India: Court issues first dynamic injunction
Dynamic injunctions have been the newest device used to curb the menace of resurfacing pirated websites. In a recent case, UTV & Ors. v 1337x.to & Ors., the Delhi High Court issued India's first ever dynamic injunction, putting a control on websites resurfacing with a different name, by extending an existing injunction to new websites which could emerge with a different name in the future. The objective is to help the right holder avoid the cumbersome process of filing a fresh suit. The right holder can simply approach the joint registrar of the Delhi High Court with appropriate evidentiary documents and extend the existing injunction to the website publishing the same infringing content. Until recently, the right holder had to file a fresh suit or possibly use a John Doe order/injunction by adding the party to the existing suit. Dynamic injunctions specifically help in cases where an infringing website may resurface as a redirecting, mirror or alphanumeric website.
The plaintiffs, UTV Software and 20th Century Fox (among others), are engaged in the business of creating content, and producing and distributing cinematographic films around the globe, including in India. On the other hand, the defendants are primarily, 1) certain identifiable websites, 2) unknown website operators impleaded as John Doe defendants, 3) internet service providers and 4) government departments such as the Department of Telecoms (DoT) and Ministry of Electronics and Information Technology (MoE). According to the plaintiff, the last two in the list of defendants have been impleaded in order to balance the interests of the right holders and public interest.
The court asked the following questions:
(A) Should an infringer of copyright on the internet be treated differently from an infringer in the physical world?
Some people believe that the internet should be considered a free or unrestricted space. According to them, the rules that apply offline should not apply online. This view places emphasis on individual freedom rather than collective responsibility. The followers of this school of thought believe that, when it comes to online piracy, consumer reward from free content is preferable to legal loss in sales. However, the court came to the conclusion that piracy websites no longer come about due to ideological reasons but rather are a profit-making model through advertising. The court cited examples of Pirate Bay and Kickass Torrents which have made millions of dollars in advertising. Further, it was observed that if the infringer of the copyright in the physical world would be treated differently from an infringer in the internet world, then all infringers would shift to the e-world. Thus a crime in the internet world should be treated no differently from a crime in the real world.
(B) Does seeking blocking of a website dedicated to piracy make one an opponent of a free and open internet?
Those who seek to block piracy websites are not opponents of a free and open internet. The court went on to observe that putting some restriction on accessing illegal content does not violate open internet principles. Thus, where the appropriate lines are to be drawn is the key issue when it comes to internet freedom and government censorship.
(C) What is a rogue website?
The court borrowed the term "flagrantly infringing online locations" (FIOLs) from the High Court of Singapore for rogue websites. The court observed that these websites are those which predominantly share infringing content or illegal work. The registrant details of the said website are masked. Further, the ad-network is also anonymised when compared with regular ad networks. The court discussed factors which would help in determining whether a website is an FIOL. These include: 1) whether the primary purpose of the website is to commit infringement or not, 2) flagrancy in infringement or flagrancy in facilitating infringement, 3) whether the registrant details are masked or not, 3) inaction by the website on receipt of takedown notices, 4) whether the owner or operator shows disregard for copyright generally, 5) any order from a foreign court that has disabled access to such websites, 6) volume of traffic or frequency of access to such websites.
(D) Is the test for determining a rogue website a qualitative or a quantitative one?
The court referred to Eros International Media Ltd. & Anr. v Bharat Sanchar Nigam Ltd. & Ors., Suit No.751/2016. In this, the Bombay High Court held that a quantitative approach was given preference in light of the presence of non-infringing or legitimate content on the website and hence the injunction order was not issued against the said website. On the other hand, in Department of Electronics and Information Technology v Star India Pvt. Ltd., FAO(OS) 57/2015, the Delhi High Court preferred a qualitative approach due to the overwhelming nature of the infringing content and hence stringent measures to block the website as a whole were justified. The court observed that if the qualitative test is adopted then website owners will add a small fraction of non-infringing or legitimate content to avoid the clutches of a blocking order. The real test should be a qualitative one rather than a quantitative one in order to avoid any injury to the right holders of content illegitimately hosted on such websites.
(E) Would the court be justified to pass directions to block the rogue websites in their entirety?
Website blocking, as observed by the court, is one of the cost effective measures to redress the issue of flagrant violation or infringement. The court also observed that such orders should be passed by the court only when it is satisfied that such a measure is necessary and proportionate. Necessary means whether there are less restrictive means capable of producing the same result and proportionate would mean considering whether the blocking order has an excessive effect on the defendants' interests. Consequently, the onus is on the right holders to prove that the subject website results in flagrant infringement of copyright. In the present case, the court observed that the position may have been different if the defendants' website had a substantial amount of non-infringing content, which is not the case.
(F) How should the court deal with the hydra headed rogue websites which, on being blocked, actually multiply and resurface as redirecting or mirror or alphanumeric websites?
One of the concerns of right holders in the modern day is the redirecting or mirror or alphanumeric websites that resurface overnight. Typically, an injunction would generally be an order against an existing website. However, what about the websites which being blocked resurface as alphanumeric or mirror websites to circumvent court orders? What could be done to go beyond a whack-a-mole effect? To cure this menace, the Delhi High Court referred to the High Court of Singapore in the case of Disney Enterprise v Ml Ltd. (2018) SGHC 206 wherein it was held that the applicant was not obliged to return to the court with respect to every single IP address of the infringing URLs already determined by the court. It was further observed by the Singapore court that it has the jurisdiction to issue a dynamic injunction which does not require defendants to block additional or new FIOLs, but to block additional domain names, URLs and/or IP addresses that provide access to the same websites which are the subject of the main injunction. The Delhi High Court, in order to grant a dynamic injunction order, observed that the court has inherent powers (under Section 151 of Civil Procedure Code) to implead the mirror/redirecting/alphanumeric websites as these websites merely provide access to the same websites which are the subject of the main injunction. This, in turn, will save the court time adjudicating the same infringing subject matter on a different URL which is already the subject of an injunction. Thus, the plaintiffs will file an affidavit to corroborate that the impleaded website is actually a mirror/redirecting/alphanumeric website with sufficient supporting evidence and the joint registrar of the High Court will assess the evidence and, upon being satisfied, grant an injunction against the aforesaid hydra headed rogue websites.
It is without doubt that in the ever-evolving digital world, a whack-a-mole solution will not work. The court, realising this, applied the concept of a dynamic injunction to control hydra headed rogue websites. It is heartening to see the court stepping up to deploy modern jurisprudence to curb the growing menace of rogue websites.