[Ed Note: This article has been authored by Talha Abdul Rahman, Advocate on Record, Supreme Court of India. It has been edited and coordinated by Shravani Shendye & Anushri Bhuta from our student team]
One of the foremost duties of any person devising a system of adjudication is to create a system that compensates for the power differential. The system of adjudication under the Digital Millennium Copyright Act (DMCA) of the United States attempts to regulate internet piracy in the form of copyright infringement and content theft. However, its application that extends to disputes between Google Play Store and publisher or author of an “App” is far from satisfactory. As per the DMCA procedure, Google Play can take down any app that allegedly infringes a copyright upon a complaint. I have noticed the lop-sidedness of the provisions of DMCA, that unintentionally facilitate abuse of a perceived superior moral position of the person making a complaint of copyright violations or the copyright holder. Unless a change is thrusted, Google has no incentive to prevent this malicious use of the take down notice procedures. In the Indian context, the Information Technology Act, 2000 applies but does not exhaust the field. Thus, provisions of the DMCA are made applicable by agreement between the Parties and exploiting the party autonomy in choice of law.
As per the Google (Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 Monthly Transparency Report for April 2021, 96.2% Indian complaints were for copyright infringement under DMCA. 98.4% of the removal actions were taken by Google for copyright claims across its platforms.
Recently, I was advising a fledgeling start-up, providing services of the kind that are covered under the ‘safe harbour’ provision. This provision shields an online service provider (OSP) from copyright infringement liability in certain cases that fall under Section 512 of DMCA. In this case, the services of the start-up, like Tik-Tok, involve allowing users to upload their works for publishing it on the platform. This means that the App virtually has no control on what is uploaded but under the DMCA and the agreement with Google Play, it is obliged to ‘expeditiously’ remove content that is reported to be offending.
This marks the beginning of the problem that I want to describe in this article.
II. Contextualising the Safe Harbour Provision
The DMCA is required to balance the rights of three parties (1) copyright owners or copyright holder; (2) service providers (including OSPs and App Authors); (3) Internet Users. The safe harbour provision requires that the DMCA must protect the rights of copyright owners of digital content by providing a speedy remedy for online infringement. It also requires that the DMCA must protect the rights of Internet users by allowing them to receive safe harbour and access to the Internet. In the case that motivates me to write this, the safe harbour provision is designed to protect the rights of the App Author.
The App in this case, authored by a start-up, was suspended from Google Play on the ground that complaints of copyright violation were received against it. This was done notwithstanding that even before the filing of the complaint with Google, the offending content was unpublished and removed upon receipt of notice from the complainant copyright holder. This satisfies the requirement of safe-harbour provision, in that according to the provision, as long as OSPs expeditiously respond to the allegations of copyright infringement, they are protected. Section 512(c) provides that the host is not liable if it “does not have actual knowledge that the material or an activity using the material on the system or network is infringing or upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material”.
While DMCA attempts to balance the rights of all parties, the nature of protection that is available only upon ‘expeditious’ removal of notified contents disregards the rights of internet users (and freedom of speech and expression). It does not necessarily allow the publisher of the content (i.e. the App) a margin of appreciation in making a decision for removal of the content. On the contrary, the history of Section 512 ‘compromise’ seems to suggest that safe harbour is granted only for ‘expeditious’ removal of the content alleged to be infringing. The hosts of the allegedly infringing material are protected from such removal or takedowns by reliance upon the procedure of ‘counter-notification’ under Section 512(g). The party those content is alleged to be infringing can invoke the DMCA counter notification procedure. A counter notification is available after a DMCA take down notice is received and in response the allegedly infringing material is removed by the OSP. Under the DMCA, a counter-notification procedure is projected as a safeguard against fraudulent or erroneous takedowns. If after receipt of a counter-notification that complies with all the statutory requirements, the complainant does not initiate an action in the court of law, the removed material must be put back up within ten to fourteen business days.
In the context of my client, the App that allowed self-publication of songs by its users was ‘suspended’ pursuant to a take-down request placed on behalf of a leading music company owning copyrights of several thousand songs. Interestingly enough, the complaint made to PlayStore under the framework of the DMCA mentioned the name and URL of my client’s app along with other ‘genuine’ violators. Promptly, without any separate inquiry or arriving at any kind of satisfaction, along with other Apps even my client’s Apps was suspended – subject to counter notification procedure. Of course, my client had also without any separate inquiry removed the content that was alleged to be infringing – but that did not prevent its own suspension from PlayStore.
III. Critical Analysis
The present mechanism under the DMCA does not contemplate much less encourage the hosts to exercise a degree of caution in themselves examining the merit of a copyright complaint. Such an approach has two consequences.
