Full Text
HIGH COURT OF DELHI
Date of Decision: 9th August, 2023
UNIVERSAL CITY STUDIOS LLC. AND ORS. ..... Plaintiffs
Through: Mr. Saikrishna Rajagopal, Ms. Suhasini Raina, Ms. Anjali Agarwal, Ms. Mehr Sidhu, Mr. Raghav Goyal
& Ms. R. Ramya, Advs. (M:
8879106222)
Through: Mr. Harish V. Shankar, CGSC for DOT and MeitY.
JUDGMENT
1. This hearing has been done through hybrid mode. I.A. 14122/2023 (u/S 80 CPC)
2. This is an application filed by the Plaintiffs, seeking exemption from serving notice to Defendant No. 26- Department of Telecommunications (DoT) and Defendant No. 27- Ministry of Electronics and Information Technology (MEITY) under Section 80 of the CPC.
3. Exemption is allowed. However, Mr. Harish V. Shankar, ld. CGSC has been requested to accept notice.
4. Accordingly, application is disposed of. CS(COMM) 514/2023 & I.A. 14120/2023(u/O XXXIX Rules 1 & 2 CPC)
5. The Plaintiffs before this Court are well-established Hollywood Studios which are engaged in the production, distribution of a large volume Signing Date:17.08.2023 21:07 of original creative content including cinematograph films, TV series, motion pictures, etc. (hereinafter ‘content’). The list of Plaintiffs in the present petition is set out in the following table: Plaintiff No. Name of the Plaintiff
1. Universal City Studios LLC.
2. Warner Bros. Entertainment Inc.
3. Columbia Pictures Industries, Inc.
4. Netflix Studios, LLC
5. Paramount Pictures Corporation
6. Disney Enterprises, Inc.
6. The Plaintiffs claim that the content created, produced and distributed by, or on behalf of the Plaintiffs’ studios, can be accessed and viewed on a variety of devices including Televisions, Personal Computers, laptops, Tablets, Mobile Phones, etc. The said gadgets also permit authorised streaming and downloading of this content. The Plaintiffs’ studios own Copyright in the entire content which is protectable as cinematograph films and also own rights in various underlying works – which are recognised under the Copyright Act, 1957 (hereinafter, ‘the Act’). The Plaintiffs also claim to have devoted enormous resources in the creation, production and distribution of the content, as also communication of the content so developed to the public. It is also stated that considerable effort and resources are used for even marketing and advertising of the content developed by the Plaintiffs.
7. Technology has posed a major challenge for entities like the Plaintiffs as there is a proliferation of a large number of platforms including websites from where unauthorised, unlicensed and pirated content of the Plaintiffs can be downloaded, accessed and viewed by customers and viewers. The process of production of copyrighted content is a continuous one and almost on a daily basis new content is being added into the bouquet of content of the Plaintiffs. Thus, the content consisting of films, TV series, shows, etc. is itself dynamic in nature and the reproduction, hosting, uploading, streaming, downloading, broadcasting, telecasting or making available of this content in an unauthorized manner is, apart from constituting infringement of Copyright also resulting in enormous monetary loss to the Plaintiffs.
