Delhi High Court
Warner Bros. Entertainment Inc. vs Https://Xmovies08.Ru & Ors. on 10 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21.09.2022
Date of decision: 10.10.2022
+ CS (COMM) 422/2019 & IAs 10910/2019, 14915/2022
WARNER BROS. ENTERTAINMENT INC .....Plaintiff
Through: Ms.Suhasini Raina, Ms.R. Ramya
& Ms.Mehr Sidhu, Advs.
Versus
HTTPS://XMOVIES08.RU & ORS ....Defendants
Through: Mr.Bhagvan Swarup Shukla,
CGSC with Mr.Kamaldeep, Adv.
for D-14 & D-15.
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. 1-4
(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, 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
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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. 5-13, 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- 4 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. 14
and 15, to issue a notification calling upon the
various internet and telecom service providers
registered under it to block access to the
Defendant Nos. 1-4 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;"
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
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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
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, broadcasting, re-broadcasting,
transmission and streaming of the Plaintiff's original content by the
Defendant Nos. 1-4, 17-25, 26,27,28,29-39, 40-43 and 44-47 (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. 5-13 and concerned departments of
the Government of India as the Defendant Nos. 14 and 15. The ISPs and
the concerned departments have been impleaded for the limited relief of
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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.
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 given
in paragraph 54(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. 14915 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.
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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. 5, 10, 12, 14 and 15
have entered appearance before this Court.
b. That the Defendant Nos.1-4 and 17-47 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.
c. That the rogue websites impleaded as Defendant Nos. 1-4
and 17-47 have 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 as to 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. 1-4 and 17-47
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.
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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 the
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:
S.No. Particulars Court File
Pagination along
with Volume No.
1. Print of Contact Details of various websites as
available on WHOIS (primary domains):
Xmovies08.ru Pg.361-362
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.pl Pg.368-369
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.im Pg.372-372
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.es Pg.376-377
(Defendant No.1) Folder IV (Vol.2)
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Xmovies8.com Pg.380-382
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.ru Pg.385-386
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.tv Pg.417-419
(Defendant No.1) Folder IV (Vol.2)
Todaypk.ro Pg.466-467
(Defendant No.2) Folder IV (Vol. 3)
Todaypk.stream Pg.500-504
(Defendant No.2) Folder IV (Vol. 3)
TodayPk.watch Pg.507-509
(Defendant No.2) Folder IV (Vol. 3)
Extramovies.wiki Pg.534-535
(Defendant No.3) Folder IV (Vol.3)
Extramovies.trade Pg.555-557
(Defendant No.3) Folder IV (Vol.3)
Extramovies.host Pg.560-561
(Defendant No.3) Folder IV (Vol.3)
Downloadhub.lol Pg.645-647
(Defendant No.4) Folder IV (Vol.3)
Downloadhub.net.in Pg.840-842
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(Defendant No.4) Folder IV (Vol.4)
DownloadHub.biz Pg.844-846
(Defendant No.4) Folder IV (Vol.4)
DownloadHub.wiki Pg.849-850
(Defendant No.4) Folder IV (Vol.4)
DownloadHub.ind.in Pg.853-855
(Defendant No.4) Folder IV (Vol.4)
DownloadHub.link Pg.858-860
(Defendant No.4) Folder IV (Vol.4)
Downloadhub.win I.A. No.
18426/2019
(Defendant No.17)
Pg.86-90 (Vol.1)
Downloadhub.lol I.A. No.
18426/2019
(Defendant No.18)
Pg.91-94 (Vol.1)
Downloadhub.one I.A. No.
18426/2019
(Defendant No.19)
Pg.95-98 (Vol.1)
Todaypk.tube I.A. No.
18426/2019
(Defendant No.20)
Pg.182-185 (Vol.1)
TodayPk.best I.A. No.
18426/2019
(Defendant No.21)
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Pg.186-188 (Vol.1)
TodayPk.ro I.A. No.
