Star India Pvt. Ltd. & Anr. vs Roy Ma & Ors.
2014 Latest Caselaw 5487 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Order delivered on: 5th November, 2014

+                              CS(OS) 3319/2014

      STAR INDIA PVT LTD & ANR                  ..... Plaintiffs
                    Through Mr.Saikrishna Rajagopal, Adv.
                             with Mr. Sidharth Chopra,
                             Ms.Sneha Jain, Ms.Savni Dutt,
                             and Mr.Avijit Sharma, Advs.

                          versus
      ROY MA & Ors.                                        ..... Defendants
                          Through       None.

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

I.A. No.21479/2014 This is an application filed by the plaintiffs under Order 13 Rule 1 read with Section 151 CPC seeking exemption from filing the originals of the documents.

For the reasons stated in the application, the same is allowed, subject to originals being produced at the time of admission/denial of the documents.

The application is disposed of.

I.A. No.21480/2014 This is an application filed by the plaintiffs seeking exemption from filing the certified copies, clear copies, translations of documents and the left side margin.

For the reasons stated in the application, the same is allowed, subject to just exceptions.

The application is disposed of.

I.A. No.21481/2014 (U/s 149 CPC) Learned counsel for the plaintiffs states that he would be filing the court fee within one week. In view of the statement made by the learned counsel, the application is disposed of. CS(OS) No.3319/2014 Let the plaint be registered as a suit.

Issue summons to the defendants through all modes of service including e-mail in addition, returnable on 21st January, 2015.

I.A. No.21478/2014 (u/o XXXIX R.1 & 2 CPC)

1. The plaintiffs have filed the suit for permanent injunction, accounts of profits, delivery up, damages etc.

2. The case of the plaintiffs is that they are leading sports broadcaster in India and the exclusive licensee of media rights to various sporting events / properties. They are also the owners of a network of sports television channels and by virtue of necessary downlink permissions from the Ministry of Information and Broadcasting, the plaintiff No.2 has the sole and exclusive right to broadcast and distribute the Channels in India i.e. Star Sports 1, STAR Sports 2, Star Sports 3, STAR Sports 4, Fox Sports News, STAR Sports HD 1 and Star Sports HD 2 (collectively referred to as "Star Sports Channels"). All the Star Sports Channels are pay channels. The Star Sports Channels carry various exciting

sporting events in the field of cricket, football, F1, Badminton, tennis, hockey etc., such as the various international & domestic cricket matches organized by the Board of Control for Cricket in India (BCCI), International cricket matches organized by Cricket Australia (CA), International cricket matches organised by the England and Wales Cricket Board (ECB), cricket matches & tournaments organized by International Cricket Council (ICC), Champions League Twenty 20, Wimbledon, Australian Open, Barclays Premier League, Spanish La Liga, Italian Serie A, F1, Hockey India League, Indian Badminton League.

3. The plaintiffs have internet and mobile presence through plaintiff No.2's website / mobile application www.starsports.com and the starsports.com app which is a dedicated digital sports entertainment service (transmitted through internet and mobile) on which the digital rights to various sporting events / properties are exploited / displayed by the plaintiff. These internet services through www.starsports.com are an online destination that brings the best of live sports in India. It offers to viewers, sports content on live, delayed live, video on demand and pay per view basis. The internet services through www.starsports.com are accessible from a browser on a laptop, personal computer or any hand-held device.

4. The England and Wales Cricket Board (ECB) is a company limited by guarantee established under the laws of England and was created on 01st January 1997. It was created by combining the roles of the Test and County Cricket Board, the National

Cricket Association and the Cricket Council as the single national governing body for all cricket in England and Wales. The ECB is responsible for the management and development of every form of cricket for men and women in England and Wales. This includes clubs, schools, juniors and youth, disabilities cricket, representative, first class and international cricket. The ECB, as a part of its duties and responsibilities, is organising the tour of the Indian national men's cricket team to England for the India- England Series 2014. The series is going to be played between 09th July, 2014 to 07th September, 2014 and comprises of 05 (five) test matches, 05 (five) one day internationals and 01 (one) Twenty20 match. The schedule of matches / events for the India- England Series 2014 is filed herewith.

