STAR INDIA PVT. LTD. vs. MOVIESTRUNK.COM & ORS.

$~3 * IN THE HIGH COURT OF DELHI AT NEW DELHI th Decided on: 17 February, 2020 + CS(COMM) 408/2019 with I.A. 10601/2019 & I.A. 13684/2019 STAR INDIA PVT. LTD. ..... Plaintiff Through: Mr. Sidharth Chopra, Advocate with Mr. Yatinder Garg, Mr. Vivek Ayyagari, Advocates. versus MOVIESTRUNK.COM & ORS. ..... Defendants Through: Ms. Aasish Somasi, Advocate for D-69/Godaddy CORAM: HON’BLE MR. JUSTICE PRATEEK JALAN PRATEEK JALAN, J. (ORAL) % 1. The plaintiff, alongwith its division Fox Star Studio, is engaged in the business of production and distribution of films in India, and holds exclusive licenses in respect of various films. The present suit concerns the cinematograph film “Mission Mangal” [hereinafter referred to as “the film”], which was slated to be released on 15.08.2019, in over 2500 screens in India. It is stated that the plaintiff and defendant No. 68 – Cape of Good Films LLP jointly hold the intellectual property rights in the film under the provisions of the Copyright Act, 1957 [“the Act”]. CS(COMM) 408/2019 Page 1 of 15 2. The plaintiff has filed the present suit against 67 named defendant-websites [defendant Nos. 1 to 67] which, according to the plaintiff, are believed to be engaged in the business of transmitting third party content and information through the internet, and thus providing illegal content inter alia through hosting, streaming and broadcasting to the public for free. Unidentified defendants believed to be engaged in similar business have also been arrayed as Ashok Kumar (defendant No. 81). Defendant No. 69 is the registrar of the defendant-websites Nos. 1 to 7, and defendant Nos. 70 to 78 are internet service providers [“ISPs”], whose assistance is sought to block the concerned websites. The plaintiff has also impleaded, as defendant Nos. 79 and 80, the departments of the Government of India, which issue notifications with regard to blocking of the impugned websites. 3. In the present suit, the plaintiff apprehends communication of infringing copies of the film to the public, and the same being made available for viewing and/or download without the authorization of the plaintiff, which would have a direct impact on the plaintiff’s business and which, according to the plaintiff, constitutes an infringement of the exclusive rights conferred upon it by virtue of Sections 14 and 51 of the Act. 4. According to the plaintiff, defendant Nos.1 to 67 are “rogue websites” within the meaning of the judgment of this Court in UTV Software Communication Ltd. & Ors. vs. 1337x.to & Ors., 2019 (78) PTC 375 (Del) [CS(COMM) 724/2017 and connected matters, decided on 10.04.2019], as their principal activity involves CS(COMM) 408/2019 Page 2 of 15 reproduction, publication and communication of infringing material through the internet. According to the plaintiff, the defendant-websites facilitate infringement of the plaintiff's copyright, and the anonymous nature of these websites makes it impossible to identify them effectively. The plaintiff has placed on record evidence by way of screenshots, WHOIS details, and notices to demonstrate the nature of these websites in terms of the judgment in UTV Software (supra). 5. The plaintiff conducted an investigation through a third-party investigator, and an affidavit dated 29.07.2019 has been filed in that regard, wherein it has been reported that large scale copyright infringement of the plaintiff’s content as well as third party content has been ongoing on the defendant-websites. Notices were sent to the defendant-websites to take down infringing content from their pages; however, responses to the same have not been received. 6. On the basis of the above, the plaintiff seeks the following reliefs in the suit: - “59. In light of the foregoing, it is most respectfully prayed that this Hon'ble Court may be pleased to: i. Pass an order and decree of permanent injunction restraining the Defendants No. 1 to 67 (and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiff’s exclusive rights and Copyrights), 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, from in any manner communicating, hosting, streaming, and/or making available for viewing and downloading, without CS(COMM) 408/2019 Page 3 of 15 authorization, on their websites or other platforms, through the internet in any manner whatsoever, the Film and content related thereto, so as to infringe the Plaintiff’s exclusive rights and Copyrights, ii. Pass an order and decree directing the Defendant No. 69 , its directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on its behalf, or anyone claiming through, by or under it, to suspend the domain name registration of domain names of Defendants No. 1 to 7 by Defendant No. 69 GoDaddy as already identified by the Plaintiff in the instant suit in Memo of Parties or such other domain names that may subsequently be notified by the Plaintiff to be of Rogue Websites which infringe its exclusive rights; iii. Pass an order and decree directing the Defendant Nos. 70 to 78, 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 various websites identified by the Plaintiff in the instant suit at S. No. 2 of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights, iv. Pass an order and decree directing the Defendant Nos. 79 and 80 to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the various websites identified by the Plaintiff in the instant suit at S. No. 2 of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights, v. An order for damages of Rs. 2,00,01,000/- to be paid by the Defendant Nos. 1 to 67 and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiff’s exclusive rights, to the Plaintiff on account of CS(COMM) 408/2019 Page 4 of 15 their illegal and infringing activities and a decree for the said amount be passed in favour of the Plaintiff (the Plaintiff reserves its right to claim additional damages and amend the pleadings accordingly once the magnitude of the Defendants' illegal / infringing activities and the revenues earned by the Defendants' in pursuance to such illegal / infringing activities is ascertained upon discovery in the instant action); vi. An order for costs in the present proceedings in favour of the Plaintiff; Any other Order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the Plaintiff.” 