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2019 SCC OnLine Del 11145 : (2019) 80 PTC 435

In the High Court of Delhi at New Delhi

(BEFORE PRATEEK JALAN, J.)

Novi Digital Entertainment Pvt. Ltd. and Another …

Plaintiffs;
Versus
Five Desi and Others … Defendants.
CS(COMM) 1249/2016 & I.A. 2487/2019
Decided on November 7, 2019
Advocates who appeared in this case:
Mr. Sidharth Chopra, Mr. Yatinder Garg & Ms. Disha Sharma,
Advocates.
Mr. Pragalbh Bhardwaj, Advocate for D-13.
Mr. Gaurav Rohilla, Senior Government Counsel for D-24 & D-25
The Judgment of the Court was delivered by
PRATEEK JALAN, J. (Oral):— The plaintiffs have filed the present suit
against 25 named defendants and various unidentified defendants
arrayed as “Ashok Kumar” (defendant nos. 26 to 40). Plaintiff no. 1
owns a digital platform “HOTSTAR” through which it offers online
streaming services to the public by way of mobile applications and web
browsers. It offers general entertainment content and also produces
original content for offer through its platform. Plaintiff no. 1 is a wholly
owned subsidiary of plaintiff no. 2, which is an entertainment and
media company. The claims of the plaintiffs are premised on an
allegation of illegal and unauthorised distribution, broadcast,
rebroadcast, transmission and streaming of the plaintiffs' content by
the defendant nos. 1 to 7 (hereinafter referred to as the “defendant-
websites”) to the public.
2. The plaintiffs claim that, as a result of the unauthorised
transmission of their content, the defendant-websites infringe their
copyright in the original works produced by them, which is protected
under the provisions of the Copyright Act, 1957 (hereinafter referred to
as “the Act”).
3. Other than the defendant-websites, the plaintiffs have impleaded
various Internet Service Providers as defendant nos. 8 to 23
(hereinafter referred to as “defendant-ISPs”) and the concerned
departments of the Government of India as defendant nos. 24 and 25
(hereinafter referred to as “the Government”). Defendant nos. 8 to 25
have been impleaded to ensure compliance with the orders of Court and
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no substantive relief has been sought against them.

