The Case of Dynamic Injunction

In a recent judgement (UTV & Ors. vs. 1337x.to & Ors.), the Delhi High Court set a precedent by issuing India’s first-ever ‘dynamic injunction’ against websites who were deemed to be infringing upon the rights of copyright holders. Under this remedy, if the Plaintiffs are made aware that an infringing website has resurfaced under a different name, they can simply approach the Joint Registrar of the Delhi High Court to extend an existing injunction against the new website rather than filing a fresh suit.

Background

The judgement combined a number of suits brought by various Plaintiffs against a number of parties. The Plaintiffs in this case were UTV Software and 20^th Century Fox (among others), who are described as companies, who are engaged in the business of creating content, producing and distributing cinematographic films around the world including in India.

The Defendants were classified into 4 categories:

1. Content-distribution websites including the (in)famous Pirate Bay;
2. Internet Service Providers (such as ACT and Reliance Jio);
3. John Doe defendants such as the registrants of Defendants No. 1, uploaders, hosts, etc.;
4. departments such as the Department of Telecom (“DoT”) and Ministry of Electronics and Information Technology (“MoE”).

Interestingly, the Plaintiffs themselves have stated that Defendants No. 2 and 4 had been impleaded only with a view to assist in creating an effective relief that would balance the interests of rights holders as well as the public interest.

Considering that the Defendants No. 1 and 3 did not make an appearance, the matter was dealt with ex-parte by the Court.

Issues framed

The Court framed seven issues as reproduced below:

1. Whether an infringer of copyright on the internet is to be treated differently from an infringer in the physical world?
2. Whether seeking blocking of a website dedicated to piracy makes one an opponent of a free and open internet?
3. What is a ‘Rogue Website‘?
4. Whether the test for determining a ‘Rogue Website’ is a qualitative or a quantitative one?
5. Whether the defendant-websites fall in the category of ‘Rogue Websites‘?
6. Would the Court be justified to pass directions to block the ‘Rogue Websites’ in their entirety?
7. How should the Court deal with the “hydra-headed” ‘Rogue Websites‘, who on being blocked, actually multiply and resurface as redirect or mirror or alphanumeric websites?

Judgement and order

The Court answered the issues framed above as follows:

1. Whether an infringer of copyright on the internet is to be treated differently from an infringer in the physical world?

The Court emphatically answers this in the negative, holding that “that there is no logical reason why a crime in the physical world is not a crime in the digital world especially when the Copyright Act does not make any such distinction.” Thus, from an enforcement perspective, digital infringement is to be treated identically to physical infringement.

2. Whether seeking blocking of a website dedicated to piracy makes one an opponent of a free and open internet?

This is more of a philosophical issue than a legal one, and numerous debates have been held on this topic all over the world. In this case however, the Court again answers in the negative, holding that “the key issue about Internet freedom, therefore, 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.”, i.e. the imposition of reasonable restrictions.

3. What is a ‘Rogue Website‘?

This is one of the core issues of the present case. The Court also uses the term Flagrantly Infringing Online Locations (FIOLs), a term borrowed from the High Court of Singapore. The Court outlines various considerations in determining if a website is an FIOL/Rogue Website, including whether its primary purpose is to facilitate infringement, and if it contains indexes to facilitate easier infringement.

4. Whether the test for determining a ‘Rogue Website’ is a qualitative or a quantitative one?

The Court holds that the test would be qualitative in nature, observing that if it was quantitative, each and every rogue website would add a small percentage of original or licensed content and argue that it was a legitimate website.

5. Whether the defendant-websites fall in the category of ‘Rogue Websites‘?

After considering the various criteria laid out in its answer to Issue No. 3 above, the Court found that each of the Defendant websites satisfied most, if not all of the criteria. Accordingly, each of the defendant websites was found to be a Rogue Website.

6. Would the Court would be justified to pass directions to block the ‘Rogue Websites’ in their entirety?

The Court answers this question in the affirmative as well, after considering orders passed in similar issues from jurisdictions around the world. The Court also notes that it has the power to order ISPS, the DoT, and the MoE to take steps to prevent infringements. It also notes that any blocking order must strike a balance between protecting the rights of copyright holders while also ensuring access to a free and open internet.

7. How should the Court deal with the “hydra-headed” ‘Rogue Websites‘ who on being blocked, actually multiply and resurface as redirect or mirror or alphanumeric websites?

The Court’s solution in this issue is quite elegant, taking inspiration from a judgement of the Singapore High Court. The Singapore High Court, formulated a ‘dynamic injunction’, where a plaintiff who had already obtained an injunction against a website could simply file an affidavit with the Court showing that the previously blocked website had resurfaced. The injunction cannot be extended to new websites however. It would then be on the ISP to question the validity of the order.

The Delhi High Court, while framing its order, held that its inherent powers under Section 151 of the Civil Procedure Code (CPC) allowed the Plaintiffs to implead redirect/mirror websites under Order I Rule 10 CPC. The rights holders could simply approach the Joint Registrar of the Delhi High Court and file an affidavit stating that the newly impleaded website is a mirror/redirect/alphanumeric website with sufficient supporting evidence. If the Joint Registrar is satisfied with the evidence provided, he could issue an order to the ISPs to block the offending website.

Conclusion?

The judgement of the Court appears quite thorough and well-reasoned, and would go a long way in facilitating rights holders to efficiently enforce their rights in today’s digital era. It would also free up valuable time of the Courts, allowing them to address the oft-discussed backlog that plagues all levels of the judiciary. However, the Court has kept silent on a number of important questions that arise as a result of its order, and as seen in other jurisdictions, there is the possibility that rights holders may seek to abuse the widened protections granted to them as a result of the order herein. We will be covering this judgement in greater detail in a later blog post.