7. On 05.08.2019, summons were issued, and an ex-parte ad interim order was granted in the following terms: - “16. The apprehension expressed by the Plaintiff is justified considering the fact that piracy on the internet has become quite rampant and therefore, if adequate orders are not passed to protect the rights of the Plaintiff, the Plaintiff would suffer enormous losses. Accordingly, it is directed that there shall be an injunction 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. Defendant No. 69 is directed to suspend the domain names of Defendant Nos. I to 7. In so far as the ISPs identified as Defendant Nos. 70 to 78 are concerned, the said ISPs shall ensure that access to the websites of Defendant Nos. 8 to 67 are blocked. Defendant Nos. 79 and 80, i.e. the Department of Telecommunications and the Ministry of Electronics and Information Technology are also directed to issue, as expeditiously as possible, a notification calling upon internet and telecom service providers to block access to the rogue websites and any other website(s) which the Plaintiff notifies as illegally transmitting or broadcasting CS(COMM) 408/2019 Page 5 of 15 the cinematograph film 'Mission Mangal' in any manner.” 8. Service of the suit was recorded as having been completed by the order of the Joint Registrar dated 14.10.2019, all of the defendants having been served through email. Despite service of summons, defendant Nos. 1 to 67 have neither entered appearance, nor have they filled written statements. Defendant Nos. 1 to 67 are therefore set ex- parte. Further, in compliance of the above order, defendant No. 79 has issued notifications dated 23.08.2019 and 16.09.2019, and defendant Nos. 69 and 77 have filed their respective affidavits of compliance. 9. In view of the fact that access to the impugned websites have been blocked, in accordance with the order of injunction dated 05.08.2019, that the film has, in fact, been released worldwide on 15.08.2019, and in view of the fact that the principal defendants have not appeared to contest the suit, Mr.Sidharth Chopra, learned counsel for the plaintiff, seeks a decree in terms of paragraph 59(i) of the plaint, as against defendant Nos. 1 to 67, a decree against defendant No. 69 in terms of paragraph 59(ii) of the plaint, and an order of costs. No other relief is pressed. 10. Mr.Chopra relies upon the judgment of this Court in Satya Infrastructure Ltd. & Ors. vs. Satya Infra & Estates Pvt. Ltd., 2013 (54) PTC 419 (Del) [CS(OS)1213/2011, decided on 07.02.2013], to submit that in an uncontested suit of this nature, it is not necessary to require the plaintiff to lead evidence, and a summary disposal of the suit on the basis of the contents of the plaint, supported by the statement of truth and declaration under the Commercial Courts Act, CS(COMM) 408/2019 Page 6 of 15 2015 are sufficient. In Satya Infrastructure Ltd. (supra), this Court held as follows: - “ 4. The next question which arises is whether this Court should consider the application for interim relief and direct the plaintiffs to lead ex parte evidence. The counsel for the plaintiffs states that the plaintiffs are willing to give up the reliefs of delivery, of rendition of accounts and of recovery of damages, if the suit for the relief of injunction alone were to be heard today. 5. I am of the opinion that no purpose will be served in such cases by directing the plaintiffs to lead ex parte evidence in the form of affidavit by way of examination-in chief and which invariably is a repetition of the contents of the plaint. The plaint otherwise, as per the amended CPC, besides being verified, is also supported by affidavits of the plaintiffs. I fail to fathom any reason for according any additional sanctity to the affidavit by way of examination-in-chief than to the affidavit in support of the plaint or to any exhibit marks being put on the documents which have been filed by the plaintiffs and are already on record. I have therefore heard the counsel for the plaintiffs on merits qua the relief of injunction.” In the facts and circumstances aforesaid, I find the view taken in Satya Infrastructure Ltd. (supra) to be squarely applicable, and have heard learned counsel for the plaintiff finally. 11. In UTV Software (supra), the Court laid down the following illustrative factors to determine whether a particular website is liable to be declared as a “rogue website”, and injuncted accordingly: - CS(COMM) 408/2019 Page 7 of 15 " 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. " 12. In support of his contention that the defendant-websites are liable to be treated as “rogue websites”, Mr. Chopra has drawn my attention to the following documentary evidence in respect of each of them:- CS(COMM) 408/2019 Page 8 of 15