4. The plaintiffs allege that the defendant-websites are “rogue
websites” owned and managed by an organisation called “Desi
Five” (defendant no. 1). The plaintiffs conducted an investigation
through two independent investigators, which revealed that the
defendant-websites are part of a network registered by the same
registrant with a common physical and/or email address, and that
these websites are primarily engaged in hosting, streaming,
broadcasting, re-transmitting and communicating infringing content to
the public. According to the plaintiffs, the anonymous nature of the
websites makes it impossible to identify them effectively. The notices
issued by the plaintiffs to the defendant-websites have not elicited any
response.
5. On the basis of the aforementioned allegations, the plaintiffs have
sought the following reliefs:—
“(i) Pass an order and decree of permanent injunction restraining the
Defendant No. 1 to 7 (and such other websites/entitles which are
discovered during the course of the proceedings to have been
engaging in infringing the Plaintiff's exclusive rights), its owners,
partners, proprietors, officers, servants, employees, and all others
in capacity of principal or agent acting for and on their behalf, or
anyone claiming through, by or under it, from, in any manner
hosting, streaming, making available for viewing and
downloading, providing access to and/or communicating to the
public, displaying, uploading, modifying, publishing, updating
and/or sharing (including to its subscribers and users), on their
websites, through the internet in any manner whatsoever, any
cinematography work/content/programme/show in relation to
which Plaintiffs' have copyright.
(ii) Pass an order and decree of permanent injunction restraining the
Defendant 1 to 7 (and such other websites/entities which are
discovered during the course of the proceedings to have been
engaging in infringing the Plaintiff's exclusive rights), their
owners, partners. Proprietors, officers, servants, employees, and
all others in capacity of principal or agent acting for and on their
behalf, or anyone claiming through, by or under it, from in any
manner broadcasting, rebroadcasting, retransmitting, making
available for viewing and downloading, providing access to and/or
communicating to the public, displaying, uploading, modifying,
publishing, updating, sharing (including to its subscribers and
users), on their websites, through the internet in any manner
whatsoever, the broadcast of the content aired on the Star
Channels, to which the Plaintiff No. 2 has exclusive broadcast
reproduction rights;
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(iii) Pass an order and decree directing the Defendant No. 8 to 23,
their directors, partners, proprietors, officers, affiliates, servants,
employees, and all others in capacity of principal or agent acting
for and on their behalf, or anyone claiming through, by or under
it, to block access to the various Rogue Defendant Websites
identified by the Plaintiffs in the instant suit at page 6 of the
Documents;
(iv) Pass an order and decree directing the Defendant Nos. 24 and
25, to issue a modification calling upon the various internet and
telecom service providers registered under it to block access to
the various Rogue Defendant Websites identified by the Plaintiffs
in the instant suit at page 6 of the Documents;
(v) An order for damages of Rs. 2,00,02,000/- to be paid by the
Defendant No. 1 to 7 (and such other websites/entities which are
discovered during the course of the proceedings to have been
engaging in infringing the Plaintiff's exclusive rights) to the
Plaintiffs on account of their illegal and infringing activities and a
decree for the said amount be passed in favour of the Plaintiffs
(the Plaintiff reserves its right to claim additional damages and
amend the pleadings accordingly once the magnitude of the
Rogue Defendant Websites' illegal/infringing activities and the
revenues earned in pursuance to such illegal/infringing activities
is ascertained upon discovery in the instant action;
(vi) An order for delivery up of all the apparatus and/or material that
the Defendant No. 1 to 7 (and such other websites/entities which
are discovered during the course of the proceedings to have been
engaging in infringing the Plaintiffs' exclusive rights) use or may
be using to infringe the Plaintiffs' copyrights and broadcast
reproduction rights, to the authorized representatives of the
Plaintiffs for the purpose of destruction;
(vii) An order for rendition of accounts of profits illegally earned by
the Defendant Nos. 1 to 7 (and such other websites/entities which
are discovered during the course of the proceedings to have been
engaging in infringing the Plaintiff's exclusive rights) on account
of their illegal hosting, streaming, publishing, exhibiting, making
available and/or communicating to the public of the
content/programme/show to which the Plaintiffs' own exclusive
copyrights, and the broadcast of the content aired on the STAR
Channels and/or on hotstar.com to which the Plaintiff No. 2's own
exclusive broadcast reproduction rights;
(viii) An order for costs in the present proceedings in favour of the
Plaintiffs;
Any other Order(s) as this Hon'ble Court may deem fit and proper
in the facts and circumstances of the case may also be passed in
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favour of the Plaintiffs.”

