[This post has been authored by our SpicyIP Intern Gaurangi Kapoor. Her previous posts can be accessed here, here and here. We are also thankful to our former SpicyIP Intern Ananya Dutta for her inputs on an earlier draft.]
In what may be the first instance of stream ripping being prohibited in India, the Delhi High Court in the case of Sony Music Entertainment India Pvt Ltd and Ors vs Yt1s.Com and Ors has passed an order restricting the defendants from engaging in copyright infringement via use of rogue websites. It had further directed the internet service providers to block access to the websites used by the defendants to carry out music infringement. The plaintiffs had approached the Court aggrieved by the use of rogue websites to provide services of stream ripping and had prayed for an ex-parte interim order against the defendants.
“Stream ripping” allows a song/video to be converted into a downloadable audio file from a streaming platform. Of late the issue of stream ripping has been a cause of worry for industry bodies like International Federation of Phonographic Industry (IFPI) and Recording Industry Association of America (RIAA), which have been aggressively seeking damages across the globe. In the present case as well, IFPI coordinated with the Indian Music Industry to file a lawsuit on behalf of Sony Music India, Warner Music India and Universal Music India (see here).
Fall outs from the order:
Time and again, various bloggers on SpicyIP have pointed out that blocking the entire website rather than specific URLs impinges upon access to online-content and the fundamental right to trade and freedom of expression, shifting the fair balance in favour of exclusionary rights of the IP holder (see here, here, here and here).
In the given case the court has liberally used the remedy of dynamic injunction despite previous judgements highlighting its cautionary and tailored usage. For instance, Bombay High Court in the case of Hindustan Unilever Limited v. Endurance Domains Technology, advocated against the issuing of dynamic injunctions without a proper judicial scrutiny. The Court reasoned that the decision to suspend or block a website is a matter of serious judicial function and can be reached primarily by assessing and balancing the rival merits of a case. Additionally, a dynamic injunction has been passed with very little reference to legal precedent to determine the appearance of a redirecting or mirror website upon the blocking of the impugned website(s). To be certain: the concern here is not whether the current case has ‘caught’ the right violators or not, but rather whether the order is jurisprudentially sound or not.
Taking a step backward, it is pertinent to first analyse whether the impugned websites are correctly identified as “rogue websites”. The factors to determine a rogue website have been laid down in the case of UTV and Ors vs 1337X.to and Ors (see here). As per the plaintiff to the present case, the identity of owner/operator of the impugned websites were masked and personal details were non traceable coupled with the service of providing the facility to download protected works into audio files. The Court appears to have only taken this into account in making a prima facie case for determining them to be “rogue websites”. The order does not look at evidence for other factors, such as – primary intent behind the websites for commitment to copyright infringement, traffic or frequency of access to the websites, inaction of websites upon receiving take down notices and flagrancy in infringement/ facilitating infringement. It is pertinent to note that the use of the downloaded copies of the copyrighted works could also be for purely legitimate purposes allowed by copyright law, such as fair dealing and non-infringing purposes. Regardless of whether the impugned websites were infringing or not, it is of utmost importance that orders which deem them so are fully reasoned orders, with qualitative and not just quantitative approaches.
It is welcoming to note, the Order is directed towards the appearance of any mirroring/redirecting/alphanumeric websites only as opposed to shutting down “associated websites to the impugned websites” as prayed by the Plaintiff. The Court has explicitly asked the Joint Registrar to the DHC to not make any adjudicatory decisions and merely implement the Order on sites which redirect to the impugned lists “upon being satisfied that the impugned website is indeed a mirror/redirect/alphanumeric website of injuncted Rogue Website(s) and merely provides new means of accessing the same primary infringing website”.
As per a recent SFLC NewsLaundry report, India blocked 55,607 URLs between January 2015 and September 2022. Of these, 46.8 percent of the URLs were blocked for infringing copyright. As such, dynamic injunctions may appear as an effective mechanism against rogue copyright infringing websites and their mirror websites but the blocking of an entire website poses a question to the legitimacy and proportionality of blocking injunctions as efforts to curtail copyright infringement. In the case of Star India Pvt Ltd and Anr vs Live4Wap.Click and Ors, the Delhi High Court has stressed on raising the matter for policy concerns as Courts have to deal with these matters on a regular basis which take up time of the courts. Hence, a balance needs to be struck to ensure that such injunctions do not come in the way of free dissemination of non-infringing information.
There may not be simple solutions to handling the complex questions that arise in this context and presumably more thought will be seen in this area going forward. One way to maintain a balance between the interests of free internet and rights of copyright owners is to appoint a neutral party. As suggested by Prof Shamnad Basheer, the idea of an ombudsman who would work as an impartial judicial mind between the parties could assist in verifying the identity of the complainants acting as copyright owners as well as the veracity of allegations.