Private and Confidential

MEMORANDUM

1. BACKGROUND

[Note – To be added as discussed in the class. We can’t give a sample background since
this is matter specific.]

2. APPLICABLE LAWS

2.1 Information Technology Act, 2000, and Information Technology (Intermediaries

Guidelines) Rules, 2011

The Information Technology Act, 2000 (‘IT Act’), provides safe harbour exemption to
intermediaries from liability for third party content.

The IT Act defines an intermediary with respect to an electronic record as a person who
on behalf of a third party receives, stores or transmits electronic records or provides any
service with respect to that record. Examples of intermediaries include internet service
providers, network service providers, search engines, online payment sites, etc.

[Note – Additional explanation here, including relevant portions from the Information
Technology (Intermediaries Guidelines) Rules, 2011.]

2.2 Copyright Act, 1957

Original musical works and cinematograph films are granted copyright protection under
the Copyright Act, 1957 (‘Copyright Act’). In case of sound recordings, copyright-
holders have the exclusive right to make any other sound recording embodying the
original recording including storing it in any medium, sell or give on commercial rental a
copy of the sound recording, and to communicate the sound recording to the public.
Copyright in these works will be infringed if a third-party does anything which is the
exclusive right of the copyright-holder without the authorization of the copyright-holder.

The Copyright Act imposes penalties if any person knowingly infringes or abets the
infringement of copyright in a work. Such person is liable to be punished with
imprisonment for a period between 6 months and 3 years, and with a fine between INR
50,000 (fifty thousand rupees) and INR 200,000 (two hundred thousand rupees). Courts
may also grant other civil remedies such as injunctions and damages, and direct infringers
to maintain accounts of the profits made through the infringement which must be paid to
the copyright-holder.

2.3 Relevant court decisions

a) Myspace case
 In 2011, a case1 was filed against the social networking website Myspace for
copyright infringement because it facilitated sharing of sound recordings between
users. A single judge of the Delhi High Court held that Myspace was infringing
copyright since it provided a place for profit where copyright could be infringed.
The court further held that Myspace could not take the defence of lack of
knowledge because the website had safeguards to prevent infringement which
showed that Myspace had reason to believe that infringement would occur on its
website.

This decision was severely criticized and was reversed by the Division Bench in
2016.2

[Note – Additional explanation of the case here.]

3. ANALYSIS

[Note – This is where you apply the law to your client’s questions. We’ve removed this
portion because it’s query-specific.]

3.1 Analysis of Product 1

3.2 Analysis of Product 2

a) Sub-issue 1

b) Sub-issue 2

[Note – The sub-issues can be split if required.]

1
Super Cassettes Industries Ltd. v Myspace Inc. and Anr. (2011) available at
http://lobis.nic.in/ddir/dhc/MAN/judgement/02-08-2011/MAN29072011IA157812008.pdf
2
Myspace Inc. v Super Cassettes Industries Ltd. (2016) available at
http://lobis.nic.in/ddir/dhc/SRB/judgement/24-12-2016/SRB23122016FAOOS5402011.pdf