In the Part I of this two-part guest post, Himanshu had given a brief background about the parties involved and the subject-matter of the case followed by the discussion on the prima facie validity of the possible defenses taken by Defendant no.1, ZemTV. In Part II of the post below, he analyses the case further.
DISHTV vs. TVAddons: A Prognosis of Achievable Outcomes – Part II
Himanshu Arora
TVADDONS.ORG
– Indirect copyright infringement – TVaddons has been alleged to be liable on following two counts, which I will be dealing separately:
a. Contributory/Inducing Copyright Infringement – DishTv alleges that the website Operators have actual or constructive knowledge of this infringing activity and materially contribute to that activity by providing the forum (where the ZemTV add-on can be downloaded) and soliciting and/or accepting donations from ZemTV users. It further alleges that TVAddons also engage in purposeful conduct that intentionally induces ZemTV users to display the programs, obtained without authorization, through the ZemTV service and did not take necessary measures to remove it, even after receiving the DMCA takedown notices. Substantially, these claims are mixed questions of law and fact and can be established only after the trial. On the other hand, the TVaddons will definitely invoke ‘safe-harbor’ clause {as provided in Section 512(c)} by arguing that it is an online service provider and merely hosting, distributing and/or promoting user-generated and/or third-party content (i.e. Kodi Addons) is not an offence. Nevertheless, the ‘safe-harbor’ provision requires the service provider to meet a number of requirements for safe harbor, including but not limited to following:
i. No actual knowledge of the infringing material or activity on the system or network: An ISP is disqualified from the safe harbor only if it has knowledge of specific infringing activity, not a generalized awareness that there is or may be infringing activity on the website ;
ii. No awareness of fact or circumstances (red-flag test) – In the absence of such actual knowledge, the ISP is not aware of facts or circumstances from which infringing activity is apparent, and it must meet an objective standard also, namely, whether the ISP was subjectively aware of facts that would make specific infringement ‘objectively’ obvious to a reasonable person- as held in Viacom case); or
iii. Immediate removal : Upon obtaining such knowledge or awareness, ISP acts expeditiously to remove, or disable access to, the material.
It would be pertinent to mention that in recent case of ‘Vimeo LLC’ case, it has been held that safe-harbour provision is an affirmative defense, and the initial onus of proof to show eligibility to this defense is upon the entity (which is quite a low standard), but the ultimate onus to prove that the service provider should be held liable for copyright infringement because of ‘red flag’ knowledge has now undeniably shifted to the copyright holder (i.e. DishTV in the present case).
b. Vicarious Copyright infringement – Unlike contributory infringement, vicarious liability can be imposed even in the absence of any intent or knowledge on part of the defendant. In the Napstercase, the Court of Appeals for the Ninth Circuit observed that In the context of copyright law, vicarious liability extends beyond an employer/employee relationship to cases in which a defendant:
i. Has the right and ability to supervise the infringing activity – The ability to block infringers’ access to a particular environment and/or having any express reservation-policy or a right to terminate and/or suspend account of the user with discretion, is enough to prove ‘the right and ability to supervise’. Nevertheless, to escape imposition of vicarious liability, it must be shown by the website that it has been regularly exercising the reserved rights thereat, but turning a blind eye to detectable acts of infringement for the sake of profit gives rise to this liability, and
ii. Also has a direct financial interest in such activities – Financial benefit exists where the availability of infringing material “acts as a ‘draw’ for customers to visit/subscribe more and such progressive viewership/subscription, eventually, enhance the revenue of the website owner.
In the present case, defendant’s website invites users to donate money through cards or Bitcoins, and such collected donations forms part of the revenue only. So, if the complainant proves that the TVaddon website had the right and/or ability to control/supervise the conspicuous infringing activities, but even then remained imperceptive, then it can be held to be ‘vicariously’ liable for copyright infringement.
– Defense of Fair-use – Cord-cutting : ‘Cord cutting’ refers to the process of cutting expensive cable connections in order to change to a low-cost TV channel subscription through over-the-air (OT) free broadcast through antenna, or over-the-top (OTT) broadcast over the Internet. Netflix, Apple TV and Hulu are some of the popular broadcasting services that encourage cord cutting. In April 2016, Fortune published an article describing a cable industry report which found that 1.1 million American households dropped a traditional TV subscription during 2015, pushing the percentage of American households to almost 20 percent which have either cut the cord or never subscribed to such a service. Although ‘cord-cutting’ is originally aimed at lowering your entertainment expenses but nowadays, it has become more of a lifestyle choice than a mere need.
In the present case, perhaps, in order to escape the liability, the TVaddon (not sure about ZEMTV though) may take the plea that it is contributing to the ‘cord-cutting’ process, which eventually, is in public interest and therefore, should not be fastened with any liability. The defendant can make up some defense here, if it proves, that substantial number of the available add-ons on the website provides access to authorized/licensed or non-copyrighted content and it is not encouraging or inducing copyright infringement.
– Jurisdiction : The implicated defendants are neither the residents nor the citizens of U.S.A, so the defendants would be definitely challenging the ‘personal jurisdiction’ of the courts of Texas over the defendants. For analyzing the question of ‘personal jurisdiction’, I would have to invest my reading into civil laws of the states but I will forbid myself as the same is not the prinicipal subject-matter of the present post. However, the best I can offer for the time being is that (as held in Latshaw v. Johnston) the initial onus of proof to manifest that the Court has prima-facie personal jurisdiction is upon the complainant by demonstrating;
- that the defendant has purposefully availed himself of the benefits and protections of the forum state by establishing ‘minimum contacts’ with the forum state; and
- the exercise of jurisdiction over the defendants does not offend traditional notions of fair play and substantial justice.
Moreover, as per Ruston Gas Turbines, Inc. v. Donaldson Co, even a single act by the defendant directed at the forum state can be enough to confer jurisdiction, if that act gives rise to the claim being asserted. So, the complainant has to pass this hurdle to show the maintainability of the complaint.
Is KODI responsible too?
Though the Kodi Founders have not faced any music of law yet but in any case, I am certain that Kodi cannot be held responsible for any kind of copyright infringement because it is this ‘add-on’ feature only which makes it special & unique and merely some persons can misuse it to have access to unlicensed and/or unauthorized copyright content (i.e. incidental infringing purposes) is no ground to hold them wrong.
Conclusion
After analyzing the given situation, I am of the view that it would be a grueling task for the ZEMTV to wriggle out of the alleged liability but as far as TVaddons is concerned, it surely has some good case, particularly under the defense of ‘fair-use’. At this eventide, I would say that this case can be a great opportunity to settle or clean various obscure minefields of technical & copyright matters and act a guiding light to deal with future copyright issues, which keep on factoring with the growth of technology. I would rest myself here (at least for the time being) and would write a post on the comparative analysis and examination of this case, in the context of Indian copyright law and cases, soon.
ALERT!!! ALERT!!! – My examination and/or prognosis is only based upon limited facts, which I was able to gather from bounded news reports and informative websites, and a lot of facts are still to be unfolded or investigated and then proved. Nonetheless, the views are purely personal. Rest, I would be happy to receive comments from the readers on any aspect.