Author – Anurag Kumar
College – Lloyd Law College
To The point:
Every time Bollywood movie appears on web hours before its cinema release or a cricket match is illegally shown on a web site, copyright owners run up against the problem that by the time an injunction is issued against one infringing web site, ten “mirror” or “redirect” web sites have cropped up using slightly different URLs. Traditional injunctions which specifically name the defendant and which identify by URL the infringing web site do not help in these cases because there are always more web sites hosting the same infringing material. The Indian Courts have come up with a novel solution to this problem called the “Dynamic Injunction”. This article looks at the Indian copyright law and the procedures available in India for dealing with such infringements and analyzes the dynamic injunction which was not in existence till the time of the Copyright Act 1957 and which was judicially innovated to meet the new and unprecedented challenges that digital media presented to copyright owners all over the world. The article proceeds to analyze if the dynamic injunction is the right approach in balancing the interests of the creators of intellectual property on the one hand and the freedoms of the internet on the other.
Use of Legal Jargon:
A proper understanding of this area of law requires acquaintance with the following terminology:
Copyright Infringement: The violation of any of the exclusive rights conferred by section 14 of the Copyright Act, 1957, including the unauthorized reproduction, communication to the public, distribution, or adaptation of a copyrighted work.
John Doe Order (Ashok Kumar Order): An order directed to unknown defendants, allowing a plaintiff to proceed against unnamed infringers, typically used in cases where the initial defendants are anonymous website operators.
Dynamic Injunction: A type of injunction allowing the plaintiff, after a long list of websites have been ordered to be blocked by an injunction, to apply to the court (by way of a simplified application or otherwise) to extend the injunction to websites that are substantially identical to the blocked ones or that host the same infringing content under a different domain.
Mirror Website: A website that hosts content identical to that on another website which has previously been ordered to be blocked by a court.
Website Blocking Order: An order passed by a court under section 79 of the Information Technology Act, 2000 in conjunction with the Copyright Act, directing internet service providers to block access to a particular website by its users.
Intermediary Liability and Safe Harbour: Intermediaries such as internet service providers are not held liable for copyright infringement by virtue of section 79 of the Information Technology Act, 2000, provided they expeditiously comply with take-down notices issued by the copyright owners or courts.
Rogue Website: A website, which is identified by a court as being primarily designed for the purpose of copyright infringement as opposed to hosting infringing works or content by virtue of its secondary use.
Quia Timet Injunction: An injunction issued to prevent an apprehended or threatened wrong, which is applicable where a copyright owner seeks to prevent unauthorized communication or distribution of a film or sporting event that has yet to be screened or telecast.
Communication to the Public: One of the exclusive rights of the copyright owner under section 14 of the Copyright Act, which involves making the copyrighted work available to the public, by way of transmission, whether directly or indirectly, including by way of an open network such as the Internet. This includes streaming services, and thus illegal streaming sites infringe upon this right.
The Proof: Statutory and Doctrinal Basis
1. The Section 14 of the Copyright Act, 1957 provides for the exclusive rights of the copyright owner which includes reproduction of the work, issuing copies of the work, and communicating the work to the public. It is clear that the websites indulging in illegal streaming and downloading activities violate the right of communication to the public, which is one of the many rights provided under the Copyright Act, 1957.
2. The Section 51 of the Copyright Act, 1957 lays down the various acts of infringement, such as allowing the place for the communication to the public of an infringing reproduction for the purpose of commercial exploitation. Thus, the courts have used this section while passing directions against the website operators and the Internet Service Providers (ISPs).
3. The Section 79 of the Information Technology Act, 2000 provides a safe harbour for the intermediaries, which shields them from liability for the third party content upon certain conditions. The conditions include no modification of the information, no selection or alteration of information by the intermediary, no initial involvement of the information passing through the intermediary server, and taking down the information as soon as possible upon notice from the court or the user. Therefore, this Section allows the court to direct the ISP to block access to a website as an intermediary.
4. The Order XXXIX, Rule 1 and 2 of the Code of Civil Procedure, 1908 deals with the general principles and the guidelines for temporary injunctions. The Indian Courts have adopted a special form of temporary injunction, which is the John Doe Injunction, and have also given directions for a dynamic injunction.
5. The Copyright (Amendment) Rules and the Guidelines issued by the Delhi High Court allows the copyright owners to seek injunction against the infringing websites. The Copyright (Amendment) Rules provides that a new writ petition can only be filed if the website has changed its domain name or is a mirror site of the infringing website. Thus it reduces the time and burden faced earlier by the copyright owners, as they had to go to the court every time to file a new petition against each infringing website.
6. The Indian Courts have interpreted “predominant purpose” in order to decide if a website operating as a ‘rogue’ should be blocked in its entirety or only the infringing URL must be taken down.
