OTT Platforms and Dynamic Injunction

By Shilpi Saurav Sharan and Swayamsiddha Das

In today’s fast pacing world were weekending is all about binge watching our favorite shows and movies, OTT platforms have become an integral part of our leisure time, shaping our plans as we eagerly anticipate the next episode or blockbuster release. With a vast array of content of our fingertips, OTT platform have transformed the way we unwind and entertain ourselves, offering endless options for our entertainment it also becomes essential to recognize the importance of protecting these experiences from piracy and ensuring that we can continue to enjoy our movies and binge worthy shows. In the case of Universal City Studios LLC & Ors. v. MOVIES123.LA & Ors[1], the Hon’ble Delhi High Court granted a dynamic + injunction against rogue website and restraining them from hosting plaintiffs’ copyrighted works, without any license or authorization.

Digital Piracy and OTT Platform

Over the years challenges of piracy have sky rocketed since the growth of digital media, study suggests that online streaming platforms lose nearly 25%- 30%[2] of their overall revenue to “Copy Pirates”. To prevent the chaos caused by piracy OTT platforms and Entertainment companies from time to time have sought legal remedy to protect their rights and revenues from being affected by piracy.

Recently in the case of Universal City Studios LLC & Ors. v. MOVIES123.LA & Ors. leading global entertainment companies have filed a suit against Defendants (rogue websites) for hosting, carrying and disseminating content, consisting of plaintiffs’ copyrighted works, without any license or authorization. The Hon’ble Delhi High Court passed ex-parte ad interim injunction as also a dynamic injunction against the Defendants and restrained Defendants (No 1 to 26) from “communicating to the public, hosting, storing, reproducing, streaming, broadcasting, re-broadcasting, causing to be seen or heard by public on payment of charge and/or making available for viewing plaintiffs and further directed the ISPs (Defendant No 27 to 35) to block access to these infringing websites tabulated above, within 48 hours of receipt of the court order”.

Similarly in a recent case of Warner Bros. Entertainment Inc. & Ors. v. Doodstream.com & Ors eight major entertainment companies i.e., Warner Bros. Entertainment Inc.; Amazon Content Services LLC; Columbia Pictures Industries, Inc.; Disney Enterprises, Inc.; Netflix US, LLC; Paramount Pictures Corporation; Universal City Studios Productions LLP; and Apple Video Programming LLC had filed a suit against the Defendants (Doodstream.com, doodstream.co and dood.stream respectively along with associated websites) who are considered as Rouge Cyberlocker Website. According to the plaintiffs these Rouge Cyberlocker websites were “providing an infrastructure deliberately to encourage hosting, uploading, streaming and downloading of copyrighted materials without authorization”.[3] Taking cognizance of the case the Hon’ble Delhi High Court directed the Defendants to “take down all listings of plaintiff’s content within 24 hours and further directed the Defendants to disable all features that allows regeneration of links and reuploading the infringing concept post takedown”.[4]

Similarly in the case of Universal City Studios LIC & Ors. v.Fzmovies.net & Ors[5] the Plaintiffs filed the case against defendants (rogue websites) who were indulging in online piracy by making original content of Plaintiff available to users for download and otherwise providing access to infringing and illegal content. It was further contented that the evidence collected by the investigator showcase that the operators of the Defendants websites are using known “pirate branding” to signal to users that the defendant websites are merely new iterations of sites that have been blocked earlier. The Hon’ble Delhi High Court restrained the Defendants as well as their mirror/redirects or alphanumeric variations from “streaming, hosting and making available to public the original copyrighted content of Universal City Studios and other entertainment companies and further directed Department of Telecommunications (DoT) and Ministry of Electronics and Information Technology (MeitY) who were Defendant No. 50 & 51 in the suit to issue and directives to telecom services registered under them to block the defendants website identified by the Plaintiff”.[6]

In another such instance the Universal City Studios LLC and Ors v. DotMovies.Baby and Ors[7], the Hon’ble Delhi High Court while acting on the petition filed by 6 major OTT platforms has granted a “dynamic + injunction” restraining rogue websites from streaming, downloading, and viewing of copyrighted content without license and authorization of the owner.[8]

What are Cyber Lockers?