6. This Court passed an ex-parte ad-interim order of injunction on
09.09.2016 in following terms:—
“12. Accordingly, till further orders, the defendants No. 1 to 7 and
26 to 40, their owners, partners, proprietors, officers, agents,
representatives, etc., are restrained from hosting, streaming, making
available for viewing and downloading, providing access to and/or
communicating to the public, displaying, uploading, modifying,
publishing, updating and/or sharing on their websites, through the
internet in any manner whatsoever, any cinematograph
work/content/programme/show in relation to which the plaintiffs
have a copyright, including the content aired on the Star Channels,
on which the plaintiff No. 2 has exclusive broadcast reproduction
rights and HOTSTAR in respect whereof the plaintiff No. 1 has the
exclusive broadcast rights. Further, defendants No. 8 to 23 shall
ensure compliance of this order by blocking the websites of the
defendants No. 1 to 7 and the access to the rogue websites
identified in paras 23 and 25 of the plaint.”
7. By a further order dated 19.09.2016, defendant nos. 24 and 25
were directed to issue notifications directing the defendant-ISPs and
other ISPs to block the websites of defendant nos. 1 to 7.
8. Service of the suit was recorded as having been completed by the
order of the Joint Registrar dated 02.11.2018, defendant nos. 1 to 7
having been served through email. Although some of the defendant-
ISPs filed affidavits of compliance and/or written statements in the suit,
the defendant-websites did not enter appearance and their right to file
written statements was closed by the order of the Joint Registrar dated
13.02.2019.
9. The plaintiffs thereafter filed IA no. 2487 of 2019 for summary
judgment in the suit in terms of prayers (i) to (v) of the plaint. Service
of the application was ordered and an affidavit of service was filed by
the plaintiffs demonstrating service of the application on all the
defendants.
10. In support of the present application, Mr. Sidharth Chopra,
learned counsel for the plaintiffs has taken me through the allegations
contained in the plaint and the documents placed on record by the
plaintiffs. He presses the reliefs sought in prayers (i) to (iv) and an
order of costs. All other reliefs are expressly given up by Mr. Chopra. He
relies upon the judgment of a coordinate bench in UTV Software
Communication Ltd. v. 1337X, (2019) 78 PTC 375 (Del.) [(CS (COMM)
724/2017) and connected matters, decided on 10.04.2019] which deals
with the determination of rogue websites and the proper orders to be
passed in such cases extensively.
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11. In UTV Software (supra), the Court heard arguments on behalf

of the plaintiffs therein and also appointed an amicus curiae. As in the
present case, neither the ISPs impleaded therein nor the Government
of India advanced any submission on merits. In circumstances virtually
identical with the present case, the Court came to the conclusion that
the concerned websites were liable for copyright infringement under
Section 51 of the Act and were not entitled to exemptions under 51(1)
(c) of the Act or Section 79 of Information Technology Act, 2000. As far
as rogue websites are concerned, the Court identified the following
illustrative factors to be considered in determining whether a particular
website falls within that class:—
“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;
j. Any other relevant matter.”
12. The evidence placed on record by the plaintiffs in support of the
claims in the suit include affidavits of Ms. Silky Gandhi dated
29.08.2016 and Ms. Preethi Mahtani dated 29.08.2016, who conducted
the investigation into the defendant-websites at the instance of the
plaintiffs. The affidavit of Ms. Silky Gandhi states that she monitored
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the websites between December 2015 and January 2016. She has
referred to notices issued to the defendant-websites and also placed on
record screenshots of content playing on those websites. She has
averred that the registrants of the websites are unidentifiable due to
domain privacy services. Ms. Preethi Mahtani inter alia has stated that
she has monitored the defendant-websites between December 2015,
March 2016 and reviewed in August 2016. She has also referred to the
notices issued to the defendant-websites and to the domain privacy
services as a result of which their true ownership is masked.
13. In support of his contention that the defendant-websites are
liable to be treated as “rogue websites”, Mr. Chopra has drawn my
attention to the following documentary evidence in respect of each of
them:—
Defendant No. 1:
S. No. Document Court Record
Reference
1. Desi-tashan.com Pg. 1294-1296,
WHOIS Vol.VIII, Folder IV
2. Desi-tashan.com Pg. 1297-1823,
evidence Vol.VIII-X, Folder IV
3. Notice to Desi- Pg. 1299-1328, Vol.
tashan.com dated VIII Folder IV
09.12.2015 along
with Screenshots
4. Notice to Desi- Pg. 1366-1392, Vol.
tashan.com dated VIII, Folder IV
12.12.2015 along
with Screenshots
5. Notice to Desi- Pg. 366-371, Vol. III,
tashan.com dated Folder IV
15.12.2015 along
with Screenshots
6. Notice to Desi- Pg. 1469-1487, Vol.
tashan.com dated VIII-IX, Folder IV
21.12.2015 along
with Screenshots
7. Notice to Desi- Pg. 1603-1629, Vol.
tashan.com dated IX, Folder IV
31.12.2015 along
with Screenshots
8. Screenshots of Desi- Pg. 1630-1680, Vol.
tashan.com in March IX, Folder IV
2016
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9. Notice to Desi- Pg. 1681-1823, Vol.

