In a suit filed against YouTube by Tata Sky, for the non-removal of videos directing viewers on how to hack Tata Sky set top boxes, the Delhi High Court recently observed that there had been unnecessary delay in removing the offending content. This delay was due to YouTube getting into a bind on how to correctly classify the content to be removed.
The suit has since been dismissed after YouTube removed the videos and assured the Court of prompt removal in case of any similar complaints made by Tata Sky in future.
The Court also noted that YouTube has an obligation not to host content that violates any laws in force, an obligation that is imposed on YouTube under Section 3(2)(e) of the Information Technology (Intermediary Guidelines) Rules, 2011.
Why there was confusion with the classification of the content
YouTube offers a reporting tool on its website, where it classifies the content to be removed under heads like copyright infringement, trademark infringement, defamation, abuse, etc. There was a confusion between YouTube and Tata Sky on whether the videos related to copyright infringement, ‘circumvention of technological measures’ or under ‘other legal issues’. In fact, the confusion of YouTube and Tata Sky was so great that the suit that was finally filed in the Delhi High Court was for trademark infringement.
Though logically, the head of circumvention seems appropriate in the present case, this head will apply only to circumvention of technological measures being used to protect a copyrighted material. While there was certainly a ‘circumvention’ of technological measures in the hacking of the set top box, the technological measures were not protecting a copyrighted material, i.e., the set top box was not copyright protected. At best, Tata Sky may have a patent on the set top box. For example, in the case of software, the code underlying the software is protected by copyright. To prevent access to this code, the code is further protected using certain technological measures, such as encryption. Any attempt to extract the code is then an offence under Section 65A of the Copyright Act, 1957. In the absence of a copyright, the content request has to be classified under some other head.
Delay in responding to the content removal request
The confusion of both the parties on the classification of the content, though understandable, reveals a problem with YouTube’s complaint management system, as was observed by the Delhi High Court. Here, the first complaint was filed in January 2015. While both the parties debated how the request was to be classified, no attempt was made to remove or block the content. Tata Sky finally filed the suit against YouTube in the Delhi High Court in July 2015. It was after an interim injunction was given by the Court in August 2015 ordering YouTube to remove the content that the content was actually removed. Noticing the illegality of the videos in the present case should have been obvious. The Delhi High Court, noting the delay, observed that instead of identifying first whether the content of the video warranted removal or not, YouTube spent too much time trying to correctly classify the content.
The Court observed that some complaints by their nature require immediate redressal, and the response time as well as the response itself are both critical for a complainant. Unfortunately, there is no prescribed time limit for websites like YouTube to respond to content removal system. Previously, there was a legal obligation to respond to such requests within 36 hours, but this requirement was changed by the Supreme Court in the landmark case of Shreya Singhal v. Union of India. Now, an intermediary like YouTube is obligated to remove content only when the request is accompanied by an official government or court order.
Content removal of copyright violations better developed, but not without problems
In the present case, had it been a case of copyright violation, chances are the matter would have never reached the courts. Youtube’s rules for copyright protection are better developed. For example, YouTube’s Content ID system keeps a huge database of copyright protected works, which are submitted by the copyright owners. Videos uploaded onto YouTube are run against this database to detect any copyright violations. If a copyright violation is found, the owners are told, who can choose either to have the video removed or take a share in the advertising revenue which goes to that video.
However, even the Content ID is not without problems. There have been complaints with the automated issue of copyright violation notices. These claim are filed automatically, often on behalf of people who either have no connection with the copyright work in question, or who have publicly declared that they do not wish to pursue copyright violation claims against content developers. Once such a claim is filed, the ad revenue is automatically diverted until the dispute is resolved, which can take months.
YouTube needs to strengthen its content removal system
YouTube receives almost 3 million takedown requests every day, all of which it reports to process within 6 hours of receiving them. There is no question that YouTube is working hard to resolve the problems of illegal content uploaded on it. But the system still needs further improvement. As pointed out by the Delhi High Court in the present case, YouTube would do well to remove the focus from correctly classifying content to identifying if the content in fact violates the law.