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CAN CLOUD STORAGE-PORTALS BE ASKED TO PUT IN PLACE A FILTERING MECHANISM TO FERRET OUT INFRINGING MATERIALS?

June 24, 2020

The copyright infringement and intermediary liability saga continues during Covid-19 times. On June 16, 2020, the Hon’ble High Court of Delhi, was tasked with an urgent interim relief injunction hearing, wherein, the Plaintiff, which is an Education Institution, having chain of coaching centres pan India, filed a suit against a cloud storage company, for the infringement of copyright in its video lectures and booklet material, residing in its server.  The hearing was conducted through video conferencing.

Plaintiff’s Contentions and Submissions

The Plaintiff submitted that it is operating coaching centre(s) under the registered trade mark ‘TIME’ and have copyright over the study material in respect to various entrance exams inter alia, including CAT, GMAT, Bank Exam, and GATE. The study material of the Plaintiff is created for the purpose of coaching students who are enrolled with the Plaintiff. Plaintiff became aware of a group named ‘CAT & XAT MBA PREP 2020’ on the instant messaging service ‘Telegram’ wherein,  an unknown user has shared links for ‘Time Video Lectures’ and ‘Time booklet material’, which are stored at the Defendants’ cloud storage service called Mega. It was the case of the Plaintiff that the Defendant Mega Ltd. and its co-founders intentionally allowed the violation of the Plaintiff’s copyright in the study material which includes videos concerning lectures and tutorials as also in its registered trademark, by providing storage space on its cloud-based service.

The Plaintiff sought an interim injunction relief against Mega Ltd. and its co-founders to take down all study material of the Plaintiff including such video tutorials, lectures, booklets etc.

The Plaintiff’s Counsel conceded that the two named co-founders of Mega Ltd should be removed from the action.

Defendant’s Contentions and Submissions

The learned Senior Counsel Mr. Prashanto Sen, representing Mega Ltd. made a contention that it is only a cloud-based storage space provider, where the data is end-to-end encrypted using keys generated by the user from their password. Only the user can decrypt its data with the encryption key, generated through its unique and highly secure password.

It was further submitted that Mega Ltd. being an intermediary would fall within the ‘safe harbour’ provisions as enumerated under Section 79 of the Information Technology Act, 2000. Reliance was placed upon the judgements of the Division Bench of this Court in Myspace Inc. vs. Super Cassettes Industries Ltd. and Single Bench judgment in Kent RO Systems Ltd. vs. Amit Kotak.

On coming to know about the two instances of claimed copyright infringement, when it was given notice of the Plaintiff’s Court action, Mega Ltd. immediately disabled those links in line with its published Takedown policy. Furthermore, the Defendant is willing to take down all such links as and when any instance regarding the violation of copyright is pointed out by the Plaintiff.

Further, the Defendant cannot technically, put in place a filtering mechanism to ferret out infringing material as is sought by the Plaintiff in its urgent interim relief application as all stored files are encrypted with keys that are only available to the users.

 

Court’s Observation

Hon’ble Mr. Justice Rajiv Shakdher, asked the Plaintiff to bring on record its contract with its students that restricts the students from storing Plaintiff’s copyrighted material in any third party source and sharing it.

Secondly, apart from the two instances mentioned in the suit, Plaintiff has not brought to the notice of the Defendant No. 1 any other specific instance of infringing material being uploaded on the Defendant No. 1’s portal.

In view of the aforesaid submissions made by the respective counsels, Hon’ble Mr. J. R. Shakdher opined that the only direction that could be issued in the given scenario is that as and when specific instances of uploading infringing material are brought to the notice of Defendant No.1, appropriate action including taking down of such infringing material will be triggered by Defendant No.1. To facilitate this exercise, the Plaintiff will give instances of URL(s) being used to share such infringing material.

Disclosure: The Defendant Mega Ltd., New Zealand is represented by S. S. Rana & Co., New Delhi.

 

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Related Posts:

Intermediary Liability in India

India: Intermediary’s Liability for Infringing Content

Regulation of Intermediaries in India

Unauthorised Circulation of PDFs of E-Papers: Dainik Jagran Case

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