5. The Plaintiff No.1 has been granted the said "Exclusive Rights" for the upcoming India-Sri Lanka Series 2014 as well. These Exclusive Rights include the live, delayed, highlights, and repeat broadcasting of the 2014 India-Sri Lanka Series Matches through various transmission platforms such as cable, terrestrial (analogue and digital), satellite DTH or IPTV transmission for viewing on various devices such as televisions, computers, laptops, mobile phones, tablet computers, etc. The Plaintiff No.1 undertakes to produce a redacted version of the various agreements qua its exclusive rights as and when directed by this Hon'ble Court. It is submitted that the Plaintiff No.1 has in-turn, authorized the Plaintiff No.2 to broadcast, retransmit, rebroadcast, make available for viewing and communicate to the public, the

2014 India-Sri Lanka cricket series matches through the Star Sports Channels as also on their internet app STARSPORTS.COM.

6. Having the Exclusive Television rights, the Plaintiffs are broadcasting and communicating the live, delayed, highlights, clips and repeat telecast of the 2014 India-Sri Lanka Series matches in India through the Star Sports Channels of the Plaintiffs. The Plaintiffs, who also have the Internet and Mobile Rights for the 2014 India - Sri Lanka Series, are also hosting, streaming, broadcasting, retransmitting and sharing the 2014 India-Sri Lanka Series Matches and content related thereto, on its website www.starsports.com and also as a mobile software application STARSPORTS.COM compatible with iOS and Android platforms. The Plaintiff No.1 has paid a significant price for the acquisition of the exclusive Broadcasting Rights to BCCI by virtue of which the Plaintiffs have acquired the exclusive right and license to exploit and / or authorize the exploitation of the Internet, Mobile and On-Demand Rights, as explained hereinbefore, qua the 2014 India- Sri Lanka Series for the territory of India. Thus, an entity which is not authorized by BCCI to broadcast, retransmit, host, stream, make available for viewing and download, provide access to or communicate to the public, the broadcast of the 2014 India- Sri Lanka Series Matches on any platform including the Internet and mobile platforms, in India cannot so broadcast, retransmit, host, stream etc., the broadcast of the 2014 India-Sri Lanka Series Matches and any content related thereto in India.

Any entity which so broadcasts, retransmits, hosts, streams, etc., the broadcast of the 2014 India- Sri Lanka Series Matches and the related content thereto in India on any platform including the Internet and Mobile without the authorization of the Plaintiffs will be interfering with the exclusive rights of the Plaintiffs vesting by virtue of its arrangement with BCCI and/or the statutory broadcast reproduction right conferred by Sec.37 of the Indian Copyright Act, 1957 (which is the subject matter of the present suit).

7. It is also submitted that any unauthorized rebroadcast of the broadcast of the Plaintiffs' Channels carrying content / footage of the India-Sri Lanka Series or the causing of the broadcast to be seen or heard by the public, through the medium of the Internet and mobile, constitutes an infringement of the broadcast reproduction rights of the Plaintiff, within the meaning of Sec.37 of the Copyright Act, 1957.

8. It is submitted that it is not just the Plaintiffs who are the beneficiary of the rebroadcast and communication of the broadcast of the 2014 India-Sri Lanka Series Matches in India through internet and mobile, but also Government agencies and the general public including other stakeholders such as sponsors, team owners, brands, media, well-wishers etc. to name a few. Cricket matches have tremendous popularity and viewership in India. The acts of infringement of the exclusive rights and broadcast reproduction rights of the Plaintiffs will not only cost the Plaintiffs, irrecoverable losses of substantial sums of money, but will also take away the legitimate revenues of the Government

through service tax, etc. which are payable on the subscription fees payable by these named and unnamed Defendants, if they conduct their business legitimately. The interests of these entities / persons would also be prejudiced in the event the named and unnamed defendants' websites are not restrained from illegally hosting, broadcasting, transmitting, making available for viewing and/or communicating to the public, the broadcast of the 2014 India-Sri Lanka Series Matches in India without the Plaintiffs' permission (irrespective of whether such broadcasts are of the 2014 India-Sri Lanka Series Matches as broadcast on the Plaintiffs' channels or on the channels of foreign licensees). THE DEFENDANTS, WHICH ARE ROGUE WEBSITE, AND THEIR INFRINGING ACTIVITY

