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Published : April 22, 2010 | Author : abhishekk
Category : Cyber Law | Total Views : 27815 | Rating :

  
abhishekk
Abhishek Kumar Pandey I am a Law Student at Law School, Banaras Hindu University. I have done Diploma in Cyber Law, Post Graduate Diploma in Computer Applications & Diploma in French Language.
 

"….the greatest communications medium of our time, the Internet is also the world's largest copy machine. But unlike traditional copy machines, the Internet, coupled with digital technology, makes near-perfect copies every time and allows a software pirate to send as many copies as he or she wishes by simply pressing a few buttons....."-John Malcolm[2]

The advent of the World Wide Web by Tim Berners- Lee paved the way for the access of the hyperlinked documents on the Internet. With such advent the availability of information over the Internet became just a ‘mouse click’ away. The Internet has seen a harefooted growth of websites over the last decade. According to Netcraft Web Server Survey Report[3] there exists 2, 39,611,111 websites over the Internet ready to provide all sorts of information to the web users. Not only the figures of website boosted but also the web users got increased round the globe to massive 6,710,029,070[4] users. With so much of traffic over the Internet the need of the free flow of the Internet is ensured by the Search Engines. Search Engines not only ensure a free flow of Internet but also provide for systematic availability of information to the web user in matter of few seconds. To ensure quick, easy and relevant information to the web users the Search Engines have taken help of sophisticated technologies. As the use of technologies got increased several legal issues were set forth before the copyright laws which were unattended, new and challenging. Amongst these issues, the most fascinating issue these days is holding a search engine liable for copyright infringement. Over the past few years there had been several suits over the various courts of law (worldwide), claiming for injunctive orders against the Search Engines. Initially all such suits were in vain, bringing the Search Engines under ambit of copyright laws had been a hard nut to crack. Generally the claims were made for direct infringement but courts on the basis of “Volitional Conduct” discarded such claims. In Gordon Roy Parker V. Google inc.[5] court held that the defendant must show that the defendant in committing infringing acts engaged in ‘Volitional Conduct’. Google Search Engine in Blake A. Field V. Google Inc[6]. escaped from similar charges through the argument that it was the user who created copies of the copyrighted work and not Google, the cache shown by them was an automated process.

The alarm buzzed to the ears of techno- habituated infringers when the US district court in Perfect 10 V. Google Inc.[7] held Google liable for direct copyright infringement through thumbnail display. The district court held that saving of thumbnails of the copyrighted images of the plaintiff over defendant’s server amounted to direct copyright infringement. However this narrow decision was soon reversed by the Ninth Circuit in Perfect 10 V. Amazon.com[8].Although the decision discarded direct copyright infringement by the search engine it remanded the case for deciding the contributory or secondary copyright infringement. Meanwhile allegations of copyright infringement by Yahoo! China gained everyone’s attention. Beijing High Court adjudicating the Yahoo! China Case[9] upheld that the Search Engine was liable for joint copyright infringement. This judgment of Beijing High Court opened a new gateway for the copyright owners to get control over the distribution of their copyrighted materials by the search engines. Decision in Perfect 10 Case also did not absolve search engines or content providers from all the responsibilities.

This paper deals with development of the decisions of the courts over the Search engines liability for copyright infringement. Further, it deals with the two Indian decisions Super Cassettes Industries Ltd. V Yahoo Inc. & Anr.[10] & Super Cassettes Industries Ltd. V Youtube.com[11] in which the honorable Delhi High Court passed injunctive orders and thus laid down a firm framework for the liability of such infringers in India.

(II) Intellectual Property perils over the Internet
One of the basic questions to be attended before dealing the issue in question is that whether the Internet is a tool to destroy Intellectual Property. Is it a threat for Intellectual Property? The answer obviously seems to me to be ‘No’. The intensity of innovation and emergence of new technologies merely enabled dissemination of knowledge/information in unprecedented manner. These technological developments paved way for an upsurge in the demand for strengthening of Intellectual Property protection. There had been an unexpected development of Internet combined with the explosive internet user base. With such increase the policing of the Intellectual Property have become one of the toughest jobs to accomplish.

