DELHI HIGH COURT AND ITS RENDEZVOUS (AGAIN) WITH ‘ROGUE WEBSITES’

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The Delhi High Court recently, in the case of Star India Pvt. Ltd. v. Moviestrunk.com & Ors., reiterated the status of ‘rogue websites’ and their liability in infringement of copyright. The Plaintiff in this case is engaged in producing and distributing films in India and for that purpose holds exclusive licences over various films. One such film, the distribution of which is under consideration is ‘Mission Mangal’. 80 defendants have been impleaded. Defendant Nos 1-67 are websites which are believed to be infringing Plaintiff’s copyright by distributing the film without authorisation, Defendant Nos. 68 & 69 are registrar of 7 defendant-websites, Defendant Nos 70-78 are Internet Service Providers (ISPs) and Defendant No. 79 & 80 are departments of Government of India.

The issue arose when the Plaintiff discovered their movie ‘Mission Mangal’ being distributed on various internet platforms without their authorisation. Several defendant websites were making copies of the movie available to the public for viewing and/or downloading. Pursuant to this, the Plaintiff had moved the court and an interim ex-parte injunction was issued in its favour on 05.08.2019, “restraining Defendant Nos. 1 to 67 from in any manner unauthorizedly streaming, communicating, downloading or distributing the cinematograph film ‘Mission Mangal’, including any extracts/clippings thereof.”  The ISPs were directed to ensure that access to such websites is blocked, and the government departments, namelythe Department of Telecommunications and the Ministry of Electronics and Information Technologywere directed to issue notifications calling upon service providers to block access to rogue websites.The present case is an ex-parte decision due to the non-compliance of the defendant websites with any notices or summons.

Contention:

The Plaintiff claimed that there was a clear violation of their exclusive rights under Section 14 of the Copyright Act, 1957. Using their copyrighted work without proper authorisation amounted to infringement.

However, the more pivotal contention by the plaintiff is that the defendant websites are ‘rogue websites’ primarily involved in the distribution of infringing copies through the internet. The plaintiff relied on the test of ‘rogue websites’ as laid down in UTV Software Communication Ltd. & Ors. vs. 1337x.to & Ors [2019 (78) PTC 375 (Del)].

“59. In the opinion of this Court, some of the factors to be considered for determining whether the website complained of is a FIOL/Rogue Website are:-

a. whether the primary purpose of the website is to commit or facilitate copyright infringement;

b. the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement;

c. Whether the detail of the registrant is masked and no personal or traceable detail is available either of the Registrant or of the user.

d. Whether there is silence or inaction by such website after receipt of take down notices pertaining to copyright infringement.

e. Whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;

f. Whether the owner or operator of the online location demonstrates a disregard for copyright generally;

g. Whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;

h. whether the website contains guides or instructions to circumvent measures, or any order of any court, that disables access to the website on the ground of or related to copyright infringement; and

i. the volume of traffic at or frequency of access to the website;

j. Any other relevant matter.”

The plaintiff brought on record evidence collated inter alia by their investigator as well as electronic evidence of the infringing activities being carried out by the Defendants.

Judgement:

The court held in favour of the Plaintiff stating that it had successfully showed that the defendant websites were in fact rogue websites primarily involved in dealing with, distributing, communicating to the public infringing copies of copyrighted work. It was concluded that along with the nature of the activities, the dubious nature as to the status of the registrant of the websites also further supports the conclusion that the defendant websites fall squarely within the ambit of rogue websites. The court also strongly dismissed the casual nature of the defendant websites in failing to comply with legal notices, appear in the court pursuant to a summons and also showing a flagrant indifference and ignorance towards the intellectual property rights of the plaintiff (Para 15).

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