OTT Platforms and Breach of Their IP Rights By “Cyberlockers”

Subscription websites vis-à-vis pay-per-view streaming websites/platforms have always been at crossroads when it comes to protecting Intellectual Property Rights and therein complying with the Information Technology Act and Rules. With supernumerary content available at the finger-tips of consumers on varied subscription platforms, there has been a stark increase in contentions concerning piracy of the copyrighted contents by ‘Cyberlocker’ websites. These instances have thus compelled the Over-The-Top media platforms to enter a bid to protect their proprietary rights and maintain the sanctity of online streaming services by effectuating legal actions against the platforms providing an avenue to upload/download pirated content, i.e., Cyberlockers/ rogue websites.

What is a Cyber locking Website/ Cyberlocker?

The Delhi High Court while passing the Order in Warner Bros. Entertainment Inc. & Ors. v. Doodstream. Com & Ors. relied on the case of ‘Universal City Studios LLC & Ors. v. Mixdrop Co.’, wherein the Court elaborated on the contingencies when a Cyberlocker website comes within the illegitimate legal domain, while observing the meaning and scope of the same.

The Court observed 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.” Further, the Delhi High Court observed that, “the term "Cyberlocker" is a fusion of the words"cyber” and "locker " and, as the name suggests, refers to online data storage or "locker" services. It is important to note that the mere term "Cyberlocker" should not automatically imply a negative connotation, as argued by Ms. Raina. To determine whether a Cyberlocker website should be classified as illegitimate or a "Rogue Website", it is essential to examine its functionalities and operations. Merely labelling a website as a Cyberlocker does not inherently taint its legitimacy without considering its specific functionalities and operations in relation to copyright infringement.”

Thus, Cyberlocking websites, although not inherently illegitimate, could amount to the same depending on its functionality, features and operations.

Recent Judicial actions against the Cyber Lockers/ rogue websites:

The issue surrounding Over-The-Top media platforms and piracy has been a recurring concern for a while now, and the same is reflected from the number of legal actions filed by the Over-The-Top media platforms against these Cyberlocking websites.

Warner Bros. Entertainment Inc. & Ors. v. Doodstream. Com & Ors.

Warner Bros. Entertainment Inc. brought a suit against the Defendants, i.e., Doodstream.com & Ors. wherein the Plaintiff has alleged the Defendants of creating platforms which has given the users an avenue to create dashboards wherein infringing copyrighted content/s belonging to the Plaintiff could be uploaded/downloaded. Thus, the Defendants have been accused of primarily acting as a server wherein the pirated/infringed content could be stored and therein disseminated, while incentivizing the users through a pay-per-view model for the same.

Failure to comply with the Order dated March 18, 2024, passed by the Delhi High Court wherein the Court instructed the Defendants i.e., Doodstream.com, to takedown all the infringing content, the obligation on the Defendants to disable all the features which allow the regeneration of links and reuploading of infringing content, once it is taken down from the rogue website, et cetera has led to the present Application.

The Plaintiff i.e., Warner Bros. Entertainment, has alleged that the Defendants failed to take down around 10 lakh links of infringing content and consistently refused to disable other links such as download link, embed link and embed code.

The Defendants in response to the said contentions and allegations, stated that they have duly complied with the Digital Millennium Copyright Act and in furtherance of the same, have taken down the infringing content.

The Court while clarifying the concept and legality of Cyberlocking websites in the present Application, took into consideration the gravity of issues that rogue/cyberlocking websites present to the protection of copyright content and therein passed an Order restraining the Defendants from directly/indirectly operating the website Doodstream.com, and other domains listed as Defendants in the instant matter.

The Delhi High Court observed that the Indian Law mandates compliance under Information Technology Act, 2000 and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and the said compliance with the Digital Millennium Copyright Act, being an act duly recognised in the United States of America is outside the jurisdiction and purview of the Indian legal landscape.

Another significant case that highlights the significance of stringent compliance with the Information Technology Act and Rule, is Universal City Studios LIC & Ors. v.Fzmovies.net & Ors, wherein the Plaintiff filed a suit against the Cyberlocking website i.e., Fzmovies. Net and ors. who infringed the copyrighted content of the Plaintiffs by making available the original content of the Plaintiff to consumers through their website or otherwise providing links to access the said infringing content. The argument was made that the evidence gathered by the investigator demonstrates that the operators of the Defendants' websites are using recognized "pirate branding" to indicate to users that these websites are simply new versions of previously blocked sites. The Hon’ble Delhi High Court then prohibited the Defendants, along with their mirror sites, redirects, or alphanumeric variations, from streaming, hosting, or making available to the public the original copyrighted content of Universal City Studios and other entertainment companies. Additionally, the Court directed the Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MeitY), identified as Defendants in the lawsuit, to issue directives to telecom services under their jurisdiction to block the websites of the defendants as identified by the Plaintiff.

