Guruji.com: infringement in music downloads?

By Doyel Sengupta, Lall Lahiri & Salhotra
0
1407

Disputes between music companies and web portals offering free downloads of music are considered the biggest threat to the music business. Criminal charges were recently filed against Sequoia Capital-funded Guruji.com – a web portal with links for the free download of Hindi songs – by the music label T-series. Guruji.com’s premises was raided and its CEO, Anurag Dod, was arrested.

Doyel Sengupta,Associate,Lall Lahiri & Salhotra
Doyel Sengupta
Associate
Lall Lahiri & Salhotra

Media reports suggest a first information report (FIR) was lodged with the Bangalore police alleging that the copyright of Super Cassettes Industries (which owns T-series) was infringed by Guruji.com. Reports from July 2008 also say that a legal notice was sent to Guruji.com regarding this infringement. Dod’s apparent response to this notice was that they were not doing anything beyond providing a “music search” function and that the site merely guided users to songs that they could have accessed using any other search engine.

Setting a precedent

This matter is likely to set a precedent pertaining to copyright liability in cases where copyright protected material is downloaded in India. This has been dealt with extensively in the US, first in the case of Napster and thereafter, Grockster, Kazaa, Limewire and other similar websites. Napster was found liable for copyright infringement as it gave users access to copyright protected material.

Indirect liability

International cases regarding similar websites and questions of copyright infringement suggest that the liability of the website is not usually direct as it hosts the content in a contributory and vicarious manner.

However, to establish contributory liability it must first be shown that the user of the website engaged in infringement of copyright. In the case of Guruji.com, there is ample evidence to suggest the person downloading the music and the website from which the music is downloaded are infringing the rights of the copyright owner. It is also necessary to prove that the website’s owners are aware of the infringing activity and had either actively promoted this activity or ignored it when the infringement was pointed out.

Defence against liability

Napster and Grockster took the defence that it would be impossible for them to monitor every file of every user and that not all users were engaged in infringing activities. However, in both cases, the US courts rejected their defence on the ground that these sites must be policed in order to clamp down on and remove infringing material and upon being told of infringement, they must take down the material at once.

The defence of ebay.com in trademark infringement suits in various countries, where counterfeit products were sold the site, was similar. However, having shown that it was taking active measures to remove such sales upon being notified, e-bay was able to evade liability for its users’ actions in several cases.

With regard to vicarious liability, Napster and Grockster were both held liable for their users’ infringing activities on the ground that they could exercise some amount of control on the material made available on their websites. Also, it was observed that while the websites may not be benefiting from every individual download, the continuous and large-scale download allowed it to sustain its business model by acquiring advertising revenue.

Cases in India

In India, other copyright infringement suits have been filed against YouTube and MSN for hosting videos of copyright protected material and in those cases, interim injunctions have been granted to Super Cassettes Industries. However the case of Guruji.com is probably the first to involve criminal proceedings. In cases against Google and others, Super Cassettes Industries was allowed injunctions on the basis that the websites hosted the content and could effectively control the content – a factor that does not apply to Guruji.com.

How useful are disclaimers?

The question also arises as to how far disclaimers help in avoiding liability. Guruji.com puts up a disclaimer that says, “Guruji Music lets you search old, new, latest mp3 songs and ringtones. However, we have no liability for websites that claim to have free mp3 downloads.” The question is, does this absolve Guruji.com of all liability? This is best left to the courts, which will need to decide if Guruji.com is a mere search engine, such as Google, or an active portal that publishes copyright protected material.

If the courts find Guruji.com has been involved in infringement, whether it is direct, vicarious or contributory would depend upon what factors weigh most heavily with the court. This can only be determined at the end of the proceedings. However long the wait and whatever the outcome, this case will decide the future of online downloading in India and the liability of websites.

Doyel Sengupta is an associate in the litigation department at Lall Lahiri & Salhotra, an IP boutique based in Gurgaon.

lls

LLS House, Plot No. B-28,

Sector – 32, Institutional Area,

Gurgaon – 122001, National Capital Region,

India

Tel: +91 12 4238 2202 / +91 12 4238 2203

Fax: +91 12 4403 6823 / +91 12 42384898

Website: www.lls.in