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In an important development for India’s digital economy, the Delhi High Court issued a decision on April 10 that provides a new policy tool for right holders to better protect the intellectual property that is tied up in their copyrighted music, movies, and other digital content. In a case involving digital piracy, the court’s final judgement created a mechanism that allows rightsholders to seek “dynamic injunctions” that require Internet service providers (ISPs) to also block access to the many new large-scale, piracy “mirror” websites that typically arise in reaction to the blocking of a primary piracy website following an initial injunction order. The court decision, informed by ITIF work, means India joins Australia, the United Kingdom, and Singapore and in allowing dynamic injunctions, which represent best practice for policymaking among the growing group of countries that use website blocking to help fight digital copyright infringement—42 countries as of early 2018. Dynamic injunctions are likely to make these website blocking regimes more effective in terms of reducing piracy and increasing legal use of properly licensed content and services. This post provides an analysis of the Indian court case as it provides useful lessons and details showing that it should be part of more countries’ antipiracy toolbox, including the United States.
Website Blocking and Dynamic Injunctions in India: Helping to Protect Creativity in the Digital Era
The Delhi High Court’s detailed judgement is a real-world application and legal consideration of the issues and arguments around website blocking. Based in India’s national capital territory of Delhi, the court has a track record of issuing judgements that change policy across all of India. It’s particularly interesting, as the court used the case at the heart of the matter to consider and enact changes to the broader legal framework for website blocking (which it is has the power to do under India’s Civil Procedures Code). The two parties in the case were UTV Software Communications, a subsidiary of Disney, and 1337x.to, one of 30 piracy sites listed in the case, which did not respond to the summons, presumably since it is hosted by ISPs outside of India. Given this, the court appointed an amicus curiae (someone not party to a case but who assists a court by offering relevant information, expertise, or insight) to assist with its analysis and decision, as the court recognized that there was a broader public interest in analyzing various parts of the case. The amicus curiae made extensive references to ITIF’s report “How Website Blocking Is Curbing Digital Piracy Without ‘Breaking the Internet’,” and the full judgement includes many sections from the report.
Dynamic injunctions are the result of the Delhi court’s consideration as to how to deal with what it called “hydra headed” rogue websites, which, on being blocked in the initial injunction, multiply and resurface as redirected, mirrored, or alphanumerically addressed websites (e.g., piracyistheft.com becomes piracyistheft2.com). Indicative of the utility of international jurisprudence in this relatively new area of law, the Delhi High Court drew on a recent Singapore High Court case (in Disney v. M1, from October 3, 2018) as it analyzed this issue as part of its own decision, which created a mechanism for dynamic injunctions in Singapore.
The court’s decision to establish a court-based administrative process for right holders to seek approval for dynamic injunctions is significant as it will ensure a more efficient application of the court’s decision. The court created a new process whereby right holders engaged the Joint Registrar of the Delhi High Court (an administrative position), to extend an injunction order already granted against a website, against a similar “mirror/redirect/alphanumeric websites etc.” that contains the same content as the original website. It also allows an aggrieved party to appeal against a decision to allow a dynamic injunction. The court created this mechanism as it wanted to avoid the cumbersome process of rightsholders needing to get judicial orders for each and every new mirror site when there can be many.
Just as website blocking is a pragmatic reflection of a country’s efforts to use injunction orders to get local ISPs to block access to piracy websites hosted overseas (and outside its jurisdiction), dynamic injunctions reflect the fact these same operators can subvert a court’s decisions by shifting targeted piracy operations to alternative websites. The goal of using dynamic injunction as part of a website blocking system is not just to combat online piracy, but also to change consumers’ behavior by raising the cost—in terms of time and willingness to find alternatives sites and circumvention tools—to make the legal sources of content more appealing. Given the fact that legal content providers are essentially competing against “free” copyright-infringing material on piracy websites (which profit from it by selling ads and paid subscriptions), website blocking changes the calculation by introducing needed friction. Given the time and inherent risks involved in finding and using digital piracy sites (due to malware and other issues), forcing users to constantly search for new and unknown (and possibly riskier) sites via an expanding range of dynamic injunctions that consistently cover the major piracy website operators in a country should be part of this broader effort in shifting users to legal content and service providers.
Rebutting the Ideological and Policy Opposition to Website Blocking and Dynamic Injunctions
In making their decision, the Indian judges analyzed, considered, and rebutted many of the misguided and mistaken ideologically based arguments used by opponents of website blocking. In particular, the judges agreed and repeated many of ITIF’s criticisms of “Internet exceptionalists,” such as those at the Electronic Freedom Foundation. As ITIF has outlined, these groups are defined by a belief that because the Internet is exceptional, most rules that apply offline should not apply online. For these groups, the Internet is first and foremost about individual freedom, not about collective responsibility. Yet, in reality and for most of the rest of us, the Internet is no different than the offline world, where people have rights and responsibilities and where laws against certain behaviors exist. There is no logical reason why a crime in the physical world should not be a crime in the digital world. The Indian judges agreed with all of these points.
The court analyzed some of the same points these ideological opponents make, alongside legitimate legal questions and more understandable, if not mistaken, policy-based criticisms of website blocking.
1. Should a copyright infringer on the Internet be treated differently from an infringer in the physical world?
The court clearly says no, stating that the distinction Internet exceptionalists seek to make between online and offline infringement is an artificial one. The court states that, “If the view of the aforesaid Internet exceptionalists school of thought is accepted, then all infringers would shift to the e-world and claim immunity! ... A world without law is a lawless world. In fact, this Court is of the view that there is no logical reason why a crime in the physical world is not a crime in the digital world especially when the Copyright Act does not make any such distinction.”
