In an evidence-heavy case about song lyrics, the High Court has ordered the main defendant, Mohammad Rahi, to desist from making further infringement complaints relating to the claimant music publishers’ YouTube channels, via YouTube’s copyright strike system.
Mr Rahi, a singer and writer of Pakistani folksongs in Punjabi and Urdu, was found to have taken advantage of the platform’s “three strikes” policy, causing the take-down of the Moviebox and Oriental Star YouTube channels. Finding that the defendant had pursued “a relentless and fraudulent campaign aimed at damaging the economic interests” of the claimants, the court granted a permanent injunction and ordered a trial on quantum of loss.
The trial concerned three sets of consolidated proceedings against the defendant. The claimants were Moviebox Megastores (International) Limited, Oriental Star Agencies Limited and Moviebox (Birmingham) Limited, and they can each broadly be described as publishers of Indian and Pakistani music, video and film. The first two claimants had YouTube channels for that content, while the third had assigned the rights in its related business to the first claimant.
Each claimant brought a similar claim against Mr Rahi on the grounds of financial loss caused by his fraudulent claims to YouTube.
The first claim involved 11 songs across 26 videos that appeared on the Moviebox YouTube channel, in which Mr Rahi alleged that he owned the copyright. Moviebox alleged that Mr Rahi’s complaints to YouTube were made in retaliation for strikes issued by Moviebox against Mr Rahi's YouTube channel in relation to songs on four albums which featured Mr Rahi as the singer, but in which Moviebox owned the copyright. As a result of Mr Rahi’s complaints, and acting in accordance with its “three strikes” policy, YouTube deactivated the Moviebox YouTube channel, deleted the disputed videos and blocked Moviebox from uploading new content.
The second claim concerned a single song that Mr Rahi purported to have written, which appeared across 12 videos on Oriental Star’s YouTube channel. Again, Mr Rahi made complaints to YouTube, which resulted in the suspension of the Oriental Star YouTube channel.
The third claim was that Mr Rahi had encouraged two other defendants, Ms Shazia Manzoor and Mr Azeem Qureshi, to pursue fraudulent copyright claims against the third claimant, which resulted in the removal of videos from the Moviebox YouTube channel. Summary judgment had already been entered against those two further defendants, and so the trial did not concern them.
In his defence, Mr Rahi maintained that he wrote the relevant songs and owned the copyright in them.
The judge considered the various issues to be determined, which can be summarised as follows:
- Did the defendant write the relevant songs?
- Were the defendant’s complaints to YouTube malicious, and did they intend to cause loss to the claimants?
- Were the defendant’s complaints to YouTube fraudulent?
- Did the defendant’s complaints to YouTube interfere with relations between the claimants and YouTube?
- Did the defendant’s complaints to YouTube cause (or were they likely to cause) YouTube to terminate or suspend the claimants’ YouTube accounts?
- Did the defendant act as part of a conspiracy or in common design with the other defendants to the third claim to injure the economic interests of the first and third claimants?
- Did the defendant’s actions cause loss to the claimants?
- If so, should the court award the injunction sought or other reliefs beside damages?
Issue 1 – authorship of the songs
In light of the defence made by Mr Rahi, much of the case turned on the evidence presented to the court on authorship and ownership of the relevant copyright in the contested songs and lyrics. That involved detailed analysis of the documentary evidence surrounding each of the songs, as well as witness evidence and expert opinions.
Documentary evidence and expert opinions
A complication in this case was that each party had produced documentary evidence that was fiercely disputed and factually complex.
Mr Rahi placed significant emphasis on a book containing thousands of songs that he said he had written, named “Ik Akram Rahi”. The book had been registered with the Pakistani Intellectual Property Office, and Mr Rahi relied on the certificate issued by that IPO as prima facie evidence that he owned the copyright in the songs. Yet Mr Justice Rawlings placed no weight on the certificate, noting that it had been granted by the IPO on the basis of evidence contained in an affidavit sworn by Mr Rahi, which consisted of “bare assertions”.
Rawlings J also considered the content of the songs themselves, noting that there is a tradition in Pakistani folksongs of singing the name of the author of the song at the end of the song. The judge found Mr Rahi had inadequately explained the reason for singing another word or name in place where his name should have featured.
Mr Rahi introduced copies of cassette sleeves that credited him as the writer on multiple tracks. The claimants asserted that those documents had been fraudulently altered to replace the names of writers with his own. In his defence, Mr Rahi maintained that album sleeves relied on by the claimants were pirate copies of those he had produced. The judge accepted the document comparison expert’s view that Mr Rahi had introduced digitally altered cassette sleeves.
While Mr Rahi alleged that agreements produced by the claimants, purporting to be signed by him (and sometimes bearing his fingerprint), were forgeries, fingerprint experts found that three of six documents analysed contained Mr Rahi’s thumbprint. The judge accepted that evidence and rejected Mr Rahi’s suggestion that his thumbprint had been fabricated and placed on documents by the claimants. Two of the documents were assignments by Mr Rahi of his rights in songs to record labels.
Witness evidence at trial
The claimants and Mr Rahi each produced six witnesses to support their respective arguments. Before turning to consider the credibility and honesty of the factual witnesses, the judge referred to Leggatt J’s comments in Gestmin v Credit Suisse for guidance. In his judgment Leggatt J concluded that “the best approach for a judge to adopt in the trial of a commercial case is … to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts”.
