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New form of blocking pirate sites approved by Delhi Supreme Court

The Delhi Supreme Court in India has approved a new form of blocking pirate sites, requested by Netflix, Disney, Warner Bros and other Hollywood studios. The innovative "Dynamic+" injunction requires ISPs to block access to "multi-headed" pirate sites, covering copyrighted content that does not yet exist.

Dynamic blocking orders

Like many other countries around the world, Indian copyright law allows rights holders to restrict access to pirate sites.

This legal tool is widely used by the major Hollywood studios. These companies regularly obtain injunctions forcing local ISPs to block websites to prevent piracy.

Over the years, the nature of these court orders has evolved. The first measures were simple, in the sense that they specifically indicated which domains were to be blocked. They then evolved into "dynamic" versions, allowing rights holders to add new domains and proxy servers each time they are launched.

These dynamic orders are justified in the fight against persistent pirate sites, often referred to as a "multi-headed" problem: when one domain is blocked, many others take its place.

Preventive blockades and registrar actions

Indian courts don't stop at dynamic blocking orders alone. On several occasions, ISPs have been instructed to block websites because they might make infringing works available in the future.

Last year, for example, forty ISPs were instructed to block a total of 13,445 "pirate" sites that were allegedly distributing counterfeit copies of the Hindi film "Vikram Vedha". A few months ago, a similar order was used to block piracy of "Spider-Man", before it had even happened.

Blocking injunctions no longer only apply to ISPs. Domain name registrars have also been added, including American companies such as GoDaddy, Namecheap and Tucows. If they fail to act, the Indian government will intervene.

Dynamic+: an action that covers non-existent works

The nature of these injunctions continues to evolve, and a recent order by Justice Pratibha M Singh of the Delhi Supreme Court adds yet another new element to the mix.

The case in question has been filed by Warner Bros, Columbia Pictures, Netflix Studios, Paramount Pictures and Disney. The entertainment companies are asking ISPs and registrars to block or ban sixteen pirate sites, including DotMovies, Tamilvip, KissAsian, PopMovies and 9xFlix.

The Delhi Supreme Court has granted this request, which is nothing out of the ordinary. However, it also adds a new element. As well as applying to current films and series, it also concerns content that does not yet exist.

"To keep pace with the dynamic nature of infringements committed by multi-headed websites, the Court deemed it appropriate to issue this 'dynamic injunction' to protect copyrighted works from the moment of their creation," the order states.

The Court notes that this will prevent irreparable losses "as there is an imminent possibility that works will be downloaded from pirate websites or their new versions" as soon as new films and series are created.

"Copyrights in future works are created immediately upon creation of the work, and plaintiffs may not be able to apply to the Court for every film or series produced in the future to obtain an injunction against piracy," the order adds.

Questions and concerns

Dynamic injunctions were initially issued as an exception, but some legal experts are wondering whether they are gradually becoming the norm. The Indian legal blog SpicyIP includes several articles on the subject, and also discusses this latest ordinance.

According to law student Reva Satish Makhija, one concern is that ownership of new content is automatically assumed. This means that a resource is blocked before the opposing party can contest the claim.

"The Delhi Supreme Court's attempt to protect plaintiffs' rights against possible anticipatory infringement by defendants is commendable, but requires further reflection as to its effectiveness in balancing the interests of the parties," writes Makhija.

It's not immediately clear whether this new expansion will have a significant impact right away. While it may be useful to block new sites that offer only fresh content, current injunctions already seem to be quite effective.

Perhaps the Delhi Supreme Court is trying to create its own multi-headed injunction scheme? If one order isn't effective, it can simply issue new ones to ensure that pirate sites are dealt with appropriately.