Dynamic Injunctions: A Novel Species Of Injunctions In The Realm Of Digital Piracy

INTRODUCTION

Indisputably, innovation in the digital age has brought improvements in human productivity and efficiency. But, simultaneously, the misuse of information technology has also increased exponentially. The easy accessibility of networks and high-capacity storage has made it easier for the increasing penetration of piracy. As opposed to physical piracy, digital piracy benefits from potential shields of anonymity, non-traceability, and a quicker bounce-back ability. Generally, the courts resort to website blocking injunctions to safeguard the rights of the content creators from digital piracy. However, conventional injunctions are failing to render effective justice due to circumventive measures like creation of mirror websites, forwarding with or without masking, etc. that the internet offers. The courts, therefore, have sought to develop a new mechanism of ‘Dynamic Injunctions’ to counter the menace of digital piracy.

DYNAMIC INJUNCTION

In the case of Star India Private Limited v. Haneeth Ujwal[1], while issuing an order for blocking infringing websites, the Delhi High Court observed that it is extremely easy to circumvent the blocking of URLs by changing just one character in the URL string. In light thereof, the dynamic injunction is congenitally an injunction which acts as an order for, in a way, blocking the infringing or objectionable content rather than just a domain name or URL. In other words, such injunctions block the means of accessing the same infringing websites. Dynamic injunction orders intend to expand the blocking orders granted against an original website, to the ‘hydra-headed’ rogue websites. It allows a right holder to approach the courts to extend the main injunction order against all mirror websites providing access to the same infringing online locations that were the subject of the main injunction.

Certainly, website-blocking injunction orders are effective in preventing access to specific websites. But they cannot prevent future illegal mirror websites with different URLs. So, to curb this menace, the courts in various jurisdictions have expressly or impliedly approved the new species of injunctions.

The Court of Justice for the European Union (CJEU) set a precedent by issuing the first ever dynamic injunction in the case of L’Oréal v. eBay[2], wherein it was held that courts of member states must be able to order online marketplaces to take measures not only to end current infringements but also prevent future ones. Thereafter, dynamic blocking injunctions have been issued by various courts in the United Kingdom and in many of the EU Member States, like the Netherlands, Ireland, and Denmark. The courts have coherently ruled that if for further infringement of the same right, judicial intervention is needed and if no injunction could be issued pro future, then this would be contrary to the rationale underlying the availability of injunctions themselves. Subsequently, the framework and reasoning for dynamic injunctions were laid down comprehensively by the High Court of Singapore in Disney Enterprises, Inc., and Ors. v. M1 Limited and Ors.[3]

DEVELOPMENT OF DYNAMIC INJUNCTION IN INDIA

The definition of a ‘dynamic injunction’ has been promulgated by Justice Pratibha Singh to read as “an injunction order which is not static but dynamic. This implies that though the first injunction order may be applicable only to one website, however if mirror websites are created, the injunction would dynamically apply to the said mirror websites as well.”[4]

In India, the first dynamic injunction was granted by the Delhi High Court in UTV Software Communication Ltd. and Ors. v. 1337X.to and Ors.[5]In this case, the Court defined the term ‘rogue website’ and gave nine suggestive and non-exhaustive factors to determine whether a website would be considered as a rogue website or not. These factors are: (i) the primary purpose of the website being copyright infringement; (ii) blatancy of the infringement; (iii) hidden or non-traceable details of the website registrant; (iv) ignorance of take down notices; (v) the presence of directories, indexes or categories of the means to infringe; (vi) the general disregard to copyright of the original owner; (vii) blocking of access to the website by other jurisdictions; (viii) any previous court orders blocking access to the website; and (ix)overall traffic on the websites. The Court further evaluated whether the test for identifying a rogue website should be ‘qualitative’, viz., examining whether the primary purpose and effect of the website is to facilitate infringement, as opposed to ‘quantitative’, viz., examining purely the quantity of infringing content on the website.