9. The plaintiffs have filed this suit against various websites which primarily and substantially indulge in hosting and streaming of, or providing access to infringing and illegal content. The websites in question are vehicles/instruments of infringement and their business model is designed and dedicated towards providing members of the public access to unauthorized content, at the cost, prejudice and peril of broadcasters like the Plaintiffs who have expended enormous sums of money in acquiring exclusive rights to the broadcast of such content. The Defendants Nos. 1 to 31 (hereinafter "Defendant Websites") are various websites engaged in the business of hosting, streaming, broadcasting, retransmitting, making available for viewing and download, providing access to, communicating to the public, third party

content and information, through the medium of internet and mobile transmission. These Defendant Websites provide illegal content either through (a) hosting, streaming, broadcasting, making available for viewing, providing access to, and communicating to the public, the content directly for free without any registration and such availability of content is supported by the advertisements featured on these websites, or (b) through the mode of Video-On-Demand (VOD) where users are required to first register with these Defendant Websites and then subscribe and make payment to access the illegal content hosted, streamed etc. by these Defendant Websites. In both the cases, the content which is offered by the Defendant Websites is pirated and illegal, infringing the rights of the legitimate broadcasters like the Plaintiffs who have not authorized these Defendant Websites to distribute the content on internet and mobile platforms.

10. It is alleged in the plaint that the said Defendants own, operate and manage the various websites identified in the Memo of Parties and are located all across the world under the name and style and at the locations as mentioned in the Memo of Parties of the instant suit. It is submitted that many of these websites are anonymous in nature and it is virtually impossible to locate the owners of such websites or contact details of such owners. It is submitted that many of these Defendant Websites also hide behind domain privacy services offered by various domain name Registrars. Such domain privacy service enables a website owner to hide behind a veil and not disclose any contact

details publicly, to protect its privacy. When a website seeks the protection of such domain privacy services, only the information of a forwarding service is made publicly available and no personal details, contact address or e-mail IDs of owners of such websites is made publicly available. Consequently, it is extremely difficult, almost impossible, to get in touch with these websites to call upon them to cease their infringing conduct. Unless the domain name registrars of the respective websites which use such domain privacy services are directed to disclose the details of the owners of the Defendant Websites, it would be impossible to get the address, location and contact details of the owners of the Defendant Websites.

11. The services provided by the Defendant Websites are not restricted to their country or city of incorporation but due to the very nature of internet, are available all across the world, including, without limitation, in India, within the territorial jurisdiction of this Court. It is stated that the Defendant Websites are not authorised to host, stream, broadcast, retransmit, exhibit, make available for viewing and download, provide access to and/or communicate to the public, the broadcast of the 2014 India- Sri Lanka Series Matches and the content related thereto in India including the Plaintiff's broadcast in relation to the 2014 India- Sri Lanka Series Matches and the content related thereto. Thus, the act of hosting, streaming, broadcasting, retransmitting, etc. the broadcast of the 2014 India-Sri Lanka Series Matches and the content related thereto in India including the Plaintiff's

broadcast by the Defendant Websites amounts to infringement of the exclusive rights acquired by the Plaintiffs from BCCI as also it Broadcast Reproduction Rights in terms of Section 37 of the Copyright Act, 1957. It is submitted that a fresh cause of action arises against the defendant Websites every time such Defendants host, stream, broadcast, retransmit, etc. the broadcast of the 2014 India-Sri Lanka Series Matches and the content related thereto in India including the plaintiff's broadcast to its users, including in Delhi, without obtaining permission from the plaintiffs and the plaintiffs are entitled to institute a fresh suit based on such fresh cause of action against the defendants.

