491:
copyright owner or in contravention of a license, the copyright shall be deemed to have been infringed. The basis for contributory infringement under Indian copyright law can be found in
Section 51(a)(ii) which states that when someone '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', then also, the copyright shall be deemed to have been infringed. Secondary infringement itself can be subdivided into two categories- activities that assist primary infringements, and activities that accentuate the effects of the primary infringement. Section 51(a)(ii) deals with cases in which somebody assist the primary infringement. Section 51(a)(ii) itself gives the defense which can be taken by a defendant to avoid liability under this provision, i.e., the defendant was not aware or had no reasonable ground for believing that the communication to the public would be an infringement of the copyright. Section 51(b) deals with situations in which the effects of an already existing primary infringement are accentuated by the actions of the defendant. Section 51(b) provides that a copyright infringement will also be deemed to have taken place if a person sells, distributes, imports or exhibits in public by way of trade an infringing copy of a copyright-protected work. Therefore, Section 51(a)(ii) and Section 51(b) are the statutory basis for secondary liability in India including contributory infringement.
515:. Section 79 of the IT Act provides that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by the intermediary. But, an intermediary will get the benefit of the safe harbor provisions only if it satisfies certain conditions. The intermediaries function should be limited to providing access to a communication system, the intermediary should not initiate the transmission, select the receiver or modify the transmission and should observe the guidelines formulated by the Central Government in this regard. The 'IT (Intermediary guidelines) Rules 2011' have been formulated to specify the conditions that an intermediary must satisfy to get the protection of safe harbor provisions. As per these guidelines, the intermediary must observe due diligence measures specified under Rule 3 of the guidelines. For instance, the intermediary should take down any infringing material on its network within thirty-six hours of the infringement being brought to its notice.
562:
Further, MySpace's role was limited to providing access to a communication system. It only modified the format and not the content and even this was an automated process. Therefore, there was no material contribution also. To amount to an infringement under
Section 51 of the Copyright Act, the authorization to do something which was part of an owner's exclusive rights requires more than merely providing the means or place for communication. To be held liable for being an infringer on the grounds of authorization, it was necessary to show active participation or inducement. Therefore, Section 79 is available in cases of copyright infringement also provided the conditions under the Act and Intermediary Guidelines, 2011 are fulfilled. Since MySpace had fulfilled these requirements, it was given the protection of Section 79 of IT Act.
548:'place' under Section 51(a)(ii) includes a virtual space similar to the one provided by MySpace. It was argued that MySpace had knowledge of the infringement based on the fact that it had incorporated safeguard tools to weed out infringing material and that it invited users to upload and share content. Therefore, it was argued that there was implied knowledge. The Court held that to qualify as knowledge there should be awareness in the form of "actual knowledge" as opposed to just general awareness. Without specific knowledge of infringements, the intermediary could not be said to have reason to believe that it was carrying infringing material. Therefore, there was a duty on the plaintiff to first identify specific infringing material before knowledge could be imputed to the defendant.
199:
court then relied on the "staple article of commerce" doctrine of patent law and applied it to copyrights. The 'staple article of commerce' defence is available under Patent law in the United States and it lays down that when an infringing article is capable of 'substantial non infringing uses', it would become a 'staple article of commerce' and therefore, not attract any liability for infringement.
378:
have knowledge of infringement because of the legal notices sent to them. But, it was also held that to attract liability under contributory infringement, there should be knowledge of a specific infringement at the precise moment when it would be possible for the defendant to limit such infringement. Also, it was found that there was no material contribution. For this, the court relied on
511:' as 'intermediary with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message'. Due to this wide definition, almost every entity, including ISPs, search engines and online service providers can get the benefit of the safe harbor provisions in the
539:
works made available by it. The Single Judge had held that MySpace was guilty of copyright infringement under
Section 51 of the Copyright Act and the benefit of safe harbor provisions under Section 79 of the IT Act were not available to it in light of Section 81 of the IT Act. The judgment of the single judge was reversed on the following grounds-
439:"intentionally aids, abets, induces, or procures, and intent may be shown by acts from which a reasonable person would find intent to induce infringement based upon all relevant information about such acts then reasonably available to the actor, including whether the activity relies on infringement for its commercial viability."
561:
clause and precludes the application of any other law including
Copyright law. Thus, any restriction on safe harbor provisions such as Section 81 can be read-only within the limits of Section 79. Also, the IT Act and the Copyright Act should be construed harmoniously given their complementary nature.
