In a first-ever judgment on online piracy, the Delhi High Court has banned as many as 73 “rogue” websites that were illegally streaming “pirated” videos of cricket matches. The reason being that mere blocking of uniform resource locators (URLs)—where the infringing content is located—is not sufficient to stop piracy as it could be easily removed or replaced, like an email password.
Observing that it was the “duty of the government” and its agencies to “assist in the enforcement of court orders,” the High Court asked the ministry of information technology to issue orders to internet service providers (ISPs) to block access to these websites for showing “substantial” pirated content.
Star India had approached the Delhi High Court in 2014 against 73 “rogue” websites that were uploading videos and match updates of the 2014 India-Australia cricket series on their websites and mobile platforms, thus violating the exclusive broadcast rights belonging to it and starsports.com.
Rejecting the Department of Electronics and Information Technology’s argument regarding freedom of trade on the internet, it said that “the offending activity by the rogue website is to carrying on hardly any lawful business and in its entirety or to a large extent, piracy is being resorted to.”
The High Court found that dozens of websites carried between two to 2,026 infringing URLs, each linking to cricket matches to which Star owned the rights.
Justifying the stringent measure to block the website as a whole, the High Court said it would be a “gargantuan task” for Star India to “keep on identifying each offending URL and especially keeping in view that as and when the respondent identifies the URL and it is blocked by the ISP, the rogue website, within seconds can change the URL, thereby frustrating the very act of blocking the URL,” while allowing the review plea of the sports broadcaster, who has exclusive licence of media rights in various sporting events.
Industry and legal experts have welcomed the judgment, saying the positive decision will prove beneficial to the entertainment industry, especially the film industry. With recent controversies surrounding the release of films like Great Grand Masti, Sultan, Dishoom and Kabali being infringed online, online piracy and the measures to address such piracy are being debated across jurisdictions, including the Bombay and Madras High Courts.
Senior advocate Prathiba M Singh, who represented Star in the case, said, “India has the largest creation of copyright work. It is in the country’s interest to protect artists, authors, musicians and film producers from piracy. The decision to block entire websites to tackle online piracy is the first step in the right direction. It will ensure that all government agencies and the industry work towards stopping infringement on sites that are involved in widespread piracy.”
According to Saikrishna Rajagopal, managing partner of Saikrishna & Associates, the law firm that represented Star India, “The landmark judgment will have a positive impact as it creates a fair balance between the rights owners and public interest, allowing for the rights owners to more efficiently protect their rights against outright rogue or pirate websites that blatantly infringe copyright and contain a huge extent of infringing content.”
However, the judgment has left government officials fuming. They feel they will be subjected to unnecessary harassment for possible contempt if the websites played a cat and mouse game.
Additional Solicitor General Sanjay Jain said that though such offending activities have to be curbed, it is a never ending exercise. “The government is being used to completely block websites. It can once block them, but what if they resurface in any other shape/name. This will cause unnecessary harassment to the officials as they will be hauled up for potential contempt in case of any violation.”
The law officer said he will write to the department as there is a need to have greater clarity on the issue. “The law needs to be codified, especially liability of the government and its officials. As of now, there is a lot of ambiguity even with regard to the freedom of speech.”
He added that the High Court should have first exhausted other remedies like ordering investigations rather than straight away asking the government to implement its orders without hearing “rogue” websites, who were left unrepresented in the case filed by Star India.
“Unless you investigate and see the contents of each website, blocking them all will be unfair,” said another lawyer.
This judgment will prompt many others to approach courts for blocking websites, but how far they will be finally successful when we are talking about a “borderless world,” Jain added.