The cause of action in the instant case pertains to the interim
injunction granted by the Delhi High Court on August 27, 2015,
wherein the Honerable Court restrained the Respondents (YouTube,
LLC) from using the Petitioners' (Tata Sky Ltd.) trade mark
TATA SKY in any manner on their websites and also
to remove any material which may be any trick or process to hack
into the system of the Petitioner. By the impugned order, the
Respondents were directed to remove the video clips "how
to watch HD channels free in TATA SKY Trick" or "Hack
tata sky for free exclusive" from the Respondent's
Apparently, pursuant to the aforesaid order, the Respondents
have taken down from its website, the URLs of the aforesaid
YouTube's Prayer in the case
In the instant case, the Respondent was aggrieved and contended
that YouTube LLC itself did not violate the trademark TATA
SKY as it was not the publisher of any of the complained
videos. In view of the said circumstances, the Respondent pleaded
to the Court to vacate the injunction as far as YouTube LLC is
concerned, however to continue 'John Doe' order issued by
it against unknown offenders.
That the Petitioner erred in alleging trademark violation by the
Respondent and was unclear about the kind of violation that had
That being an intermediary under the
Information Technology Act (IT Act) it is statutorily exempt under
Section 79 from liability in respect of any third party video
uploaded on the YouTube platform.
That impugned videos were created,
uploaded and made available by third party users on YouTube and not
by YouTube itself.
That under the provisions of the IT
Act, an electronic record sent by an originator or even a person
acting on his behalf, is attributed to the originator alone and not
the platform provider.
The relief as prayed for, if allowed,
would impose an unfair burden on YouTube to shift through and
filter millions of videos available on YouTube belonging to third
parties and decide whether such videos are infringing the
trademark, copyright or other proprietary rights of the Petitioner.
This would be contrary to the letter and spirit of Section 79 of
the IT Act which requires an intermediary to be "content
neutral" to any video/content uploaded on its website and
simply follow a "notice and takedown" or a "receive
and react" mechanism in relation to any complaint.
Contentions forwarded by Tata Sky
That YouTube LLC was obliged to act
with promptitude once it was clear that the offending videos were
illegal, inasmuch as that Tata Sky's STBs could be hacked into
through simple steps.
The Petitioner made reference to the
order of Supreme Court in the case of Sabu Mathew
George v. Union of India 2016 SC 681 in which it was
observed that the intermediaries "cannot put anything that
violates the laws of this country."
That the policy developed by the
Respondent was inadequate to deal with the type of difficulty faced
by Tata Sky.
That the Respondent, in spite of
being aware of the illegal act as copyright violation failed to act
promptly, thereby forcing the Petitioner to take a legal
Court's Observations in the Case
That there could be complaints
regarding some material on the website of YouTube which by their
very nature require it to act immediately without insisting on the
Complainant having to clearly demonstrate that the complaint falls
within one or the other category that YouTube has identified for
the purposes of acting on such complaints.
That when a specific instance of
possible violation is drawn to its attention, its review team
should view the content and take a call on whether it requires to
be taken down.
That in the case, the Petitioner had
specifically pointed out that the impugned act was violative of its
rights and of broadcasters and was an offence under the IT Act.
Thus, YouTube was obliged not to host content that violates any law
for the time being in force.
To be fair to Mr Nigam, he did say
that there are certain types of content, and he flagged child
pornography as an instance, where YouTube would not get into the
exercise of first 'categorising' the complaint before
proceeding to take down the content. In other words, the very
nature of the content would warrant immediate action even though
the Complainant may not have correctly categorised the complaint.
He further stated that every Court order is an occasion for YouTube
to review its policy and strengthen it further.
That the injunction order was
directed at it not because YouTube had violated any trademark of
Tata Sky but because its website hosted the offending URLs which
required to be taken down and it was for that purpose alone that
YouTube was a necessary and proper party without whose compliance
the injunction order would have not been able to be
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