Del HC | “Rogue websites” ordered to be blocked; “dynamic injunction” issued against “hydra headed websites” for curbing piracy

Delhi High Court: In what may probably go down as the first of its kind decision in India on the subject of anti-piracy and intellectual property law, Manmohan, J. passed a decree of permanent injunction against “rogue websites” from infringing, in any manner, the plaintiff’s copyrighted work. Internet Service Providers (“ISPs”) and the Government departments concerned were also directed to block access to such rogue websites and “hydra headed websites”.

The Court was deciding a bunch of suits brought by UTV Software Communications Ltd., Twentieth Century Fox Film Corpn. and others, all of which are companies engaged in the business of creating content, producing and distributing cinematographic films around the world including in India. They primarily sought injunction restraining infringement of copyright on account of defendants communicating to the public the plaintiffs’ original content/cinematographic works without authorization. The defendants that were impleaded can be categorised in four classes — (i) Certain identifiable websites that were unauthorisedly communicating the plaintiffs’ copyrighted work; (ii) John Doe defendants who were hitherto unknown parties engaged in the unauthorised communication of the plaintiffs’ copyrighted works, including the registrants of the defendant-websites, uploaders, creators of redirect/mirror/alphanumeric websites; (iii) ISPs that provide internet access, enabling users to visit any website online, including the defendant-websites; and (iv) Department of Telecommunication (“DoT”) and Ministry of Electronics and Information Technology (“MEITY“).

This was a rare occasion where in an ex-parte matter, questions of law of general public importance arose for consideration. The Court was of the view that the general industry evidence appears consistent with a hypothesis that digital piracy has hurt the movie industry. In fact, online piracy has had a very real and tangible impact on the film industry and the rights of the owners. The Copyright Act, 1957 confers a bundle of exclusive rights on the owner of a “work” and provides for remedies in case the copyright is infringed. The Court was of the opinion that it had ample powers to mould the relief to ensure that the plaintiff’s rights are adequately protected.

The Court discussed the relevant law on the subject including Sections 2(y),(f) and (ff), 14(d), 51(a)(i) and (ii), 52(1)(c) and 55 of the Copyright Act; and Sections 2(1)(w), 69-A and 79 of the Information Technology Act, 2000; along with relevant case laws, both domestic and foreign. The seminal points and the Court’s conclusion after due consideration is, in seriatim, delineated below:

(a) Infringer of copyright on the internet not to be treated differently from an infringer in the physical world — If the view of the “Internet exceptionalists school of thought” is accepted, then all infringers would shift to the e-world and claim immunity! A world without law is a lawless world. There is no logical reason why crime in the physical world is not a crime in the digital world especially when the Copyright Act does not make any such distinction.

(b) Seeking blocking of a website dedicated to piracy does not make one an opponent of free speech and open internet — Advocating limits on accessing illegal content online does not violate open internet principles. The key issue about Internet freedom is not whether the Internet is and should be completely free or whether Governments should have unlimited censorship authority, but rather where the appropriate lines should be drawn, how they are drawn and how they are implemented.

(c) What is a “rogue website” — Music and film piracy are primarily facilitated on the net by Flagrantly Infringing Online Locations (“FIOLs“) or Rogue Websites. They are those websites which primarily and predominantly share infringing/pirated content or illegal work. The registrant details of these websites are unknown and any or all contact information is masked/blocked. In Para 59 of its judgment, the Court also chalked down some illustrative factors to be considered for determining whether the website complained of is a FIOL/rogue website. It was clarified that such factors do not apply to intermediaries as they are governed by IT Act, having statutory immunity and function in a wholly different manner.

(d) Test for determining a rogue website is qualitative — If the test to declare a website as a rogue website is that it should contain only illicit or infringing material, then each and every rogue website would add a small percentage of legitimate content and pray that it be not declared an infringing website! Consequently, the real test for examining whether a website is a rogue website is a qualitative approach and not a quantitative one.

(e) Defendant-websites were rogue websites — The Court gave a list of reasons to conclude that the defendant-websites satisfied the “qualitative test” and therefore were rogue websites. The reasons include that they do not provide any legitimate contact details and hide behind the veil of secrecy, they encourage users to circumvent detection or blocking orders, etc.

(f) Court is justified to pass directions to block the rogue websites — Website blocking in the case of rogue websites, like the defendant-websites, strikes a balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy. The Court was also of the opinion that it has the power to order ISPs and DoT as well as MEITY to take measures to stop current infringements as well as if justified by the circumstances prevent future ones.

(g) Dealing with the “hydra headed” rogue websites — The question that arose for consideration was how should courts deal with hydra headed websites, who on being blocked, actually multiply and resurface as alphanumeric or mirror websites. In the present batch of matters though the Court had injuncted the main website by way of the initial injunction order, yet the mirror/alphanumeric/redirect websites had been created subsequently to circumvent the injunction orders.

Though there is no similar procedure for issuing a “dynamic injunction” as is issued by courts in Singapore and elsewhere, yet in order to meet the ends of justice and to address the menace of piracy, the court in the exercise of its inherent power under Section 151 CPC permitted the plaintiffs to implead the mirror/redirect/alphanumeric websites under Order 1 Rule 10 CPC as these websites merely provide access to the same websites which were the subject of the main injunction. On being satisfied that the impugned website is indeed a mirror/redirect/alphanumeric website of the injuncted rogue website(s) and merely provides new means of accessing the same primary infringing website, the Joint Registrar shall issue directions to ISPs to disable access in India to such mirror/redirect/alphanumeric websites in terms of the orders passed.

Relief

(i) Keeping in view the aforesaid findings, a decree of permanent injunction was passed restraining the defendant-websites, tehir owners, partners, proprietors officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from, in any manner hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, on their websites, through the internet in any manner whatsover, any cinematograph work/content/programme/show in relation to which plaintiffs have copyright.

(ii) A decree was also passed directing the ISPs to block access to the defendant-websites.

(iii) DoT and MEITY were directed to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the defendant-websites.

(iv) The plaintiffs were permitted to implead the mirror/redirect/alphanumeric websites under Order 1 Rule 10 CPC in the event they merely provide new means of accessing the same primary infringing websites that have been injuncted.

(v)Plaintiffs were held entitled to actual cost of litigation.

Suggestion

As a measure for curbing pirated content and the dark-net for promoting legal content and accelerating the pace of Digital India, the court suggested that since website blocking is a cumbersome exercise and majority of the viewers/subscribers who access, view and download infringing content are youngsters who do not have knowledge that the said content is infringing and/or pirated, the MEITY/DOT should explore the possibility of framing a policy under which a warning is issued to the viewers of the infringing content, if technologically feasible in the form of e-mails, or pop-ups or such other modes cautioning the viewers to cease viewing/downloading the infringing material. In the event, the warning is not heeded to and the viewers/subscribers continue to view, access or download the infringing/pirated content, then a fine could be levied on the viewers/subscribers.

Words of appreciation

The court also appreciated the services rendered by Hemant Singh, Amicus Curiae as well as Saikrishna Rajagopal and the team of Advocates assisting them. They not only handed over innumerable notes, charts and articles but explained with great patience certain technologies that the Court was not familiar with. [UTV Software Communication Ltd. v. 1337X.to, 2019 SCC OnLine Del 8002, dated 10-04-2019]

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