Read Time: 07 minutes

The Delhi High Court recently granted a permanent injunction in favour of global entertainment company Warner Brothers while restraining "rogue" torrent websites from distributing, broadcasting, transmitting and streaming its content. 

Warner Bros in its plea claimed that it had conducted an investigation and learnt of the extent of the infringing activity of the rogue websites, which had streamed and downloaded their original cinematograph films in which copyright vests. For the purposes of compliance with the orders of the court, the plaintiff had also impleaded various government departments and Internet Service Providers. 

While holding that the suit could be decided summarily as the websites in question were not represented, Justice Navin Chawla held that the defendants had no real prospect of successfully defending their copyright infringement against Warner Bros and have also not chosen to contest the same.

Justice Chawla relied on the judgment of UTV Software Communication Ltd. & Ors. v. 1337X.to & Ors., [2019 SCC OnLine Del 8002], to determine whether or not the websites were rogue and cited the criteria given in the said judgment, which is as follows:-

“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.

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;

i.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.

xxxx

Consequently, the real test for examining whether a website is a Rogue Website is a qualitative approach and not a quantitative one.”

Thus, while applying the criteria in UTV Software (supra) judgment, Court held that defendants No.1 to 51 were "rogue" websites and that this was a fit case for passing a summary judgment invoking the provisions of OrderXIIIA of CPC, as applicable to the commercial disputes. The suit was, thus, decreed in favor of the Ppaintiff, i.e., Warner Bros. 

[Warner Brothers Entertainment v. http.otorrents.com & Ors]