Warner Bros. Entertainment Inc. vs Moviesflix.Net & Ors.

"54.

In light of the foregoing, it is most respectfully prayed that this Hon'ble Court may be pleased to:

i.

Issue an order and decree of permanent injunction restraining the Defendant Nos. 1-14 (and such other mirror/redirect/alphanumeric websites discovered to provide additional means of accessing the Defendant Websites, and other domains/domain owners/website operators/entities which are discovered to have been engaging in infringing the Plaintiff's exclusive rights), its owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from, in any manner 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 in relation to which Plaintiff has copyright,

ii.

Issue an order and decree directing the Defendant Nos. 15-23, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, to block access to the Defendant Nos. 1-14 website identified by the Plaintiff in the instant suit (and such other mirror/redirect/alphanumeric websites discovered to provide additional means of accessing the Defendant Websites, and other domains/domain owners/website operators/entities which are discovered to have been engaging in infringing the Plaintiff's exclusive rights)

iii.

Issue an order directing the Defendant Nos. 24 and 25, to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the Defendant Nos. 1-14 websites identified by the Plaintiff in the instant suit (and such other mirror/redirect/alphanumeric websites discovered to provide additional means of accessing the Defendant Website, and other domains/domain owners/website operators/entities which are discovered to have been engaging in infringing the Plaintiff's exclusive rights);

iv.

Issue an order directing the Domain Name Registrars of the Defendant Website identified by the Plaintiff in the Plaint to disclose the contact details and other details about the owner of the said websites, and other such relief as this Hon'ble Court may deem fit and proper:

“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.

60.

This Court clarifies that the aforementioned factors are illustrative and not exhaustive and do not apply to intermediaries as they are governed by IT Act, having statutory immunity and function in a wholly different manner.

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69.

Consequently, the real test for examining whether a website is a Rogue Website is a qualitative approach and not a quantitative one.”

“29.

It is important to realise that piracy reduces jobs, exports and overall competitiveness in addition to standards of living for a nation and its citizens. More directly, online piracy harms the artists and creators, both the struggling as well as the rich and famous, who create content, as well as the technicians-sound engineers, editors, set designers, software and game designers-who produce it and those who support its marketing, distribution and end sales. Consequently, online piracy has had a very real and tangible impact on the film industry and rights of the owners.

30.

The Indian Copyright Act, 1957 (“the Copyright Act”) confers a bundle of exclusive rights on the owner of a “work” and provides for remedies in case the copyright is infringed.

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34.

The above definitions make it clear that making any work available for being seen or heard by the public whether simultaneously or at places chosen individually, regardless of whether the public actually sees the film, will constitute communication of the film to the public. The intent was to include digital copies of works, which would include within its scope digital copies of works being made available online (as opposed to the physical world). Communication can be by various means such as directly or by display or diffusion. In this context, definition of “broadcast” is also relevant which identifies communication to public by wireless diffusion or by wire. Thus, making available of a film for streaming or downloads in the form of digital copies on the internet is within the scope of “communication to the public”.

35.

It is pertinent to note that the definition of “communication to the public” was first added in the Copyright Act by the 1983 Amendment and was as follows:-

“Communication to the public” means communication to the public in whatever manner, including communication though satellite”.

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53.

Also should an infringer of the copyright on the Internet be treated differently from an infringer in the physical world? If the view of the aforesaid Internet exceptionalists school of thought is accepted, then all infringers would shift to the e-world and claim immunity!

54.

A world without law is a lawless world. In fact, this Court is of the view 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.

xxxxx

80.

In the opinion of this Court, while blocking is antithetical to efforts to preserve a “free and open” Internet, it does not mean that every website should be freely accessible. Even the most vocal supporters of Internet freedom recognize that it is legitimate to remove or limit access to some materials online, such as sites that facilitate child pornography and terrorism. Undoubtedly, there is a serious concern associated with blocking orders that it may prevent access to legitimate content. There is need for a balance in approach and policies to avoid unnecessary cost or impact on other interests and rights. Consequently, the onus is on the right holders to prove to the satisfaction of the Court that each website they want to block is primarily facilitating wide spread copyright infringement.

xxxxxx

82.

One can easily see the appeal in passing a URL blocking order, which adequately addresses over-blocking. A URL specific order need not affect the remainder of the website. However, right-holders claim that approaching the Court or the ISPs again and again is cumbersome, particularly in the case of websites promoting rampant piracy.

83.

This Court is of the view that to ask the plaintiffs to identify individual infringing URLs would not be proportionate or practicable as it would require the plaintiffs to expend considerable effort and cost in notifying long lists of URLs to ISPs on a daily basis. The position might have been different if defendants' websites had a substantial proportion of non-infringing content, but that is not the case.

84.

This Court is of the view that while passing a website blocking injunction order, it would have to also consider whether disabling access to the online location is in the public interest and a proportionate response in the circumstances and the impact on any person or class of persons likely to be affected by the grant of injunction. The Court order must be effective, proportionate and dissuasive, but must not create barriers to legitimate trade. The measures must also be fair and not excessively costly (See: Loreal v. Ebay, [Case C 324/09]).

xxxxxx

86.

Consequently, website blocking in the case of rogue websites, like the defendant-websites, strikes a balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy.

87.

This Court is also of the opinion that it has the power to order ISPs and the DoT as well as MEITY to take measures to stop current infringements as well as if justified by the circumstances prevent future ones."

18.

Further, as held by this court in UTV Software Communication Ltd. (supra), in order for this court to be freed from constant monitoring and adjudicating the issues of mirror/redirect/alphanumeric websites it is directed that as and when Plaintiff file an application under Order I Rule 10 for impleadment of such websites, Plaintiff shall file an affidavit confirming that the newly impleaded website is mirror/redirect/alphanumeric website with sufficient supporting evidence. Such application shall be listed before the Joint Registrar, who on being satisfied with the material placed on record, shall issue directions to the ISPs to disable access in India to such mirror/redirect/alphanumeric websites”.

“...All of the contesting defendants against whom substantial relief has been sought by the plaintiff have been served, however they have not preferred to appear to contest this case or to file written statement and affidavit of admission/denial of documents. In this regard law shall take its own course.

Learned counsel for plaintiff submits that there is no document for admission/denial of documents. Hence, pleadings stand complete.

Other defendants who were supposed to comply with interim directions have already complied with.

At request, let the matter be placed before the Hon’ble Court for further directions.”