Indian Kanoon - Search engine for Indian Law

38. Copinger and Skone James on Copyright, 16th Edition, Vol 1 classifies "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 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 possibility not 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.

39. 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 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 Hussenbhai AIR 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 Wahab (2000) 6 SCC 402). Knowledge is to be therefore placed in pragmatically in the context of someone's awareness (i.e a human agency); a modification on the technical side by use of software would per se not constitute knowledge. Nevertheless, if the software requires some kind of approval or authorization from a person or authority as opposed to a computer system then knowledge can be attributed. This however has to be seen at the stage of trial and is beyond the purview of this appeal.

40. In this case, SCIL claims to have sent MySpace several notices describing the infringing works. Despite this MySpace did not take down the content. MySpace counters that SCIL had supplied to it more than 100,000 songs and works in which it held copyright. MySpace performed a scan and found that several of these works listed SCIL's notice, were uploaded by distributors or performers. This presented two impossibilities, one that the list provided by SCIL did not point to specific works nor did it provide the location where the works were accessible; the list was vague and general and listed every work that SCIL produced without showing whether it was available on the appellant's site and importantly, that it completely ignored the "fair use" aspect. In the peculiar circumstances, this court agrees with MySpace's contentions. SCIL is under a duty to specify the works in which it owns copyright. Merely giving the names of all content owned by it without correspondingly stating those, which MySpace is prima facie infringing, is contrary to the established principles of copyright law. It is only when a specific work is mentioned can it be said that MySpace possesses knowledge of a work being infringed on its website. Providing long lists of all works, tasking MySpace with identifying and removing infringing content is not enough. It is only when MySpace has specific or actual knowledge or when it has reasonable belief, based on information supplied by SCIL and if despite such knowledge or reasonable belief it fails to act can it be held liable for infringement. It would be crucial here to highlight a grey area, with respect to knowledge, e.g when a genuine licensee uploads works of SCIL. In the absence of a notice containing specific works there is possibility whereby MySpace makes a general search to identify the plaintiff's copyrighted work, it may come across works uploaded by authorized distributors/promoters. The general notice would constrain it to blindly remove the content, which can lead to disputes. In some other instances, a licensed performer may upload a video which is a combination of two songs or a remix-where rights in one half originally vest with SCIL and the owner of the second could be some person other than SCIL, makes it impossible for MySpace to discern the nature of rights and whom it finally vests with. There could be still other cases, where a copyrighted work may be adapted in the form of another creation, based on the original. In such cases, requiring removal would result in prejudice and injury. In the absence of specific titles and locations it would be impossible for MySpace to identify and remove such content. In such cases it becomes even more important for a plaintiff such MySpace to provide a specific titles, because while an intermediary may remove the content fearing liability and damages, an authorized individual's license and right to fair use will suffer or stand negated. In other words, an indiscriminate and blind acceptance of SCIL's entire list to run a general filter and "take down" all content would result in grave damage and result in likely multifarious disputes: with up- loaders, many of whom are original creators in their own right and might have used a miniscule quantum of the copyrighted content in 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"