighted songs without acquiring any Licence or permission. Thus they seek damages.
Rebuttal
Under this head, I would be elucidating the grounds which might have favoured YouTube in evading copyright infringement, in consonance with the arguments put forth by the Delhi high court, in support of the injunction order passed by them against the respondents.
YouTube might have contended that they were not liable for any copyright violation, on account of their user policy which is published, whenever a new user try to upload any content on its site. It basically, prompts the individual that he should not upload any content, which has not been obtained with due affirmation from the concerned owner. It lays down the guidelines for the users in compliance of which, he may deter himself from committing theft.
Also, the respondent may bring into the picture, the aspect of performing a technically impossible task of creating filters, that would restrict the uploading of over 300000-500000 illegal content on their site.
On the contrary, the prime reason put forth by the court in support of the injunction order passed , was that YouTube had depicted a mala fide intention of making profits at the expense of SCIL, by broadcasting their songs for free to the public, coupled with displaying advertisements and collecting revenue from the same.
It also brought into light the malignant nature on the part of YouTube, in showcasing SCIL’s songs for free, which resulted in forcing the appellant into severe loss on its revenue, accruing from the sale of CDs, DVDs and audio cassettes.
Judgement
The Delhi High Court passed an order of interim injunction, against the business practices of YouTube &its parent company Google, restraining them from making any profits at the expense of rightful copyright owners. They were barred from reproduction, adaptation., transmission, distribution, or displaying on their website or any other manner, any audio visual works in which SCIL owns exclusive, valid or subsisting copyright.
Analysis
In my opinion, the Delhi High Court has hit the bull’s eye, in this instance, by passing an interim injunction against the illegal & unethical business practices of YouTube & its parent co., Google. They have succeeded in re-enforcing the certitude of the owners of the copyright works in the legal system, by assuring them the preservation of their Copyright exclusive rights. This therefore, would also buoy advancement of art & science.
I would support my stance, in the light of the following reasons;
YouTube, along with its parent Co. Google have undoubtedly indulged themselves into copyright violation, by displaying copyright – protected audio & videos, without obtaining required license for the same, from the concerned owners.
Further to outline, YouTube had also displayed its Malafide intentions of minting green paper, using hard toil done by SCIL’s music label T-Series, by not only showing their songs for free to the public, but also displaying advertisements & collecting revenues from the same.
Similarly it had forced SCIL into incurring huge losses, by broadcasting their songs for free to the public, Basically, SCIL’s revenue is generated from the manufacturing of DVD’s, CDS, & audio cassettes and from royalties collected by licensing their original work to hotels, restaurant, telecom operators & internet services. Now, if the public has acquired a free access to their work, why would they opt paying for the same. Thus their scope of generating revenues out of their own work, has been reduced to zilch.
Also its important to understand the hypocrite nature of Google, when they contend that its technically impossible for a website worth $158 billion to make filter, restricting the upload of 300000 to 500000 illegal contents, where on the contrary various minor sites sales manage to restrict the same.