8. The present suit has been filed by the Plaintiffs against various websites which are permitting the viewing, streaming, accessing and downloading of such content without any license or authorisation from the Plaintiffs. The various websites which are impleaded as Defendant Nos. 1 to 16 have different avatars but continue to make available the unauthorised content of the Plaintiffs and also other copyright holders. Such websites primarily contain content which is being taken in an unauthorised manner, from various platforms including that of the Plaintiffs. Some of the websites are newer versions of rogue websites which have been injuncted in other litigation. Some of the glaring features of these rogue websites are as follows: i) No details are available as to the persons or entities who have registered the domain names and the websites have subscribed to features like privacy protect, to hide/mask their identity; ii) There is no clarity from a perusal of the websites as to who is the person or entity who is making available the content, which is being hosted, streamed or viewed on these websites; iii) There are no contact details and addresses which are available in most occasions, except e-mails addresses. Some of the websites are also providing advertising and thus generating revenue for themselves. These advertisements also include promotion of betting websites which also unlawfully lure customers and viewers; iv) The websites also have forms asking viewers and users to suggest more content that could be uploaded. For example, www.dotmovies.baby has the following note below contact us has been given: “Feel Free to contact us Please feel free to contact us regarding any need. We look forward to hearing from you. Also, you can post a request regarding new movies or TV Series. We will be more than happy to post your favourite movies and TV series” Thus, the website, apart from hosting and making available illegal content, is enticing and welcoming viewers to suggest more and more titles that can be unauthorisedly made available. v) These websites provide different qualities of downloading, including High Definition (HD option). The website also provides different language and subtitling options depending upon the need of the user; vi) The content hosted or linked on the said websites are also downloadable on mobile phones and even support casting of content to other viewing devices using Chromecast; vii) The websites also have utilized content from OTT platforms and various regional language cinematograph films; viii) It also appears that the websites encourage users to join the platforms which support sharing of voluminous content such as Telegram, etc. in order to be able to communicate and transmit unauthorised content; ix) These websites are using varying alphanumeric addresses while maintaining the core name, for example - TamilMV. The TamilMV website was earlier injuncted in CS(COMM) 369/2019 titled Warner Bros. Entertainment Inc. v. www.tamilrockers.ws & Ors. However, it has now added the numeral 1 and has again started transmitting pirated/unauthorised content x) Some websites give different options to the user and also provide the genre of the content.
9. It has been observed that in the screenshot extracted above, which is inviting suggestions for pirating further content, the e-mail address mentioned is of vegamoviesorg@gmail.com which is part of the name of another website that has already been injuncted by this Court vide order dated 17th April, 2022, in CS(COMM) 265/2022 titled Universal City Studios LLC & Ors. v Vegamovies.run & Ors. The relevant extracts of the said order are extracted as under:
20. Having heard learned counsel for the Plaintiffs, this Court is of the view that Plaintiffs have made out a prima facie case for grant of ex parte ad-interim injunction. Balance of convenience lies in favour of the Plaintiffs and they are likely to suffer irreparable harm in case the injunction, as prayed for, is not granted.”
10. After having perused the printouts of the various websites, this Court has no doubt in holding that such websites have the potential to curb creation of copyrighted content and hurt the thriving content creation industry in India and abroad, as they offer unlicensed/unauthorised alternate platforms than those offered by the copyright owners themselves. Ignoring the existence of such rogue websites could result in curtailing and stifling creativity itself inasmuch as the creation of this content involves enormous investments and involves the collaborative work of various creative people such as authors, lyricists, singers, actors, dancers, musicians, support staff, extras etc. All these efforts and works would all be jeopardized if such pirated/unauthorised content is permitted to be available for users, that too at no cost or even minimal cost.
11. The Court had put a question to the ld. Counsel for the Plaintiffs as to how the dynamic generation of content can be protected in a suit where even future works of the Plaintiffs’ can be covered. Mr. Saikrishna, ld. Counsel has taken the Court through the decision of this Court in UTV Software Communication Ltd. and Ors v. 1337x.to and Ors, (2019) 78 PTC 375 (Del) where this aspect is considered by the Court as under:
12. In UTV Software Communication Ltd. (Supra), the ld. Single Judge of this Court took note of the dynamic nature in which the duplication of websites can happen, especially because mirror websites can spring up within a matter of a few minutes. Several other orders have also been passed by this Court with respect to rogue websites, such as in CS(COMM) 157/2022 titled Star India Pvt. Ltd v. Live Flixhub.Net, CS(COMM) 471/2019 titled Star India Pvt. Ltd. Vs. Moviemad.biz & Ors, and CS(COMM) 195/2019 titled Star India Pvt. Ltd. Vs. Extramovies.host & Ors. These orders have clearly established that these websites surface frequently, and on a periodic basis, as domain names can be registered with minor modifications, and the content of the website can be very easily moved from one website to the other.
