Warner Bros. Entertainment Inc. vs. Https:Hindilinks4U.To & Ors.

2022:DHC:3530

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26.08.2022
Date of decision: 08.09.2022

+ CS (COMM) 366/2019 & I.A 9850/2019, I.A. 9852/2019 & I.A.
10892/2022
WARNER BROS. ENTERTAINMENT INC ..... Plaintiff

Through: Ms.Suhasini Raina, Ms.R.Ramya
and Ms.Mehr Sidhu, Advs.
Versus
HTTPS:HINDILINKS4U.TO & ORS. ..... Defendants

Through: None.


CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. The Plaintiff has filed the present suit inter-alia praying for the
following reliefs:

“51. 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 No. 1 (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), 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
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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. 2-10, 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 No. 1 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 Website, 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. 11
and 12, to issue a notification calling upon the
various internet and telecom service providers
registered under it to block access to the
Defendant No. 1 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;”

2. The Plaintiff claims itself to be a global entertainment company
under the laws of the State of Delaware, the United States of America,
and as being engaged in the business of creation, production, and
distribution of motion pictures. The Plaintiff has also received certain
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reputed awards, such as the Academy Award for “Best Motion Picture”
for “Argo‟ in 2012.
3. It is the contention of the Plaintiff that the motion pictures
produced by the Plaintiff, being works of visual recording and which
include sound recordings accompanying such visual recordings, qualify
to be a „ cinematograph film ‟ under Section 2(f) of the Copyright Act,
1957 (hereinafter referred to as “the Act”). The Plaintiff claims that this
Court has jurisdiction by virtue of Section 13(1) read with Sections 13(2)
and 5 of the Act, since the Plaintiff‟s cinematograph films are released in
India, the cinematograph films of the Plaintiff would be entitled to all the
rights and protections granted under the provisions of the Act.
4. The claim of the Plaintiff is premised on the allegation of illegal
and unauthorized distribution, broadcasting, re-broadcasting,
transmission and streaming of the Plaintiff‟s original content by the
Defendant Nos. 1, 51 and 52 (hereinafter referred to as the “rogue
websites”). It is the case of the Plaintiff that as a result of the
unauthorized transmission of their content, the rogue websites infringe
the copyright of the Plaintiff in the original works produced by it, which
have been granted protection under the provisions of the Act.
5. The Plaintiff has impleaded various Internet Service Providers (in
short, “ISPs”) as the Defendant Nos. 2-10 and the concerned departments
of the Government of India as the Defendant nos. 11 and 12. The ISPs
and the concerned departments have been impleaded for the limited relief
of making compliance with any directions of this Court granted in favor
of the Plaintiff.