(III) Copyright, Copyright Infringement Liability
Copyright is an exclusive statutory right of literary (authors, playwrights, poets), musical (composers, musicians), visual (painters, photographers, sculptors), and other artists to control the reproduction, use, and disposition of their work.[12]
Article 27 paragraph 2 of the Universal Declaration of Human Rights (UDHR) provides as a basic right that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ Thus it guarantees protection against copyright infringement. Several countries consider copyright as basic right of property. Worldwide there exists country specific Copyright Laws. US has US Copyright Act, 1976, UK has The Copyright, Designs & Patent Act, 1988. Apart from it countries have technology based copyright laws as in US Digital Millennium Copyright Act.

Anyone who, without the authorization of the copyright owner, exercises any of the exclusive rights of a copyright owner, as granted and limited by the Copyright Act of the land, is an infringer of copyright. Copyright infringement is determined without regard to the intent or the state of mind of the infringer; "innocent" infringement is infringement nonetheless.

Before entering into the ambit of Search Engines and there liabilities it would be prudent to first get acquainted with the types of liabilities in copyright infringement.

Direct Liability
To succeed on a claim for direct copyright infringement, a plaintiff must prove two elements:
(1) Ownership of the copyrighted material, and
2) Violation of one of the exclusive rights of the copyright owner by the defendant.

Unauthorized copying is the most common form of direct infringement. Direct infringement includes performance or adaptation made without the author’s permission.

Vicarious Liability
Courts have imposed vicarious liability where parties
1) receive a direct financial benefit from the infringement; and
2) they have the right and ability to supervise or control the infringement.

Vicarious copyright infringement initially was conceived as an outgrowth of the agency principles of respondeat superior. In Playboy Enterprises, Inc. v. Frena [13]the court found a Bulletin Board Service (BBS) operator vicariously liable for permitting the unauthorized uploading of images from the plaintiff’s magazine to the Internet for commercial gain.

Contributory Liability

The doctrine of contributory infringement arises out of the theory of enterprise liability. It states that liability should attach whenever a person knowingly contributes to the illegal conduct of another. In the Internet world, “contributory liability will attach if a party knows, or reasonably should know, of infringing activities occurring on the party’s website, and the party materially contributes to the infringement” Contributory liability with regard to copyright infringement over the Internet may be used here as laying down the parameters for contributory liability where it is found that an intermediary(1) with knowledge of the infringing activity, (2) induces, causes or materially contributes to the infringing conduct of another.

Thus, courts defined contributory infringement as knowingly making a material contribution to an infringement. But in MGM v. Grokster[14], the U.S. Supreme Court stated that “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement.”

(IV) Search Engines & Their Infringing Acts
A. Search Engines: Why, What & How?
As earlier in the introductory section it has been pointed out that the number of websites and web pages over the Internet are huge. It is impossible for a web user to identify and memorize all the web pages of his use. A tool which proves to be handy and vital for the entire web user to filter out the website according to their need is Web Search Engines[15]. Search engines allow millions of users to locate content over the internet. Search Engines are website services that constantly catalog the rapidly changing content on the Internet. Internet users locate desired information by searching the keywords, phrases or other identifiers- into a search engine which quickly generates links to dozens, hundreds or even hundreds of thousands of websites whose contents match the desired information. Unlike Web directories, which are maintained by human editors, search engines operate algorithmically or are a mixture of algorithmic and human input.

Initially there was no concept of Search Engines and there existed a complete list of all web servers over CERN web server. The web's first search engine Aliweb[16] appeared in November 1993. Subsequently Search engines like Magellan, Excite, Infoseek, Inktomi, Northern Light, and AltaVista, Yahoo, Google & MSN Search came into existence.

The operation of a search engine is based upon Web Crawling, Indexing & Searching. Generally a typical web search engine stores information about the web pages over the WWW. The pages are retrieved by an automated Web browser called Web Crawler or Spider. The content of pages so 'Crawled' are then analyzed and 'Indexed'. A database called ‘index database’ is maintained having information about it, also ‘cache technique’ is used to store words of every web page. When a user enters a 'Search text' the search engine matches its cache or database and provides the best matching web pages with a short summary about the web page.