198:
But, in this case, the Court held that Sony did not have actual knowledge of the infringing activities of its customers. At the most it could be argued that Sony had constructive knowledge of the fact that "its customers may use that equipment to make unauthorised copies of copyrighted material." The
91:
Material contribution is the second requirement of contributory infringement. For instance, merely providing facilities or the site for an infringement might amount to material contribution. But, some courts put emphasis on the contribution to be 'substantial' and therefore, would hold that providing
556:
Section 79 of the IT Act provides safe harbor to intermediaries provided certain conditions are met by them. But, Section 81 of the IT Act also states that nothing in the IT Act shall restrict the rights of any person under the
Copyright Act, 1957. The single judge had interpreted Section 81 to mean
434:
which meant to insert a new subsection '(g)' to the existing
Section 501 of the Copyright Act which defines 'infringement'. The proposed amendment would provide that whoever intentionally induces a violation of subsection (a) would be liable as an infringer. The term 'intentionally induces' has been
384:
and compared the technology to that of a VCR or a photocopier to hold that the technology was capable of both infringing as well as non infringing uses. Grokster differs from Sony, as it looks at the intent of the defendant rather than just the design of the system. As per
Grokster, a plaintiff must
547:
Liability under
Section 51(a)(ii) can be avoided by the defendant if he or she is able to show that he or she did not have any knowledge of the infringing act or that he or she did not have any reason to believe that the communication would amount to an infringement. Super Cassettes had argued that
274:
files stored on the computer and send it to
Napster servers. Based on this information, the Napster created a centralized index of files available for download on the Napster network. When someone wanted to download that file, the Music Share software would use the Napster index to locate the user
160:
recognised the exclusive right of a copyright owner 'to do and to authorize' the rights attached to a copyright enumerated in the Act. The words 'to authorize' were meant to bring contributory infringements within the purview of the Act. But, still, the Act did not specify the requirements of such
490:
deals with copyright infringement in India. Section 51(a)(i) provides for when an infringement of copyright is deemed to have taken place. It states that when somebody does anything, the exclusive right to which is conferred on a copyright owner, without first securing a license to do so from the
377:
on the users computers. Sometimes, the software operated without creating any index at all. Thus, it was held that
Grokster and Morpheus had no way of controlling the behaviour of their users once their software had been sold, just like Sony did with Betamax. It was found that the defendants did
538:
for hosting infringing material in which Super Cassettes was the copyright owner, without first obtaining a license. The infringing material primarily consisted of sound recordings. It was alleged that MySpace was commercially exploiting the works of T Series by including advertisements with the
331:
against Aimster. It was found that Aimster had knowledge of the infringing activity. Its tutorial showed examples of copyrighted music files being shared. Also, the 'Club Aimster' service provided a list of 40 most popular songs made available on the service. It was also held that the encrypted
188:
manufacturing company could be held liable for copyright infringements done by its customers. The court held that secondary liability for copyright infringements was not a foreign concept to US Copyright law and it was well enshrined in the copyright law of the United States. In the court's own
206:
The sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses. The question is thus whether the
278:
The Ninth Circuit Court of Appeals found Napster liable for both "contributory infringement" and "vicarious infringement". Regarding the issue of contributory infringement, the court held that Napster had "actual knowledge" of infringing activity, and providing its software and services to the
285:
was of "limited assistance to Napster". The test whether a technology is capable of substantial non infringing uses was relevant only for imputing knowledge of infringement to the technology provider. But, in Napster's case, it was found that Napster had "actual, specific knowledge of direct
65:
Contributory infringement leads to imposition of liability in two situations. First situation is when the defendant, through his conduct, assists in the infringement, and the second situation is when the means for facilitating the infringement such as machinery is provided by the defendant.
389:
the infringement. The test was reformulated as "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."
100:
Vicarious liability is another form of secondary liability for copyright infringement through which a person who himself has not directly infringed a copyright can, nevertheless, be held liable. The requirements for attracting vicarious liability under copyright law are:
336:
is knowledge, in copyright law.." The Sony defence raised by Aimster was also rejected because of the inability of Aimster to bring on record any evidence to show that its service could be used for non infringing uses. Lastly, Aimster could also not get benefit of
193:
Vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of
151:
in which the court said that contributory infringement is said to happen when someone, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another. This doctrine was developed in the context of the
245:
ratio differently in all these cases. For instance, Napster was held liable for contributory infringement. But, a similar service like Grokster was not held liable for contributory infringement as in this case, a district court, grounding its reasoning on the
124:"In the context of copyright law, vicarious liability extends beyond an employer/employee relationship to cases in which a defendant "has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities."
406:, provides a safe harbor for online service providers and internet service providers against secondary liability for copyright infringements provided that certain requirements are met. Most importantly, the service provider must expeditiously
82:
of an infringement, i.e., if he or she has reason to believe that an infringement is taking place. But, constructive knowledge need not be imputed to the defendant if the product was capable of significant noninfringing uses.
