Full Text
HIGH COURT OF DELHI
Date of Decision: 02nd May, 2023
UNIVERSAL CITY STUDIOS LLC. & ORS. ..... Plaintiffs
Through: Ms. Suhasini Raina, Ms. R. Ramya, Ms. Neha Sidhu, Ms. Anjali Agarwal, Ms. Sandhiya Rao and Mr. Raghav Goyal, Advocates.
Through: Mr. Asheesh Jain, CGSC with Mr. Gaurav Kumar and Ms. Ankita Kedia, Advocates for D-23 & 24.
JUDGMENT
151 of the Code of Civil Procedure, 1908 seeking a summary judgment)
1. The Plaintiffs seek a summary judgment asserting that Defendants NO. 1 to 13, the primary contesting Defendants, have no real prospect of succeeding in the present suit. No substantive relief is sought against Defendants No. 14 to 24, and they have only been arrayed as parties solely for ensuring proper execution of the Court Orders.
2. Defendants No. 1 to 13 have been served with summons in the suit and yet none of them have chosen to join the proceedings. In such circumstances, there is no reason to issue notice to them in the present application. Accordingly, we proceed to decide the application ex-parte. The Plaintiffs
3. Plaintiffs No. 1 to 6 are reputed and well-established global media and entertainment companies incorporated outside India. Their core activities encompass the creation, production, and distribution of motion pictures and cinematograph films. These companies have united in a collective effort to combat the pervasive issue of piracy. The Defendants
4. Defendants No. 1 to 4, are online data storage facilities described as “Cyberlocker” websites which are accessed through domain names Mixdrop.co, Mixdrop.ch, Mixdrop.bz, Mixdrop.club, respectively [hereinafter “Mixdrop Cyberlocker website(s)”]. The term “Cyberlocker” is discussed later in this judgment. Defendant No. 5, is a dedicated server facility for storage and hosting of files uploaded on the Mixdrop Cyberlocker websites. Each active server being used by the said websites has a corresponding domain name and IP address, as per the list filed with the plaint.
5. Defendants No. 6 to 13 are “Referral Websites”, which facilitate dissemination of the data uploaded on the Mixdrop Cyberlocker websites. Defendants No. 14 to 22 are various Internet Service Providers [hereinafter “ISPs”], Defendants No. 23 and 24, are Department of Telecommunications [hereinafter “DoT”] and Ministry of Electronics and Information Technology [hereinafter “MeitY”], respectively, all of whom have been arrayed as proforma parties for the purpose of execution of Court directions. The other unknown entities engaged in unlawful activities similar to Defendants No. 1 to 13 have been impleaded as Defendant No. 25, i.e., Ashok Kumar. Combating Large-Scale Piracy: Plaintiffs’ Battle Against Cyberlocker Websites and Rogue Platforms
6. The present lawsuit centres around the relentless fight against largescale piracy facilitated by Cyberlocker and Referral websites. The Plaintiffs, prominent entities in the media and entertainment industry, are committed to combating the unauthorized dissemination and piracy of their original content. These entities invest significant creative efforts, time, and resources into producing films that captivate audiences worldwide. However, their valuable work is threatened by the illicit activities of Cyberlocker and Referral websites, which play a significant role in directing users to unauthorized sources of copyrighted content. These websites enable and facilitate the unauthorized distribution and consumption of the Plaintiffs’ copyrighted material, causing substantial harm to their intellectual property rights. In their quest of justice, the Plaintiffs aim to secure a permanent injunction to curb the rampant piracy perpetrated through these websites to safeguard and protect the integrity of their original content and also preserve the rights of content creators and other entities associated with the production thereof. Plaintiffs’ case as presented by Ms. Suhasini Raina
7. The Plaintiffs have annexed lists enumerating some of the films produced by each of them. These films are visual recordings inclusive of sound recordings, and are “cinematograph films” in terms of Section 2(f) of the Copyright Act, 1957 [hereinafter “the Act”]. Under Section 13(1) and (2) read with Section 5 of the Act, Plaintiffs’ cinematograph films which are released and published in India, are entitled to protection under the Act. Those which are not released in India are extended protection under Section 40 of the Act, which pertains to “works” not originally published in India. As copyright owners of the cinematograph films, referred to as “Original Content”, the Plaintiffs possess exclusive rights in accordance with Section 2(d) read with Section 17 of the Act. These rights are granted to them under Section 14(d) of the Act.