B. Copyright Infringement & Search Engines: Global Adjudication
Issues pertaining to infringement of intellectual property rights via the Internet had been a key concern over the several courts of countries throughout the world in the recent years. Several cases of Copyright Infringement via Internet came forward to the courts, where not only the end user of online services were made party but also the technology companies and the service providers were asked to be penalized for contributory copyright infringement. It would be just to deal with the cases of esteem importance pertaining to the issue. The cases are here by divided into (i) Related Cases (ii) Direct Cases

(i) Related Cases: - Cases mentioned out here are those cases which encouraged copyright owners to bring suit against the companies and act as precedents in cases of liability of search engines for copyright infringement.

Le Hotels Méridien v. Google France[17]
Decided in the year 2004 by French Court, the case alleged the search engine for Trade mark infringement. In this case Google was held to be an infringer and court held that Google played an active role in encouraging advertisers to infringe registered trademarks. Defense of disclaimer by Google was discarded.

A & M Records Inc V Napster Inc[18]
Napster a P2P Network company was held liable for the contributory infringement by the Ninth Circuit Court of USA. It was alleged that Napster provided the users with the Music Share Software for uploading and downloading songs from the P2P network. Napster contended that the Sony doctrine[19] shielded it from secondary liability because its software and network were capable of substantial non-infringing uses. The Ninth Circuit court rejected such defense and held that Napster had constructive knowledge of infringement and facilitated and helped users by maintaining indexing central servers and providing technical support to its users.

MGM Studios Inc V. Grokster Ltd.[20]
Grokster and Streamcast were companies that distributed free software that allowed computer users to share electronic files through P2P network. The users were involved in downloading copyrighted materials through the network. The petitioner claimed that the defendant provided for the software through which several files were transferred of which they had copyright. The Ninth Circuit didn’t held Grokster for any such infringement but on appeal to Supreme Court it was held liable for contributory infringement.

Universal Music Australia Pvt. Limited V. Sharman License Holdings Limited[21]
In September 2005, the Federal Court of Australia found KazaA liable for authorizing copyright infringement. Despite the fact that the KaZaA website contains warnings against the sharing of copyright files, and end user license agreement under which users are made to agree not to infringe copyright, it has long been obvious that those measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users. The defendants had long known that the KaZaA system is widely used for the sharing of copyright files and such authorization was held to be infringement of copyright.

Although the above cases were not involving any issues regarding copyright infringement liability of search engines yet it was important to discuss them as these were the decisions round the globe which signaled change in attitude of the courts towards all kind of online intellectual property infringement.

(ii) Direct Cases :-
The above discussed cases gave copyright owners the right to target companies rather than prosecuting individuals. As an outcome of such right several litigations came up in front of the court where online service provider was sued for online copyright infringement. Since the Search Engines were the key players in online sale and revenue generation they were targeted the most.

Blake A. Field v. Google, Inc.[22]
In this case plaintiff Blake Field brought a suit against Google contending that by allowing Internet users to access copies of 51 of his copyrighted works stored by Google in an online repository, Google violated his exclusive rights to reproduce copies and distribute copies of those works. Field alleged that the infringement by Google occurred when a user of Google’s search page clicked in the cached link, and Google displayed a copy of Field’s works via the cached link. Upon cross-motions for summary judgment, the court found that Field’s claims were not supported by the law and dismissed Field’s copyright claims.

Key Note:-
(a) Google did not commit direct copyright infringement because the process by which Google displayed the cache was an automated and non-volitional act in response to the user’s request. The court stated that Google was not creating copies of Field’s work; it was the user that was creating the copies.

(b) Google had an implied license to display Field’s works through its cached link. Field’s conduct reasonably could be interpreted as granting an implied license to Google to display the content of Field’s web site via the cached link.

(c) On the basis of above Field was “estopped” from asserting a copyright infringement claim.

(d) Google’s use of cached links constituted fair use. Google’s use of Field’s work was transformative, which weighed heavily in favor of a finding of fair use. Google not only uses industry standard procedures to ensure that it does not display cached links if the owner of the page does not want them to appear, but it also provides an explanation on its web site regarding how a web page owner can request that it not display cached links. Google takes steps to ensure that users seeking an original web page through its search engine can easily access that page, and that viewers of the cached page know that the cached page is not the original page. Additionally, with respect to Field specifically, Google removed the cached links to Field’s works once it learned that Field had filed suit (and before Google had been served in the case).

