Online Digital Piracy: The Role of Dynamic Injunctions and the Way Forward

Introduction

“Fight piracy; don’t squash innovation.” 

~ Joe Kraus

The menace of Online Piracy has been growing all around the world for years now. The parasite of piracy has penetrated deep into the field of televisions, movies, software, video games, and even books. In 2020 around 130 billion visits were made to pirated websites with the US leading the table while India ranks 4^th after Russia and China with 5.6 billion visits to piracy sites. During the pandemic, global film piracy increased by 33% with Italy being on top for both film and movie piracy while India ranks second.^[1]

On one hand, the Indian film industry earns around $2 billion from legitimate sources, of which more than 35% is being earned through piracy.^[2] In UTV Software Communication Ltd v 1337X.TO and Ors, the film primarily in question was spread over the internet by “Flagrantly Infringing Online Locations” (FIOLs) or Rogue websites. These are the websites that primarily share infringing/pirated content.^[3] Through a covert functioning, these websites, either stream content themselves or provide searchable links which direct the end-user to another FIOL. It was alleged that the websites were allowing downloading and streaming of copyrighted content of the plaintiff. Moreover, mirror websites were created upon the takedown of other websites. The court went on to discuss the feasibility of website blocking and reached an interesting conclusion.

Website Blocking

Nowadays website blocking has become a tool to curb digital piracy, whereby, countries are making Internet Service Providers restrict access to alleged infringing online websites^[4]. The increasing technological development has made the act of website blocking a necessity, especially in the context of FIOLs as it is difficult to identify the exact source. There are three key methods of website blocking which are currently in use around the world i.e., Internet Protocol (IP) Address blocking, Domain Name System (DNS) blocking, and Uniform Resource Locator (URL) blocking^[5]. Statistically, blocking websites has depicted a positive impact on consumer behaviour. The latest CMU study registered a 90% drop in user visits to blocked sites thereby increasing the consumption of legal content and plummeting down the consumption of the pirated sites.

However, these techniques of website blocking often lead to over-blocking of websites, resulting in the jeopardization of legal content. Also, there are findings that people in power are using it as a tool for curbing legitimate access for users^[6]. Furthermore, there is a lack of awareness among clients regarding website filtering. To remedy this, some DNS software suppliers currently provide clients with an update to their DNS systems that bans harmful domains, by using a comparable procedure as to what is necessary for website filtering.^[7]

Website blocking: Anti to Internet Exceptionalism?

The Internet Exceptionalists such as the Electronic Frontier Foundation believe that the main purpose of the World wide web is to make people self-reliant. However, most of the rogue websites are not even close to the ideology of internet freedom, their only concern is monetary. It is bewildering to know that the global market for digitalized infringement is huge. According to a report, 589 of the most popular piracy websites made over $200 million in 2014.^[8] If the exceptionalist viewpoint is followed, the copyright could never be protected. For the sake of larger public good, the proponents of blocking infringing websites, cannot be termed as non-supporter of open Internet.

Tests of rogue website blocking: whether qualitative or quantitative?

In the case of Eros International Media vs. BSNL,^[9] the court laid down that, for blocking the entire website the plaintiff must prove that the website uploads only illegal content. A “three-step verification test” was evolved which consisted of verification by an independent entity, extensive documents being placed on record, and an affidavit on oath.

However, the approach taken in the case of Department of Electronics and Information Technology v. Star India Pvt. Ltd^[10] was different. Herein the court has taken a qualitative approach instead of a quantitative one, the reason being the inefficiency of URL blocking and the ease with which it can be regenerated. The qualitative test is satisfied when the rogue websites hide behind the veil, facilitate infringement by providing indexing, encourage the user to circumvent detection, and records high frequency of user visits.

Issue of hydra-headed rogue website and the concept of dynamic injunction.

What is a hydra-headed rogue website? As per Greek mythology, the term Hydra is a serpent-like monster having nine heads. It was believed that if one hydra head is cut off, then two more would grow subsequently. Similarly, when websites are blocked, they essentially reproduce as alphanumerical or mirror websites. In this case, it becomes very difficult to block every such website following the long procedure. So, keeping this in mind the courts around the world have adopted the concept of “Dynamic Injunction”. The High Court of Singapore in the case of Disney Enterprise v. MI Ltd^[11]., after considering the judgment in 20^th Century Fox v. British Telecommunications^[12] and Cartier International AG v. British Sky Broadcasting^[13] held that: The court possesses the authority to pass a dynamic injunction, being the “sensible step to deactivate entry to the egregiously intruding internet page.” It merely prohibits new methods of reaching the same pirated websites, rather than prohibiting new copyrighted websites that are not covered by the main injunction.