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6. The Plaintiff has alleged that the defendant nos. 1, 51 and 52 are
the rogue websites. The Plaintiff, vide an investigation conducted by an
independent investigator, learnt of the extent of the infringing activity of
the rogue websites, in as much as the rogue websites have infringed the
Plaintiff‟s copyright under the provisions of the Act in the original
content by unauthorized distribution, broadcasting, re-broadcasting,
transmission and streaming and/or by facilitating the use of the rogue
websites, inter alia by downloading and streaming the Plaintiff‟s original
cinematograph films in which copyright vests.
7. It is also the case of the Plaintiff that a cease-and-desist notice was
served on the rogue websites calling upon them to cease from engaging
in their infringing activities. Despite the legal notice, the rogue websites
continue to infringe the rights of the Plaintiff in its original content.
8. The learned counsel for the Plaintiff presses only for prayers (i),
(ii) and (iii), as noted hereinabove, of the plaint. The other reliefs as made
in the plaint are not pressed.
9. The learned counsel for the Plaintiff relies upon the judgment
passed by a Coordinate Bench of this Court in a batch of petitions dated
10.04.2019, including UTV Software Communication Ltd. & Ors. v.
1337X.to & Ors. , 2019 SCC OnLine Del 8002, which deal with the
determination of rogue websites.
10. The Plaintiff thereafter filed I.A. 10892 of 2022 under Order XIIIA
read with Section 151 of the Code of Civil Procedure, 1908, as applicable
to commercial disputes (hereinafter referred to as “CPC”), seeking a
summary judgment. The said application was listed before this Court on
18.07.2022, wherein this Court recorded that the service and pleadings
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are complete in regard to all the Defendants and that the rogue websites
have neither appeared nor have filed written statements in the present suit
till date. Further, this Court directed the suit to proceed ex-parte qua
defendant nos. 1, 3, 4, 5, 6, 8, 10, 13 to 50, 51 and 52 (which includes the
rogue websites).
11. The grounds for filing the present application, as enumerated by
the Plaintiff in the same, are as follows:
a. That all the Defendants have been duly served by the
Plaintiff, however, only the Defendant Nos. 2, 7, 9, 11 and 12 have
entered appearance before this Hon‟ble Court.
b. That the Defendant Nos. 1, 51 and 52, being the rogue
websites, against whom the Plaintiff is seeking primary relief, are
illegally streaming the Plaintiff‟s content on their websites and
even after being duly served by the Plaintiff, have decided not to
contest the present suit.
c. That the Defendants have no real prospect of successfully
defending the claim of copyright infringement under Section 51 of
the Act and have further not chosen to contest the said claim.
d. Additionally, there is no other compelling reason as to why
the present suit should not be disposed of before recording of oral
evidence particularly in view of the fact that there is no dispute
regarding the illegal activities of the Defendant Nos. 1, 51 and 52
and in any event, in the absence of any challenge or opposition to
the factual allegations made in the plaint, in view of provisions of
Order VIII Rule 5 of the CPC, there is no occasion for recording
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of oral evidence in the present matter.

12. The learned counsel for the Plaintiff has relied upon Clause 3 of
Chapter XA of the Delhi High Court (Original Side) Rules, 2018 which
states the grounds under which a Court can pass a summary judgment.
13. The learned counsel for the Plaintiff has drawn my attention to two
affidavits filed by Mr. Manish Vaishampayan, who conducted the
investigation with regard to the aforesaid websites on the instance of the
Plaintiff, to contend that the said websites need to be treated as rogue
websites. With respect to this contention, reliance is placed on the
following documentary evidence in support of each of the aforesaid
websites:

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14. I have heard the learned counsel for the Plaintiff.
15. In UTV Software (supra) , a Coordinate Bench of this Court, as far
as the rogue websites are concerned, identified the following illustrative
factors to be considered in determining whether a particular website falls
within that class:
“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
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not apply to intermediaries as they are governed
by IT Act, having statutory immunity and function
in a wholly different manner.

xxxxx

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

16. This Court, in UTV Software (supra) further held as under:
“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.
xxxxx
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
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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”.
xxxxx
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,
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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.”


17. It is notable that the Plaintiff had filed similar application under
Order XIIIA of the CPC (as applicable to commercial disputes) in similar
suit, being Warner Bros. Entertainment Inc. Vs. https://Otorrents.Com
& Ors. (CS (COMM) 367 of 2019), Warner Bros. Entertainment Inc.
Vs. https://www2.Filmlinks4u.is& Ors. (CS (COMM). 368 of 2019),
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Warner Bros. Entertainment Inc. Vs. http://Mp4moviez.Io & Ors. (CS
(COMM) 399 of 2019) and Warner Bros. Entertainment Inc. vs.
https://WWW.TAMILROCKERMOVIES.COM & Ors. (CS (COMM).
419 of 2019), wherein this Court, relying on the judgement, UTV
Software Communication Ltd. (supra) has decreed the suits in favor of
the plaintiff.
18. In the present case, vide order dated 24.07.2019, this Court had
granted an ex-parte ad-interim injunction against the Defendant No. 1,
their 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, thereby restraining them from,
hosting, streaming, reproducing, distributing, making available to the
public and/or communicating to the public, or facilitating the same, in
any manner, on their websites, through the internet any cinematograph
work/content/programme/ show in relation to which the Plaintiff has
copyright.
19. Vide the same order, this Court had directed the Defendant Nos. 2
to 10 to block the domain name „hindilinks4u.to‟ and its URL
https://hindilinks4u.to with the IP address 104.27.162.170 and
104.27.163.170. This Court further directed the Defendant Nos. 11 and
12 to suspend the above-mentioned domain name registration of the
Defendant No. 1 and issue requisite notifications calling upon various
internet and telecom service providers registered under them to block the
aforementioned website identified by the Plaintiff.
20. The learned counsel for the Plaintiff submits that pursuant to the
ex-parte ad interim order dated 24.07.2019, the Defendant No. 11 has
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issued a notification in compliance. The learned counsel for the Plaintiff
further states that the Defendant Nos. 2 to 10 have blocked the rogue
websites, that is, Defendant No. 1‟s websites.
21. Also, vide the same order, this Court also observed the following:

