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36. Copinger and Skone James on Copyright, 16th Edition, Vol 1classifies "knowledge"as both actual knowledge and constructive knowledge. Actual knowledge would connote, facts such as whether the infringer turns a blind eye or adopts as a "Nelsonian" outlook showing failure to take steps to inquire into the kind of work it FAO(OS) 540/2011 Page 28 permits; this is to be seen in the context of digital media. A general awareness or apprehension that a work may be violative of copyright here would not pass the knowledge test. This rule when applied to an Internet service provider attains a different connotation. In the present case, where the system stores millions of videos, can MySpace be attributed with specific knowledge of infringement as to attract content responsibility? To say so would require MySpace - to know all owners of all works, and not just that of SCIL- a possibilitynot contemplated by the Copyright Act.A further aspect to this exception is "reason to believe" or what is referred to as constructive knowledge. Mere suspicion is insufficient; and similarly an apprehension is not enough. Here again would it be reasonable to expect a defendant/content host to sift through millions of videos or audio files to form a reasonable belief that certain specific data infringes copyright of someone? The requirement is to give specific information to the content host or the website(MySpace) that infringement occurs with respect to the specific work. A general or vague description of the works would be insufficient as this then leaves room for MySpace to rely guesswork as to what content has to be removed. Therefore, the onus is upon the plaintiff to give detailed description of its specific works, which are infringed to enable the web host to identify them. SCIL‟s argument here that insertion of advertisements or modification of content by MySpace disclosed its knowledge- is unpersuasive. MySpace consistently states that the advertisement insertions etc.are through automated processes-which has not been seriously disputed. The modification made is to the format of the video or audio file and not to its content. The automated process does not apparently involve MySpace‟s actual control. The extent of automation or for that matter the amount of manual/ human control can be discerned only at trial once evidence is led to show how the automatic process works and to what extent modifications are made and controlled. In the absence of such evidence, at a prima facie level this Court is of the opinion that if the modification/ addition is entirely through an automatic process without any human intervention then knowledge cannot be attributed to MySpace.

37. The question of deemed or constructive notice, in the opinion of the court, cannot be on the basis of any generalization, without inquiry into circumstances: it is a fact FAO(OS) 540/2011 Page 29 dependent exercise. For instance, in the context of even a "deemed" notice about existence of encumbrance by way of statutory charge, under Section 3 of the Transfer of Property Act, the Supreme Court held that ―There is no principle of law imputing, to all intending purchasers of property in municipal areas where municipal taxes are a charge on the property, constructive knowledge of the existence of such municipal taxes and of the reasonable possibility of those taxes being in arrears. It is a question of fact or a mixed question of fact and law depending on the facts and circumstances of the case.‖(Cf. Ahmedabad Municipal Corporation v Haji Abdulgafur Haji HussenbhaiAIR 1971 SC 1201). Likewise, it was emphasized in a later decision that ―A person is said to have notice" of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.‖ (R.K. Mohammed Ubaidullah v Hajee C. Abdul Wahab2000 (6) SCC

For an Indian Classical Carnatic instrumental version of Adele‟s album ―Hello‖has beenposted by one Mahesh Raghvan on YouTube (https://www.youtube.com/watch?v=wPTgMrOQ7fk- accessed on 20 December 2016). The video was viewed over 1.1 times. The title of the song is Hello, identical to the original title. Yet, it is a complete adaptation as the work is in a new format.

FAO(OS) 540/2011 Page 31 their larger original creation; with distributors, who might hold genuine licenses and with others who create versions, remixes or original titles which may have little content; still there may be other content uploaders whose material only superficially resembles with the titles owned by SCIL, because of the lyrics or titles but is otherwise genuine creation with its independent copyright. The remedy proposed by SCIL and accepted by the single judge in such cases results in snuffing out creativity. This court holds that in the context of the prima facie conclusion that there was no direct infringement by MySpace, the finding by the single judge of constructive knowledge and "secondary" infringement, is incongruous and not tenable. For the foregoing reasons, this court concludes that prima facie there was no knowledge on the part of MySpace, with respect to allegations of infringement of the plaintiff-SCIL‟s works.