First, that the host relies on the subjective (and usually blinkered) unverified, unsupervised, and unguided judgment arrived at by the complainant that normally does not account for fair use exceptions. In other words, the complaint is accepted on its face value and acted upon; leaving the App owner to exhaust the counter-notification procedure and wait out the statutory period of at least 10 days. This translates the perceived moral superiority of a complainant into superior bargaining power of the complainant. In the facts of my client’s case, such a position was then used to offer my client a bulk purchase of music company’s licenses – which was of course politely declined.
Second, it has an adverse (and possibly chilling) effect on freedom of speech and expression. For instance, in the case of my client, in order to seek benefit of DMCA’s safe harbour provision, it would be obliged to ‘expeditiously’ remove the allegedly infringing content. There is no margin to assess whether the complaint is malicious or falls in any of the fair use exceptions. Such a user may also be suspended for further violations. Thus, the host (OSP) itself is the immediate arbiter of any copyright violation contrary to the values of law regulating freedom of speech and expression that loathe any form of pre-censorship. The perversion of a host into a tribunal and blind enforcement of a complaint as a judgment, even while it is pending exhaustion of counter-notification procedure, appears to be largely due to the absence of any obligation or motivation to determine the veracity or merit of the infringement claim. The DMCA, thus, encourages indiscriminate removal of content by offering ‘safe harbour’ only in cases of swift removal of content.
Of course, all intermediaries do not take such a carte blanche approach, but even within the same ecosystem, the response of an intermediary may depend on political dispensation and commercial wisdom. For instance, Twitter banned the then President Donald Trump for posting a tweet that it determined would inspire people to replicate criminal acts, but has turned a blind eye to similar tweets exhorting violence in India and other places. Thus, different yardsticks, all applied to posts concerning violence could also be applied in copyright violations.
It is clear that the remedies available to App Authors, personally or for the benefit of internet users at large, are relatively weak. The actual incentive to restore or refuse removal of any content alleged to be infringing is clearly lacking. In fact, App Authors (such as Tik Tok) that also wish to seek refuge of ‘Safe Harbour’ provisions are beginning to automate removal of content.
IV. Scope for Judicial Recourse
The point at which such a removal or suspension would receive judicial examination is too removed. The stage for judicial review would arise only after the infringer chooses to submit a counter notification, the complainant prefers to file a lawsuit. By the time, this stage is reached, it could take at least fourteen days – which is sufficient time for any App Author to lose substantial number of subscribers. In the case of my client, it took over six weeks and included several negotiations with the complainant on the hope that complainant would withdraw his complaint which was presumed to have been made in good faith. However, in my experience as a lawyer, the complaint was malicious and was aimed at coercing my client (who was otherwise entitled to a safe harbour) to bulk purchase licenses.
Even where PlayStore reinstates the App, the alleged infringer may not have the time or financial ware withal to pursue litigations in the courts in the United States as per terms of the contract – which also limit liability in cases of good faith suspension or removal of an App. Start-ups usually avoid taking a confrontational approach and avoid litigation, especially in foreign jurisdictions – and hence the take down notice are never examined by careful pair of eyes.
A valid counter-notification under the DMCA’s Section 512(c)(3) mandates that it must have “A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” This brings us to the next issue of what constitutes a good faith removal or suspension of an App that published allegedly infringing material? Would merely acting on a complaint without any serious application of mind or inviting a response from the infringer constitute ‘good faith’ suspension? Under Section 512(f), the copyright holder, the host or the infringer can be awarded damages and costs, if either the copyright holder or the infringer consciously makes material misrepresentation in a notice or a counter notification. The threshold of blameworthy ‘malicious’ conduct or bad faith is rather higher because it requires ‘material misrepresentation’. Claims within the frame of Section 512(f) have rarely succeeded as has been found by some scholars, and given the threshold required, it is unlikely that such a situation would change in the near future. This is especially so because a large number of take-down notices never face judicial scrutiny – and unlikely that they would ever face such a scrutiny in India due to forum selection clause in Google’s agreement. Further, under the DMCA’s Section 512(g)(3), submission of a counter notification requires the party to consent to the jurisdiction of a United States court.
Therefore, Section 512 of DMCA is tilted in favour of the copyright holder with no effective or real remedy available to the alleged infringer. The power differential between a complainant is only aggrandized when the copyright holder is a big corporate and the alleged infringer is a start-up. In fact, the nature and speed of action a host like PlayStore would take, could also depends on the economic power of the App Author.
The adjudication process under the DMCA does not account for the principle of equality of arms and rather reinforces copyright protection merely for the asking, without any real recourse to judicial review.
Talha Abdul Rahman is a constitutional and commercial lawyer with interest in technology.