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A couple of weeks ago, Kartik had written a detailed post on a judgment by the Delhi High Court in the case of Tata Sky v. YouTube. The facts of the case are quite simple. Tata Sky sued You Tube on the grounds that the latter had failed to take down videos which taught viewers to circumvent certain technological protection measures (TPM) to view HD channels broadcast by Tata Sky, without paying for access. The main cause of action in the lawsuit was trademark infringement because Tata Sky’s logo was displayed on the videos – the judge does point out the weakness of such a claim. The judgment however also discusses issues of TPM circumvention under Section 65A of the Copyright Act, the duty of intermediaries etc. The problem with the judgment is that it really doesn’t lay down any law because YouTube agreed to take down the videos after what appears to be a lot of confusion between YouTube and TataSky. The suit was thus decreed after laying down the various arguments in the case.
There are some problems with the manner in which this case has been dealt with by the court and also be the defendant. The first is the lack of any civil remedies in the Copyright Act for the circumvention of TPM. Section 65A of the Copyright Act makes circumvention of TPMs a criminal offence. The act of circumvention of a TPM is punishable with a two year prison term and a fine (which surprisingly is not mentioned in the statute). There is no mention of any civil remedies such as an injunction or damages in the Copyright Act for circumvention of TPMs. On the other hand, Section 65B does provide for civil remedies in the case of circumvention of Rights Management Information (RMI). Yet, the Delhi High Court appears to be dealing with circumvention of TPMs in civil suits. Four years ago, we had reported on a lawsuit filed by Sony alleging the circumvention of TPMs and the Delhi High Court issued an injunction in that case. But again, there was no discussion of the remedies permissible under the law. If the Copyright Act does not provide for civil remedies, a court cannot grant injunction. The only remedy for rights holders in such a scenario is to file a criminal complaint. Surprisingly, this issue hasn’t come up in either the Sony case or the present case. You Tube is usually on the top of the game when it comes to such lawsuits and I’m not sure why this argument wasn’t raised in this case.
The second problem with the Tata Sky lawsuit is that the Copyright Act criminalizes only the act of circumvention of TPM – it does not criminalize the act of teaching a person to circumvent a TPM. In other words, it is criminal to circumvent a TPM but hosting a video of the process is not in violation of S.65A. In other words I can make a video or write a textbook teaching people to circumvent TPMs – the law does not prohibit such acts. Only if I actually commit the act of circumventing a TPM can I be prosecuted under Section 65A. Thus in the facts of this case, Tata Sky had every right to criminally prosecute the people who conducted the circumvention but it had no remedy against YouTube for hosting such a video. Surprisingly, YouTube agreed to take down the video. Why? It’s not clear.
Further, Tata Sky’s interpretation of the Information Technology (Intermediaries Guidelines) Rules 2011 is also questionable. From the judgment, it appears that Tata Sky argued that Rules 3(2)(d) & (e) and Rule 3(4) created an obligation on You Tube to take down the videos because they were showing an act which violated a law in force – I am presuming that Tata Sky was referring to S. 65A of the Copyright Act and Section 66 of the Information Technology Act. There are two problems with this interpretation. The first, as explained earlier, is that there is nothing illegal about the video showing the process of circumvention of TPMs. The second is that the Intermediary Guidelines Rules, 2011 which were enacted, pursuant to Section 79, only lay down the protocol to be followed by intermediaries if they want to take shelter of the safe harbour laid down in Section 79 of the IT Act. This provision does not create new offences.
Unfortunately, the Delhi High Court doesn’t deal with any of these issues because it appears that You Tube never made any of these arguments. As a result, You Tube is now under an obligation to take down all such videos in the future.