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

2022:DHC:4176
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 19.09.2022
Date of decision: 10.10.2022
+ CS(COMM) 457/2019 & I.A. 11595/2019, 11597/2019,
17180/2021, 17181/2021 & 13799/2022
WARNER BROS. ENTERTAINMENT INC. ..... Plaintiff
Through: Ms.Suhasini Raina, Ms.R.Ramya,
Ms.Mehr Sidhu, Advs.
versus
MOVIESFLIX.NET_& ORS. ..... Defendants
Through: Mr.Bhagvan Swarup Shukla,
CGSC with Mr.Kamaldeep, Adv.
for UOI.
Mr.Kirtiman Singh, CGSC with
Ms.Vidhi Jain, Advs. for D-26 &
D-27.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
1. The plaintiff has filed the present suit inter-alia praying for the
following reliefs:
“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
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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
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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:”
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
reputed awards, such as the Academy Award for ‘ Best 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 (in short ‘the Act’). The plaintiff claims that this Court has
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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, transmission and streaming of the
plaintiff’s original content by the Defendant Nos. 1-14, 27-78, 79-118,
119-130, 131-157, 158-174, 175-212, 213-224 (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. 15-23 and concerned departments
of the Government of India as the defendant Nos. 24 and 25. The
ISPs and the concerned departments have been impleaded for the limited
relief of compliance with any directions of this Court granted in favor of
the plaintiff.
6. 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
streaming or hosting 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.
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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 dated
10.04.2019 passed by this Court in a batch of suits, including UTV
Software Communication Ltd. &Ors. v . 1337X.to &Ors., 2019 SCC
OnLine Del 8002, which dealt with the determination of rogue websites.
10. The plaintiff has filed I.A. 13799 of 2022 under Order XIII-A of
the Code of Civil Procedure, 1908 (in short, ‘CPC’), as applicable
to commercial disputes, seeking a Summary Judgment.
11. The grounds for filing the above 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. 15, 20, 22, 24
and 25 have entered appearance before this Court.
b. That the defendant Nos. 1-14 and 27-224 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.
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c. That the rogue websites impleaded as defendant Nos. 1-14
and27-224have 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 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-
14and27-224and 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.
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 affidavits filed by Mr. Manish Vaishampayan, who conducted
the investigation with regard to the aforesaid websites at 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), this Court, as far as the rogue websites
are concerned, identified the following illustrative factors to be
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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
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
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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 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:-
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“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, right-holders claim that approaching
the Court or the ISPs again and again is
cumbersome, particularly in the case of websites
promoting rampant piracy.
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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, in a similar batch of suits, including
Warner Bros. Entertainment Inc. v . Otorrents.Com &Ors ., 2022 SCC
OnLine Del 1738, wherein judgement was pronounced on 08.09.2022,
had filed an application under Order XIII-A of the CPC, as applicable to
commercial disputes, wherein this Court, relying on the judgement in
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UTV Software ( supra ), has passed a Summary Judgment and decreed the
suits in favour of the plaintiff.
18. In the present Suit as well, vide order dated 26.08.2019, this Court
had granted an ex-parte ad-interim injunction against the Defendant Nos.
1-14 (and such other domains/domain owners/website operators/entities
which are discovered during the course of the proceedings to have been
engaging in infringing the Plaintiff's exclusive 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, 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 plaintiff has
copyright.
19. This Court had further directed the defendant Nos. 15 to 23 to
block the domain names and its URLs as mentioned in the table below:-

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20. This Court further directed the defendant Nos. 24 and 25 to
suspend the above-mentioned domain name registration of the
Defendant Nos. 1-14 and issue requisite notifications calling upon
various ISPs and telecom service providers registered under them to
block the aforementioned website identified by the plaintiff.
21. The learned counsel for the plaintiff submits that pursuant to
the ex-parte ad interim order dated 26.08.2019, the defendant No. 24 has
issued the requisite notification. The learned counsel for the plaintiff
further states that the defendant Nos. 15 to 23 have blocked the rogue
websites i.e., defendant No. 1-14’s websites.
22. This Court had also passed the following direction in its order
dated 26.08.2019:
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
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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”.
23. In light of the aforesaid direction, the plaintiff filed subsequent
applications under Order 1 Rule 10 of CPC for impleadment of such
mirror/redirect/alphanumeric website with sufficient supporting
evidence, which were allowed by this Court and the ex-parte ad interim
order dated 26.08.2019 was thereby extended to the Impleaded
Defendants:

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24. Thereafter, on 01.08.2022, the learned Joint Registrar (Judicial),
passed the following order in regard to rogue websites i.e., Defendant
Nos. 1-14, 27-224:-
“…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.”
25. Since the defendant Nos. 1-14 and 27 to 224 are not appearing,
despite notice, in my opinion, the suit can be heard and decided
summarily. The defendant Nos. 1-14 and 27 to 224 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 enforcement of the injunction orders which are passed
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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. This is a fit case for passing a Summary Judgment invoking the
provisions of Order XIII-A of CPC, as applicable to the commercial
disputes, read with Rule 27 of the Delhi High Court Intellectual Property
Rights Division Rules, 2022.
26. In the present case, applying the test as laid down in UTV
Software (supra), and considering the documents filed and the
averments made in the plaint, which remained uncontroverted, it has to
be held that the defendant no. 1-14 and 27-224 are ‘Rogue Websites’,
with their primary purpose being to commit and facilitate infringement
of the copyright of the plaintiff. The plaintiff is therefore, held entitled to
a decree in terms of the prayers made in paragraph 54(i), (ii) and (iii) of
the plaint.
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) along with 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.
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28. Accordingly, I.A. No. 13799 of 2022 under Order XIII-A,
as applicable to commercial disputes, seeking a Summary Judgment
is allowed. All the pending applications are also disposed of.
29. The suit is decreed in terms of prayers given in paragraph no.54
(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. 1-14 and 27 to 224 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.
OCTOBER 10, 2022
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