Search Engine Liability for Copyright Infringement.
This essay aims at providing a balanced view on copyright infringement by search engines. It analyses both for and against situations as to why search engines should be held liable for copyright violation. It compares the provisions of the IT Act, 2000 and Copyright Act, 1957 with US laws on copyright infringement. In the Indian scenario it has drawn a map to examine how there was a shift from absolute liability on the part of search engines to a limited liability via section 79 of the IT Act, 2000.
It supports the fact that private rights of the creator of the ‘work' has to be protected and at the same time it argues for dissemination of knowledge which put in a nutshell is the aim of copyright law. Information can be spread provided it is protected and if such an act is authorized by the content owner.
You Name it! They have it!-A balanced view on Search Engine Liability for Copyright Infringement.
“There's no reason to throw out copyrights just because you're on the Internet, Deal with it.” ---James Grady
The 21st century will look extremely void without internet. Internet is a global phenomenon which connects people across the world. Along came the whiz lords of the internet, ‘the search engines'. Often referred to as God , search engines have now become the face of the World Wide Web. It is very normal to see a search engine's web page as the home page of a person's PC. Search engines are the organizers of all the jumbled up information available on the internet, they are digitized libraries. They may connect the readers and the viewers with authors and the makers, but do they possess the authority to do so? The legal fraternity has certainly taken a note of this loop hole. It is this reason which has brought many a law suits against these search engines across the world. Hence it is absolutely necessary to formulate a legal scheme to hold search engines liable for hosting copyrighted content. However, a balanced view has to be adapted because search engines are inevitable at this juncture, they have definitely been extremely beneficial in locating the information required and also have contributed to the development of economy.
Why Search Engines Should be held liable?
Holding search engines liable for copyright infringement is based on two very basic explanations. They are:
1) Easy Identification
World Wide Web is used by millions of users. It is never easy to locate a person who has uploaded any information over which he has no rights. Moreover, internet allows users to maintain their profiles as an anonymous profile. However search engines are information pyramids which locate all these pages and make them available. It is very easy to pin point that the search engine is responsible for illegal content distribution.
2) Money- spinning targets
If a person has to file a suit against a person or a corporation for copyright infringement he will realize monetary damages for such an offence. Search engines are multi –billion dollar corporations which make money by the minute. It is very evident that the offended person is going to look for profitable targets which are the search engines to hold liable.
The Copyright Act of 1957, after being amended in the year 1994 is very vague about holding search engines liable. However liability can be easily interpreted from certain sections.
Section 51(a) (ii)
This section clearly states that “Copyright in a work shall be deemed to be infringed if when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act… permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such performance would be an infringement of copyright.” Here “any place” refers to the computer or device through which internet can be used and “in public” clearly refers to the internet. However the key point to this whole provision is whether search engines are profiting from such violations?
A case in point would be Perfect 10 v. Google Inc .
The plaintiff, an adult oriented website initiated copyright infringement proceedings against Google for exhibiting their copyrighted photographs as thumbnail versions on the Google Images Search engine. The thumbnail versions created by Google included an inline link to the web page on which the images were present.
The plaintiff being the owner of those images, profited from them “in various ways including publication in a magazine, display on a subscription website and the licensing of a third party to sell thumbnails of the images for downloading to mobile phones.” The Court held that the plaintiff had an upper hand in this case as Google was at fault for displaying thumbnail versions of copyrighted images of the plaintiff. “Furthermore, the court held that Google's actions were not likely to be exempted from infringement as a fair use of the plaintiff's copyright photographs, in light of the commercial nature of Google's use of the photographs and the likelihood that Google's activities would interfere with the market for the plaintiff's photographs, since Perfect 10 sold similar size versions of the photographs to mobile phone users.” This case displays both the copyright aspect as well as profit aspect of copyright violations.
“Offence of infringement of copyright or other rights conferred by this Act: - Any person who knowingly infringes or abets the infringement of ---
(a) the copyright in a work, or
(b) any other right conferred by this Act,
shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”
The status of a search engine as an abettor of the offence of copyright infringement is still unclear. Search engines are in a position to screen the internet and prevent publication of unauthorized content. The power in the hands of search engines can easily block access to unauthorized web pages and sites. Hence there is a possibility that they can be held criminally liable under this provision if they fail to comply with such duty.
We are only trying to help!- The other side of the argument
Search engines on the other hand have their own arguments for not holding them liable. The most important arguments on their side are:
1) Inert channels of information:
Search engines argue that they are not publishers. Conversely they carry information in a passive manner.
Parker v Google Inc
Plaintiff is Mr. Parker, an author alleging that Google committed Direct copyright violation by archiving a copy of one of the chapters of his e-books (a posting), which he made available on USENET (online bulletin Board). He also claimed that Google search engine provided its users with a list of links (after they type in the required key words) which contained excerpts of his website.
The Court rejected Parker's contention and held that
“[w]hen an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users; the necessary element of volition is missing.”