8. Plaintiffs rely upon the report of Mr. Michael Walsh, an independent expert in the field [hereinafter “Expert Report”] to characterise and explain the modus operandi of Cyberlocker websites. Mr. Walsh, a graduate in Computer Science and Psychology from University College, Dublin, has furnished an opinion on the basis of investigation carried by him. In terms of his report, Cyberlockers are online data storage services which are purposebuilt for hosting and disseminating copyright infringing material as also to incentivise the same, in contrast to conventional cloud storage services which are targeted towards storing innocuous personal and business data. Cyberlockers actively evade identification by using privacy shields and other services to mask their registration details. They normally provide enormous storage limits ranging from 500GB to 10TB, which aids upload of bulky content such as high-resolution music albums, high-definition films and TV shows, etc. Revenue is primarily generated through third-party advertising and/ or subscription, to the extent that even uploaders of content have to navigate advertisements to access their content. Affiliate schemes are also deployed which reward/ pay uploaders for each instance of someone accessing/ downloading their uploaded content. Cyberlockers promote active sharing of links to the uploaded content and by extension, downloading of the content.
9. Mixdrop Cyberlocker websites’ primary objective is to infringe and facilitate infringement of copyright protected material, which is made out from their features, functionalities and incentives scheme. They allow users to upload/ download content free of cost, and without the need of signing-up/ providing personal details. Registration is optional but provides users access to features such as an affiliate program, [hereinafter “Affiliate Program”], which generates pay-outs for uploaders of content, every time someone watches or downloads their content. The pay-outs are divided across five tiers of countries[1] with earning rates ranging from USD 4 to USD 40. For example, when an uploader’s content crosses 10,000 views/ downloads from India, which falls in Tier 5 of “All Others”, the uploader earns USD 4.
10. Further, registered users are provided an Application Programming Interface (API) which can be used for easy generation of duplicate links by allowing immediate re-upload of content removed or taken down pursuant to a take-down notice. They offer large storage limits and delete uploaded content after 60 days of inactivity i.e., content which is not downloaded or streamed, often without notice to the uploader. Copies of screenshots of the Tier 1 (USD 40) – United Kingdom, United States, Canada, Australia, Norway, Germany; Tier 2 (USD 30) – Italy, France, Sweden, Switzerland, Netherlands, Austria, New Zealand; Tier 3 (USD 15) – Portugal, Spain, Mexico, Saudi Arabia; Tier 4 (USD 6) – Brazil, Greece, Bulgaria, Romania, Russian Federation; Tier 5 (USD
4) – All Others. Mixdrop Cyberlocker websites indicating its working, along with the terms and conditions including the details of the Affiliate Program have been filed along with the plaint.
11. The unauthorised content being made available on the Mixdrop Cyberlocker websites and the Server hosting the said content, includes Plaintiffs’ Original Content. Defendants No. 6 to 13, the Referral Websites, use Mixdrop Cyberlocker websites as a back-end storage. Referral Websites allow users to view/ stream content, download content and/ or identify other online locations to view/download the said content. The Referral Websites provide an index of URLs to unauthorised copies of Plaintiffs’ Original Content which are hosted on the Server of Mixdrop Cyberlocker Websites as also other websites/ servers. These Referral Websites are designed to enable streaming and downloading of content from Mixdrop Cyberlocker websites. Referral Websites also arrange the content in a user-friendly way by organising URLs to the infringing content by the title, genre, running time, release date, country, critic rating/ scores, associated artwork/ movie posters etc. Copies of screenshots of the Referral Websites and their working have also been filed with the plaint.
