Companies might come across a situation where a video providing a way to circumvent their technology has been uploaded on an intermediary video hosting website. Such videos could have a detrimental effect on the company as well as its customers. One of the best ways to tackle such a situation before things go out of hand is by filing a complaint with the intermediary video hosting website to take down the video.

A similar situation was experienced by Tata Sky Ltd. (herein after referred to as “Tata Sky) who provides Direct to Home (herein after referred to as “DTH”) services to its subscribers through Set-Top-Boxes (herein after referred to as “STBs”) within the territory of India. Technological measures such as encryption were adopted on STBs of Tata Sky, which gave access to TV channels/contents that were available only to its subscribers. A video on YouTube uploaded by a third party taught how to break the encryption code on the STBs to access HD contents for free without subscribing to Tata Sky. Illegitimate access to HD contents on Tata Sky STBs was violative of its rights and of broadcasters who own the HD content that broadcast through Tata Sky platform, and was an offence under Section 66 of the IT Act. YouTube, on which the video was uploaded, was an intermediary according to subsection 4 of section 3 of Information Technology (Intermediary Guidelines) Rules, 2011.

YouTube website provides a list of categories of complaints under which one can file a complaint. Tata Sky had selected “other legal issue” among the list of categories of complaints provided on YouTube website. Tata Sky made a complaint to YouTube LLC to remove the video which taught the steps to break encryption code on the STBs of Tata Sky. The practice of the teachings of the video was an offense under Section 66 of the Information Technology Act, 2000 and hence, the complaint referred to Section 66 of the Information Technology Act, 2000. The complaint also required YouTube to immediately remove the video from YouTube website no later than 36 hours of receipt of the notice in line with sub-section 4 of Section 3 of the Information Technology (Intermediaries Guidelines) Rules 2011.

YouTube in its response to Tata Sky said they “have determined that a takedown notice under Section 512(c) of the DMCA is not appropriate for this type of complaint.” Further, Tata Sky was asked to consider submitting a complaint for other legal issues including alleged circumvention of technological measures.

During further exchange of correspondence between YouTube LLC and Tata Sky, YouTube viewed the complaint as one of a copyright violation and asked few questions to be answered by Tata Sky. Thereafter, Tata Sky filed a petition in the Delhi court to order an injunction to YouTube for unauthorized use of Tata Sky trademark. Based on the injunction ordered by the court, YouTube took down the video.

The court noted that the correspondence exchanged between YouTube LLC and Tata Sky reflected confusion to decide whether the complaint pertained to a trademark or a copyright infringement or to some other legal issue. YouTube has community guidelines to guide a person uploading content on what should not be uploaded. But the number of videos that are uploaded to YouTube are very huge, which makes it difficult to administer videos belonging to third parties and determine whether such videos are infringing the trademark, copyright or other proprietary rights.

Advocate appearing for YouTube LLC said that for certain contents such as child pornography as an instance, YouTube would not get into the exercise of first ‘categorising’ the complaint before proceeding to take down the content. The court was of the opinion that if YouTube’s review team had taken such a similar call based on the nature of the content of the video in question, then Tata Sky could have avoided approaching the court.

The court stated also 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.”

Advocate appearing for YouTube LLC stated that “every Court order is an occasion for YouTube to review its policy and strengthen it further.”.

In conclusion, it is hard for the reviewers of the video hosting website to review each and every video that is uploaded. Hence, it is advisable to the complainant to make the reviewers understand the nature of content of the offending video, which requires immediate removal of the video from the video hosting website.

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