13. Piracy and unauthorized reproduction of copyrighted content is a serious issue the world over. In view of the easy and affordable access to the internet across the globe, copyright owners are forced to take action in different jurisdictions, that are material to their revenue in order to seek injunctions against rogue websites, which offer content in an unauthorised manner. Courts across the world have been providing various remedies in order to protect the rights of copyright owners. For instance, in The Football Association Premier League v. British Telecommunications PLC and Ors., [2017] EWHC 480 (Ch), the High Court of Justice, Chancery Division, U.K., vide judgement dated 13th March, 2017, had passed orders directing ISPs to block access to the websites distributing, transmitting and streaming unauthorised content of the Barclays Premier League matches. In the said decision, the Court considered various issues such as proportionality and safeguards including the avoidance of barriers to legitimate trade before passing the orders of blocking.
14. In addition to the decision in The Football Association Premier League (supra), in several decisions, various torrent websites such as ‘The Pirate Bay’, ‘KAT’, ‘Fenopy’ and ‘H33T’ which were rampantly indulging in copyrights infringement were directed to be blocked though a series of judgements. The said series of judgements include Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch) and EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch). Further, the High Court of Ireland has in judgement dated 11th October, 2010 in EMI Records [Ireland] Ltd & Ors v. UPC Communications Ireland Ltd, [2010] IEHC 377 highlighted the nature of the problem being faced by the creative industry as also the economic issues that arise due to rogue websites. The relevant extracts of the said judgement are set out below: “The Nature of the Problem
8. I am satisfied that the business of the recording companies is being devastated by internet piracy. This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry. While the evidence focussed on the recording industry, the retail sector must also be affected by this wholesale theft. Furthermore, the evidence presented convinces me that a substantial portion of the generation now in their teenage years and twenties are actively dissuaded by illegal alternatives from legitimately purchasing music. Economic Issues
19. More widely, however, internet piracy is an economic and a moral problem. Were men to walk into a cinema and in the dark, set up a small tripod for a machine to digitally record the latest movie blockbuster, to use the appropriate colloquial terminology, most right thinking people would be appalled. To entertain themselves and their families at home, they would have to wait three or four months to buy the DVD on its release and spend about €15 to have the film and whatever extras were added on to make it attractive. It is hardly credible that cinema owners would not be aware of this problem taking place. If they did nothing, and allowed people to proceed with illegally capturing the film, the first step would have been taken with their acquiescence in the undermining of Copyright. Attendance at the film would plummet, because a group of friends would be drawn into deciding that a cheaper alternative for say five or ten of them, instead of having to spend between €50 and €100 on cinema admission, would be to buy a pirated copy of the film and watch it in the comfort of their home on the now almost ubiquitous flat screen television of large size that graces our home life. If nothing were done about the men, their camera and their tripod, their digital reproduction equipment and their sales, on the release of the DVD of the film, legal purchases would be minimal. Similarly, in the week of commencing writing this, the National Youth Orchestra of Ireland presented a stirring new composition, ‘Summer Overture’ by Shaun Davey, in the National Concert Hall.. Nowadays it is possible to attend a concert and to have CDs of it legally for sale fifteen minutes after conclusion. A person could covertly capture the music on a small digital recorder. If that individual went out to a van in which he had a great deal of digital copying equipment, reproduced it without permission and sold the CDs to those leaving the concert, it would rightly be regarded as flagrant abuse of Copyright. I cannot see how an illegal recording on site and the subsequent public or internet offering for free, with no return to the composer or performer for their creativity, is anything other than a scandal. I have no doubt that any responsible cinema owner, or concert hall owner would stop internet piracy, if made aware of it. I am further satisfied that a reasonable person in that position would be vigilant to prevent it in a cinema or in a concert venue. A failure to address those problems, by those who can address the abuse, is not excusable. It constitutes the abuse of the economic interests of the creative community. This kind of theft is shameful. Many who see that activity on the street would shun the commerce of exploiting the rights of artists for no return. Peer pressure would prevent much of it. But the internet allows a dispensation from shame, as internet thieves figure that no one will know what is being done behind the closed doors of internet access. Essentially, that coupled with the failure of internet service providers to act like a responsible cinema or concert venue owner would act, is why the problem is so extreme
20. There is no difference between the public situations I have described and the piracy of music tracks over the internet. It has the same consequence. The conduit for that illegal activity is, however, not the street or the pavement outside a cinema; it is the internet service providers. It is clear that they have an economic and moral obligation to address the problem. I do not accept any of the evidence from UPC, referred to later in this judgment, as to why this has not been done. Instead, the effect on the market place of illegal downloads, through the internet, is to increase the profit levels of internet service providers. Relevant correspondence from within UPC is profoundly disturbing as to the reality of their approach.