18426/2019
(Defendant No.22)
Pg.189-190 (Vol.1)
XMovie8.is I.A. No.
18426/2019
(Defendant No.23)
Pg.227-229 (Vol.1)
XMovie8.work I.A. No.
18426/2019
(Defendant No.24)
Pg.230-223 (Vol.1)
XMovie8.net I.A. No.
18426/2019
(Defendant No.25)
Pg.234-237 (Vol.1)
1todaypk.com I.A. No. 8929/2020
(Defendant No.26) Pg.125-130 (Vol.1)
Xmoies8.cz I.A. No. 8929/2020
(Defendant No.27) Pg.148-150 (Vol.1)
Xmovies8.pw I.A. No. 7160/2021
(Defendant No.28) Pg.74-76 (Vol.1)
1todaypk.live I.A. No.12748/2021
(Defendant No.29) Pg.102-104 (Vol.1)
1todaypk.ws I.A. No.12748/2021
(Defendant No.30) Pg.107-108 (Vol.1)
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Extramovies.quest I.A. No.12748/2021
(Defendant No.31) Pg.163-165 (Vol.1)
ExtraMovies.ninja I.A. No.12748/2021
(Defendant No.32) Pg.168-170 (Vol.1)
ExtraMovies.bar I.A. No.12748/2021
(Defendant No.33) Pg.173-175 (Vol.1)
ExtraMovies.team I.A. No.12748/2021
(Defendant No.34) Pg.178-180 (Vol.1)
DownloadHub.wtf I.A. No.
12748/2021
(Defendant No.35)
670-672 (Vol.3)
DownloadHub.red I.A. No.
12748/2021
(Defendant No.36)
675-676 (Vol.3)
Downloadhub.name I.A. No.
12748/2021
(Defendant No.37)
679-681 (Vol.3)
DownloadHub.kim I.A. No.12748/2021
(Defendant No.38) Pg.684-685 (Vol.3)
WatchSeriesHd.ru I.A. No.12748/2021
(Defendant No.39) Pg.696-697 (Vol.3)
DownloadHub.pink I.A. No.
17178/2021
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(Defendant No.40) Pg.179-184
Downloadhub.onl I.A. No.
17178/2021
(Defendant No.41)
Pg.187-190
Downloadhub.cfd I.A. No.
17178/2021
(Defendant No.42)
Pg.193-197
Downloadhub.fit I.A. No.
17178/2021
(Defendant No.43)
Pg.200-203
Extramovies.wine I.A. No. 3657/2022
(Defendant No.44) Pg.91-93
Extramovies.town I.A. No. 3657/2022
(Defendant No.45) Pg.102-106
Extramovies.bar I.A. No. 3657/2022
(Defendant No.46) Pg.96-99
Extramovies.cloud I.A. No. 3657/2022
(Defendant No.47) Pg.109-113
2. Copies of proof of Ownership of movie titles
a. Aquaman Pg.31-32
Folder IV (Vol.1)
3. Screenshots of Homepage of various websites
(primary domains):
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Xmovies08.ru Pg.320-322
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.tv Pg.387-389
(Defendant No.1) Folder IV (Vol.2)
Todaypk.ro Pg.427-437
(Defendant No.2) Folder IV (Vol.3)
Extramovies.wiki Pg.512-514
(Defendant No.3) Folder IV (Vol.3)
Downloadhub.lol Pg.564-568
(Defendant No.4) Folder IV (Vol.3)
Downloadhub.net.in Pg.751-755
(Defendant No.4) Folder IV (Vol.4)
Downloadhub.win I.A. No.
18426/2019
(Defendant No.17)
Pg.50-62 (Vol.1)
Todaypk.tube I.A. No.
18426/2019
(Defendant No.20)
Pg.99-118 (Vol.1)
Todaypk.ro I.A. No.
