Full Judgment Text
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 1 June, 2022
+ CS(COMM) 419/2019 & I.A. 10887/2019, 10889/2019 &
6471/2022
WARNER BROS. ENTERTAINMENT INC. ..... Plaintiff
Through: Mr.Sidharth Chopra, Ms.Suhasini
Raina, Ms.Disha Sharma,
Ms.Anjali Agrawal &
Mr.Sanidhya Rao, Advs.
versus
HTTPS://WWW.TAMILROCKERMOVIES.COM & ORS.
..... Defendants
Through: Ms.Nidhi Raman, CGSC with
Mr.Zubin Singh, Adv. for DOT.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. The plaintiff has filed the present suit inter-alia praying for the
following relief:
“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 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,
Signature Not Verified
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BATRA
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CS(COMM) 419/2019 Page 1 of 15
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 Defendants
No. 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 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 Defendants No. 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 Websites, 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 Websites 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;
Signature Not Verified
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BATRA
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CS(COMM) 419/2019 Page 2 of 15
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.
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
as a „ cinematograph film’ under Section 2(f) of the Act. The plaintiff
claims jurisdiction of this Court 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 unauthorised distribution, broadcasting, re-broadcasting,
transmission and streaming of the plaintiff‟s content by the defendant no.
1 (hereinafter referred to as the “rogue website”). It is the case of the
plaintiff that as a result of the unauthorised 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 to 10 and concerned departments of
the Government of India as the defendant nos. 11 and 12. The ISPs and
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the departments have been impleaded for the limited relief of compliance
with any directions of this Court granted in favour of the plaintiff.
6. The plaintiff has alleged that the defendant no. 1 is the rogue
website. The plaintiff, vide an investigation conducted by an independent
investigator, learnt of the extent of the infringing activity of the rogue
website, inasmuch as the rogue websites has infringed the plaintiff‟s
copyright in the original content by streaming or hosting and/or by
facilitating the use of the rogue website, 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 website calling upon it to cease from engaging in
its infringing activities. Despite the legal notice, the rogue website
continues 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) 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 Co-ordinate 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.
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10. The plaintiff thereafter filed I.A. 6471 of 2022 under Order XIIIA
of the Code of Civil Procedure, 1908 (in short, „CPC‟), as applicable to
commercial disputes, seeking a summary judgment.
11. Vide order of this Court dated 28.04.2022, notice was issued in the
present application. After notice was duly served on the defendants, the
plaintiff has filed its affidavits of service on 16.05.2022 and 31.05.2022.
12. Despite having been duly served, the defendants have neither filed
replies nor their written statement in the present suit contesting the
averments made in the plaint. Therefore, service and pleadings are
deemed as complete in the present application.
13. 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. 7, 9, 11 and 12
have entered appearance before this Hon‟ble Court.
b. That the defendant no. 1 is the rogue website that is illegally
streaming the plaintiff‟s content on its website and even
after being duly served by the plaintiff, has decided not to
contest the present suit.
c. That the defendants have no real prospect of successfully
defending the claim of copyright infringement and have
further not chosen to contest the said claim.
d. Additionally, there is no other compelling reason why the
present suit should not be disposed of before recording of
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oral evidence particularly in view of the fact that there is no
dispute regarding the illegal activities of the defendant no. 1
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 of oral evidence in the present
matter.
14. 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.
15. 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:
S.No. Particulars Court File
Pagination
along with
Volume No.
1. Print of Contact Details of various websites as
available on WHOIS (primary domains):
a. tamilrockermovies.com Folder IV
Pages 368 –
370 (Vol 2)
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a. bmovispro.com Folder IV
Pages 401 - 403
(Vol 2)
2. Copies of proof of ownership
of movie titles
Folder IV
Pages 27, 28
(Vol 1)
a) Aquaman (Warner)
3. Screenshots of Homepage of various websites
(primary domains):
a. tamilrockermovies.com Folder IV
Pages 278 -
283 (Vol 2)
b. bmovispro.com Folder IV
Pages 371 –
374 (Vol 2)
4. Printout of proof of infringement by websites
(primary domains):
a. tamilrockermovies.com Folder IV
Pages 342 -
367 (Vol 2)
b. bmovispro.com Folder IV
Pages 375 -
400 (Vol 2)
5. Printouts of the DMCA, FAQ, etc. pages,
evidencing infringing nature of the Defendant
Websites:
Signature Not Verified
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a. tamilrockermovies.com Folder IV
DMCA at pages
284- 286
Contact at
pages 287- 289
Request at
page 290- 320
16. I have heard the learned counsel for the plaintiff.
17. In UTV Software (supra), a Co-ordinate Bench of this Court, as far
as 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
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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.
xxxxx
69. Consequently, the real test for examining
whether a website is a Rogue Website is a
qualitative approach and not a quantitative one.”
18. This Court 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
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BATRA
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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
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
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BATRA
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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
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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.”
19. Vide order dated 09.08.2019, this Court had granted an ex-parte
ad-interim injunction against the defendant no. 1 and other such
domains/domain owners/website operators/entities which would have
been discovered during the course of the proceedings and found to have
been engaging in the infringement of the plaintiff‟s exclusive intellectual
property rights, 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, restrained
Signature Not Verified
Digitally Signed By:SHALOO
BATRA
Signing Date:04.06.2022
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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
plaintiff has copyright.
20. Vide same order, this Court had directed the defendant nos. 2 to 10
to block the domain name, its URLs and the respective IP addresses as
under:
List of Websites
Domain URLs IP
Addresses
tamilrockermovie
s.com
https://www.
tamilrockermovie
s.com
178.33.200
.170
bmoviespro.com https://www.
bmoviespro.com
37.59.249.
102
21. This Court further directed the defendant nos. 11 and 12 to suspend
the abovementioned 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.
22. The learned counsel for the plaintiff submits that pursuant to the
ex-parte ad interim order dated 09.08.2019, the defendant no. 11 has
issued a notification. The learned counsel for the plaintiff further states
that the defendant nos. 2 to 10 have blocked the defendant no. 1‟s
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BATRA
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website.
23. On 08.12.2021, the learned Joint Registrar (Judicial), passed the
following order:
“Service qua all the defendants stand
completed. The plaintiff has filed the affidavit of
service qua all the defendants.
All of the defendants against whom
substantial relief has been sought by the plaintiff
have been served, however they have not
preferred to appear to contest this ease or to file
written statement and affidavit of
admission/denial of documents. As such there are
no contesting defendants in this ease. Other
defendants, who were supposed to comply with
interim directions, have already complied with.
Learned counsels for defendants have
submitted that there are no documents for
admission/denial.
Pleadings are complete.
List the matter before the Hon'ble Court for
further directions on 11.01.2022.”
24. Since the defendant no.1 is not appearing, despite notice, in my
opinion, the suit can be heard and decided summarily. The defendant has
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 website who do not
have any defence 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. 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.
Signature Not Verified
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BATRA
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25. 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 Joint Registrar (Judicial) alongwith an affidavit with
supporting evidence, confirming that the proposed website is
mirror/redirect/alphanumeric website of the injuncted defendant website.
At the request of the counsel for the plaintiff, the same directions are
liable to be made in this case also.
26. Accordingly, I.A. No. 6471 of 2022 under Order XIIIA, as
applicable to commercial disputes, seeking a summary judgment is
allowed. All the pending applications are also disposed of.
27. 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
defendant no. 1‟s website 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. Decree sheet be
drawn up accordingly.
NAVIN CHAWLA, J
JUNE 01, 2022/ rv /AB
Signature Not Verified
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BATRA
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