12. It is stated in the plaint that the instant suit is being filed primarily against the defendant Websites which are such websites which predominantly carry infringing content. Such websites thrive and survive by hosting, streaming, broadcasting, retransmitting, etc. illegal content to its users. These websites provide illegal content either through (a) hosting, streaming, broadcasting, making available for viewing and download, providing access to and communicating to the public, the content directly, for free, without any registration and such availability of content is supported by advertisements featuring on these websites, or (b) through the mode of Subscription Video-On-Demand (VOD) or pay per view basis where users are required to first register with these websites and then subscribe and make payment to access the illegal content hosted, streamed etc. by these websites. Thus, they earn their revenues either through advertisements dependent

upon user traffic, or through advertisement and subscription revenues. Due to the very nature of internet where it is very easy to engage in illegal activities and avoid detection, internet piracy is thriving. After conducting proper due diligence for months and gathering evidence of past infringing conduct over a period of time, the Plaintiffs have shortlisted such Rogue Websites which predominantly host, stream, broadcast, retransmit, etc. illegal content, including content for which the Plaintiffs have exclusive rights for India. Such websites are Rogue Websites since they primarily host and stream illegal content without any regard to the rights of the right owners. These Rogue Websites not only violate and infringe the intellectual property rights of the various right holders, but also substantially erode and dilute the value of the said intellectual properties by taking away significant revenues from all the stakeholders.

13. It is alleged that the Defendant Websites themselves are, as a whole, instruments / vehicles of infringement, it is not practical / viable to target / seek a restraint against individual or some specific URLs belonging to the Defendant Websites. A URL or a Uniform Resource Locator is a combination of alpha-numeric character used to locate a particular resource or content located on the internet. For example, the URL at which the cricket matches are available for viewing on the Plaintiffs' website is http://www.starsports.com/cricket/index.html. It is submitted that in case a URL is blocked or disabled, it is extremely easy for the website to provide access to the blocked content through another

URL since a mere change of a character in the URL string will results in a completely new URL. Consequently, it is extremely easy for a website to circumvent and thus nullify any order that directs blocking of specific URLs since such websites can very easily provide access to the same content by merely changing one character in the URL string. Thus, unless access to the entire website of the named and unnamed defendants is blocked, there is no alternate and efficient remedy that is open to the Plaintiffs. It is for this reason that the Plaintiffs are seeking appropriate orders directing internet service providers from blocking access to the Rogue Websites. Further, since most of these websites are anonymous in nature and operate behind a veil of secrecy, they are faceless entities and are not obliged to follow any orders of any court. Consequently, it is humbly submitted that there is no other remedy or method available to the Plaintiffs to protect its valuable exclusive rights except to block access to such websites in India.

14. In order to protect and enforce its exclusive rights, the Plaintiffs engaged the services of a third party agency to monitor websites and gather evidence of their infringing activity. Necessary affidavit of a representative of the said agency detailing the activities performed by them in discharge of their services to the Plaintiff is filed herewith. After carefully monitoring the activities of various websites for the past 3 (three) events for which the Plaintiffs had exclusive rights, and in light of the evidence gathered against such websites, a list of 150(one

hundred and fifty) "Rogue Websites" has been prepared, whose primary business model appears to be providing illegal content for viewing and download. Thousands of legal notices have been served to these Rogue Websites on behalf of the Plaintiffs for infringement calling upon them to cease from indulging in such infringing activities. It is submitted that the number of legal notices served on these websites are much higher when other events for which the Plaintiffs had exclusive rights are taken into consideration. Till date, these Rogue Websites have not complied with the legitimate demands of the Plaintiffs and continue to brazenly and blatantly provide sports and other content without authorisation. Before the start of the 2014 India-Sri Lanka Series, the Plaintiffs served caution notices to these Rogue Websites calling upon them to not indulge in piracy and infringement of exclusive rights of the Plaintiffs. These Rogue websites have not complied with the caution notices. It is thus submitted that these Rogue Websites are vehicles of infringement, which are, primarily and predominantly, engaged in the business of hosting, streaming, broadcasting, making available for viewing and download, providing access to and communicating to its users, illegal content. Unless access in India to such Rogue Websites is blocked, the Plaintiffs' valuable exclusive rights and broadcast reproduction rights will continue to be blatantly, brazenly and openly violated by these Rogue Websites. Copies of notices issued to a few of the Rogue Websites on behalf of the Plaintiffs in the past are filed herewith. However, since the evidence collected

against these Rogue Websites voluminous, in order to avoid burdening this Court and the Court's Registry, the Plaintiffs crave leave to refer to and rely upon further evidence as and when required.