12. Plaintiffs’ representatives came across the Original Content on websites of Defendants No. 1 to 13 in July, 2022. Thereafter, in September, 2022, cease-and-desist notices were served on the said Defendants and notices were sent to ISPs to block access to the said websites. Defendants No. 1 to 13 remain uncontactable and have failed to remove the infringing content, despite requests.
13. The unlawful activities of Defendants No. 1 to 13 indicate a commonality of interest and amount to infringement under Section 51(a)(i) and (ii), and Section 51(b) of the Act. Reliance is placed on blocking orders against Defendants No. 8, 11 and 12 in Australia and Defendant No. 1, Mixdrop.co, in the United Kingdom. Proceedings Hitherto
14. On 23rd September, 2022, an ad interim ex-parte order was passed restraining Referral Websites in the following manner: - “19. Having considered the contents of the plaint, the documents filed therewith as also having heard the learned counsel for the plaintiffs, I am of the opinion that the plaintiffs have been able to make out a good prima facie case in its favour for grant of an ex-parte ad-interim injunction against the defendant nos.[6] to 13.
20. As far as the defendant nos.[1] to 5 are concerned, in my opinion, an opportunity of hearing may be granted to them before passing such an order, as they are stated to be in the business of providing services of cyberlocker.
21. As far as the defendant nos.[6] to 13 are concerned, in case an ex-parte adinterim injunction, as is prayed for, is not granted in favour of the plaintiffs, the plaintiffs are likely to suffer a grave irreparable injury. Equally, the balance of convenience is also in favour of the plaintiffs and against the defendant nos. 6 to 13.
22. Accordingly, at this stage, an ex-parte ad-interim injunction in terms of the prayer made in paragraph (iii) of the application is passed in favour of the plaintiffs and against the defendant nos.[6] to 13. The defendant nos. 1 to 5/ cyber-locker websites, and 14 to 22, who are stated to be the Internet Service Providers, are directed to block the access to the defendant nos. 6 to 13/referral sites identified by the plaintiffs in the instant suit and/or any such other mirror/redirect/alphanumeric website which appears to be associated with any of the defendant nos. 6 to 13/referral sites based on its name, branding or the identity of its operator, or discovered to provide additional means of accessing, the referral sites, and other domains/domain along with their sub-domains and sub-directories, owners/website operators/entities which are discovered to have been engaging in infringing the plaintiffs' exclusive rights by virtue of being the author/producer/first owner of the copyright vested in the cinematograph film.
23. The defendant nos.23 and 24 are directed to issue necessary notifications in this regard.
24. As far as the defendant nos. 1 to 5 are concerned, the prayers made against them shall be considered upon the service of notice to them.”
15. Pursuant to the above order, Defendants No. 1 to 5 were served, and on 13th October, 2022 an ad interim ex-parte injunction was granted in following terms: -
16. Defendant No. 23 and 24 have complied with the above directions and issued instructions for blocking access to websites of Defendant No. 1 to 13. Analysis
17. The Plaintiffs find themselves grappling with an unprecedented surge in piracy, a direct consequence of technological advancements. In the past, they had to deal with unauthorized copies of their content being made available for download or streaming on specific websites. However, the present lawsuit sheds light on a distinct form of piracy, one that operates through a sophisticated network of participants, with one of them being a “Cyberlocker” service/ website. To provide clarity, the roles and activities of the participants involved in the operations are outlined as under: - OPERATORS OF CYBERLOCKER WEBSITE Create, maintain and promote the Cyberlocker website and generate revenue from advertising SERVER Facilitate hosting and storing of uploaded content on Cyberlocker website, for downloading/ streaming REFERRAL WEBSITES Provide access to content stored on Cyberlocker websites, use it as a backend storage and receive financial benefit from traffic to the Cyberlocker website, and/ or upload content on Cyberlocker websites USERS Uploaders of content, who receive financial benefits; Downloaders of the unauthorised copies of the Original Content, through the Cyberlocker Website or Referral Websites
18. The term “Cyberlocker” is a fusion of the words “cyber” and “locker” and, as the name suggests, refers to online data storage or “locker” services. It is important to note that the mere term “Cyberlocker” should not automatically imply a negative connotation, as argued by Ms. Raina. To determine whether a Cyberlocker website should be classified as illegitimate or a “Rogue Website”, it is essential to examine its functionalities and operations. Merely labelling a website as a Cyberlocker does not inherently taint its legitimacy without considering its specific functionalities and operations in relation to copyright infringement.
