- (1.) This is an application by the defendant no.26, namely, YouTube LLC for deletion of the name of the said defendant from the array of the said defendant in CS No.132 of 2015. The applicant claims to be an intermediary within the meaning of the Information Technology Act, 2000 and is, therefore, exempt from actively monitoring the contents being uploaded by any third party. It is stated that in doing so it could hamper the safe harbor/exemption provided to an intermediary under Section 79 of the IT Act, 2000.The case of the plaintiff is that the plaintiff has alleged that the infringing content has been made available by the defendant no.27 on the website of the applicant and not by the applicant itself.The applicant merely provides the YouTube website which is a mere online content sharing platform whereby third party users can freely upload and share content such as videos, songs etc. subject to certain terms and conditions of the said website. The content is uploaded and controlled by the user who uploads the contents and not by the applicant.The applicant follows a receive and react mechanism in relation to any content uploaded on its platform at any particular URL and upon receipt of avalidcourt orderand/oranotice from anappropriate governmental agency under the law, disables access to such content on such URL complained of.
(2.) The learned counsel appearing on behalf of the applicant has referred to Section 79 Sub Section 3 of the IT Act, 2000 and submits that the plaint does not say that the said defendant as an intermediary has conspired or abated or aided or induced whether by threatsorpromise orotherwiseinthecommissionofthe unlawful act.
(3.) Thelearned counsel appearing onbehalf oftheplaintiff however submits that in paragraphs 23, 41 and 42 of the plaint, the plaintiff has stated that the defendant No.26 is a company inter aliaengaged in the business of videosharingwebsite through which thesaidfilmanditscontentswerebeing made available bythedefendantNo.27. Thereafter, inthesame paragraph in the last sentence, it is stated all the defendants along withother websites aremaking thefilmavailablefor viewing the Internet users illegally both within and outside the jurisdiction of this Court. The plaintiff has clearly pleaded that thedefendants are infringing,aidingand/or abating the infringement of plaintiff's copyright in the said film and by making the same without direction of the owners of the copyright in such film and its contents including that of the plaintiff at the stage of considering a plea for rejection of the plaintiff.;