“21. 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 files 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”.

22. In light of the aforesaid direction, the Plaintiff filed applications
under Order I Rule 10 of CPC for the impleadment of the Defendant No.
51 and 52 in the present suit proceedings, being I.A. No. 18418/2019 and
I.A. No. 12530/2021 respectively, which were allowed by this Court vide
orders dated 24.12.2019 and 29.09.2021 respectively, and the ex-parte
ad-interim order dated 24.07.2019 was thereby extended to the Defendant
No. 51 and 52.
23. Thereafter, on 06.09.2021, the learned Joint Registrar (Judicial),
passed the following order in regard to Defendant No. 51:-
“No written statement filed by defendant no.51
despite service. Consequent to it, no replication
filed.
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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 a
written statement and affidavit of
admission/denial of documents.
Other defendants who were supposed to
comply with interim directions have already
complied with.
Learned counsel for the plaintiff has submitted
that there is no document for admission/denial of
documents.”

In the interest of justice, no adverse order
passed, put up for further proceedings on
25.10.2021.”

24. On 09.05.2022, the learned Joint Registrar (Judicial) passed the
following order in regards to Defendant No. 52:-
“No written statement filed by newly impleaded
defendant no.52 despite service.
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 joint request, let the matter be placed before
the Hon'ble Court for further directions on
18.07.2022.”

25. Since the Defendant Nos. 1, 51 and 52 are not appearing despite
notice, and have been proceeded ex-parte , in my opinion, the suit can be
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heard and decided summarily. The Defendant Nos. 1, 51 and 52 have no
real prospect of successfully defending the claim of copyright
infringement and have further not chosen to contest the said claim. The
present matter is mainly concerned with the enforcement of the
injunction orders which are passed against the rogue websites who do not
have any defense to the claim of copyright infringement but use the
anonymity offered by the internet to engage in illegal activities, such as
copyright infringement in the present case.
26. On the basis of the evidence placed on record and keeping in mind
the factors identified by this Court in UTV Software (supra) , I find that
there is sufficient evidence to hold that the Defendant no. 1, 51 and 52
are “rogue websites” and that this is a fit case for passing a Summary
Judgment invoking the provisions of Order XIIIA of the CPC, as
applicable to the commercial disputes.
27. In UTV Software (supra) , the Court also examined the issue of
grant of dynamic injunctions and permitted subsequent impleadment of
mirror/redirect/alphanumeric websites which provide access to the rogue
websites, by filing an application under Order I Rule 10 of the CPC
before the learned Joint Registrar (Judicial) alongwith an affidavit with
supporting evidence, confirming that the proposed website is
mirror/redirect/alphanumeric website of the injuncted defendant websites.
At the request of the counsel for the Plaintiff, the same directions are
liable to be made in this case also.
28. Accordingly, I.A. No. 10892 of 2022 under Order XIIIA of the
CPC, as applicable to commercial disputes, seeking a summary judgment
is allowed. All the pending applications are also disposed of.
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29. The suit is, therefore, decreed in terms of prayers (i), (ii) and (iii)
of the Plaint. The Plaintiff is also permitted to implead any
mirror/redirect/alphanumeric websites which provide access to the
Defendants Nos. 1, 51 and 52‟s websites by filing an appropriate
application under Order I Rule 10 of the CPC, supported by affidavits
and evidence as directed in UTV Software (supra) . Any website
impleaded as a result of such application will be subject to the same
decree.
30. Let a decree sheet be drawn up accordingly.


NAVIN CHAWLA, J.
SEPTEMBER 8, 2022/ai
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