It is evident that the aforesaid laws provide for a hybrid remedy for copyright infringement by websites as the copyright law offers the legal foundation based on the infringement, the Information Technology Act allows the court to direct the ISP to block the access and the civil procedure law enables the flexible injunctive relief and its extensions.
Abstract:
Online piracy of films, television content, music, and sports events has seen its challenges diversified over years. It has moved from a relatively straightforward infringement issue of taking down specific infringing websites to a more complex one. Websites found to be violating laws by providing pirated content get taken down; however, in their place, mirror sites emerge with slightly different web addresses to continue infringement activities. This article focuses on the Indian judiciary’s response to the problem and its attempts to tackle the persistent unauthorized reproduction and distribution of copyrighted content. From the early reliance on John Doe orders against anonymous copyright infringers, the Indian judiciary turned to the dynamic injunction mechanism. This mechanism allows a plaintiff to apply to a court to add additional websites to the injunction list by demonstrating that they are mirror images of the already infringing sites. The article then focuses on the Copyright Act, 1957, and Information Technology Act, 2000, which provides the legal basis for website blocking in India. It further discusses the relevant Indian case law that revolves around the issue of rogue websites, including cases about the film industry, sports, and other content providers, as well as the rights of anonymous defendants, including website operators. The main arguments of Digital Rights defenders are also considered. They state that the blocking of websites is too crude a remedy that may cause unwarranted damage to legitimate content websites and deny Internet users their right to equal access to the Internet. The article concludes that the dynamic injunction is a sensible approach in curbing online copyright infringement, but it should be used sparingly to avoid the danger of outright Internet censorship. Courts hearing digital copyright infringement cases should be highly cautious in adopting the dynamic injunction to ensure they have sufficient evidence of a site being a mirror of an infringing site rather than just relying on the claim of the rights holder.
Case Law:
Important Copyright Litigation Cases in India Pertaining to Injunction Against Torrent and Streaming Websites Cases :
1. UTV Software Communications Ltd. v. 1337x.to and Others, 2019 (Delhi High Court) This case is one of the foundational judgments in the dynamic injunction jurisprudence in India. The Plaintiff UTV along with other film production companies approached Delhi High Court against torrent and streaming websites such as 1337x.to that kept reappearing on different domain names despite being blocked. The High Court recognized that for such an injunction it would be completely unviable to allow copyright owners to institute fresh proceedings and passed a judgement allowing them to apply before the Joint Registrar to extend or vary the existing injunction in respect of any new domain name coming up as a mirror of any of the websites specifically named in the judgement by virtue of the website having as its ‘predominant purpose’ the infringement of copyright. The judgment created the precedent for the ‘dynamic injunction’ which has been adopted by many copyright owners in India since to combat similar situations of websites reappearing on different domain names after being blocked. The judgment is relevant to the current proceedings because it represents the beginning of dynamic injunction jurisprudence in India.
2. Star India Pvt. Ltd. and Disney Enterprises v. Various Rogue Websites (Delhi High Court, multiple orders, ongoing through the 2020s) Star India is one of the leading broadcasters of cricket matches in India and Disney Enterprises owns the broadcasting rights to Disney’s cinematic content. In various instances throughout the 2010s till today, Star India and Disney Enterprises have approached Delhi High Court for interim injunctions before the commencement of cricket matches and the release of films respectively. The proceedings in these matters further developed the law on quia timet injunctions which grant injunctions at the very beginning of proceedings when an event is about to happen so as to prevent irreparable harm, which in these cases were live broadcasts of sports events. The jurisprudence on dynamic injunctions was further expanded to include granting injunctions against a list of websites anticipated to carry infringing content on the basis of their history of doing so in similar situations, as well as injunctions granted during the live broadcast against websites that cropped up specifically during the event to provide unauthorised streaming of the matches.
3. Eros International Media Ltd. v. BSNL and Others, 2016 ( Bombay High Court) One of the early cases in India in the injunction jurisprudence against torrent websites, this case was filed by a film production house against telecom companies to block access to websites which had uploaded pirated copies of the plaintiff’s films. This case has been cited in later judgments in this area to demonstrate the Bombay High Court’s interpretation of the provisions of the Information Technology Act, 2000 and the balancing of the interests of the parties concerned.
4. Disney Enterprises, Inc. and Others v. Kimcartoon and Others, 2022 ( Delhi High Court) Another injunction case in the dynamic injunction jurisprudence, but concerning animated shows and web series. The judgment further developed the law by stating that in cases where a website is found to be a ‘mirror’ of another website already blocked under the injunction, it too could be added to the list of blocked domains by way of a simple application to the Joint Registrar. The judgment demonstrates the application of the dynamic injunction principles beyond cinema and sports to animated shows and web series, and therefore is relevant to the current proceedings.