15. It is alleged by the plaintiff in the plaint that these rogue websites are directly competing with the Plaintiffs' STAR SPORTS internet and mobile services since both of them are targeting those cricket fans, including in Delhi, who want to watch the 2014 India-Sri Lanka Series Matches and the content related thereto through the internet and mobile media platforms. Considering the substantial investments which have been made by the Plaintiffs in acquisition of the exclusive rights for the 2014 India-Sri Lanka Series, as also the significant expenses incurred by the Plaintiff in setting-up the infrastructure of STARSPORTS.COM internet and mobile service (video player, internet bandwidth, deployment of Digital Rights Management, development of applications across various media platforms etc.), advertising, promoting and broadcasting the 2014India-Sri Lanka Series matches on the internet and mobile through its digital portal STARSPORTS.COM, and bearing in mind that these Rogue Websites do not make any investments in acquisition of the exclusive rights for the 2014 India-Sri Lanka Series nor do they take any efforts in legalizing their infringing activity despite repeated reminders and legal notices, these Rogue Websites are misappropriating and unfairly competing with the Plaintiffs by seeking to reap what they have not sown. The Plaintiffs are thus legally entitled to seek protection

against such unfair competition and commercial misappropriation by the Rogue Websites and dilution and erosion of its valuable intellectual property rights.

16. Having heard Mr.Sai Krishna, the learned counsel for the plaintiffs, who has argued the matter on all the issues in the matter as well as the averments made in the plaint and documents placed on record, it appears to the Court that the plaintiffs have been able to make out a strong prima facie case for grant of ex-parte order. The balance of convenience also lies in favour of the plaintiffs and against the defendants. In case the interim orders are not passed, the plaintiffs would suffer irreparable loss and injury.

17. In light of the above, the following ad-interim orders are passed:

a) Defendant Nos. 1 to 31 and 52 to 70 websites, their 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, and any other website identified by the plaintiffs as infringing their exclusive rights, are restrained from in any manner hosting, streaming, broadcasting, rebroadcasting, retransmitting, exhibiting, making available for viewing and downloading, providing access to and / or communicating to the public, (including to its subscribers and users), through the internet, in any manner whatsoever, the plaintiffs' broadcast, as broadcasted / contained in its Channels Star Sports 1, Star Sports 2, Star Sports 3, Star Sports 4, Star Sports HD1 and Star Sports

HD2 in relation to the 2014 India - Sri Lanka Cricket Series content, so as to infringe the plaintiffs' broadcast reproduction rights. They are further restrained from hosting, streaming, broadcasting, rebroadcasting, retransmitting, exhibiting, making available for viewing and downloading, providing access to and / or communicating to the public, (including to its subscribers and users), through the internet in any manner whatsoever, the broadcast of the 2014 India - Sri LankaCricket Series content, amounting to unfair competition and commercial misappropriation of the Plaintiffs' rights.

b) Defendant Nos. 32 to 49, their directors, 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, are directed to ensure and secure compliance with this order by blocking access to the various websites identified by the plaintiffs as under:

