MySpace Inc. v.

Super Cassettes Industries Limited

Court: Delhi High Court
Case No: FAO (OS) 540/2011
Order Dated: 23 December, 2016
Issue: Whether MySpace could be said to have knowledge of infringement so as to attract
liability for secondary
infringement?
Whether it is possible to harmoniously read and interpret safe harbour provisions of the
Information Technology Act and
Infringement & ‘fair use ‘of the Copyright Act?
Judgement: The Division Bench of Delhi High Court absolved liability of intermediary/MySpace
as there was no
direct infringement by MySpace and the findings of the Single Judge based on constructive
knowledge and secondary
infringement were termed incongruous. The Court observed that nature of relief has to be
specific in relation to the actual
content and not vague. A methodical and comprehensive approach was adopted by the Bench
and it considered the WIPO
Copyright Treaty, Performance and Phonogram Treaty, European Copyright Directive as well as
the Digital Millennium
Copyright Act 1998 of the US as the primary source of jurisprudence dealing with the ‘safe
harbor’ provisions granted
to intermediaries as defence. The Division Bench highlighted the distinction between general
knowledge and ‘actual
knowledge’ under provisions of the Copyright Act, 1957 (“CA”). It was observed that the
liability of intermediary shall
arise if it has the actual knowledge of infringement and not just general knowledge. Further the
nature and scope of
safe harbor for intermediaries in India is clarified in light of the provisions of Indian Information
Technology Act, 2000
(“ITA”) and the Intermediary Guidelines Rules, 2011.
The Division Bench opined that the Notice and Take Down procedure is the right balance for
allowing freedom of speech
and expression and at the same time curbs or polices the misuse of copyright material. It
expressly stated that in cases of
online infringement of copyright and in determining liability of intermediaries, harmonious
construction of Sections 79
and 81 of the IT Act along with the provisions of the CA dealing with infringement and ‘fair use