The judge then referred to the list of indicators from Painter v Hutchinson that suggest unsatisfactory witness evidence. The general categories are:
- evasive and argumentative answers;
- tangential speeches avoiding the questions that the witness was asked;
- placing strained meanings on the pleadings and witness statement;
- blaming legal advisers for the content of documentation (statements of case and witness statements);
- disclosure and evidence shortcomings;
- self-contradiction in cross-examination;
- internal inconsistency;
- shifting of case; and
- new evidence in cross-examination not contained in the witness statement.
Overall, the judge considered the claimants’ witnesses credible and apportioned varying degrees of weight to their testimony. Mr Rahi’s witness evidence, however, fared much less favourably. The court found that much of Mr Rahi’s oral evidence could be placed within one of the Painter v Hutchinson categories, and the judge chose to apportion no weight to what Mr Rahi said at trial, referring to much of the evidence as “bare assertions”. Similarly, the judge also struggled to find value in Mr Rahi’s other witnesses’ testimony, calling into question their relationship with Mr Rahi, and granting no weight to two witnesses who did not attend trial.
Conclusion on issue 1
The court found that Mr Rahi did not own the copyright in any of the 12 songs in issue. After discrediting Mr Rahi’s evidence, the judge’s findings on authorship and ownership were guided mostly by analysis of genuine original copies of cassette sleeves crediting writers, original vinyl records, copies of assignments, audio tracks in which writers were credited by the performers, and witness evidence.
Issue 2 – maliciousness and intention to cause loss
Rawlings J was satisfied, with reference to Wilts United Dairies v Thomas Robinson Sons, that Mr Rahi knew that the strikes that he issued were “intrinsically injurious”, due to the actions that YouTube could take (including de-activating the YouTube channel, taking down the videos concerned and preventing uploads of new content). The judge referred to this to find that Mr Rahi had intended to cause loss.
The judge’s findings were also informed by video posts made by Mr Rahi on social media in which he responded to the take-down of the Moviebox YouTube channel. In the video Mr Rahi said: “Moviebox, very big channel of the gangsters, Almighty God has shut it down.” He also referred to them as a member of the “music mafia”.
Issues 3-6 – fraud, interference with YouTube relationship and conspiracy / common design
Having made those findings, Rawlings J dealt with these issues comparatively swiftly. Based on all the evidence available to the court, the judge found that:
- Mr Rahi knew that he had not written the songs in question, making his claims fraudulent;
- despite arguments that YouTube was free to take any action it chose, Mr Rahi’s complaints did interfere with the first and second claimants’ relationship with YouTube, given that Mr Rahi’s submission of false evidence to YouTube misled YouTube, as it had to comply with its own policies to mitigate the risk of liability to third parties on the basis of a “cursory examination” of materials submitted to it; and
- Mr Rahi’s fraudulent strikes caused the suspension of the claimant’s YouTube accounts.
Additionally, after another detailed analysis of the factual matrix and likelihood of knowledge, the judge also found that Mr Rahi was a part of a conspiracy or common design with the other defendants to use unlawful means to cause loss to the first and third claimants.
Issues 7 and 8 – loss and relief
Rawlings J found that Mr Rahi’s actions had caused loss to the first and third claimant as a result of the deactivation of the Moviebox YouTube channel and the prevention of new content uploads. Similarly, Mr Rahi’s actions caused loss to the second claimant through the forced removal of 12 videos from the Oriental Star channel and a block on uploading new ones.
The judge noted Mr Rahi’s willingness, acting in his own name and through others, to pursue “a relentless and fraudulent campaign aimed at damaging the economic interests” of the claimants, either “as an end in itself or as a means of forcing the claimants to stop exploiting songs sung by Mr Rahi for their own commercial benefit, in order to leave Mr Rahi free to do so". Accordingly, the judge found that the claimants were entitled to the protection of a permanent injunction that would dissuade Mr Rahi from issuing further fraudulent strikes against the claimants’ YouTube channels, and from encouraging others to do so. The injunction would also provide the claimants with documentary evidence to demonstrate to YouTube that there is in place an extant injunction prohibiting Mr Rahi from engaging in issuing strikes against the claimants’ YouTube channels or encouraging others to do so.
The judge then ordered the quantum of loss to be calculated at a subsequent trial.
The court’s findings on authorship in this case rested on a detailed analysis of the myriad of both fraudulent and genuine evidence presented at trial, dated between the 1970s and the present day. The court placed significantly more weight on the documentary evidence presented, as opposed to witness testimony. Songwriters and other creatives can look at this case as a reminder of the importance of maintaining documentary evidence related to their creative processes to assist with potential copyright issues further down the line.
This case is also another example of the consequences of audiovisual platforms’ responses to the challenges that they face by virtue of their sheer scale. Providers of platforms like YouTube are doubly tasked with policing the content uploaded onto their platforms, as well as the claims made against the content. Here, the judge noted the practical reality that, in light of “the very large number of YouTube channels”, YouTube could not spend “any significant period of time considering whether or not there has been an actual infringement of a third party’s copyright”.
As such, YouTube’s copyright strike system is open to abuse by bad actors, and there is no perfect solution for rights-holders to address such issues. While this case is an extreme example of misuse of YouTube’s copyright strike system, victims of fraudulent claims made via the misuse of online complaints procedures can at least find some comfort in the court’s willingness to provide injunctive and damages-based relief where appropriate.
Written for Entertainment Law Review.