21. The evidence establishes that this problem is a massive one. This is an instance where the multiplication on a huge scale of small problems has changed the nature of the issue into a huge pilfering of the resources of creative artists. For each individual person, the number of downloads cannot be regarded as being on a commercial scale. It is the multiplication of the problem through millions of individuals feeling free to use the internet to pirate the Copyright of creative artists and recording companies that has created the undermining of that right on a foundational scale.”
15. Even in India, regularly orders are being passed by Courts, against websites which consist of unauthorized and illegal content, in an effort to combat the scourge of internet/network piracy. Recently, the Bombay High Court in Applause Entertainment Pvt. Ltd. v. Meta Platforms Inc., 2023 SCC OnLine Bom 1034, has directed the blocking of all social media accounts which were being used for communicating substantial parts of a web series hosted on an OTT platform. In the said decision, while apprehending that continuation of such unauthorised dissemination using different names and identities, the Court issued an ex-parte ad-interim dynamic injunction, restraining even the adoption of different identities to perpetuate such unauthorised dissemination. The only effective measure at this stage, which domestic courts are therefore granting is blocking of these websites and extension of the injunction to mirror websites even if they are with alphanumeric variations.
16. The dynamism of the injunction, by itself, in one country or another may not, however be sufficient to protect copyright owners. There is an imminent need to evolve a global consensus in this regard inasmuch as despite ISPs blocking these websites, the said websites can be accessed through VPN servers, and other methods to which the long arm of the law cannot extend etc.
17. Any injunction granted by a Court of law ought to be effective in nature. The injunction ought to also not merely extend to content which is past content created prior to the filing of the suit but also to content which may be generated on a day-to-day basis by the Plaintiffs. In a usual case for copyright infringement, the Court firstly identifies the work, determines the Copyright of the Plaintiff in the said work, and thereafter grants an injunction. However, owing to the nature of the illegalities that rogue websites induldge in, there is a need to pass injunctions which are also dynamic qua the Plaintiffs as well, as it is seen that upon any film or series being released, they may be immediately uploaded on the rogue websites, causing severe and instant monetary loss. Copyright in future works comes into existence immediately upon the work being created, and Plaintiffs may not be able to approach the Court for each and every film or series that is produced in the future, to secure an injunction against piracy.
18. Some of the websites, as seen from the printouts placed on record, in fact encourage users not to obtain subscription plans of legitimate platforms and also ask users for suggestions as to which content should be uploaded. One such website is of Defendant No. 6- seriesonlinehd.tv where the website has a note to the following effect: “Why spend your hard earned cash on cable or Netflix when you can stream hd movies and series had at no cost? More and more people cut the cord because entertainment on demand sounds more tempting. And more and more people stop purchasing a subscription plan because they can get the same service at free online movie streaming sites. At Seriesonlinehd.tv, you can watch any movie of your choice without paying a penny or even signing up. With a huge collection of movies and TV series, Seriesonlinehd.tv is confident to meet your entertainment needs and even exceed your expectations. With HD quality and mobile friendly and Chromecast supported features, Seriesonlinehd.tv is your best alternative to cable and paid streaming services”
19. As innovation in technology continues, remedies to be granted also ought to be calibrated by Courts. This is not to say that in every case, an injunction qua future works can be granted. Such grant of an injunction would depend on the fact situation that arises and is placed before the Court.
