On August 9, 2023, the Delhi High Court issued the first ever “Dynamic+” Injunction order in Universal City Studios LLC and Ors v. DotMovies.Baby and Ors, protecting the future works of the plaintiffs from copyright infringement by flagrantly infringing online locations (FIOLs). We are pleased to bring to you a guest post by Reva Satish Makhija analysing the justifications of the court and discussing the potential impact it may have. Reva Satish Makhija is a 3rd Year law student at Jindal Global Law School. As she describes herself, in her free time, she enjoys playing amateur-level chess and finding spelling errors in Non-Disclosure Agreements.
Analysing “Dynamic+” Injunctions: Delhi High Court’s Latest Judicial Invention
Reva Satish Makhija
Decoding the Court’s Creation
On 9th August 2023, a single-judge bench presided over by Justice Pratibha M Singh of the Delhi High Court passed a dynamic injunction order against the defendants in Universal City Studios LLC and Ors. v. Dotmovies.baby and Ors. The application for the injunction was brought forth by a collective of six renowned studios based out of Hollywood (Universal City Studios LLC., Warner Bros. Entertainment Inc., Columbia Pictures Industries, Inc., Netflix Studios, LLC, Paramount Pictures Corporation and Disney Enterprises, Inc.), seeking to prevent the unauthorised, unlicensed and illegal distribution of their copyrighted material made available on digital platforms by flagrantly infringing online locations (FIOLs). The nascent legacy of dynamic injunctions in India includes big-ticket parties such as UTV, Warner Bros., Hindustan Unilever Limited and Disney.
Several posts on SpicyIP (found here, here and here) have extensively highlighted the jurisprudential evolution of dynamic injunctions in India vis-a-vis John Doe/Ashok Kumar orders, and their susceptibility to judicial misconstruction. This order too heavily draws from earlier judgements across the globe (for instance, EMI Records v. British Sky Broadcasting Ltd. case), historically relied upon to justify the necessary utilisation of dynamic injunctions. However, the novelty of the Universal Studios order is embedded in the bench’s innovation in extending the dynamism of such injunctions progressively. Simply put, dynamic injunctions were previously in place to prevent existing copyrighted work from being infringed by FIOLs and mirror websites, only. However, the latest order expands the application of dynamic injunctions to instantly protect any future works/creations by the plaintiffs from being hosted illegally, without the plaintiff having to file a fresh application before the court.
Critiquing the Order
It is pertinent to note that a valid apprehension surrounding the introduction of dynamic injunctions in 2019 was its potential for being incessantly and unnecessarily invoked. Many critics have found one-way dynamic injunctions and website-blocking orders to be broad and hyper-protectionist in their approach (see here, here, here and here) and this argument is only propelled by the instant order. The order justified the inclusion of future works within the ambit of the broader injunction, since “copyright in future works comes into existence immediately upon the work being created”. This recent mechanisation by the Delhi High Court is predicated on the assumption that the plaintiff is necessarily the copyright holder of the future work so infringed and has summarily addressed the possibility of a dispute on ownership by allowing the aggrieved party to file an application “seeking clarification”.
The issue associated with the standardisation of dynamic injunctions is that, what began as an exception (to the necessity and proportionality tests), laid down in the 2019 UTV judgement, may soon evolve into the new normal. In furtherance of this concern, the latest judicial innovation is problematised by this author since the right to dispute the claim of ownership is preceded by the automatic and blanket application of the dynamic injunction. The rationale to pre-emptively shield the plaintiff’s future works from an expectation of infringement from FIOLs, , unfairly widens the terrain over which dynamic injunctions may be judicially applied. The precedentiary value of this order is deeply concerning as (i) it could soon become the prevailing norm while meting out dynamic injunctions and may be remiss of due deliberations and (ii) the inclusion of future works/creations, could result in the additional burden on the plaintiffs to prove their ownership of the copyrighted content (if disputed with malafide intents), further prolonging the adjudicatory process.
The Court relied on the facts to establish that Dotmovies.baby and other rogue websites, were causing an “irreparable loss” (a constituent of the three pillar-test along with prima facie case and balance of convenience), to the plaintiffs by promoting pirated content and dissuading viewers from subscribing to legitimate, licensed platforms. An assessment of irreparable harm is essential to deciding each injunction; however, it is imminent that with the probable, mechanical meting out of dynamic injunctions (elaborated below), this test may soon be reduced to a mere formality. Lack of reasons to find irreparable harm can be seen from the earlier orders for instance in the 8-page order in Applause Entertainment Pvt. Ltd. v. Meta Platforms Inc. and Ors., the court briefly mentioned that the plaintiffs would suffer an irreparable loss at the hands of the defendants, and hence the balance of convenience would naturally flow in the former’s favour.
Keeping in mind the interdependency of the elements of the three-pillar test, it becomes all the more important for the bench to elaborate on each qualification so as to suitably justify the passing of the injunction order. However, in this author’s opinion, since the rationale behind creating an injunction that is dynamic qua future works rests on limiting the irreparable loss caused to the plaintiff- there is a burden on the court to satisfy the three-pillar test in greater detail in such circumstances. A cursory mention of three pillars will not suffice and must be argued in a non-superficial manner. The instant order dealt extensively with the activities of the FIOLs without deliberating much on its impact on the commercial activities of the plaintiffs. Though this order is more specific than in the Applause Entertainment case, a more in-depth examination of how and why a progressive dynamic injunction supersedes the application of a regular dynamic injunction is preferred.
Time and again, the reliance on dynamic injunctions has been tested on the prongs of proportionality and necessity, (concretised in Dr. Shashi Tharoor v. Arnab Goswami and Anr.) to determine the scope of injunctions, at large. Its conceptualisation in copyright infringement matters was imported to India in the UTV case, wherein the Delhi High Court comprehensively evaluated (and also devised the qualitative versus quantitative test) the merits of various alternatives to balance both the parties’ rights before finally arriving at the remedy of dynamic injunctions. Towards the conclusion of the detailed judgement, J. Manmohan Singh provided that the use of dynamic injunctions is only limited to making the process less cumbersome for the plaintiff, who would ordinarily have to engage in a constant legal battle against the FIOLs and mirror websites. However, the court also clarified that such dynamic injunctions would necessarily require judicial scrutiny. Therefore, this judicial innovation to make such injunctions progressively dynamic fails to appreciate the safeguards laid down in the UTV judgement. Specifically, since the court in the latest order does not provide for a detailed recourse in case of a dispute on the ownership of the copyright.
Final Thoughts
In essence, the Universal City Studios order strives to achieve a goal that lies beyond the scope and width of dynamic injunctions. While judicial creativity is much appreciated, the jurisprudence on this matter remains inconsistent. In a time when even the merits of standard dynamic injunctions remain hotly debated (see conflicting positions of the Delhi High Court in Star India Pvt. Ltd. and the Bombay High Court in Balaji Motion Pictures on website-blocking orders), this recent modification may cast further doubts on its utility in India. The Delhi High Court’s attempt at securing the plaintiff’s rights from the possible, anticipated infringement at the hands of the defendant is well-meaning but requires more deliberation in the context of its efficacy in balancing party interests.
