June 13, 2016     

 India: Division Bench of Delhi High Court denies removal of Google, RMPIL, Amazon etc. as Parties from Blueberry Books’ Copyright Infringement Case

 

Recently, Hon'ble Mr. Justice S. Ravindra Bhat and Hon'ble Ms. Justice Deepa Sharma of the Division Bench of Delhi High Court in the case of Blueberry Books & Ors. V. Google India Pvt. Ltd & Ors.[1],, has ruled, in favor of Blueberry, canceling the removal of Google India Pvt. Ltd., RMPIL and Amazon from Parties to the case where the companies, amongst a host of others, were alleged to infringe Blueberry’s copyright.

 

Case Brief

In 2003, Blueberry published a book series titled 'Moral Stories' Parts I, II and III each containing four stories:

  • Part I contained the stories (i) Careless Tanu; (ii) The Merchant Learns a Lesson; (iii) Sejal's Gift for Soni and (iv) Selfish Monu.

  • Part II contained the stories (i) The Greedy Fisherman; (ii) A Flower went for a Walk; (iii) How the Rainbow Was Formed and (iv) Two Good Friends

  • Part III contained the stories (i) The Cunning Jackal; (ii) The Lazy Penguin; (iii) The Wicked Cub and (iv) Harry and Bob.

The books were reprinted in 2005, and published afresh in a more contemporary version in 2010. Some characters in the stories were changed and the caricature designs were modified with modern background, clothing etc. Blueberry said that the stories contained in the books were its original literary and artistic works protected under the Indian Copyright Act. The suit alleged that in February 2012, Blueberry discovered that the four stories namely, THE FLOWER GOES FOR A WALK; THE LAZY PENGUINE; THE GREEDY FISHERMAN; HOW THE RAINBOW WAS FORMED, were made available by the Defendants for their users through internet applications across several platforms such as mobile phones, tablets, etc. that run on various Android, BlackBerry, Apple and Windows based platforms and also on the websites. Link of the said stories was also available on Amazon.com, for U.S. costumers and 33 downloads were done from the website.

 

In March 2012, when notice was issued in the suit, the Single Judge of the Delhi Court required the defendants to file affidavits "within ten days, disclosing the number of downloads of each of the stories, namely, THE FLOWER GOES FOR A WALK; THE LAZY PENGUINE; THE GREEDY FISHERMAN; HOW THE RAINBOW WAS FORMED”, along with the number of downloads of the application 'Story time for Kids' for each of their platforms, on which the said stories are made available.

 

Applications were filed by Google India, RIMPL and Amazon urging that they should be deleted from the array of parties as the plaint did not disclose any infringement on their part. In the case of Google India and RMPIL, similar pleas were urged, i.e. that they were the marketing arms of Google Inc. and Research in Motion ('RIM') and were not engaged in any activity that amounted to infringement. The website Amazon.com made it clear that the facility is only available to the viewers in US and not elsewhere. The mere fact that the image of one of the stories is able for viewing on Amazon.com cannot by itself furnish a cause of action, and that is not even the case pleaded by the Plaintiffs in the first place. The learned Single Judge, after hearing both the parties, excluded, Google India Pvt. Ltd., RMPIL and Amazon from being Parties to the case. Hence, the present appeal was filed in the Division Bench of the Delhi Hight Court.

 

[1] FAO (OS) 69/ 2014

 

Contentions of Appellants (Blueberry)  

  • Blueberry alleged that on comparison, the stories available on Android, BlackBerry, Windows and iTunes, reveal that the stories' wording were copied from its books. It was never approached by any of the Respondents for approval, license or permission to use the stories on those applications. It was alleged that the Respondents earned huge sums of money and did not acknowledge the Appellant's copyrights. On the strength of these allegations, Blueberry filed its claim for permanent injunction and damages, alleging copyright infringement. The applications appear to have been designed by the eleventh Defendant titled 'Story Time for Kids'. It was alleged that all the stories were copied verbatim, with the exact caricatures, images, designing and the text inserted in the form of voiceover.

  • Reliance was placed by Blueberry, on a decision to stress on the point that both Google Inc. as well as Google India Pvt. Ltd. were proper and necessary parties to the suit and as such Google Inc. was in addition to Google India Pvt. Ltd. Appellant's Counsel submitted that the finding regarding Google Inc.’s exclusive control of the website www.play.google.com and Google India Pvt. Ltd. having no role to play in it, could not have been given without a trial. Similar is the case with RMPIL, as the control of RIM on www.appworld.blackberry.com  without any interruption from RMPIL, cannot be concluded without a trial.