5. MSM Satellite (Singapore) Pte. Ltd. v. Bharat Sanchar Nigam Ltd., 2010 ( Bombay High Court) An injunction suit against live telecast piracy concerning a cricket match, wherein the plaintiff sought urgent injunctions against telecom companies from letting their networks be used for unauthorized telecasts of the match. Though occurring earlier than the dynamic injunction jurisprudence, this case concerns early developments in injunctions in live broadcast piracy and is often cited as setting some of the foundational principles for later cases such as Star India Pvt Ltd v Various Rogue Websites .
Conclusion:
The dynamic injunction is one of the more inventive procedural adaptations Indian courts have made in response to a genuinely difficult enforcement problem: copyright law’s traditional remedies were built for a world of identifiable, static infringers, not a world in which an infringing website can be resurrected under a new domain name within hours of being blocked. By allowing rights-holders to extend an existing injunction to mirror websites through a simplified application rather than fresh litigation, the Delhi High Court’s jurisprudence in UTV Software v. 1337x and its progeny has meaningfully reduced the practical futility that copyright owners previously faced in policing online piracy.
At the same time, this remedy raises legitimate concerns that deserve continued judicial attention. Website-blocking orders are typically obtained on an ex parte basis, without any opportunity for the blocked website’s operator to be heard, and the “predominant purpose” test, while a useful screening device, still requires careful, case-by-case application to avoid sweeping in websites that host substantial lawful content alongside isolated infringing material. There is also a broader policy question about the appropriate scope of judicial versus legislative rule-making in this area: dynamic injunctions have been developed almost entirely through case law, with relatively limited statutory guidance, which creates some uncertainty about consistency across different High Courts and benches.
Going forward, the most durable path is likely a combination of continued judicial refinement — ensuring dynamic injunctions remain tethered to genuine mirror-site evidence rather than becoming a mechanism for broad discretionary blocking — and legislative or regulatory clarification that codifies the standards for mirror-site identification, intermediary compliance timelines, and avenues for affected website operators to contest a blocking order after the fact. Piracy will continue to evolve technologically, through decentralised hosting, blockchain-based domains, and other circumvention techniques that current blocking mechanisms may struggle to reach; the resilience of the dynamic injunction as a remedy will depend on courts’ continued willingness to adapt procedure to technology, without losing sight of due process for those on the receiving end of an injunction they never had the chance to contest.
Frequently Asked Question:
Q1. What is the difference between a John Doe order and a dynamic injunction?
A John Doe Order is a type of injunction that is issued against unknown or unnamed defendants at the time when the suit is instituted. It is normally applied when a rights-holder knows of infringement but is ignorant of the exact identity of the infringers at the said time. A dynamic injunction on the other hand permits a rights-holder to expand upon an existing injunction by adding new mirror websites that host his content to the list of blocked websites as and when they are discovered. This is done by the rights-holder applying to the court that issued the original injunction, showing cause why the new websites must be added to the list of blocked websites. The application is normally made simple on grounds that the new websites are merely copies of the initially blocked sites.
Q2. When an injunction is sought, could the entire website be blocked or only particular pages of the site be targeted?
Indian courts have largely favoured injunction orders that target specific URLs rather than entire websites unless it has been established that the website being blocked falls under the category of ‘rogue websites’. A ‘rogue website’ is one whose primary function is to provide access to pirated content. The courts adopt the predominant purpose test as laid down in the UTV Software case to determine which of these categories a website falls under.
Q3. Can an Internet Service Provider (ISP) be held liable for hosting or transmitting pirated content?
An Internet Service Provider cannot be held liable for facilitating access to pirated content so long as it adheres to the terms set down in the Information Technology Act 2000. This is explicitly stated in the safe harbour guideline under Section 79 of the said Act. In cases where a content-owner seeks a blocking order against an ISP, it is normally the ISP that applies to the court to issue such an order and not the content-owner itself. The reason for this is that ISPs have the infrastructure needed to enforce such a blocking order.
Q4. Does a website operator get an opportunity to be heard before a website is blocked or does it happen ex parte ?
Website operators are rarely if ever given an opportunity to be heard before a website blocking order is issued against them. This is because such orders are usually granted ex-parte. The practice has since met with strong criticism as being unjust to the defendant web operators, especially in cases involving live streaming of sports tournaments. As a result, a number of jurisdictions including India now allow the website operator to have a say in the matter immediately after the injunction is issued but before any court hearing on the matter takes place.
Q5. Is India’s approach to website blocking unique or dynamic injunctions the norm elsewhere too?
Several other jurisdictions, including the UK and Singapore also have injunction regimes that allow for a certain level of dynamism in terms of adding new URLs to website blocking orders. This has primarily been in the domain of sports rights owners seeking to restrict live streaming of sports events. The approach that has gained the most currency however is the one pioneered by India in the UTV Software case and later modified in the Star India litigation. This approach provides the most efficient means of dealing with the problem of rapidly proliferating mirror sites.