19. Upon careful review of the plaint and its accompanying documents, it becomes evident that Defendants No. 1 to 4 share a close connection. This connection is substantiated by the similarities in their domain names, content, functionalities, and the fact that users can utilize the same login details across all Mixdrop Cyberlocker websites. Notably, the generated URLs for content consistently feature Defendant No. 1’s primary domain name, “Mixdrop.co.” The home page of the Mixdrop Cyberlocker websites indicates two methods of sharing content - “Share your videos, files and audio” and “Embed video and audio.” An extract of the said webpage is reproduced below:-
20. Mixdrop Cyberlocker websites offer a platform for uploaders to share content URLs with the public for downloading purposes or embedding them on Referral Websites, namely Defendants No. 6 to 13. Upon uploading content to Mixdrop Cyberlocker websites, a download link is provided, allowing users to retrieve or stream the file at a later time. Notably, these websites do not disclose any information about the files stored within their platform, nor do they offer an index or search function for site contents. Consequently, individuals seeking to access content on Mixdrop Cyberlocker websites must obtain a file link from an external source, such as a Referral Website.
21. On the basis of material gathered by Mr. Walsh and the forensic analysis done by him, he has demonstrated that Mixdrop Cyberlocker websites are largely engaged in allowing pirated content of cinematograph films and other such content to be uploaded on the websites which is then further circulated through said Referral Websites. This method of accessing the Mixdrop Cyberlocker websites through Referral Websites is clear from the following extracts of the documents annexed along with the plaint: (1)Referral Website “www.movies-watch.com.pk” (impleaded as Defendant No. 11) showing the movie “Ghostbusters Afterlife” (Original Content of Plaintiff No. 3, Columbia Pictures Inc.) (2) Embedded URL to the Mixdrop Cyberlocker website on the Referral Website (3) Direct stream of the Mixdrop Cyberlocker website along with “Download” and “Embed” button boxes
22. The download URLs of content hosted on Mixdrop Cyberlocker websites can be shared using various methods, including email, instant messaging, and social media platforms. According to the terms of service of Mixdrop Cyberlocker websites, all uploaded content is accessible to third parties, and the website reserves the right to refuse the removal of any content. In addition, Mixdrop Cyberlocker websites encourage the sharing of uploaded content URLs through their Affiliate Program, which provides incentives to users. An excerpt of the terms and conditions of the Affiliate Program, as obtained from the website, is provided below:-
23. As explained in the Expert Report, the content on Mixdrop Cyberlocker websites are largely video files; 98% of approximately one million files on the websites are in “.mp4” format and a majority of the same are commercial audio-visual content. The ‘Google Transparency Report’,[2] annexed with the report identifies the number of URLs that have been sought to be de-listed from Google’s search index. The following table, which forms a part of the report, summarises the de-listing details for each of the domain names by This data set is published by Google on their website to showcase the number of requests they get from different copyright owners, including the Government, against specific websites. which the services of Mixdrop Cyberlocker websites can be accessed: - SITE NO.
OF DELISTING REQUEST PERCENTAGE OF LINKS REMOVED NO.
OF LINKS REMOVED DEFENDANT NO. Mixdrop.co 2,327,702 27% 637,142 Defendant No. 1 Mixdrop.ch 1,449 35% 509 Defendant No. 2 Mixdrop.bz 1,869 71% 1,326 Defendant No. 3 Mixdrop.club 17,368 56% 9,639 Defendant No. 4 Mixdrop.to 239,901 45% 106,917 Not a party to present suit Mixdrop.sx 10,580 34% 3,616 Not a party to present suit TOTAL 759,149
24. The significant number of links removed from Mixdrop Cyberlocker websites serves as evidence of the extensive presence of objectionable activities and the availability of copyright-protected content on these platforms. The Expert Report and the documentary evidence submitted in this case substantiate that the business model of Mixdrop Cyberlocker websites is specifically designed to incentivize the widespread dissemination of content, resulting in substantial revenue generation based on user traffic volume. A substantial majority of the content found on these websites is infringing and unauthorized. This content is easily accessible through a well-established chain involving Referral Websites, Mixdrop Cyberlocker websites, servers, and content uploaders. The purpose of this chain is to facilitate seamless access and download of infringing content while providing financial benefits to each participant involved in the process.