(e) The court also found that Google was entitled to the protection of the safe harbor provided by Sections 512(b) of the DMCA[23]. That section states that a service provider will not be liable for copyright infringement by reason of “intermediate and temporary” storage of material on a system operated or controlled by the service provider if certain requirements are met. The court found that Google’s 14-20 day storage was “temporary and intermediate” within the meaning of the DMCA.

Gordon Roy Parker v. Google, Inc.[24]
Parker posted writings on his own web site and on the Usenet, a community of electronic bulletin boards maintained by Google. Representing himself, Parker filed a seventy-two page complaint, with 129 paragraphs of factual and legal allegations, against Google and “50,000 John Does”, asserting direct and secondary copyright infringement on the basis of Google's automatic archiving of Usenet postings, creation of hyperlinks responding to inquiries, and excerpting of his web site.

Key Notes:-
(a) District Court of US dismissed claims charging Google with direct copyright infringement as a result both of its archiving Usenet postings that contain excerpts of plaintiff’s copyrighted works, and its display of excerpts of plaintiff’s copyrighted website in search results. The District Court held that Google has not engaged in the requisite volitional conduct necessary to be held guilty of direct copyright infringement because such copying is a by-product of the automated operation of Google’s search engine and related technologies. As such, Google’s acts are akin to a user’s use of its ISP to transmit infringing material to a third party, which do not give rise to direct infringement claims against the ISP. On appeal, the Third Circuit affirmed the dismissal of Parker’s direct infringement claims, on the grounds that Google’s archiving of infringing Usenet postings lacked the requisite “volitional conduct.”

(b) The court also dismissed Parker’s contributory infringement claim because he failed to plead a primary infringement or that Google knew of any infringing activity, and dismissed Parker’s vicarious infringement claim because he did not allege adequately any infringement or any financial benefit by Google.

C. Perfect 10 & Yahoo! China: Opening new dimensions
Perfect 10 V Google[25]
In this case California federal court granted a plaintiff’s motion for a preliminary injunction against the Internet search giant from creating and displaying thumbnail versions of the plaintiff’s copyrighted photos in Google’s image search results.

Perfect 10 publish an adult magazine and operate the subscription web site, perfect10.com. Both feature high quality, nude photographs of “natural” models. Perfect 10 also licenses reduced-size versions of its copyrighted images for download and use on cell phones to Fonestarz Media Limited(“Fonestarz.”) Perfect 10’s copyrighted images appeared through the Google service in two ways. First, the use of the Google Image Search function for a particular Perfect 10 model brings up a thumbnail image of a copyrighted photograph. Second, when a user clicks on the thumbnail of the copyrighted image, a web page with two frames appears. The upper, smaller frame is hosted by Google and contains the thumbnail retrieved from Google’s cache and information about the larger image. The lower frame shows the original third-party web page on which the full-size image is found. Perfect 10 filed suit against Google and Amazon, alleging direct copyright infringement for Google’s “display” of full images through the frames, direct copyright infringement for the use of the thumbnails, and vicarious and contributory copyright infringement. Perfect 10 moved for a preliminary injunction.

Key Note:-
(a) Perfect 10’claimed for direct copyright infringement of its exclusive right to ‘display publicly’ ‘distribute’ its copyrighted image. The court applied “Server test” The server test defines “display” as the act of serving content over the web. Because the full-size image appears on Google’s site only by way of in-line linking, and Google had not stored or served the full-size images, the court found that Google had not displayed the images for copyright purposes. But the court found that the use of ‘thumbnail’ images by Google was not likely ‘fair’ and amounted to infringing act.

(b) In-line linking is not copyright infringement because the images are stored and displayed on their original sites and not on the Google site. Thus, Google did not copy, display or distribute these images, as necessary to violate copyright law.

(c) Providing an "audience" for infringing websites and advertising those sites is not active encouragement to the public to visit those sites. Therefore search engines cannot be held liable for secondary or contributory infringement.

(d) Local storage is an automatic process that is typically non-commercial, and is likely fair use.