183:
its first opportunity to comprehensively look into and interpret the rules regarding secondary liability and contributory infringement in context of the 1976 Copyright statute. The primary issue in this case was whether a
326:
and because of that, Aimster could not possibly know the nature of files being transmitted using its services. But, the Seventh circuit Court of Appeals affirmed the decision of the district court which had issued a
983:
Aakanksha Kumar, Internet Intermediary (ISP) Liability for Contributory Copyright Infringement in USA and India: Lack of Uniformity as a Trade Barrier, Journal of Intellectual Property Rights Vol 19, July 2014, pp
35:. Contributory infringement is understood to be a form of infringement in which a person is not directly violating a copyright but induces or authorizes another person to directly infringe the copyright.
529:
reversed the judgment passed by a single judge bench earlier to hold that unless 'actual knowledge' was proved, an intermediary could not be held liable for contributory copyright infringement. In 2008,
275:
who already had that file on their system and then connect the two users directly to facilitate the download of the MP3 file, without routing the file through Napster's servers.
146:
453:
139:
369:
were not liable for copyright infringements carried out by their users. Unlike Napster, these services did not maintain a centralised index. Instead, they created
457:
403:
380:
288:
281:
248:
241:
171:
117:
332:
nature of the transmission was not a valid defence as it was merely a means to avoid liability by purposefully remaining ignorant. It was held that '
112:
Unlike contributory infringement, vicarious liability can be imposed even in the absence of any intent or knowledge on part of the defendant. In the
42:
and is an extension of the principle in tort law that in addition to the tortfeasor, anyone who contributed to the tort should also be held liable.
557:
that safe harbor under IT Act is not applicable in cases of Copyright Infringement. The Court reversed this and held that Section 79 starts with a
919:
50:
The requirements for fulfilling the threshold of contributory infringement and imposing liability for copyright infringement on a party are:
471:
31:
even though he or she did not directly engage in the infringing activity. It is one of the two forms of secondary liability apart from
345:' provisions because it had not done anything to comply with the requirements of Section 512. Instead, it encouraged infringement.
427:
263:
113:
74:
The knowledge requirement for contributory infringement is an objective assessment and stands fulfilled if the defendant has
211:
Since the Betamax was capable of "significant noninfringing uses", Sony was not held liable for contributory infringement.
357:
582:
475:
307:
180:
1032:
507:. These provisions provide for 'safe harbors' for Internet Service Providers. Section 2(w) of the IT Act defines an '
270:' software of Napster. Whenever this software was used on a computer system, it would collect information about the
593:
587:
512:
500:
399:
338:
1022:
314:, the Seventh Circuit was called upon to decide the liability of peer-to-peer sharing of music files through the
955:
941:
144:
The ingredients of contributory infringement were laid down in the Second Circuit Court of Appeals decision in
418:
Immunity under the communications Decency Act does not apply to copyright infringement as a cause of action.
920:
https://www.theverge.com/21273768/section-230-explained-internet-speech-law-definition-guide-free-moderation
279:
infringers meant that it had "materially contributed" to the infringement. It was held that the defense in
75:
55:
410:
or limit access to infringing material on its network if it receives a notification of an infringement.
262:
Napster was the first peer-to-peer service to be subject to copyright infringement litigation. In the
504:
467:
1037:
873:"A Critical Analysis of secondary liability under Copyright Laws in the United States and in India"
642:
Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971).
134:
92:
equipment and facilities for infringement is not in itself determinative of material contribution.
478:
and focused on what constitutes an act of "communication to the public" or of "making available".
872:
1027:
743:"Statement of Marybeth Peters The Register of Copyrights before the Committee on the Judiciary"
577:
487:
374:
328:
185:
79:
28:
571:
508:
157:
153:
618:
431:
8:
697:
598:
362:
236:
32:
20:
531:
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decision, held that secondary liability could not be applied to peer-to-peer services.
742:
449:
342:
333:
315:
526:
407:
386:
687:
Apple Computer, Inc. v. Microsoft Corp., 821 F. Supp. 616, 625 (N.D. Cal. 1993)
463:
1016:
651:
Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 693, 706 (2d Cir. 1998)
267:
108:
The defendant derives a financial or commercial benefit from the infringement
219:
Contributory infringement has been the central issue in the cases involving
161:
forms of infringement and left its application to the discretion of courts.
220:
176:
669:
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)
322:. Aimster had argued that the transmission of files between its users was
1003:
915:
137:, the doctrine of contributory infringement is based on the 1911 case of
156:
which did not have any reference to contributory infringement. But, the
534:(Super Cassettes) had instituted a copyright infringement suit against
323:
266:, the issue was regarding the infringement of copyrights through the '
24:
503:("IT Act") contains specific provisions dealing with liabilities of
660:
Sega Enters. Ltd. v. MAPHIA, 948 F. Supp. 923, 933 (N.D. Cal. 1996)
518:
470:
has issued several rulings on related matters, mainly based on the
366:
232:
105:
The defendant had the right to control the infringing activity; and
207:
Betamax is capable of commercially significant noninfringing uses.
