In 2006, two graduates of the Indian Institute of Technology, Delhi – Anurag Dod and Gaurav Mishra – launched a unique Internet search engine called from Bengaluru (then known as Bangalore). Using proprietary algorithms, sought to provide better search results in the Indian context. The search engine soon became extremely popular, especially for its ‘music search’, which allowed users to locate and play music from different sites, including “pirate” sites that hosted copyright-infringing content. From the time of its launch, there were murmurs of how Guruji could be the first Indian Google. Like Google, Guruji was founded by two young graduates from an elite engineering college, and like Google, Guruji had received funding from reputed venture capital firms like Sequoia Capital and Sandstone Capital. Here was a company that had everything necessary to succeed as one of the first desi Internet giants. Would it succeed?

The Bengaluru Police answered that question in April 2010 when it raided’s office and arrested its chief executive officer, Anurag Dod, on charges of copyright infringement. The arrest took place on the basis of a complaint under the Copyright Act made by Super Cassettes Industries Ltd, also known as T-Series. T-Series had alleged that had infringed its copyright in songs from the movies Om Shanti Om, All the Best, Bhool Bhulaiya, Aap kaa Suroor , and Aashiq Banaya Aapne and had demanded the arrest of the website’s CEO. Dod’s arrest was shocking because until then, arresting people for copyright infringement had been restricted to roadside vendors or small-time shopkeepers. Dod’s arrest led to wrapping up its music search engine and eventually shutting down the website; it is no longer active.

The most important question received very little media attention at the time. Was truly guilty of copyright infringement? Medianama , a news portal covering the Internet and digital space in India, wrote, “[W]as Guruji in the know of, and abetting copyright violation? We don’t know. Is exploiting a loophole against the law? We don’t think so. All across Guruji’s website, the emphasis is on music search. It doesn’t host or license the content, and repeatedly informs its users that it holds no responsibility for the content it links to.” The news report concluded with the hope that an eventual court ruling would cast light on intermediary liability for search engines and websites which acted as platforms for third parties to host their content, an issue that was in much need of clarification. For reasons not clear, it appears that there was no court ruling in the Guruji case. While these unanswered questions were addressed in subsequent cases and policy debates, the Guruji case highlighted why it was so important to have clarity on Internet intermediary liability, especially in a country like India, where the powers of the police can have the drastic effect of shutting down a company with billion-dollar potential.

Intermediary liability

The debate on intermediary liability is not about whether anyone should have a free pass to violate copyright law online. Instead, the debate is about correctly apportioning the liability between the person who uploads infringing content and the intermediary who offers the service through which the infringing content is disseminated. An intermediary could either be Google, which is a search engine that indexes the Internet; or YouTube, which is an online service provider that stores and publicly shares the content of third parties; or Internet service providers like Airtel or BSNL, which provide Internet connections through which services like Google are accessed and who may have the capability to block the infringers. In other words, any online service which merely acts as a conduit for information can be classified as an intermediary.

Under traditional publishing models, content was distributed only through books or journals where editors would curate content. Since editors had prior knowledge of all the content getting published, it was easier to hold publishers liable for it. But the Internet changed things. It presented a radically different publishing model where individuals could self-publish their content on platforms provided by third-party intermediaries like Blogger or YouTube or Facebook. The question now was whether the intermediaries hosting such content could be held liable for infringing material uploaded by their users? Similar issues arise in the context of ISPs who facilitate access to such infringing content through Internet services: Should ISPs have an obligation to monitor possibly infringing activity by their users?

Pre-screening content

Liability under the law in these cases arises only if the law imposes on intermediaries a duty to actively monitor the content being uploaded by their users. In principle, there is a strong argument to impose such a duty on Internet intermediaries because they earn advertising revenue directly linked to the type of content that is shared or accessed. The argument is that if they profit from infringing material, they should be liable for such content hosted on their websites

However, imposing a duty on intermediaries to actively pre-screen all content to protect against copyright infringement, would make the business of running an OSP, or even a simple search engine, very expensive, since massive resources would be required to pre-screen all content that is made available. Similarly, if an ISP had a duty to monitor all activity of users, it could make the cost of accessing the internet more expensive. Thus, there is an equally strong argument to offer limited immunity to intermediaries for the actions of their users, provided the intermediaries act fast to take down copyright-infringing content once they are informed. Requiring copyright owners to screen vast database like YouTube and issue takedown notices for infringing content, however, remains tremendously expensive for copyright owners, and there is a risk that small entities or individual copyright owners may not be able to afford an extensive monitoring network of all Internet databases. All in all, the question of liability for Internet intermediaries is complicated.

This is an excerpt from Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (OUP, 2017).