  • Amazon.com carries on active business in India and is, therefore, subject to the jurisdiction of this Court, even if the downloads were done in USA. The suit against Amazon Inc. could not have been dismissed by deleting it as a party because it never denied offering of the infringing stories on its website.

  • The Hon'ble Court has the jurisdiction to try and entertain the present suit. The Appellants are publishers located in Delhi. All the Respondents are making available the infringing stories through various websites and the same are available for purchase 'to all customers and users situated in Delhi. All the websites are interactive and make available the applications that are copies of the work made by the Appellants. The cause of action is a subsisting one and a continuing one as provided under Section 62(2) of the Copyright Act 1957 and Section. 20(c) of the Code of Civil Procedure 1908.

  • The object with which the latter provisions (section 20 of the CPC, Section 62 of the Copyright Act and Section 134 of the Trade Marks Act) have been enacted, it is clear that if a cause of action has arisen wholly or in part, where the plaintiff is residing or having its principal office/carries on business or personally works for gain, the suit can be filed at such place/s.

Contention of Respondents (Google, RMPIL, Amazon etc.)  

  • Court does not have jurisdiction to try the matter against Amazon, Respondents no. 10, as the subject matter of the case was in U.S and there was no copyright infringement in India. Sec. 62 of the Copyright Act only deals with infringements in India. In the plaint it is nowhere mentioned that the app. was available in India and none of the Apps have been "reproduced, downloaded, or communicated through Amazon's App. store for Android to the public, within the territorial limits of India. Hence the present matter is out of the scope of section 62 of Copyright Act.

  • The mere fact that Respondent No.1 happens to be the subsidiary of Respondent No.2, having its offices in Bangalore, Hyderabad, Mumbai and Gurgaon, does not automatically make it a necessary or proper party to the present suit. Google Inc. is a separate legal entity and has been impleaded separately as such.

  • Respondent No.3 is not shown to have any contractual relationship with Respondent No.11. There is no specific allegation against Respondent No.3 about its role in the alleged infringing activities complained of in the suit. Even in reply to the application, there is only a broad allegation that the Respondents are infringing the copyright of the Appellants.

  • Counsels for Google India, Respondent no. 1, and RIMPL, Respondent no. 3, argued that, the mere fact that Google India and RIMPL been subsidiary of Google Inc., Respondent no. 2, and RML, Respondent no.4, does not impose any liability on them.

Observations made:

  • What Google India and RIMPL urge is that they have no connection with the infringing works and that the parties responsible, if at all, would be Google Inc. and RIM. Now, though this argument is attractive, the court has to reject it.

  • The court is not drawn into a mini-trial to determine whether there is any interrelationship between Google Inc. and Google India, for instance, as alleged by the latter. The acceptance of Google India's and RIMPL's argument would mean a decision on the merits of that contention that they were not responsible for infringement, or that they had no connection with their overseas principals/holding companies, i.e. Google Inc. and RIM. Furthermore, neither of these companies has any office other than that of its subsidiaries, who are within jurisdiction of this court.

  • IIn this case, the Plaintiff / Appellant does carry on business in Delhi; The Respondents Amazon does not deny carrying on business in Delhi. For the sake of argument, it is right in contending that the infringing activity did not occur in India, nevertheless, that submission is based on its insistence that the particular infringing activity should also occur within the jurisdiction of this court. The submission is unwarranted. The stipulations in Section 20 of the Code of Civil Procedure, enables the plaintiff to sue the defendant either where it resides or carries on business or works for gain. Amazon's argument imposes an additional condition that the Respondents should also carry on the particular activity that constitutes the cause of action.

  • Amazon may have valid defenses, such as it being an intermediary under the Information Technology Act, 2000 or other plausible contentions on the merits. However, once it is shown that it carries on business within the jurisdiction of this Court, and the plaintiff / Appellant, which is the copyright owner, also "resides" here, the jurisdiction cannot be denied.

  • That there are downloading restrictions, based on a bare reading of the documents or that only 33 downloads took place, for a small amount, are not relevant. They are contentious and accepting them would be giving disproportionate weight to the pleadings of one party and precluding the rights of the Appellants.

Held:

 

The Hon’ble Division Bench held that, allowing the application of Google Inc. and RIMPL and deleting them from the array of parties was erroneous. The Court also held that the impugned judgment has to be set aside and the appeal is therefore allowed; The first, third and tenth Respondents shall continue to be arrayed as parties in the suit. There shall be no order as to costs. Although, the Court does not give any judgement on the question of copyright infringement, but the Court setting aside the previous order regarding the removal of some of the Respondents, is presently a win for Blueberry as it may increase the scope of contentions for them. It will indeed be interesting to see the final decision of court on the matter of copyright infringement.

 

 

 

 

 

 

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