535:
319:
228:
224:
355:
The District Court for the Central District of California, in
914:
Newton, C. (2020, May 28). Everything you need to know about
214:
421:
61:
The defendant materially contributing to that infringement.
39:
147:
Gershwin Publishing Corp v Columbia Artists Management Inc
271:
27:. It is a means by which a person may be held liable for
404:
Online Copyright Infringement Liability Limitation Act
95:
494:
393:
1014:
520:My Space Inc. vs Super Cassettes Industries Ltd.
430:, or the INDUCE Act, was a 2004 proposal in the
870:
714:Kalem v. Harper Brothers, 222 U.S. 55 (1911).
413:
255:
472:Copyright and Information Society Directive
38:This doctrine is a development of general
968:
348:
215:Contributory infringement in P2P services
443:
422:Inducing Infringements of Copyright Bill
86:
428:Inducing Infringement of Copyrights Act
128:
1015:
1004:https://indiankanoon.org/doc/12972852/
807:239 F.3d 1004 (9th Cir. 2001) at 1012.
552:Safe Harbor under Section 79 of IT Act
361:, held that the peer-to-peer services
172:Sony Corp v Universal City Studios Inc
118:Court of Appeals for the Ninth Circuit
202:Based on this reasoning, it was held
843:334 F.3d 643 (7th Cir. 2003) at 650.
834:334 F.3d 643 (7th Cir. 2003) at 651.
825:334 F.3d 643 (7th Cir. 2003) at 649.
164:
993:Section 79(2), Copyright Act, 1957.
723:443 F.2d 1159, 1162 (2d Cir. 1971).
96:Difference from vicarious liability
17:Contributory copyright infringement
13:
971:Intellectual Property Law in India
583:Copyright law of the United States
476:Electronic Commerce Directive 2000
286:infringement", and therefore, the
14:
1049:
385:show that the defendant actually
594:Information Technology Act, 2000
588:Digital Millennium Copyright Act
501:Information Technology Act, 2000
495:Information Technology Act, 2000
400:Digital Millennium Copyright Act
394:Digital Millennium Copyright Act
295:
1002:FAO(OS) 540/2011 (available at
996:
987:
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292:test would not be applicable.
239:. The courts have applied the
1:
956:"Communication to the public"
942:"Article 3 InfoSoc Directive"
798:239 F.3d 1004 (9th Cir. 2001)
604:
58:of a direct infringement; and
973:(2nd ed.). p. 773.
861:545 U.S. 913 (2005) at 1037.
816:334 F.3d 643 (7th Cir. 2003)
69:
7:
789:464 U.S. 417 (1984) at 442.
780:464 U.S. 417 (1984). at 439
771:464 U.S. 417 (1984). at 435
623:Legal information Institute
619:"Contributory infringement"
565:
481:
181:United States Supreme Court
10:
1054:
505:Internet service providers
447:
414:Communications Decency Act
402:'s Title II, known as the
468:European Court of Justice
257:A&M Records v Napster
1033:Organized crime activity
931:42 U.S.C. 230 (e)et seq.
905:17 U.S. Code § 512(b)(E)
877:westminsterlawreview.org
698:"Vicarious Infringement"
678:Fonovisa, 76 F.3d at 264
435:defined in the bill as:
175:, commonly known as the
135:United States of America
525:In December, 2016, the
454:Stichting Brein v Ziggo
140:Kalem v Harper Brothers
1023:Copyright infringement
969:Narayanan, PS (2003).
578:Copyright law of India
441:
358:MGM Studios v Grokster
350:MGM Studios v Grokster
329:preliminary injunction
209:
196:
126:
80:constructive knowledge
29:copyright infringement
23:for infringement of a
572:Copyright Act of 1976
444:In the European Union
437:
318:services provided by
204:
191:
122:
87:Material contribution
54:The defendant having
19:is a way of imposing
871:Nayomi Goonesekere.
762:464 U.S. 417 (1984).
458:Filmspeler, C-527/15
432:United States Senate
129:In the United States
852:545 U.S. 913 (2005)
599:Secondary liability
543:No Actual Knowledge
488:Copyright Act, 1957
33:vicarious liability
21:secondary liability
896:17 U.S. Code § 512
486:Section 51 of the
154:1909 Copyright Act
450:GS Media v Sanoma
373:indices known as
334:willful blindness
316:Instant Messaging
223:services such as
165:Sony Betamax case
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702:law.cornell.edu
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