CS(COMM) 408/2019 Page 9 of 15

CS(COMM) 408/2019 Page 10 of 15

CS(COMM) 408/2019 Page 11 of 15

CS(COMM) 408/2019 Page 12 of 15

claims in the suit include an affidavit dated 29.07.2019 of its investigator, Mr. Gaurav Ray, and electronic records of proof of infringing activities actually being carried out through defendant Nos. 1 to 67. It has been stated in the investigator's affidavit that on monitoring the defendant-websites in June - July 2019, it was found that the plaintiff's content and related proprietary content were available on the websites of defendant Nos. 1 to 67, access to which was being provided illegally and without a license from the plaintiff or any of its divisions. 14. The plaintiff has placed on record, in a USB drive, several screenshots from the defendants’ websites, and screenshots of the CS(COMM) 408/2019 Page 13 of 15 plaintiff's content actually being downloaded/streamed/played from the defendants' websites to show that the defendants are indulging in large scale infringement of the plaintiff’s copyright. The plaintiff has also placed on record the Whois details of each of the defendants, as well as notices sent to the defendant-websites by the investigation firm. The affidavit of the investigator states that the contact details of the registrant of the defendants’ website are also masked, and have not been revealed to the plaintiff. The screenshots also reveal that the content on many of the defendant-websites is categorized according to the language, genre and/or popularity of the film, to enable convenient dissemination. 15. In view of the above, the plaintiff has succeeded in showing that defendant Nos. 1 to 67 are primarily engaged in committing and facilitating copyright infringement, that the contact details of the registrant of the website are masked/untraceable, and that the defendant Nos. 1 to 67-websites fall within the parameters laid down in UTV Software (supra). The failure of the said defendants to comply with the notices issued on behalf of the plaintiff, or to enter appearance pursuant to summons in this suit, displays a casual indifference to the intellectual property rights of the plaintiff. 16. Having regard to the above, the plaintiff is entitled to a decree against defendants 1 to 67 in terms of paragraph 59 (i) of the plaint, and against defendant No.69 in terms of paragraph 59 (ii) of the plaint. Decree sheet be prepared accordingly. No other relief is pressed by the plaintiff. CS(COMM) 408/2019 Page 14 of 15 17. The plaintiff is also entitled to actual costs of the suit, including court fees and counsel’s fees. The plaintiff will file an affidavit of actual costs within two weeks. 18. The suit and pending applications are disposed of in these terms. PRATEEK JALAN, J. FEBRUARY 17, 2020 'sc'/s CS(COMM) 408/2019 Page 15 of 15