tashan.com dated IX-X, Folder IV
11.08.2016 along
with Screenshots

Defendant No. 2:
S. No. Document Court Record
Reference
1. Desifive.com WHOIS Pg. 1824-1828, Vol.
X, Folder IV
2. Desifive.com evidence Pg. 1827-2251, Vol. X
-XII, Folder IV
3. Notice to Pg. 1829-1840, Vol.
Desifive.com dated X, Folder IV
01.12.2015 along
with Screenshots
4. Notice to Pg. 1898-1914, Vol.
Desifive.com dated XI, Folder IV
08.12.2015 along
with Screenshots
5. Notice to Pg. 1940-1952, Vol.
Desifive.com dated XI, Folder IV
14.12.2015 along
with Screenshots
6. Notice to Pg. 1992-2006, Vol.
Desifive.com dated XI, Folder IV
21.12.2015 along
with Screenshots
7. Screenshots of Pg. 2021-2115, Vol.
Desifive.com in March XI-XII, Folder IV
2016
8. Notice to Pg. 2116-2251, Vol.
Desifive.com dated XII, Folder IV
11.08.2016 along
with Screenshots

Defendant No. 3:
S. No. Document Court Record
Reference
1. Desi-tashan.com Pg. 2252-2255, Vol.
WHOIS XII, Folder IV
2. Desi-tashan.co Pg. 2256-2693, Vol.
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evidence XII-XIV, Folder IV

3. Notice to desi- Pg. 2266-2269, Vol.
tashan.co dated XIV, Folder IV
12.08.2016 along
with Screenshots
4. Screenshot of desi- Pg. 2281-2693, Vol.
tashan.com in August XII-XIV, Folder IV
2016

Defendant No. 4:
S. No. Document Court Record
Reference
1. Embed.pk WHOIS Pg. 2694-2696, Vol.
XV, Folder IV
2. Embed.pk evidence Pg. 2697-2779, Vol.
XV, Folder IV
3. Notice to embed.pk Pg. 2697-2705, Vol.
dated 07.12.2015 XV, Folder IV
along with
Screenshots
4. Screenshot of Pg. 2704-2705, Vol.
embed.pk in XV, Folder IV
December 2015
5. Screenshot of Pg. 2706-2755, Vol.
embed.pk in March XV, Folder IV
2016
6. Notice to embed.pk Pg. 2756-2760, Vol.
dated 11.08.2016 XV, Folder IV
7. Screenshot of Pg. 2761-2779, Vol.
embed.pk in August XV, Folder IV
2016

Defendant No. 5:
S. No. Document Court Record
Reference
1. Vidforu.pk WHOIS Pg. 2780-2782, Vol.
XV, Folder IV
2. Vidforu.pk evidence Pg. 2783-2903, Vol.
XV, Folder IV
3. Notice to Vidforu.pk Pg. 2783-2790, Vol.
dated 03.12.2015 XV, Folder IV
along with
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screenshots
4. Notice to Vidforu.pk Pg. 2850-2855, Vol.
dated 08.12.2015 XV, Folder IV
along with
screenshots
5. Screenshot of Pg. 2856-2900, Vol.
Vidforu.pk in March XV, Folder IV
2016
6 Notice to Vidforu.pk Pg. 2901-2903, Vol.
dated 11.08.2016 XV, Folder IV

Defendant No. 6:
S. No. Document Court Record
Reference
1. Desituber.com Pg. 2904-2907, Vol.
WHOIS XVI, Folder IV
2. Desituber.com Pg. 2908-2916, Vol.
evidence XVI, Folder IV
3. Notice to Pg. 2908-2912, Vol.
Desituber.com dated XVI, Folder IV
12.08.2016 along
with screenshots
4. Screenshot of Pg. 2913-2916, Vol.
Desituber.com in XVI, Folder IV
August 2016