Perfect 10 Inc. V Amazon .com[26]
The smiles created on the faces of copyright owners soon vanished away by the judgment of the 9th Circuit which reversed the judgment given in Perfect 10 V. Google. 9th circuit uplifted the preliminary injunction of the district court over the Google.

Judge Sandra Ikuta while giving the judgment opined that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case. Providing HTML instructions is not equivalent to showing a copy Google does not display full-size images that users can reproduce. So although Google may facilitate a user's access and may be open to contributory liability, the assistance it provides does not constitute direct infringement of Perfect 10's display rights.

Universal International Music B.V. EMI (Taiwan) Ltd v. Beijing Alibaba Information Technology Co. Ltd.[27]
Finally the battle against the Search Engines was won in this case against Yahoo! China. The decision given by Beijing High Court in December 2007 laid down that ‘Yahoo! China’ had taken an indifferent attitude towards the occurrence of infringement and its conduct amounted to assisting others to carry out infringement through a network. The court further held that the act of Yahoo China was subject to joint liability for assisting others to infringe the right of information network dissemination.

In January, 2007, Universal Music Group, Warner Music Group, EMI Music Group and Sony BMG Music Entertainment Inc and others jointly sued Beijing Alibaba Information Technology Co. Ltd., the owner of ‘Yahoo! China’, for infringement of copyright in two hundred and twenty nine audiovisual works.

On April 24, 2007, the Beijing Second Intermediate People's Court held that
(a) The plaintiff’s claim that ‘Yahoo! China’s’ conduct amounted to direct dissemination of the infringing music is rejected. Court said that the defendant's act, merely providing links without music content, should not be taken as directly disseminating the infringing songs through network.

(b) After receiving the Take-down notices, the defendant was put on notice that the plaintiff’s owned the copyright in the sound and video recordings and should have known that links were provided by its search engine to third party infringing websites even though they were not included in the sample URLs provided by the plaintiffs. The defendant thus failed to fulfill its obligation of removing all links to unauthorized music by only removing the links in the Plaintiff’s samples.

The court referred to Article 23 of ‘Regulation on the Protection of the Right to Network Dissemination of Information’ which provides:
“Where a network service provider provides any searching or linking service cuts off the link to any infringing work, performance, or audio-visual product after receiving a notice from the right owner according to the provisions of the present Regulation, it is not required to assume the liability to make compensation. However, when anyone is fully aware or should have known that any of the works, performance or audio-visual products it has linked to constitutes an infringement, it shall be subject to the liability of joint infringement.”

Yahoo! China appealed to the Beijing High People's Court. And in December, 2007, the High Court rejected the appeal and upheld the decision made by the lower court.

Viacom International Inc. V. Youtube Inc & Google[28]
Viacom filed a suit against Google, over copyright infringement. In the lawsuit that was filed against YouTube and its parent company, Google, Viacom had claimed that more than 150,000 unauthorized clips have been viewed for an astonishing 1.5 billion times.

The US court dismissed the injunction suit and held that the action of the defendant neither make them liable for direct infringement nor for contributory infringement under DMCA. The cross-motion for a protective order barring disclosure of the source code for the Youtube.com search function was granted, and the motion to compel production of that search code was denied.

(V) Copyright Infringement & Search Engines: Indian Perspective
Copyright protection has been granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, and schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.

Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.

Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.

(A) Copyright Infringement & Search Engine : Copyright Act
As discussed earlier the infringement can be direct, vicarious and contributory. Section 51 of the Act provides for activities which amount to copyright infringement while Section 52 provides for acts not amounting to infringement. Section 51 generally provides against unauthorized copying, change, distribution, performance, broadcast etc.

“51. When copyright infringed. -Copyright in a work shall be deemed to be infringed-
(a) when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under this Act-
(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or Analyzing the above section one can come to the conclusion that the liability of the Search Engine depends upon the interpretation of the term “communication of the work to public”

Section 2 (ff) lays down that-
"communication to the public" means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation. - For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public

The key question is now whether Search Engine by directing the users to the specific web pages makes it “available” to the user. Obviously the question will be negatively answered. Although there are no precedents in India but in my opinion the judgment in the Perfect10 V. Amazon.Com[29] will be welcomed in which the Ninth Circuit court held - “HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear of the user’s computer screen.”

