MYSPACE INC. Vs. SUPER CASSETTES INDUSTRIES LTD.

JUDGEMENT

(1.) This is a defendants interlocutory appeal in C.S(OS) 2682/2008 ("the suit")wherein the order, on application by the plaintiff("Super Cassettes" or "SCIL")for interim injunction was granted and the appellant ("MySpace") was restrained from hosting on its website all of SCILs works including future works. Its application for vacation of the previously granted ex parte interim injunction was dismissed. SCILs suit claimed permanent injunction restraining Myspace from infringing and exploiting its intellectual property, primarily the copyright owned by it in cinematograph films, sound recordings, and literary and musical works and has also claimed damages for such exploitation. This court, by the present judgment is conscious of the caution sounded in regard to interlocutory judgments by the Supreme Court in International Confederation of Societies of Authors and Composers v AdityaPandey 2016 SCC Online 967 (decided: 20 September 2016),that an elaborate reasoning with the footnote that the same are prima facie or tentative is hardly an effective remedy to prevent the imprint of such observations on the human mind that mans the court at different levels. The single judges impugned judgment spanned 132 pages; this court has striven, but not entirely succeeded to cover the entire spectrum of the case, the arguments addressed, the case-law cited and also furnish its reasoning, by this judgment in slightly over a third of that length.

(2.) SCIL also known as T-Series, started its business in recorded audio and videocassette production and flourished to become one of Indias largest music companies. It now owns and controls copyright in more than 100,000 songs in various languages. It claims to acquires and produce various copyrighted works such as films (cinematograph films), music videos (audio-visual songs), songs (sound recordings), underlying musical works (melody) and literary work (lyrics) and that for acquisition of such work, it invests substantial sums and bears risks. It claims to be the launch-pad for several talented individuals and to have invested significantly to ensure high quality standards in audio-video production. SCILs business is exploitation of its copyrighted works either by sale of audio/ video records or by licensing their use (including for sale, reproduction, sound recording, etc.) and on multiple platforms like satellite television, radio, digital, Internet and mobile platforms. By its program- the TPPL scheme ("T-Series Public Performance Licenses") it grants licenses to all those forming the user-base of its works, including restaurants/ discotheques, TV and radio stations, malls, hotels, public performers etc. The licensees are enabled to play/ use/ perform/ or communicate the respondents works to the public. The revenue garnered by these furthers SCILs business and provides a public platform to the original artists to showcase their talent. SCIL also enters into licensing agreements with various Internet music and video sharing/ streaming platforms and Internet service providers. This helps it to regulate and protect the use of its intellectual property and also ensures that a balance is maintained between the rights of the owner of copyrighted work and the use of such work in emerging media.

(3.) Myspace (variously referred to as "defendant" or "appellant") is an Internet Service Provider (ISP) and claims to be an "internet intermediary "and operates the social networking and entertainment website www.myspace.com. Its website was first launched in the United States but it now has global outreach. Its foray to India was sometime in 2007. When a user accesses Myspace from here she/he is automatically redirected to the websites India- centric version. Here users can access music works, entertainment videos, images, cinematograph works etc. without paying any fee. Essentially, Myspace provides a free of cost platform to its users and offers an interactive user-submitted network of friends, personal profiles, blogs, groups and photos, music, video, instant messaging services etc. Mere browsing or accessing content on Myspace does not require registration. If a user chooses to upload content on the website, albeit for free, he/she is required to register with Myspace. User registration is governed by the Myspace.com Terms of Use Agreement and Privacy Policy which oblige the registrant inter alia to respect the intellectual property rights of others and prohibits them from uploading, embedding, posting, emailing, transmitting or otherwise making available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any other person or entity. If MySpace notices that content uploaded on its website is in violation of its user terms, the content can be either removed or the membership of the violator can be terminated at its discretion. MySpaces business model, in addition to acting as a conduit for information, is also to provide automated ancillary services, whereby a limited license is sought from the user to use, modify, delete from, add to, publicly perform, publicly display, reproduce and display the User Generated Content (UGC)so as to facilitate access to user-stored material so that it can be converted into a format which is compatible with the website. Thus, it is through this agreement that it has a limited power to remove content if found violative of its user terms. It claims not to derive monetary gains from its User Generated Content (UGC). While advertisement is its chief source of revenue, the advertisements are not marked directly against the UGCs but are against licensed content through a service known as "Adwords". Here it is clarified by the appellant that while advertisements may exist against a UGC, their functioning is not tied to the content being viewed. Advertisements are generated by an automated process- which is term- centric and not content-centric. It explains that when a user types a search term, the search engine displays results closest to the search term in descending order of relevance- these are "natural results".