Pirated films on Cyberlocker websites provide a disadvantage to those who disseminate content illegally. Unfair competition can hinder legal distributors and content producers from making investments in film production and distribution, affecting the industry’s development and creativity

In the case of Universal City Studios LLC v Mixdrop.Co[9] the Plaintiff field a suit against defendants for facilitating piracy through cyberlocker. The plaintiff in this case, present an ‘Expert Report’ provided by Mr. Michael Walsh that discusses the concept of “cyberlocker” the report produced in court defined cyberlocker as an “online data storage services which are purpose built for hosting and disseminating copyright infringing material as also to incentivize the same, in contrast to conventional cloud storage services which are targeted towards storing innocuous personal and business data and further contented that Cyberlockers promote active sharing of links to the uploaded content and by extension, downloading of the content”[10] Moreover, the Plaintiff contended that ‘Cyberlocker’ and ‘Referral websites’ (Defendant) directs users to access unauthorized copyrighted materials owned by Plaintiffs for consumption and distribution, thereby causing substantial harm to the Plaintiff IP rights. Taking swift action of the case the Hon’ble Delhi High Court opined that “the Defendant’s Cyberlocker Websites, the Server and Referral Websites, are designed to incentivise hosting, uploading, storing, sharing, and downloading of copyright material, and are liable for committing/ facilitating the infringement of Plaintiffs’ Original Content and held that Piracy via Cyberlocker websites results in substantial financial losses for film companies.”[11].

Indian Laws governing Online Piracy

Copyright Act, 1957

Section 51 of the Copyright Act, provides that a copyright work is deemed to be infringed if any person without obtaining license from the original owner does anything which is in contravention of the Act. Sub-section (b) further provides that any person who offers/makes sale, hire, distributes or reproduces a literary, dramatic, musical or artistic work owned by the Copyright owner without authorization shall be deemed as infringement. According to Section 63 of the Act copyright infringement is a criminal offence and any person who knowingly infringes copyright would be punished with imprisonment for six months, which can extend to three years, with a minimum fine of Rs. 50,000, which can extend up to Rs.2 lakhs.

Ministry of Internet & Broadcasting Initiative on Controlling Piracy

In 2023, the Ministry of Information and Broadcasting (hereinafter referred as I&B) had appointed 12 nodal officers to act on complaints received for piracy (Read More) According to the press release The newly added provision especially, Section 6AB provides that “no person shall use or abet the use of an infringing copy of any film to exhibit to the public for profit at a place of exhibition which has not been licensed under this Act or the rules made thereunder; or in a manner that amounts to the infringement of copyright under the provisions of the Copyright Act 1957 or any other law for the time being in force” and Section 7(1B)(ii) provides that the “Government may take suitable action for removing/disabling access to such an infringing copy exhibited/hosted on an intermediary platform in a manner in contravention to the section 6AB”[12]

State Level Initiative to curb Piracy

Maharashtra Intellectual Property Crime Unit

In order to prevent piracy in the State Level in Mumbai, the Maharashtra Cyber Wing established the Maharashtra Intellectual Property Crime Unit (MIPCU) in 2017. The main objective behind establishing the body was to fight and reduce cybercrimes and the rampant growth of Online Piracy[13]. In 2022, the entertainment company Viacom 18 approached filed a complaint against the pirated website “Thop TV” acting swiftly on the complaint filed the cell arrested Subhanjan Kayet the alleged developer of Thop TV for illegal streaming of copyrighted content of Viacom 18’s channel and OTT platform Voot[14].

Conclusion

The issue of online piracy on OTT platforms remains a significant concern, impacting both content creators and streaming services. However, courts have increasingly recognized the rights of OTT platforms under copyright laws, taking measures to

[1] CS(COMM) 402/2024

[2] https://www.livemint.com/industry/media/piracy-continues-to-hit-ott-revenues-subscriber-growth-11675103078493.html

[3] Para.3 of CS(COMM) 234/2024

[4] CS(COMM) 234/2024

[5] CS(COMM) 202/2023

[6] Para. 27 & 29 CS(COMM) 202/2023

[7] CS(COMM) 514/2023

[8] https://ssrana.in/articles/ministry-move-against-online-piracy/

[9] CS (COMM) 633/2022

[10] Para 6 CS (COMM) 633/2022

[11] Para 27 CS (COMM) 633/2022

[12] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1974394