Another crucial case that explicitly demonstrated the intention of the judiciary towards the infringing acts of the “cyberlocking” websites, is the case of, Universal City Studios LLC and Ors v. DotMovies.Baby and Ors, wherein the Court while deciding on a suit filed by 6 Over-the-top media platforms ordered a “Dynamic Injunction” thereby restraining the Cyberlocking/ rogue websites from streaming, downloading or viewing the copyrighted content of the Plaintiffs without necessary legal licenses and authorisations obtained from the lawful owner of the said copyrighted content.

These case laws call attention to the ever-growing concern of piracy and the need to have stringent laws and implementing mechanisms to regulate, and curb the same. The primary concern with the regulation of the said infringing acts is the fact that the acts take place in the realm of Internet wherein the perpetrators of alleged piracy and copyright infringement work under the garb of VPN, thereby making it difficult to identify the source of the infringing act.

Important Legislations regulating Piracy

The legislative structure in India provides for a regulating mechanism, wherein the infringing acts have been recognised as criminal and unlawful activities. They are:

Copyright Act, 1957:

Section 51 of the Copyright Act states that a copyright work is infringed if anyone, without obtaining a license from the original owner, performs any action that goes against the provisions of the Act. Sub-section (b) specifies that engaging in activities such as offering for sale, rental, distribution, or reproduction of a literary, dramatic, musical, or artistic work owned by the copyright owner without authorization constitutes infringement. Under Section 63 of the Act, copyright infringement is a criminal offense. Anyone found guilty of knowingly infringing copyright can be imprisoned for a minimum of six months, which may extend up to three years, and fined between Rs. 50,000 and Rs. 2 lakhs.

Information Technology Act, 2000:

Under Section 79 of the Information Technology Act, 2000, the act makes it mandatory on the intermediaries to comply with the provisions of the act and ensure that no infringing content that violates the Intellectual Property Rights of an individual or an organisation. Further, by way of Section 43 and 66 of the Act, the Act stipulates the act of transmitting copyright content online as illegal.

Ministry of Internet & Broadcasting Initiative on Controlling Piracy:

In 2023, the Ministry of Information and Broadcasting (referred to as I&B) appointed 12 nodal officers to address piracy complaints. According to the press release, the newly introduced provision, Section 6AB under the Cinematograph (Amendment) Act, 2023, states that no individual shall use or facilitate the use of an unauthorized copy of any film for public exhibition with profit, at a venue not licensed under this Act or its related rules, or in a manner that constitutes copyright infringement under the Copyright Act 1957 or any current legislation. Section 7(1B) (ii) empowers the Government to take appropriate measures to remove/disable access to such infringing copies exhibited/hosted on an intermediary platform in violation of Section 6AB.

Thus, the issue of piracy, copyright infringement and compliance with Information Technology Act and rules thereunder are the guiding legislations to combat the growing concern of infringement of copyright content and online piracy.

Conclusion: Are IP rights sufficiently being protected from piracy/ cyber lockers?

When considered alongside the Intermediary Rules of 2011, the Information Technology Act of 2000 categorizes the unauthorized distribution of copyrighted content as a violation and imposes responsibility on intermediaries to ensure that no infringing content is uploaded to their platforms. The draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 stipulate that these platforms must deploy technology-based solutions to detect and prevent infringements. Dynamic injunctions have provided significant relief to media, broadcasting entities, and rights holders in combating infringements. Legitimate online platforms that qualify as intermediaries and benefit from legal immunity must comply with Court-mandated criteria to identify pirate websites.

Reliance could be placed on the US Jurisdiction, wherein the US Supreme Court applied the 'Doctrine of Inducement' to hold a platform accountable for enabling the peer-to-peer distribution of copyrighted material. However, India's intellectual property laws require reforms to address these new forms of infringement, particularly in the absence of clear regulations on online copyright violations, which affect the incentives and revenue of OTT platforms whose content continues to be unlawfully appropriated. Online content creators should have the freedom to explore and express their artistic perspectives across various platforms.

The popularity of Over-The-Top platforms largely stems from their diverse global content and accessibility to audiences worldwide. Clarity in legislation will prevent media trials and social media boycotts from hindering the distribution of quality content and will serve as a safeguard for artistic freedom. The law should balance the freedom for creators and artists to produce content with the audience's freedom to choose, while also protecting the public interest. Therefore, establishing a coherent legal framework is crucial.

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