Furthermore, the judges call out Internet exceptionalists and other opponents of website blocking (including many Indian ISPs) for some of their obvious (but unstated) biases in their positions and arguments against website blocking. The judges make the case that these groups obviously oppose pragmatic and legitimate efforts by content creators to protect their creativity in the digital era, reflecting ITIF’s work in stating that, “The followers of this school of thought [Internet exceptionalists] acknowledge that online piracy comes at the cost of legal sales, but they rationalize this loss by saying that it only hurts the profits of content firms, implying that if the choice is between infringement that rewards consumers with free content versus [legal use] that helps corporations, then the former is to be preferred.” The Court rightly points out a key fact that Internet exceptionalists avoid: The vast majority of piracy websites don’t operate for any ideological reason but to make money.
2. Does seeking to block a website dedicated to piracy make one an opponent of a free and open internet?
The court clearly says no, stating that, “the key issue about Internet freedom, therefore, is not whether the Internet is and should be completely free or whether Governments should have unlimited censorship authority, but rather where the appropriate lines should be drawn, how they are drawn and how they are implemented.”
3. What is a “rogue website”?
Understandably and importantly, the court considered the importance of distinguishing between accidental piracy and intentional piracy, and it avoided sweeping in the former when the focus should be the latter. The court labeled the defendant as a “Flagrantly Infringing Online Location (FIOL),” borrowing language from the Singapore Supreme Court. The judgement states that, “There are risks that cleverly drafted plaints could intentionally harm sites that are largely focused on legal material and that diligently work to limit infringing material. But one also knows that doing nothing contributes to further piracy. In the opinion of this Court, finding this balance does not mean abandoning efforts to go after international piracy.” The Court stated that FIOL websites are those “which primarily or predominantly share infringing content.” The Court outlined some indicative FIOL characteristics, including the volume of traffic received by the website, or whether it contains indexes or categories that provide the “means” for infringement.
4. Does the test for determining a “rogue website” represent a qualitative or quantitative one, and is the defendant (1337x.to or other websites) a rogue website?
The court analyzed whether it should use a quantitative test for blocking injunctions, as was used in another Indian court case where the judge refused to block an “entire website,” instead wanting proof of specific instances of infringement. Instead, the Delhi High Court decided to develop its own composite benchmark, which applied a qualitative view of website blocking injunctions, in that injunctions should be granted where the rogue websites are “overwhelmingly infringing.” The court decided that requiring the copyright owner to identify each infringing element would be too onerous a burden. In applying its own test, the judges identified 1337x.to as a rogue website. The court also considered the facts that the website operator masked its ownership details, showed a “disregard” for copyright, provided indexes and databases leading to infringing content, and, importantly, that other jurisdictions have treated such websites as infringing websites.
5. Would a website blocking order be effective, proportionate, and dissuasive?
The court states that in this case the answer is yes. While the judges did not analyze each part of such a question, the court decided that the defendant was a rogue website and that blocking the website in its entirety was both necessary and proportionate to the needs of the right holders.
Why Website Blocking and Dynamic Injunctions Matter: India’s Film Industry
Modern technologies make IP protection and enforcement tools like website blocking and dynamic injunctions even more of an imperative, as the Internet not only makes it much easier and cheaper to distribute legal digital content, but also easier to steal. This extends to copyright for content like movies, music, and video games. To be effective, such digital content requires robust IP protections and enforcement, because without them producers will be less able to sell their products and services. Indicative of this, a 2017 empirical and literature review of copyright enforcement in the digital age identified and reviewed 26 peer-reviewed journal articles studying the economic harm caused by piracy, and it showed that 23 of them found piracy causes significant harm to legal sales.
The stakes for India are high as its movies make itself a cultural powerhouse globally. India, not the United States or China, is the largest producer of films in the world. India was also the largest film market in the world in 2018 by number of tickets sold. Mumbai—home of India’s world-famous Bollywood—leads India in film production, specializing in Hindi movies, while Chennai (formerly Madras) produces films in Tamil, and Kolkata (formerly Calcutta) is the Bengali movie capital. The success of this sector is important to the broader Indian economy. According to a March 2018 report by Deloitte and the Motion Picture Distribution Association (MPA) of India, “Economic Contribution of the Film and Television Industry in India, 2017,” India’s media and entertainment industry was worth $19.4 billion in 2017. While this represents only around 1 percent of the country’s GDP, it makes the sector larger than India’s consumer durables and online retail industries. Meanwhile, it is expected to continue to grow rapidly with increasing standards of living and smartphone ownership in India and with increased consumption of Indian movies outside of India.
But the Indian film industry relies on intellectual property to capture the value of its creativity. If Indian policymakers can get its IP framework right at home, new technologies and global streaming platforms can help Indian films reach a global audience. A report by EY and the Federation of Indian Chambers of Commerce and Industry found that the Indian film industry grew by 27 percent in 2017, on the back of box office growth in both domestic and international markets. In 2017, box office collections for Indian films took in $367 million overseas—up almost three-fold from $125 million the year before—in part because of entertaining movies like “Bride and Prejudice.” However, whether India will be able to maximize its creative potential will depend in no small part on whether it can ensure creators are able to protect their digital content at home and abroad through the use of tools like website blocking.