20. In the facts and circumstances as set out above, an ex parte ad interim injunction is granted restraining the Defendants, who are all rogue websites, from in any manner streaming, reproducing, distributing, making available to the public and/or communicating to the public any copyrighted content of the Plaintiffs including future works of the Plaintiffs, in which ownership of copyright is undisputed, through their websites identified in the suit or any mirror/redirect websites or alphanumeric variations thereof including those websites which are associated with the Defendants’ websites either based on the name, branding, identity or even source of content. To keep pace with the dynamic nature of the infringement that is undertaken by hydra-headed websites, this Court has deemed it appropriate to issue this ‘Dynamic+ injunction’ to protect copyrighted works as soon as they are created, to ensure that no irreparable loss is caused to the authors and owners of copyrighted works, as there is an imminent possibility of works being uploaded on rogue websites or their newer versions immediately upon the films/shows/series etc. The Plaintiffs are permitted to implead any mirror/redirect/alphanumberic variations of the websites identified in the suit as Defendants Nos. 1 to 16 including those websites which are associated with the Defendants Nos. 1 to 16, either based on the name, branding, identity or even source of content, by filing an application for impleadment under Order I Rule 10 CPC in the event such websites merely provide new means of accessing the same primary infringing websites that have been injuncted. The Plaintiffs are at liberty to also file an appropriate application seeking protection qua their copyrighted works, including future works, if the need so arises. Upon filing such applications before the extension of the injunction to such websites, to protect the content of the Plaintiffs, including future works, the injunction shall become operational against the said websites and qua such works. If there is any work in respect of which there is any dispute as to ownership of copyright, an application may be moved by the affected party before the Court, to seek clarification.
21. Insofar as Defendant Nos.17 to 25 are concerned, the said ISPs shall give effect to this injunction by blocking the said websites. MeitY and DoT shall issue blocking orders against the websites within a period of one week from the release of the order.
22. The Domain Name Registrars (DNRs) of the rogue websites’ domain names, upon being intimated by the Plaintiffs shall lock and suspend the said domain names. In addition, any details relating to the registrants of the said domain names including KYC, credit card, mobile number, etc. be also provided to the Plaintiffs.
23. For a ready reference of the names of the Defendant websites, the list of Defendant websites as given in the memo of parties of this suit is attached to the present order as Annexure A.
24. Compliance of Order XXXIX Rule 3 CPC be effected within two weeks. Compliance and service is permitted through e-mail owing to the fact that the exact contact details or addresses of these parties are not known.
25. Reply to the application be filed within four weeks from the service of the present order along with the paper book.
26. List before the Joint Registrar on 16th October, 2023.
27. List before the Court on 15th January, 2024.
PRATHIBA M. SINGH JUDGE AUGUST 9, 2023/Rahul/am (corrected & released on 17th August, 2023) Annexure A List of Defendants as per Memo of Parties Defendant Nos. Websites/Party Name Contact Details 1 dotmovies.baby dotmovies. wiki dotmovies. bio dotmovies.ink dotmovies.xyz abuse@namecheap.com vegamoviesorg@gmail.com 2 1tamilmv.kids 1tamilmv.cafe 3 tamilvip.city tamilvip.tv domainabuse@tucows.com compliance@tucows.com 4 kissasian.link kissasian.land kissasian.mx kissasian.li kissasian. pe renzuken08@gmail.com abuse@namesilo.com noreply@dataprotected.net 5 filmyworlds.pro filmyworlds.online filmyworlds.life filmyworld.cc Filmyworld111@proton.me 6 seriesonlinehd.tv abuse@namecheap.com 7 deadtoons.co contactzylith@proton.me 8 full4movies.bet full4movies.expert full4movies.cafe full4movies.golf full4movies.tech 9 hindmoviez.icu hindmoviez.app hindmoviez.wiki hindmoviez@gmail.com 10 9xflix.win 9xflix.qpon 9xflix.help 9xflix@protonmail.com abuse@namesilo.com abuse@tldregistrarsolutions.com 11 goku.sx goku.to compliance@epag.de 12 cataz.net abuse@namecheap.com protect@Withheldforprivacy.com 13 popmovies.top abuse@namecheap.com 14 asianhdplay.pro asianhdplay.net 15 moviesyug.info moviesyug.org abuse@name.com