List of websites identified as streaming infringing content of plaintiffs

1. www.cricketembed.com 1. 76. www.hitsports.net

2. www.acricket.com 77. www.s247.tv

3. www.bcric.com 78. www.footballembed.com

4. www.beeltv.com 79. www.madfortv.com

5. www.bigcrictv.com 80. www.watchtvlive.co

6. www.cricalive.com 81. www.jdworld.info

7. www.cricket-365.info 82. www.tvmoviefree.com

8. www.cricket-365.me 83. www.crictimes.in

9. www.cricket-365.tv 84. www.p2pcast.net

10. www.cricketbook.info 85. www.wclsports.tk

11. www.cricontv.com 86. www.crimaz.com

12. www.cricpower.com 87. www.firstrowsports.ge

13. www.crictime.com 88. www.tvcric.info

14. www.cricvid.com 89. www.chabka.com

15. www.cricwebtv.com 90. www.liverealsport.com

16. www.digitalipl.com 91. www.stream2watch.me

17. www.embedstream.com 92. www.livesportstv.biz

18. www.fancylive.com 93. www.u-peak.me

19. www.fancytvs.com 94. www.hdfree.tv

20. www.fanslounge.tv 95. www.kingstreams.tv

21. www.fastcric.com 96. www.procricket.tv

22. www.footcric.com 97. www.streamking.org

23. www.hitcric.com 98. www.w-sp.tv

24. www.khantv.tv 99. www.chabka.net

25. www.livecricketstream.in 100. www.indostreamix.com

26. www.livescores.pk 101. www.movietvfree.com

27. www.nowwwatchtvlive.co 102. www.streamerhut.com m 103. www.t20fun.com

28. www.s247tv.com 104. www.u-stream.me

29. www.streamlive.info 105. www.cricket247.tv

30. www.tvonclick.com 106. www.embedcricket.com

31. www.watchcric.com 107. www.streamsportlive.me

32. www.soccer.pk 108. www.crichomes.com

33. www.tvtoss.com 109. www.desistreams.tv

34. www.saadtv.com 110. www.firstrowas.eu

35. www.webtv.pk 111. www.tencricket.pk

36. www.cric-tv.com 112. www.crichd.in

37. www.a2zstream.com 113. www.soccerembed.com

38. www.khirad.info 114. www.eucast.tv

39. www.tvmazza.com 115. www.castok.com

40. www.onlinelivetvchannel.i 116. www.idesimela.com n 117. www.crictimelivecricket.c

41. www.tv.onlinemoviesports om andtv.com 118. www.tvlivechannels.com

42. www.crichd.tv 119. www.crictime.be

43. www.enjoyalltv.com 120. www.khantv.info

44. www.cricpass.net 121. www.ezcast.tv

45. www.liveonlinetv247.com 122. www.yocast.tv

46. www.tvcric.com 123. www.streamer247.com

47. www.kingtvlive.com 124. www.istreems.com

48. www.funhdtv.com 125. www.tvembed.com

49. www.samistream.com 126. www.drakulastream.eu

50. www.fancystreems.com 127. www.1tvlive.in

51. www.embed247.com 128. www.streamify.tv

52. www.hdcric.in 129. www.crictime1.in

53. www.blacktvlive.com 130. www.mips.tv

54. www.cricketlook.com 131. www.thecricket-tv.info

55. www.starcric.net 132. www.kbcast.com

56. www.eloantv.com 133. www.peontv.com

57. www.livehqtv.com 134. www.tv4embed.com

58. www.sportsbun.com 135. www.hdstreams.tv

59. www.cricvip.com 136. www.kbps.tv

60. www.sialtv.com 137. www.cricfree.tv

61. www.livestream365.com 138. www.toptvchannels.com

62. www.cricketlive-tv.net 139. www.zenex.tv

63. www.khantv.in 140. www.masteetv.com

64. www.theskystream.com 141. www.cricket-tv.net

65. www.tvstream247.com 142. www.liveflash.tv

66. www.fifaembed.com 143. www.extracover.net

67. www.1tvstream.com 144. www.livetv.sx

68. www.crimazlive.com 145. www.iplstream.com

69. www.onlinetvmania.com 146. www.cricmelive.tv

70. www.funtv4u.com 147. www.webcric.com

71. www.desistreem.com 148. www.hqlive.net

72. www.fullsportlive.org 149. www.ucaster.eu

73. www.starcric.in 150. www.khantv.com

74. www.time4tv.com

75. www.hdcric.com

c) Defendant Nos. 50 and 51 are directed to ensure and secure compliance of this order by calling upon the various internet service providers registered under it to block access to the various websites identified by the plaintiffs as abovelisted.

d) The compliance of Order XXXIX Rule 3 CPC be made within one week from today.

18. Registry of this Court is directed to communicate this order to defendant Nos.50 and 51 by way of e-mail and fax.

19. Copy of the order be given Dasti under the signatures of the Court Master.

(MANMOHAN SINGH) JUDGE NOVEMBER 05, 2014