2) Overwhelming Content
Search engines find it unfeasible to keep watch over content appearing on the internet. The tremendous amount of information available on the internet makes it impossible from the side of search engines. Preclusion of each and every copyright infringement case in point is extremely difficult.
Search engines are information providers. They only make things easier. It is the general public who are at a disadvantage if search engines are held liable. They ensure spread of information with a click of the mouse. To add on, holding them liable prevents the growth of the cyber world.
IT Act, 2000 to the rescue
The IT Act, 2000 has certainly come to the rescue of Search engines with the inclusion of Chapter XII-“Network service providers not to be liable in certain cases”. Through section 79 search engines can easily adopt the principle of safe harbour. Section 79 states that “For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.”
This section basically establishes the doctrines of take down notices& safe harbour.
Due diligence v. Take down and Safe harbour
Section 79 gives enough scope for search engines to argue for themselves. The term “without his knowledge or that he had exercised due diligence” mentioned in the section can be interpreted in such a manner that search engines can't be liable until ‘take down' notices that is a notice from the content owner stating that the search engine is not entitled to display his contents online is issued. However once such a notice is issued and they continue to display unauthorized information then they will be liable to delete such information from their resources. Thus safe harbor is ensured for search engines on account of take down notices.
Opt Out Policy
Due diligence simply put would mean due care. Search engines have opt out policy where they provide content owners an option to opt out of their purview i.e. their content will not be published by these sources.
The above practices are practical legal regimes carried out by the U.S. Government under § 512 of the Digital Millenium Copyright Act. These practices enable immediate exclusion of unauthorized content published by search engines which is the ultimate aim of copyright law. Section 79 of the IT Act, 2000 thus limits the liability of search engines clearly.
T-series against Youtube
T-series (Super Cassettes Industries Limited) has initiated copyright violation proceedings against Google Inc. to the tune of Rupees hundred Crore (Rs. 100 Cr). The contention of T-series is that Youtube has permitted its users to upload videos copyrighted by T-series. However the Delhi Court has issued an interim order asking Youtube to stop “reproducing, adapting, distributing, communicating, transmitting, disseminating or displaying on their websites or otherwise infringing in any manner any audio visual works in which the SCIL (Super Cassettes Industries Ltd, which owns the T-Series brand) owns exclusive, valid and subsisting copyright.”
Clearly in the above case T-Series has used the logical explanations and legal explanations given above to sue Google Inc. such as profitable target and easy identification and also use of the Copyright Act, 1957. Defences available to Google under S.79 could not be used at that point in time because the amendments were made to the IT act only in 2008 whereas the notice was issued in 2007.
Copyright Law Relating to Search engines – A prospective outlook
The map to this road has been drawn by the IT act, 2000 via amendments to s.79 with respect to India. However the Indian Judiciary has to make sure that s. 79 is not used as a support system for “infringement driven business”. Now that there are both sides to the coin of war against copyright infringement, we must wait for substantial judicial precedents to clarify to us concepts such as due diligence and also a clear stance on infringement liability by search engines.
Continual Infringement- The missing element
There should be a legal scheme where Search engines are required to ban users who repeatedly provide unauthorized content over the internet. This way the search engines are protected against copyright violation and the rights of the original content holder are also protected.
The ultimate aim of copyright law is to protect the sanctity of original works of creators. Dissemination of knowledge is the primal objective of copyright law; however it also intends to protect the rights of the author, to protect the originality of his work. You name it! They certainly have it, but do they have authorization to have it is the question to be answered. The aim of this article was to provide a balanced view on search engine liability where the rights of the content owner are satisfied and at the same time dissemination of knowledge is carried forward by search engines. I hope it struck the chord.
List of References
• The Structure of Search Engine Law, James Grimmelmann.
• Efficient Processes or “chilling effects”? Takedown notices under section 512 of Digital Millenium Copyright Act, Jenifer M. Urban & Laura Quilter.
• SEARCH ENGINE LIABILITY FOR COPYRIGHT INFRINGEMENT, Professor Brian Fitzgerald (QUT Law Faculty), Damien O'Brien (QUT Law Faculty) and Dr Anne Fitzgerald (QUT Law Faculty).
• Copyright as Cudgel, Siva Vaidhyanathan
• .COPYRIGHT 2010: THE FUTURE OF COPYRIGHT,Brian Professor Fitzgerald, EIPR 2008, 30(2), 43-49.
• WHAT IS GOOGLE'S REPUTATION SCORE? A METHOD FOR MODIFIED SELF-REGULATION OF SEARCH, Joseph M. Mercadante, 33 SHLJ 327.
• Copyright law DeskBook, Akhil Prasad & Akhil Agarwala, 2009 ed.
• Intellectual Property and the Internet, Rodney D. Ryder.
• Law of Copyright and Neighbouring Rights: National and International Perspectives, Dr. VK Ahuja.