In India there is no law as such for issuance of “Dynamic Injunction”, but in order to meet the pressing needs, the courts are granting such injunction by exercising their Inherent Powers under section 151 of the Civil Procedure Code, 1908. Parties can implead the mirrored websites under Order 1 Rule 10 CPC. In order to reduce the burden on courts the joint registrar of the Delhi High Court has been delegated the power to adjudicate upon the issue of the additional website being added to the existing blocking order.

Dynamic Injunction and the Ambiguous Approach

Hitherto, there is no specific procedure laid down by the courts for Dynamic Injunction, it only grants the liberty to file an application to implead. The anomaly was reflected in the case of Disney Enterprise Inc & Ors v. kimcartoon,to & Ors^[14] wherein the court gave liberty to “array the other rogue websites if the same are discovered after the issuance of the instant interim order”. This direction is in excess of the previously issued Dynamic Injunctions where the Joint Registrar was restricted merely to examine whether the new websites are mirror links of already injuncted websites. The role of the Joint Registrar becomes Judicial rather than administrative, as assessing the new websites for injunction requires judicial application of mind. Moreover, the court hints at examining the new websites afresh and passing interim order “if necessary”. This direction dilutes the very purpose of Dynamic Injunction as it requires fresh assessment of new websites which ultimately burdens the court. The UTV Software decision has certain drawbacks concerning the evidentiary value of rogue websites, like unilateral reliance on the plaintiff’s evidence, and lack of effective communication of blocking orders to the aggrieved parties thereby prejudicing their right to appeal.^[15]

Role and Concerns of ISPs

The Supreme Court in the case of Shreya Singhal v. Union of India^[16] held that “The necessary awareness that compels an intermediary to function is when it gets a Judicial order instructing access blocking. The simple recipient of a notification doesn’t really mandate the intermediaries to respond and remove things.” Section 2(1)(w) of the IT Act, 2000 defines who are intermediaries which includes ISPs. Section 79 of the IT Act, 2000 provides ISP a “safe harbour” stating that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.

Damocles Sword hanging over the head of ISPs

There is no direction on cost bearing of blocking orders by the court, with respect to the right holder or the ISP itself. Ideally, the right holders should bear the cost of blocking orders, because they are getting an advantage out of such actions. In the United Kingdom, the Supreme Court gave clarity over this issue in the case of Cartier International AG & Ors v. British Telecommunication Plc & Anr. Holding^[17] that ISPs acting as ‘mere conduits’ to IP infringement should generally be indemnified by right holders for the cost of implementing website blocking orders. The Safe Harbour policy for ISPs may be diluted with the introduction of the draft Digital India Bill, 2023. where the government hinted at making the liabilities of ISPs more stringent than the existing rules and regulations under the IT Act, of 2000. Also, the Draft E-commerce Policy 2019, provides for a dedicated government agency to identify and verify rogue websites thereby giving take-down orders.^[18]

Existing Enforcement Mechanism and Scope for Improvement

Existing enforcement mechanism includes injunction suits, criminal actions, take-down notices, and cease & desist notices. Tackling online infringement has become a herculean task, as it requires a structured investigation strategy, inclusive of online surveillance using high-tech tools for the identification of the most relevant targets. For example, while registering the domain name, providing basic contact information, and making payment of the applicable fees one can register a domain name. This provides an easy gateway for cybersquatting (i.e., to obtain a domain name comprising someone else’s trademark). This shows a very lackadaisical or laidback approach being taken while registering such domains. It is quite important that the identity of the registrant gets verified, as it ensures the non-anonymity of the registrant. ^[19]

One emerging technological tool for curbing online piracy can be Blockchain Technology. A blockchain-based Domain Name System can be used to block DNS attacks. Based on consortium blockchain a secure and innovative domain name service can be produced using the Consensus Algorithm^[20]. Smart Contracts which is a computer program stored on the blockchain, is a self-executing contract, that works on blockchain networking with self-verification and tamper-resistant properties, where no third party, such as a broker or an authority, is required to participate in the execution. Solidity is the most talked about programming language which is used to implement smart contracts over a variety of blockchain platforms. ^[21]These new emerging technologies can be used to create a robust and secure internet thereby paving the way for future innovation and development.

The Government should encourage the service providers to deploy such technologies to minimize the risk of fake domain registration. The purchase of this computer software and programming should be subsidized so that it can reach the maximum number of ISPs irrespective of their public outreach. Instead of making a dedicated government agency, the government can obligate the ISPs to install security mechanisms based on blockchain. It is true that the development of these technologies is at a nascent stage but in the near future, this can be an effective tool for fighting Online Piracy.