Thus a Search Engine in India cannot be held liable for Direct Copyright Infringement. Further, under Section 51 (a) (ii) the Search Engines can provoke defense that they were “un aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright”. However where it is proved that the Search Engines were made known of the infringing act they can be held liable under contributory liability and injunctive orders can be passed against them.

In Super Cassettes Industries Ltd. V Yahoo Inc. & Anr[30] the Honorable High Court of Delhi On Friday, May 30th 2008 issued notice to Yahoo Inc. and its Indian subsidiary Yahoo Web Services (India) Pvt. Ltd on a suit filed by Super Cassettes Industries Limited (SCIL) owner of the largest Indian music label "T-Series" for infringement of their copyright caused by unlicensed streaming of SCIL's copyright works on Yahoo's portal video.yahoo.com

The plaintiff had filed the suit for permanent injunction, restraining infringement of copyrights etc. The plaintiff is engaged in the business of manufacturing and marketing audio cassettes, video cassettes, compact discs (CDs), televisions, etc. and has built state-of-the-art facilities, for recording music for the purpose of making cassettes and CDs. The plaintiff is the proprietor of the T-SERIES brand of Music Cassettes and has a repertoire of cinematographic films and sound recordings to the tune of over 20,000 Hindi film and non-film songs and around 50,000 songs in regional languages to its credit. Counsel for the plaintiff claimed that the plaintiff has a robust copyright licensing programme under its ‘TPPL Scheme’ and routinely grants licenses to other exploiters of music such as restaurants, hotels, resorts, shopping malls, retail outlets, nightclubs/discotheques, airlines, FM radio stations, TV broadcasters etc., for the use of works in which it enjoys copyright.

Subsequently the plaintiff found that the defendants are infringing the copyright of the plaintiff by hosting and streaming the songs, mainly partial and full video clips of audio-visual songs in which the plaintiff owns the copyright, on its website, www.video.yahoo.com

Legal Notices were served but it was found that the copyrighted works were not removed by the company.

Hima Kohli J. passed an order that the defendants and/or its officers, servants, agents and representatives are restrained from reproducing, adapting, distributing or transmitting in any manner on their website, `www.video.yahoo.com’ or otherwise infringing in any manner, the cinematograph films, sound recordings and/or the underlying literary or musical works of the plaintiff, in which the plaintiff claims copyright, without obtaining an appropriate license from the plaintiff. Similar case was filed against Youtube.Com[31] by the plaintiff and injunctive orders were issued by the court.

(B) Copyright Infringement & Search Engine : Information Technology Act
Under the Information Technology Act, 2000, Section 43(b) deals with the copying of the data, computer database or information over a computer, computer system or computer network. Section 79 absolves ‘Network Service Provider’ from certain liabilities. Both of the Sections are not potent enough to bring Search Engines under its ambit.

V Conclusion
The tussle between law and technology has been evident from the development of the technology itself. While the technology was dynamic, gained momentum and moved with the blazing speed the laws were not so dynamic and were little primitive. These contrasting features created several legal issues pertaining to intellectual property rights through the technology. As pointed out in Perfect 10 V Google.Inc[32] “ the principle legal issues for the search engines arise out of the increasingly recurring conflict between intellectual property rights on the one hand and the dazzling capacity of Internet Technology to assemble, organize, store, access and display intellectual property ‘content’ on one hand.”

Internet changed the way by which the information was disseminated. Digitalization on one hand reduced the cost of making perfect reproductions on the other hand Internet made its dissemination quick, easy and cheap. While several countries have specific laws regarding the Digital Copyright, India still lacks the same.

Although in recent years there had been cases in which the Search Engines were held to be liable for copyright infringement yet it is one of the toughest job to survive one’s own suit against the defenses available to them. Defenses like “Fair Use”[33], “Implied License”[34] “Estoppel”[35], “Volitional Conduct”[36] & “Safe Harbor”[37] are still an open challenge for copyright owners to overpower.

