Delhi High Court
Shri Rakesh Kumar Mehta vs Shri Dushyant Kumar & Anr on 13 March, 2018
$~OS-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13.03.2018
+ CS(COMM) 1622/2016
SHRI RAKESH KUMAR MEHTA ..... Plaintiff
Through Mr.J.P.Gupta, Adv.
versus
SHRI DUSHYANT KUMAR & ANR ..... Defendant
Through Mr.Hemant Singh, Ms.Mamta R.Jha,
Mr.Pranav Narain and Ms.Shruttima, Advs. for
D-2
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. Present suit is filed by the plaintiff seeking a decree in favour of the
plaintiff and against the defendants for permanent injunction thereby
permanently injuncting the defendants from reposting the videos including
the 101 video lectures as already posted and from further posting any other
video under any name or guise on the website of defendant No.2 or any
other social media or publically accessible online platform. Various other
reliefs are sought including a decree against defendant No.1 for grant of
damages of Rs.1,00,00,000/- for the unauthorised and illegal use of the
original literary work of which the plaintiff is the author and holds a
copyright thereof.
2. The case of the plaintiff is that he is the owner and author of original
literary works contained in the video recording of the classes/lectures of the
Chartered Accountancy Course delivered by him on V-Sat platform while
teaching students. Defendant No.1 has claimed himself to be a Chartered
Accountant and has admitted that he has posted the videos unauthorisedly
under a channel named proclaimed as "CA-ROCK" on YouTube. It is
pleaded that defendant No.1 has infringed the copyright of the plaintiff.
Defendant No.2 is said to be a website/service platform owned by Google
Inc named YouTube LLC.
3. As far as defendant No.1 is concerned, on 17.1.2017 the submission
of defendant No.1 was noted that he is willing to suffer a decree of
permanent injunction restraining defendant No.1 from reposting the
plaintiff's videos including 101 lectures which were posted earlier on any of
the websites. The suit hence survives only against defendant No.2.
4. This court on the same date, namely, on 17.1.2017 had noted the
submission of learned counsel for defendant No.2 that defendant No.2 will
remove all infringing videos as are specifically intimated to defendant No.2.
It was also noted that URLs earlier intimated have also been removed.
5. Pleadings have been completed in this case. The matter was fixed for
framing of issues. On 05.01.2018, this court noted that prima facie none of
the prayers in the suit would survive against defendant No.2.
6. I have heard learned counsel for the parties. It is not disputed by
learned counsel appearing for the plaintiff that the offending videos have all
been disabled/deleted by defendant No.2. Learned counsel appearing for
defendant No.2 has also stated that whenever information is given about any
offending video in future steps would be taken in terms of Information
Technology (Intermediary Guidelines) Rules, 2011. However, for the
present suit he submits that 101video lectures which is subject matter of the
present suit have been disabled/deleted. This fact is confirmed by learned
counsel for the plaintiff.
7. Learned counsel for the plaintiff has stressed that the present plaint
was filed based on the apprehension that it was defendant No.1 who has
posted these URLs/videos on the site/platform of defendant No.2. However,
he submits that as per the plaintiff other than defendant No.1 there are other
entities who have also posted on the platform of defendant No.2 certain
video lectures which violate the copyright of the plaintiff. It is urged that
defendant No.2 has disabled such content which have been uploaded but
defendant No.2 should also provide the identity of the person who has
uploaded the said offending material on the platform.
8. It has been put to learned counsel for the plaintiff that a perusal of the
plaint does not show specifically any averments as to which URL has been
posted by defendant No.1 and which by some other person. Further no such
relief has also been sought in the prayer clause. Learned counsel for the
plaintiff has pointed out that some of these URLs have also been loaded
after filing of the suit and hence he submits that unless full details are
provided by defendant No.2 it would mean that in future also the offender
would continue to upload material on the platform of defendant No.2 which
would mean that the plaintiff would have to repeatedly approach this Court
for relief. He further points out that various URLs have been disabled by
defendant No.2. But some miscreant has again re-posted the video in which
plaintiff has a copyright on the platform of defendant No.2. He submits that
this process is going on for some time.
9. At this stage, learned counsel for the plaintiff submits that he will be
satisfied if the identity of the persons who have uploaded these URLs is
revealed to the plaintiff which have been disabled by defendant No.2 on the
request of the plaintiff. Learned counsel has confirmed that in the present
suit no damages or costs have been claimed against defendant No.2.
10. Rule 7 of the Information Technology (Intermediary Guidelines)
Rules 2011 reads as follows:-
"(7) When required by lawful order, the intermediary shall
provide information or any such assistance to Government
Agencies who are lawfully authorised for investigative,
protective, cyber security activity. The information or any such
assistance shall be provided for the purpose of verification of
identity, or for prevention, detection, investigation,
prosecution, cyber security incidents and punishment of
offences under any law for the time being in force, on a
request in writing stating clearly the purpose of seeking such
information or any such assistance."
11. Hence, on a lawful order the intermediary has to provide information
for the purpose of verification of identity or for prevention of violation of
any law.
12. The Division Bench of this court in Myspace Inc. vs. Super Cassettes
Industries Ltd., 2017(69) PTC 1 while dealing with the provisions of the IT
Act, Copyright Act and the Information Technology (Intermediary
Guidelines) Rules noted as follows:-
"62. Though prima facie MySpace is not liable for secondary
infringement, yet there is no gainsaying that infringing works
are on its website. The court is under a duty to device an
equitable relief suited to the facts when liability has not been
ascertained fully. At the same time precious independent talent
would suffer without due recognition and monetary incentives
given that monies performers would have received by licensing
content are now available freely without payment. Despite
several safeguard tools and notice and take down regimes,
infringed videos find their way. The remedy here is not to target
intermediaries but to ensure that infringing material is removed
in an orderly and reasonable manner. A further balancing act is
required which is that of freedom of speech and privatized
censorship......."
13. In my opinion, in the present case it appears that some unknown
persons are trying to violate the copyright of the plaintiff as it has been
pointed out in the plaint that different videos have been posted by defendant
No.1 on the platform of defendant No.2, which on the request of the plaintiff
were disabled. Subsequently, it has been pleaded that ostensibly defendant
No.1 has again reposted these videos. This process of disabling the videos
and reloading has been going on for some time. The unknown entity cannot
be permitted to defeat the copyright rights of the plaintiff in this manner, i.e.
by reloading the video after it is disabled by defendant No.2 on the request
of defendant No.1. Keeping in view the peculiar facts and circumstances of
this case it would be appropriate that a direction is passed to defendant No.2
to give the details and to provide information to the extent that such
information or data is in its possession and readily available and resolves to
India about the identity of the person who has uploaded these URLs which
have already been disabled by the defendant No.2 on instructions/notice of
the plaintiff that they are violating the copyright of the plaintiff.
14. The plaintiff will within four weeks from today forward to learned
counsel for defendant No.2 the details of URLs which were disabled by
defendant No.2 on the request of plaintiff which violate/infringe the
copyright of the plaintiff. On receipt of such information defendant No.2
will take steps as noted above to provide information to the plaintiff through
the learned counsel within four weeks. Needless to add the plaintiff would
be free to take steps against the persons so mentioned by defendant No.2, as
per law.
15. Suit stands disposed of on the above terms. All pending applications,
if any, also stand disposed of.
JAYANT NATH, J
MARCH 13, 2018
n
