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 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…

Permalink | Comments | Email This Story