Not only legally but also technically it is cumbersome to persuade against such infringement when it comes with reference to search engines. As marked by Ninth Circuit in Perfect10 V. Amazon.com “….search engines have similarly massive repositories of information. The cost of filtering search results to eliminate copyrighted material, while low in individual instance, could have the net effect of compromising the integrity of the search engine itself ……….”

It is further to be noted that in both the cases where injunctive orders were passed either in Yahoo! China case or in Super Cassettes Industries Limited case such orders were passed only when it was proved that the legal notices were served to the Search Engines and they didn’t took any action or the action taken were not sufficient to minimize the copyright infringement.

Both of the above decisions opened new front for the war against copyright infringement but these orders are neither conclusive nor backed with the arguments which can face the defenses available to the Search Engines. This doesn’t mean that all is lost for the copyright holders. Technological improvements in the digital rights management of copyrighted material may enable copyright holders to control the distribution of their material. The approaches of the court till now is on the basis that the digital communication is still a neophyte therefore mere contributory infringement liability can be imposed over them so that their growth cannot be fettered. But where the copyright owner proves that the Search Engines specifically targeted them or induced infringement and generated profit from it the court will definitely come with decisions similar to Yahoo! China & Super Cassettes Industries Limited Cases. Ultimately the courts will have to address the similar issues in the upcoming future therefore in India context The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by such issues of Copyright Infringement over the Internet. The Act shall provide for a clear category under which these Search Engines can be clubbed & held liable. The law in its majestic equality shall provide for both innovation and protection.

Books Referred
(i) Cotter Anne-Marie Mooney, Intellectual Property Law, Australia, Cavendish Publishing, 2003
(ii) Gopalakrishnan & T.G. Agitha, Principles of Intellectual Property, Lucknow, Eastern Book Company, 2009
(iii) Gupta & Agrawal, Cyber Laws , Allahabad, Premier Publishing Co. , 2008
(iv) Nagpal Rohas, Cyber Crime & Digital Evidence, Asian School of Cyber Law, 2008
(v) Nagpal Rohas, Intellectual Property Issues & Cyber Space, Asian School of Cyber Law, 2008
(vi) Ryder Rodney D., Introduction to Internet Law & Policy, New Delhi, Wadhwa & Co., 2007

Articles Referred
(i) Anand S.Aarthi, Copyright challenges in the digital era ,The Hindu, Dec 29, 2008 Available at: - http://www.thehindu.com/2008/12/29/stories/2008122955250800.htm L.A. - 23/08/09

(ii) Band Jonathan, The Perfect 10 Trilogy www.policybandwidth.com/doc/20071031-P10Trilogy (short).pdf last Accessed on 15/08/09

(iii) Chetson Damon, Perfect 10 & Contributory Liability: Can Search Engines Survive? , North Carolina Journal of Law & Technology, 2007 Ed 1.

(iv) Jha Sneha & Jha Sameer, An Analysis of the Theory of Contributory Infringement, Journal of Intellectual Property Rights, Sep 2006. http://nopr.niscair.res.in/bitstream/123456789/3591/1/JIPR 11(5) 318-325.pdf L.A-16/08/09

(v) Mishra Vishnu Prakash, Digital Transformation of Copyright Laws in Indian
Perspective Available at: - http://bcognizance.iiita.ac.in/oct-dec2008/dtrans.htm L.A. on 16/08/09

Other Referred WebPages
(i) Copyright Infringement: Google Cache is fair use
http://www.linksandlaw.com/decisions-148-google-cache.htm  Last Accessed 12/08/09

(ii) Google In Better Position In the Copyright Lawsuit against Viacom
http://www.watblog.com/2008/07/04/google-wins-the-copyright-lawsuit-against-viacom/  L.A.-16/08/2009

(iii) Perfect 10 tests copyright law
www.physorg.com/news5381.html Last Accessed 16/08/2009

(iv) Copyright’s Fair Use Doctrine: The Latest Chapter
www.bingham.com/Media.aspx?MediaID=2589 Last Accessed on 17/08/09