18426/2019
(Defendant No.21)
Pg.159-162 (Vol.1)
Xmovies8.is I.A. No.
18426/2019
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(Defendant No.23) Pg.159-162 (Vol.1)
Xmovies8.work I.A. No.
18426/2019
(Defendant No.24)
Pg.207-210 (Vol.1)
Xmovies8.net I.A. No.
18426/2019
(Defendant No.25)
Pg.223-224 (Vol.1)
1todaypk.com I.A. No. 8929/2020
(Defendant No.26) Pg.46-57 (Vol.1)
Xmoies8.cz I.A. No. 8929/2020
(Defendant No.27) Pg.131-133 (Vol.1)
Xmovies8.pw I.A. No. 7160/2021
(Defendant No.28) Pg.45-52 (Vol.1)
1todaypk.live I.A. No.12748/2021
(Defendant No.29) Pg.44-58 (Vol.1)
Extramovies.quest I.A. No.12748/2021
(Defendant No.31) Pg.109-114
Downloadhub.wtf I.A. No.12748/2021
(Defendant No.35) Pg.181-189 (Vol.1)
WatchSeriesHd.ru I.A. No.12748/2021
(Defendant No.39) Pg.686-691 (Vol.3)
Extramovies.wine I.A. No. 3657/2022
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(Defendant No.44) Pg.48-53
4. Printout of proof of infringement by websites
(primary domains):
Xmovies08.ru Pg.341-360
(Defendant No.1) Folder IV (Vol.2)
Xmovies8.tv Pg.397-416
(Defendant No.1) Folder IV (Vol.2)
Todaypk.ro Pg.452-465
(Defendant No.2) Folder IV (Vol.3)
Extramovies.wiki Pg.522-533
(Defendant No.3) Folder IV (Vol.3)
Downloadhub.lol Pg.621-644
(Defendant No.4) Folder IV (Vol.3)
Downloadhub.net.in Pg.820-839
(Defendant No.4) Folder IV (Vol.4)
Extramovies.quest I.A. No.12748/2021
(Defendant No.31) Pg.109-114
5. Printouts of the DMCA, FAQ, etc. pages, evidencing
infringing nature of the Defendant Websites:
Xmovies08.ru Pg.323-327
(Defendant No.1) Folder IV (Vol.2)
DMCA
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Todaypk.ro Pg.438-444
(Defendant No.2) Folder IV (Vol.3)
DMCA
Extramovies.wiki Pg.515-517
(Defendant No.3) Folder IV (Vol.3)
DMCA
Extramovies.wiki Pg.518-519
(Defendant No.3) Folder IV (Vol.3)
Contact Us
Downloadhub.net.in Pg.763-766
(Defendant No.4) Folder IV (Vol.4)
DMCA
1todaypk.com I.A. No. 8929/2020
(Defendant No.26) Pg.66-73
DMCA
1todaypk.com I.A. No. 8929/2020
(Defendant No.26) Pg.58-65
Contact Us
Extramovies.quest I.A. No.12748/2021
(Defendant No.31) Pg.115-116
Contact Us
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Extramovies.quest I.A. No.12748/2021
(Defendant No.31) Pg.117-119
DMCA
Extramovies.wine I.A. No. 3657/2022
(Defendant No.44) Pg.56-58
DMCA
Extramovies.wine I.A. No. 3657/2022
(Defendant No.44) Pg.54-55
Contact Us
14. I have heard the learned counsel for the Plaintiff.
15. In UTV Software (supra), 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.
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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
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.
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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 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
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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 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
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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 decision in UTV
Software (supra) has passed a Summary Judgment and decreed the suits
in favor of the Plaintiff.
18. In the present Suit as well, vide order dated 09.08.2019, this Court
had granted an ex-parte ad-interim injunction against the Defendant Nos.
