Delhi High Court has removed Google India, Research In Motion India (Blackberry) and Amazon as parties to a case of alleged copyright violation in App stores, while deciding that there is, prima fascie, a case against Apple India, SpicyIP reported. Blueberry Books, the publisher of children’s books had filed a lawsuit against Google, Apple, Amazon and RIM last year, because an app titled ‘Story Time for Kids’ had allegedly infringed on their copyright my making available four of their stories: (i) The Lazy Penguin; (ii) How The Rainbow Was Formed; (iii) The Greedy Fisherman and (iv) The Flower Goes For A Walk.
The apps, which Blueberry Books discovered in February 2012, were available for download across app stores from Google (Play store), Blackberry, Apple (iTunes), Microsoft on Windows Phone, and developed by Teknowledge Software. The stories were also apparently translated into different languages including English, French, Italian, Chinese etc.
Google India, RIM India removed because Indian co’s are sales and promotional arms
Google argued in court that Blueberry Books has failed to disclose even a single instance of infringement against Google India Pvt Ltd. Google India Pvt Ltd, is a subsidiary of Google Inc, and is, it claims, ‘an agent, partner or franchisee of Defendant Google Inc, as a non-exclusive distributor of Google Inc., engages in business development and promotional activities for certain limited products and is not responsible for the content available on the products. It does not play any role in providing or administering specific Google products/applications including “Android Play.”‘ Google Play is a platform, and Google India claims it has no control over the application or the Android Play platform. RIM made similar claims of Research in Motion India Pvt. Ltd. is a subsidiary and a marketing entity for RIM, saying it is not involved, directly or indirectly, in the BlackBerry App World or its activities.
Both Google and RIM were deleted from the list of parties to this case.
Amazon removed from case on jurisdiction grounds
The stories were found on the App ‘Story Time for Kids’, and also separately for Android based devices. Amazon.com also had the same stories for download at a price of 0.99 $ (USD) per story, including the picture image of the story “The Flower Goes For A Walk”, and next to it, the following text:
“The Flower Goes For A Walk: Story Time for Kids
by Teknowledge Software
Platform: Android Rated: Children
Be the first to review this item
………………………………………………. Price: $0.99
Available instantly for your Android device”
However, on the Amazon.com page itself, it is not possible for a viewer to see anything more than just the image, because of download restrictions “AT&T has enabled purchases from the Amazon Appstore for some devices (Learn more). Amazon Appstore is only available to customers located in the United States.” According to the order, there were no sales in India due to these restrictions, and a view of sales records confirms a total of only thirty-three (33) downloads of the Apps, by customers identified as United States customers, producing total revenue of approximately $24.75.
Amazon contended that the infringement did not take place in India, hence it was beyond the territorial and subject matter scope of the court. The court agreed, and on these grounds, to delete Amazon from the array of parties.
Apple still a party to the case, because India site has the app
Apple contended that the iTunes store is operated by a Luxembourg based entity namely ‘iTunes S.a.r.l.’, and “Apple India does not exercise any control, direction or oversight over the App Store and plays no role in determining the content/Applications to be made available therein”, apart from the fact that the downloads of the app “do not, in any manner, reflect the number of downloads of the impugned stories.” Blueberry Books argued that Apple Inc and Apple India have provided free downloads through iTunes stores of the app “Story Time for Kids” and it is further evident that the story “How the Rainbow was Formed’ was provided under the head “other stories” on payment basis and thus there was a clear infringement of the Plaintiff’s copyright, and Apple India facilitated the download of iTunes.
Apart from this, they argued that the stories were downloadable from the web address itunes.apple.com/in/app/storie-della-buona-notte (now removed), and the contact address there was for Apple India.
The court has said that “The question whether download can be made of the impugned story in India using the Apple India website will be a matter for evidence. Prima facie it does appear that the iTunes store could be visited using the website of Apple India which is the first step towards downloading of the impugned stories. While it is not possible at this stage to come to a definite conclusion on the role of Apple India, it is equally not possible at this stage to decide to the contrary viz., that Apple India has nothing to do whatsoever with the download of the impugned stories through the app provided on iTunes store.”
The case against Apple will continue.
Note that the Windows Phone website still lists the app, but has a note that states ‘This app is no longer published’.
We’ve said this before: we do not like Google and RIM’s approach of their Indian businesses absolving themselves of any liability because the Indian entities do not manage the stores: if the companies have to operate in India, then their businesses need to be held accountable under Indian law, and they are merely creating a situation where the court can force the companies to set up servers in India, and be held accountable for its content.
We do not think App stores should be held liable as platforms unless they select the apps listed on them. Even then, their contract with the developer might allow liability to be passed from the store to the developer. This is a situation similar to that which existed in the Avneesh Bajaj case: app stores are marketplaces, and only the developer / vendor should beheld accountable in case there is copyright violation.