The Bombay High Court in Eros International Media Ltd. v. BSNL[6] followed the quantitative test whereby to block an entire website, the IP holder has to show that all contents of the website are infringing. On the contrary, the Delhi High Court in Department of Electronics and Information Technology v. Star India Pvt. Ltd.[7]held that the plaintiff need not prove all the contents if the website is “overwhelmingly infringing”. Accordingly, the Court in the UTV case[8] held that the test for determining whether a website is rogue is qualitative. The Court held that it would be cumbersome and onerous for the right holder to provide all the contents of the URLs. However, the High Court of Bombay has continued with its stringent ‘quantitative test’ in granting dynamic injunctions.

The orders of dynamic injunctions are the result of judicial adaptation. Accordingly, the courts in India are stepping up to deploy modern jurisprudence to curb the rising menace of rogue websites. Recently, in the case of Warner Bros. Entertainment v. http.otorrents.com & Ors.[9], the Delhi High Court examined the issue of grant of dynamic injunctions and permitted Warner Bros. to subsequently implead any mirror or redirect or alphanumeric websites which provided access to the rogue websites. A similar order was passed in the case of Star India Pvt. Ltd. v. 7movierulz.tc & Ors.[10], wherein the Court restrained the rogue websites from illegally streaming the Bollywood movie ‘Brahmastra Part One: Shiva’. Further, it allowed the copyright holder to file an application to array other such websites, as and when they are discovered in the future.

A dynamic injunction is not only limited to copyright infringement cases, such an injunction has been granted in trademark infringement cases also. The Delhi High Court in Snapdeal Pvt Ltd v. Snapdealluckydraws.Org.[11], granted an injunction against rogue websites from carrying out activities under the ‘SNAPDEAL’ trademark. The order was subsequently extended to cover forty more rogue websites. It is also noteworthy that Indian Courts have aptly granted dynamic injunction orders against hydra-headed websites indulging in online infringement of trademarks and provided reliefs to brands like Amul[12], Aaj Tak[13], Disney[14] etc.

CONCLUSION

Digital piracy is a reality that can’t be brushed aside. Even after issuing website blocking injunctions, rogue websites keep mushrooming and thereby making it impractical for the litigant to approach the court repeatedly. Thus, the march of techno-legal complexities has paved the way for the development of dynamic injunctions. The orders of dynamic injunction provide a practical means of ensuring continued effectiveness of the original injunction since it provides an expedited process for blocking of additional domain names which direct to the same infringing websites. Therefore, the dynamic injunction is a new species of injunctions that offers succour to counter the menace of digital piracy and provides effective remedies to IP holders. Extensive application of such blocking injunctions by the Indian judiciary shall curb ‘hydra-headed’ rogue websites and avoid multiple proceedings, thereby ensuring smooth adjudication of justice.

[1] Star India Private Limited v. Haneeth UjwaL, 2014 (60) PTC 504 (Del). [2] L’Oréal v. eBay (C-324/09) [3] Disney Enterprises, Inc. and Ors. v. M1 Limited and Ors (2018) SGHC 206. [4] Justice Pratibha M. Singh, “Evolution of Copyright Law: The Indian Journey”, Indian Journal of Law and Technology, Volume 16 Issue 2, 2020, p. 49. [5] UTV Software Communication Ltd. and Ors. Versus 1337x.to and Ors., CS(COMM) 724/2017 [6] Eros International Media Ltd. & Anr. v. Bharat Sanchar Nigam Ltd. & Ors., Suit No.751/2016 [7] Department of Electronics and Information Technology v Star India Pvt. Ltd., FAO(OS) 57/2015 [8] UTV Software Communication Ltd. and Ors. Versus 1337x.to and Ors., CS(COMM) 724/2017 [9] Warner Bros. Entertainment v. http.otorrents.com & Ors., CS (COMM) 402 OF 2019 [10] Star India Private Limited v. 7movierulz.tc and Ors., CS(COMM) 604/2022 [11] Snapdeal Private Limited v. Snapdeallucky - Draws.org.in & Ors., CS (COMM) No.264/2020 [12] Gujarat Cooperative Milk Marketing Federation Ltd. & Anr. vs Amul Franchise.in & Ors. CS(COMM) 350/2020 [13] Living Media India Ltd. & Anr. v. www.news-aajtak.co.in & Ors. CS(COMM) 395/2020 [14] Disney Enterprises Inc. & Ors. v. Kimcartoon.to & Ors. CS(COMM)275/2020