Suneel Darshan, a renowned film producer, proprietor of Shree Krishna International (“the Plaintiff”) had filed a suit against Google Inc., Google India Pvt. Ltd. & YouTube LLC (“the Defendants”), at the District Court of Gurgaon, Delhi NCR for permanent injunction, damages and rendition of accounts etc. pleading that the Defendants are involved in the acts of infringement of Plaintiff’s copyright in respect of his Sound Recording, Cinematograph Films and Audio-Visual Songs etc. (“the Works”) by the Defendants.

 

 

The Plaintiff pleaded that the Works, were being unauthorisedly uploaded on YouTube by using YouTube’s popular feature “YouTube Downloader”. The Plaintiff stated that it never gave any authorization to the Defendants for storing, telecasting and/or communicating the works to public. The unauthorized downloader and the Defendants are sharing the advertisement revenue etc. generated from the unauthorised exploitation of copyright works of the Plaintiff and further that the Plaintiff suffered huge financial losses.

 

 

Mr. Suneel Darshan appeared as Plaintiff’s witness. Ms. Gitanjali Duggal appeared as witness for Google India and Ms. Debra Tucker (an employee of Google Inc. and Manager, YouTube Legal Operations) from USA appeared as witness for Google Inc. & YouTube and their testimony were examined and cross-examined.

 

 

According to Section 51 (a) (i) of the Copyright Act, 1957, inter alia, states that copyright is said to be infringed if a person “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”.

 

 

The Defendants argued that they merely provide a platform for communication and sharing of information without charge and that Section 51(a) (i) of Copyright Act has no application as the Defendants had no prior knowledge that the uploaded contents are infringing as required under Section 51(a) (ii) and that it was Plaintiff’s responsibility to identify specific URL and notify to the intermediary to make the Defendants liable. The Defendants relied upon MySpace Inc. Vs. Super Cassettes industries Ltd.5 The Defendants further argued that being mere service providers/ intermediaries within the meaning of the IT Act, 2000 and having no control over the content uploaded by users, they could not be held liable for the alleged infringement of the Plaintiff’s copyright.

 

 

Relying upon Christian Louboutin’s judgment, submitted by the Plaintiff, the Court held that the Defendants cannot be considered to be immune under section 79 of the IT Act, 2000. It observed that as per the IT Rules, the Defendants were under the obligation of taking down the Works atleast after being informed by the Plaintiff. Further, being aware of the title of the content the Defendants could have easily located the URL. Thus, the arguments of the Defendants that the Works were not listed on YouTube, due to the absence of any URLs were rendered baseless by the Court.

 

 

After full trial and considering the evidence of the parties as well as the documents on record and the arguments of parties the Court held that the Defendants have indulged in infringement of copyright qua the contents / songs of the Hindi movies produced by the Plaintiff and further that due to said act of infringement the Plaintiff has suffered monetary loss, awarded damages (to the tune of INR 50,000) to the Plaintiff and restrained the Defendants etc. from infringing the Works of Plaintiff and decreed the suit in favour of Plaintiff and against the Defendants.