1-4 (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
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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. 5 to 13 to block
the domain names and its URLs as mentioned in the table below-
Domain Name URL IP Addresses
Defendant no.1
Xmovies08.ru https://xmovies08.ru/ 104.27.208.30
104.27.209.30
Xmovies8.pl https://xmovies8.pl 104.31.112.42
104.31.113.42
145.249.105.15
Xmovies8.im https://xmovies8.im 104.31.16.3
104.31.17.3
Xmovies8.es https://xmovies8.es 104.31.18.30
104.31.19.30
Xmovies8.com https://xmovies8.com 104.31.18.30
104.31.19.30
Xmovies8.ru https://xmovies8.ru 145.249.105.15
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BATRA
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Defendant No.2
Todaypk.ro https://todaypk.ro 104.24.116.36
104.24.117.36
Todaypk.stream https://todaypk.strea 103.224.182.245
m
Todaypk.watch https://todaypk.watch 104.27.172.140
104.27.173.140
Defendant No.3
Extramovies.wiki http://extramovies.wi 104.27.168.35
ki 104.27.169.35
Extramovies.host http://extramovies.ho 184.168.221.444
st/ 50.63.202.57
Extramovies.trade http://extramovies.tra 104.18.40.74
de 104.18.41.74
Defendant No.4
Downloadhub.lol https://downloadhub.l 104.24.118.40
ol 104.24.119.40
Signature Not Verified
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Downloadhub.net https://downloadhub. 104.24.114.46
.in net.in 104.24.115.194
Downloadhub.biz https://downloadhub. 104.18.32.194
biz/ 104.18.33.194
Downloadhub.wi https://downloadhub. 104.27.150.156
ki wiki/ 104.27.151.156
Downloadhub.ind https://downloadhub.i 104.24.108.184
.in nd.in 104.24.109.184
Downloadhub.ws https://donwloadhub. 104.18.56.217
ws 104.18.57.217
20. This Court further directed the Defendant Nos. 14 and 15 to
suspend the above-mentioned domain name registration of the Defendant
Nos. 1-4 and issue requisite notifications within 5 working days 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 09.08.2019, the Defendant No. 14 has
issued the requisite notification. The learned counsel for the Plaintiff
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further states that the Defendant Nos. 5 to 13 have blocked the rogue
websites i.e., Defendant No. 1-4's websites.
22. This Court had also passed the following direction in its order
dated 09.08.2019:
"21. 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
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 websites with sufficient supporting
evidence, which were allowed by this Court and the ex-parte ad interim
order dated 09.08.2019 was thereby extended to the Impleaded
Defendants:
Sr. Impleaded Details of filing the Date of the order when
No. Defendant Impleadment the impleadment was
Nos. application allowed and disposed of
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17 to 25 I.A. No. 18426/2019 24.12.2019
Filed on:13.12.2019
26 and 27 I.A. No. 8929/2020 08.10.2020
Filed on:01.10.2020
Filed on:31.05.2021
29 to 39 I.A. No. 12748/2021 04.10.2021
Filed on:27.09.2021
40 to 43 I.A. No. 17178/2021 17.01.2022
Filed on:19.12.2021
44 to 47 I.A. No.3657/2022 11.03.2022
Filed on: 04.03.2022
24. Thereafter, on 25.08.2022, the learned Joint Registrar (Judicial)
was pleased to record that all of the Defendants, including Defendant
Nos.1-4 and 17-47 against whom substantial relief had been sought by
the Plaintiff have been served, however they have not preferred to appear
to contest the case or to file Written Statement and Affidavit of
Admission/Denial of documents, hence the pleadings stand complete.
25. Since the Defendant Nos. 1-4, 17 to 47 are not appearing, despite
notice, in my opinion, the suit can be heard and decided summarily.
The Defendant Nos. 1-4 and 17-47 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
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with enforcement of the injunction orders which are passed 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.1-4 and 17-47 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 prayers made in paragraph no. 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. 14915 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 mentioned 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. 1-4 and 17-47 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/rv
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