25. The illegitimate nature of Mixdrop Cyberlocker websites is further substantiated by several key factors. Firstly, the absence of password protection on uploaded data indicates a lack of security measures and facilitates unauthorized access to the content. Additionally, the policy of automatic deletion of uploaded content due to inactivity suggests the intention to prioritize popular content that attracts more user traffic. This strategy aims to maximize the revenue generated by the websites. Furthermore, the API features provided by Mixdrop Cyberlocker websites enable immediate reupload of content that has been removed following takedown notices. This practice frustrates copyright protection efforts and demonstrates a disregard for intellectual property rights. The dubiousness of the websites is further evidenced by the deliberate concealment of contact details behind privacy shields. This suggests that the operators of Mixdrop Cyberlocker websites have intentionally hidden their identity to evade legal consequences. It can be inferred that they possess knowledge of the infringing and unlawful acts facilitated by their service.
26. Referral Websites, which operate as third-party platforms, play a complicit role in the infringement of copyright content facilitated by Mixdrop Cyberlocker websites. Although these Referral Websites may not directly host or store the infringing content, they actively participate in the dissemination of unauthorized copies, including Plaintiffs’ Original Content, by embedding links to the infringing content on their platforms.
27. The primary objective of Referral Websites is to attract traffic and generate financial benefits through advertising revenue. They achieve this by promoting and sharing links to the unauthorized copies of popular copyrighted material, including the Original Content of the Plaintiffs. The inclusion of indexed URLs and accompanying information such as genre, ratings, and reviews for the unauthorized content demonstrates the deliberate involvement of Referral Websites in facilitating the mass dissemination of copyrighted material without authorization. By embedding and promoting links to infringing content, Referral Websites contribute to the infringement and unauthorized distribution of Plaintiffs’ Original Content. They share responsibility for the unauthorized dissemination and exploitation of copyrighted material and are liable for their role in facilitating copyright infringement. Thus, in the opinion of the Court, the Mixdrop Cyberlocker Websites, the Server and Referral Websites, are designed to incentivise hosting, uploading, storing, sharing, and downloading of copyright material, and are liable for committing/ facilitating the infringement of Plaintiffs’ Original Content.
28. Piracy undermines the integrity of the film industry and tarnishes the reputation of filmmakers and other professionals involved in the creative process. Illegal distribution often involves poor-quality copies, including lowresolution recordings made in theaters, which diminish the overall viewer experience and negatively impact the perception of the film. Pirated films available on Cyberlocker websites create an unfair advantage for those who choose to distribute content illegally. This unfair competition can discourage legitimate distributors and content creators from investing in the production and distribution of films, ultimately hindering the growth and viability of the film industry. Piracy via Cyberlocker websites results in substantial financial losses for film companies. Unauthorized distribution and viewing of films bypass legitimate revenue streams, such as theater ticket sales, DVD and Bluray purchases, digital downloads, and streaming subscriptions. The loss of revenue directly impacts the ability of film companies to fund future productions and sustain the industry as a whole. Thus, swift and firm action is most essential.
29. Defendants No. 1 to 13, despite being given the opportunity to participate in the proceedings, have chosen to remain absent and have not presented any evidence or rebuttal to the Plaintiffs’ claims. Their nonappearance and failure to file written statement within the statutory period of limitation, indicates their unwillingness to contest the allegations made against them by the Plaintiffs. Based on the documents and the plaint, it is established that Defendants No. 1 to 13 have been involved in the dissemination of unauthorized copies of Plaintiffs’ Original Content. The Plaintiffs hold the exclusive right, under Section 14(d)(iii) of the Act, to communicate their Original Content to the public, which includes making their films available for streaming or downloading as digital copies on the internet. By engaging in the unauthorized dissemination of Plaintiffs’ cinematograph films, Defendants No. 1 to 13 can be categorized as “Rogue Websites”.