(This post has been authored by Shashank Mohan Prasad, a fourth-year law student at DSNLU, Vishakhapatnam.)

References

1. Online Piracy in numbers- Facts and Statistics, https://www.go-globe.com/online-piracy/ accessed 10 June 2023 ↑
2. IANS, Indian Films Are Losing $2.7 Billion To Piracy Every Year (The Quint 22 August 2016) https://www.thequint.com/entertainment/indian-films-are-losing-dollar27-billion-to-piracy-every-year accessed 12 June 2023. ↑
3. DEITY Vs. Star India Pvt. Ltd, FAO (OS) 57/2015) ↑
4. Mr. Nigel Cory, “How Website Blocking Is Curbing Digital Piracy Without “Breaking the Internet”,(Information Technology & Innovation Foundation (ITIF), 22 August 2016) https://itif.org/publications/2016/08/22/how-website-blocking-curbing-digital-piracy-without-breaking-internet/ accessed on 14 June 2023. ↑
5. Digital Economy and Act Advice, Site Blocking to Reduce Online Copyright Infringement’ ↑
6. Clifford J. Levy, Russia Uses Microsoft to Suppress Dissent, The New York Times, September 11, 2010, https://www.nytimes.com/2010/09/12/world/europe/12raids.html accessed on 16 June 2023. ↑
7. Ron Moscona, Website Blocking Orders – A New Tool in the Fight Against Online Trade in Counterfeit Goods, Dorsey, October 24, 2014 https://www.dorsey.com/newsresources/publications/2014/10/website-blocking-orders–a-new-tool-in-the-fight__ accessed on 15 June 2023. ↑
8. Supra note 7. ↑
9. Eros International Media vs. BSNL, Suit No. 751/2016. ↑
10. Department of Electronics and Information Technology v. Star India Pvt. Ltd, 2016 SCC OnLine Del 4160 ↑
11. Disney Enterprise v. MI Ltd, (2018) SGHC 206 ↑
12. 20^th Century Fox v. British Telecommunications, Plc [2011] EWHC 1981 (Ch) ↑
13. Cartier International AG v. British Sky Broadcasting, [2014] EWHC 3354 (Ch) ↑
14. Disney Interprise Inc & Ors v. Kimcartoon.to & Ors CS(COMM) 275/2020 ↑
15. Nikhil Purohit, Delhi High Court’s Dynamic Injunction in favour of Disney: An Unclear and overbroad exercise? 3 August, 2020, Delhi High Court’s Dynamic Injunction in Favour of Disney: An Unclear and Overbroad Exercise? – Spicyip, accessed on 18 June 2023. ↑
16. Shreya Singhal v. Union of India, AIR 2015 SC 1523 ↑
17. Cartier International AG & Ors v. British Telecommunication Plc & Anr, [2018] UKSC 28. ↑
18. Pranay Bali & Nayantara Malhotra, To Block or not to block? : Analysing the efficacy of website blocking orders and Dynamic Injunctions in combating Digital Piracy, Indian Journal of Intellectual Property Law, 2020 ↑
19. Saif Khan & Shobhit Agrawal, Policing and Takedown Strategies for Rouge Websites, 02 February 2023, https://www.worldtrademarkreview.com/global-guide/anti-counterfeiting-and-online-brand-enforcement/2022/article/policing-and-takedown-strategies-rogue-websites accessed on 18 June 2023. ↑
20. Wen-Bin Hsieh, Jenq- Shiou Leu & Jun-Ichi Takada, Use Chains to Block DNS Attacks: A Trusty Blockchain-based Domain Name System, Journal of Communications and Networks, Vol. 24, No. 3, June 22. ↑

21. B. K. Mohanta, S. S. Panda and D. Jena, “An Overview of Smart Contract and Use Cases in Blockchain Technology,” 2018 9th International Conference on Computing, Communication and Networking Technologies (ICCCNT), Bengaluru, India, 2018, pp. 1-4, doi: 10.1109/ICCCNT.2018.8494045. ↑

CITE AS: Shashank Mohan Prasad, ‘ ONLINE DIGITAL PIRACY: THE ROLE OF DYNAMIC INJUNCTIONS AND THE WAY FORWARD. ‘ (The Contemporary Law Forum, 07 September 2023) <
tclf.in/2023/09/07/online-digital-privacy-the-role-of-dynamic-injunctions-and-the-way-forward/> date of access.