(v) Infringement and Internet-post Grokster and KaZaA
lawyer_infringementoninternet.pdf" target="_blank">http://www.brandslaw.net/infocentre/inhouselawyer_infringementoninternet.pdf  L.A. on 22/08/09
--------------------------------------------------------------------------------
[2] Extract of speech given by John Malcolm, Deputy Assistant Attorney General in charge of the Computer Crimes and Intellectual Property Section, USA at Progress and Freedom Foundation's Aspen Summit 2002. Available at:- http://www.techlawjournal.com/intelpro/20020819.asp Last accessed on 15/08/09
[3] Netcraft Web Server Survey Report, July 2009 Available at http://news.netcraft.com/archives/web_server_survey.html Last accessed on 14/08/09
[4] World Internet Users and Population Stats, March 2009 Available at http://www.internetworldstats.com/stats.htm Last accessed on 14/08/09
[5] (Case No. 04-CV-3918), United States District Court, Eastern District of Pennsylvania, March 10, 2006
[6] Case No. CV-04-0413, United States District Court, District of Nevada, January 19,2006
[7] Case No. CV 04-9484, United States District Court, Central District of California, February 21, 2006
[8] 487 F. 3d 701 (9th Cir, 2007)
[9] Universal International Music B.V. EMI(Taiwan)Ltd v . Beijing Alibaba Information Technology Co. Ltd
[10] CS(OS) 1124/2008, Available at http://courtnic.nic.in/dhcorder/dhcqrydisp_O.asp?pn=95892&yr=2008 Last accessed on 16/08/09
[11] Retrieved from http://www.livemint.com/2008/07/03000433/YouTube-case-could-set-precede.html Last accessed on 16/08/09
[12] Webster’s New World Law Dictionary, 2006 Ed.
[13] 839 F. Supp. 1552 (M.D. Fla. 1993).
[14] 125 S. Ct. 2764, 2776 (2005)
[15] Microsoft Computer Dictionary, Fifth Edition, defines Search Engine as-
“a program that searches for keywords in files and documents found on the World Wide Web, newsgroups, Gopher menus, and FTP archives. Some search engines are used for a single Internet site, such as a dedicated search engine for a Web site. Others search across many sites, using such agents as spiders to gather lists of available files and documents and store these lists in databases that users can search by keyword. Examples of the latter type of search engine are Lycos and Excite. Most search engines reside on a server. “
[16] http://en.wikipedia.org/wiki/Web_search_engine Last accessed on 22/08/09
[17] Available at http://www.juriscom.net/jpt/visu.php?ID=631 Last accessed on 13/08/09
[18] 239 F 3d 1004
[19] Doctrine laid down in the case Sony Corporation of America V. Universal City Studios Inc , 464 US (1984) 417 The US Supreme Court held that “ if a product is capable of other non-infringing and ‘substantially lawful’ uses, the producer could not be held liable.”
[20] 125 S Ct 2764(2005)
[21] Available at http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1242.html Last accessed on 13/08/09
[22] Case No. CV-04-0413, United States District Court, District of Nevada, January 19,2006
[23] Digital Millennium Copyright Act, USA
[24] (Case No. 04-CV-3918), United States District Court, Eastern District of Pennsylvania, March 10, 2006
[25] Case No. CV 04-9484, United States District Court, Central District of California, February 21, 2006, February 22, 2006, Got reversed in Perfect 10 v. Amazon, discussed later.
[26] 487 F. 3d 701 (9th Cir, 2007)
[27] Available at http://ssrn.com/abstract=1358453 Last accessed on 15/08/09
[28] Decided on July 1, 2008 by Louis L. Stanton J.
[29] Supra 25
[30] Supra 9
[31] Super Cassettes Industries Ltd. V Youtube.Com & Google Inc. 2007
[32] Supra 24
[33] Accepted in Perfect10 V Amazon.Com (supra 25)and played a vital role in reversing judgment of Perfect10 v. Google (supra 25)
[34] Accepted in Field V. Google (supra 21)
[35] Ibid.
[36] Accepted in Parker V. Google (supra 23)
[37] Certain provisions in statutes which provide for protection. The rationale for providing Search Engines safe harbors is that given the obvious technical and economic impracticalities, they cannot be expected to monitor or regulate (particularly on an ongoing basis) the vast amount of content which they display.

Authors contact info - articles The  author can be reached at: abhishekk@legalserviceindia.com




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