30. The illegal and unauthorized acts committed by Defendants No. 1 to 13 have a significant detrimental impact on the Plaintiffs and their content licensees. These acts divert audiences from legitimate channels of accessing and viewing Plaintiffs’ content, resulting in substantial commercial harm and losses. Therefore, the Court concludes that the acts of Defendants No. 1 to 13 constitute copyright infringement.
31. Considering the foregoing, the Court is of the opinion that the present case is fit for passing a summary judgment under Order XIII-A of CPC as applicable to commercial disputes read with Rule 27 of Delhi High Court Intellectual Property Division Rules, 2022. In fact, in absence of defence by Defendants No. 1 to 13, Court is also entitled to invoke Order VIII Rule 10 of CPC to pass a judgment.
32. In view of above, Plaintiffs have established their right to permanent injunction for restraining infringement. Plaintiffs have pressed for reliefs in terms of prayers at paragraph 37 of the application I.A. 8468/2023. They have not pressed for damages. Given that efforts to contact the operators of the websites of Defendant No. 1 to 13 to remove the content have proved to be futile, the effective remedy would be to prevent access to the websites for internet users in India. In fact, relevant blocking orders for the said websites are already in place, pursuant to interim orders passed by this Court.
RELIEF
33. In view of the foregoing, the suit is decreed in favour of the Plaintiffs as follows:
33.1. Defendants No. 1 to 4 and anyone acting on their behalf, are restrained from permitting/ facilitating, uploading, hosting, streaming, reproducing, distributing, making available to the public and/ or communicating to the public, on their websites, through the internet, in any manner whatsoever, any cinematograph work/ content/ programme/ show over which Plaintiffs have copyright.
33.2. Defendant No. 5 and anyone acting on its behalf, is directed to refrain from communicating to the public, the content uploaded on Defendant NO. 5’s infrastructure by users of Defendant No.1 to 4’s websites.
33.3. Defendants No. 6 to 13 and anyone acting on their behalf, are restrained from 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 whatsoever, any cinematograph work/ content/ programme/ show over which Plaintiffs have copyright.
33.4. Defendants No. 23 to 24 have already issued blocking orders for the websites of Defendants No. 1 to 13 to the ISPs i.e., Defendants No. 14 to 22. Said directions are confirmed and made absolute.
33.5. No directions are being issued qua Domain Name Registrars of the said websites, as they are not parties to the present suit.
34. I.A. 8468/2023 is allowed in terms of the above directions.
35. Piracy through Cyberlockers is swift and dealing with that is challenging. As per Plaintiffs’ contentions, it is anticipated that Defendants No. 1 to 13 will re-emerge with mirror websites, redirect pages, or websites featuring variations using alphanumeric characters. This is not a hypothetical proposition, but a hard reality. Once a film is uploaded to a Cyberlocker website, it can be shared and downloaded by numerous users in a matter of minutes or hours, leading to widespread infringement before effective countermeasures can be implemented. To avoid burdening the Court with the constant monitoring of such websites, Plaintiffs are permitted to implead mirror/redirect/alphanumeric variation websites which provide access to the same websites/ services of Defendants Nos. 1 to 13 that have been injuncted, by filing an appropriate application under Order I Rule 10 of the CPC, supported by affidavits and evidence, in terms of the decision of this Court in UTV Software Communication Ltd. & Anr. v. 1337x.to and Ors.[3] Such application shall be listed before the Joint Registrar, who on being satisfied with the material placed on record, shall issue directions to disable access to such mirror/redirect/alphanumeric websites in India.
36. Decree sheet be drawn up.
37. Suit and pending applications are accordingly disposed of.
SANJEEV NARULA, J MAY 2, 2023 d.negi (corrected and released on 31st May, 2023) CS(COMM) 724 of 2017, judgment dated 10th April, 2019.