Defendant No. 7:
S. No. Document Court Record
Reference
1. Tashanplayer.com Pg. 2917-2920, Vol.
WHOIS XVI, Folder IV
2. Tashanplayer.com Pg. 2921-3117, Vol.
evidence XVI, Folder IV
3. Notice to Pg. 2921-2954, Vol.
tashanplayer.com XVI, Folder IV
dated 01.12.2015
along with
screenshots
4. Notice to Pg. 3050-3063, Vol.
tashanplayer.com XVI, Folder IV
dated 08.12.2015
along with
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screenshots
5. Notice to Pg. 3064-3073, Vol.
tashanplayer.com XVI, Folder IV
dated 10.12.2015
along with
screenshots
6. Notice to Pg. 3094-3101, Vol.
tashanplayer.com XVI, Folder IV
dated 16.12.2015
along with
screenshots
7. Notice to Pg. 3110-3117, Vol.
tashanplayer.com XVI, Folder IV
dated 18.12.2015
along with
screenshots
8. Screenshot of Pg. 1262-1282, Vol.
tashanplayer.com in VII, Folder IV
December 2015

14. On the basis of the evidence placed on record, and keeping in

mind the factors identified by this Court in UTV Software (supra), I find
that there is sufficient evidence to hold that the defendant-websites are
“rogue websites”:—
a. From affidavits of Ms. Silky Gandhi (paragraph 12) and Ms. Preethi
Mahani (paragraph 13), it appears that the primary purpose of the
defendant-websites is to provide unauthorised and infringing
content to the public. 8.
b. The details of the registrants of each of the websites are masked
and no personal or traceable details are available either of the
registrant or the user.
c. Despite receipt of legal notices, the defendant-websites have not
complied with the requests to take down the infringing content.
d. The defendant-websites contain directories or indexes to facilitate
infringement of copyright.
e. Sample evidence of infringement has been filed before this Court.
An illustrative list of the content in respect of which infringement
is demonstrated has also been filed.
15. In view of the above, I am of the view that the defendants have
no real prospect of success in the suit and the plaintiffs are entitled to a
decree under Order XIII-A of the Code of Civil Procedure, 1908
(hereinafter referred to as “the CPC”).
16. Following the judgment in UTV Software (supra), the defendant
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websites having been identified as rogue websites, the plaintiffs are

entitled to the injunctions sought in prayer clauses (i) and (ii) of the
plaint. The defendant-ISPs and the Government are also liable to be
directed to block access to the defendant-websites and to issue
notifications in that regard.
17. In UTV Software (supra), the Court also examined the issue of
grant of dynamic injunctions and permitted subsequent impleadment of
mirror/redirect/alphanumeric websites which provide access to the
defendant websites, by filing an application under Order I Rule 10 of
the CPC before the Joint Registrar alongwith an affidavit with
supporting evidence, confirming that the proposed website is
mirror/redirect/alphanumeric website of the injuncted defendant-
websites. At Mr. Chopra's request, the same directions are liable to be
made in this case also.
18. The suit is therefore decreed in terms of prayer clauses (i), (ii),
(iii) and (iv) of the plaint, extracted above. The plaintiffs are also
permitted to implead any mirror/redirect/alphanumeric websites which
provide access to the defendant-websites by filing applications under
Order I Rule 10 of the CPC supported by affidavits and evidence as
directed above. Any websites impleaded as a result of such application
will be subject to the same decree. The plaintiffs are entitled to actual
costs of litigation including lawyers' fees and court fees. They will file
an affidavit of their actual costs within two weeks.
19. Decree sheets be prepared accordingly.
20. The suit and pending applications stand disposed of.
———
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