Unleashing the Copyright Protection Jedi: Evaluating the Effectiveness of Dynamic Injunctions

Unleashing the Copyright Protection Jedi: Evaluating the Effectiveness of Dynamic Injunctions

(This post has been authored by Tejaswini Kaushal, a 3rd-year B.A. LL.B. (Hons.) student, Dr. Ram Manohar Lohiya National Law University, Lucknow

1.     Safeguarding Creative Works in the Digital Age: A Paradigm Shift in Enforcement

Amid User Generated Content (UGC) and Artificial Intelligence (AI), Indian copyright holders face an uphill battle, grappling with unauthorized content and the misuse of safe harbors. For instance, in the music industry, infringers on content-sharing platforms extract immense value from music content while returning mere breadcrumbs to the artists, translating into revenue losses of up to a staggering Rs. 700 crores.[1] Even worse is the hydra-like nature of infringing content. With each website takedown or post removal, new ones sprout up, rendering isolated injunctions against individual platforms futile in the face of an ever-expanding digital landscape.

However, may I take the liberty to say the ‘Force is with us’ in our battle against infringement as dynamic injunctions have emerged as the strongest Jedi against the Sith of ‘mirror websites.’ Unlike traditional injunctions, which target only specific URLs and entail tedious judicial processes for blocking each new URL, dynamic injunctions are a more flexible alternative that focuses on infringing websites or platforms in their entirety and empowers the Internet Service Providers (ISPs) to restrict access even to mirror websites that provide access to the same infringing content as the original sites in real-time under the same order. This intervention significantly extends the scope of the remedy, thwarting digital piracy at its core and strengthening the armor of copyright holders to stay abreast with the infringers’ evasive tactics. As a testament to their efficacy, the Bombay High Court has most recently granted dynamic injunctions against 32 Instagram handles for the copyright infringement of the series “Scam 1992: The Harshad Mehta Story”.[2]

2.     Unveiling the Source: Understanding the Genesis of Dynamic Injunctions

The concept first gained recognition in Europe under the European Commission Directive 2004/48/EC,[3] which defined dynamic injunctions as “injunctions which can be issued, for instance, in cases in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL and which is drafted in a way that allows to also cover the new IP address or URL without the need for a new judicial procedure to obtain a new injunction.” Subsequently, the Court of Justice for the European Union set a precedent with the first dynamic injunction in L’Oréal v. eBay[4], empowering courts to issue directives to online marketplaces and compelling them to prevent copyright infringements. Notable cases beyond Europe, like that of Disney Enterprise v. M1 Ltd.[5] in Singapore, have further supported the application of dynamic injunctions.

3.     Dynamic Injunctions in the Indian Context: Embracing Innovation to Advance Copyright Protection

As a judicial remedy, dynamic injunctions have made their mark in India relatively recently, demonstrating remarkable effectiveness. The concept has also been elucidated upon by Indian jurists, like Justice Pratibha Singh, who defined it as “an injunction order which is not static but dynamic. This implies that though the first injunction order may be applicable only to one website, however, if mirror websites are created, the injunction would dynamically apply to the said mirror websites as well.”[6]

The cases of Tata Sky v. Youtube LLC,[7] Patanjali Ayurved Limited & Anr. v. Google LLC[8] and Star India Pvt. Ltd. v. Haneeth Ujwal[9] reflected the initial inklings of the need to introduce dynamic injunctions into the Indian judicial relief system. The Delhi High Court granted the first dynamic injunction in the UTV Software Communication Ltd.,[10]defining “rogue websites” and providing factors to determine their classification.[11] Dynamic injunctions have gained further traction in India, with different High Courts granting them in notable cases of Eros International Media Ltd.,[12]Star India Pvt. Ltd.,[13] Warner Bros. Entertainment,[14] and Snapdeal Pvt Ltd.[15] This relief has also been expansively applied to numerous trademark cases,[16] showcasing its versatility.

4.     Loopholes in the Current Regime: Challenges to Effective Enforcement

Dynamic injunctions consist of “a general blocking injunction with dynamic add-ons,”[17] which makes it a potent tool, yet not a bacta-like cure-all. Due to the relentless digital innovation, encrypted and decentralized platforms, such as peer-to-peer networks or blockchain systems, make identifying and blocking specific infringing content challenging. With their privacy and encryption features, cloud storage and file-sharing services impede the tracking and enforcement of dynamic injunctions against specific infringing files.[18] Using virtual private networks (VPNs), anonymizing tools, downloads in hard drives, and dark web services allows infringers to mask their IP addresses, utilize incognito communication channels, and evade detection by routing internet traffic through different servers.[19]

Furthermore, when infringers create mirror websites, replicating blocked content under different domain names, the dynamic nature of IP addresses hinders accurate and timely blocking measures, circumventing dynamic injunctions long enough to cause harm. The rapid generation of infringing content by AI algorithms presents challenges that dynamic injunctions may not adequately address.

Primarily, these measures have been extensively criticized and mockingly labeled ‘John Doe’ or ‘Ashok Kumar’ orders due to their broad and disproportionate nature of online censorship.[20] Their broad filtering mechanisms are suspected of blocking legitimate content, infringing on free speech and lawful activities.

Moreover, jurisdictional complexities arise as online platforms and infringing websites operate across multiple jurisdictions, necessitating cooperation among legal systems for effective enforcement. Lastly, establishing clear guidelines regarding the responsibility and liability of ISPs as intermediaries rather than mere “conduits for communication” is crucial.[21]

5.     Revitalizing Dynamic Injunctions: Proposals for Strengthening Copyright Protection for a Promising Future

Firstly, technological growth must be recognized as two sides of the same coin to bolster the enforcement of dynamic injunctions, not only being the problem but also holding the key to the solution. Blockchain technology can aid in decentralized and immutable record-keeping of copyrighted content, facilitating identification and verification of infringing material, while AI and machine learning algorithms can proactively detect and flag potential online infringements.

Secondly, collaborative takedown platforms can be established to facilitate real-time cooperation between copyright holders, ISPs, and online platforms, automating the takedown process. Incentivizing responsible behavior among ISPs, forming multi-stakeholder working groups, promoting user education, implementing dynamic DNS blocking techniques, and fostering international cooperation are additional strategies to enhance the effectiveness of dynamic injunctions in protecting copyright.

Lastly, improved judicial clarity is sought on this remedy to prevent singular authority figures from being granted sweeping authority to act over matters necessitating rigorous judicial examination recklessly. The ex-parte, unaccountable and opaque nature of these orders requires greater judicial scrutiny to allow convenience not to overshadow fairness.

Hence, to fully realize the potential of dynamic injunctions as the lightsabers of justice, exploring innovative technologies and techniques is imperative to forge more robust shield-barriers to safeguard creative works in the digital age.

[1] Jenil Shah, ‘YouTube vs Indian music industry: The revenue problem of the creator economy’ (The Indian Express, 20 February 2023), <https://indianexpress.com/article/opinion/columns/youtube-indian-music-industry-revenue-problem-creator-economy-8456207/> accessed 22 June 2023.
[2] Applause Entertainment Private Limited v Meta Platforms Inc and Ors Comm IP Suit No 10238 of 2023.
[3] European Commission, Enforcement of intellectual property rights (Directive 2004/48), <https://www.eumonitor.eu/9353000/1/j4nvk6yhcbpeywk_j9vvik7m1c3gyxp/vitgbgifvwzr#> accessed 20 June 2023.
[4] L’Oreal SA v eBay International AG [2011] RPC 27.
[5] Disney Enterprises Inc and Others v M1 Ltd and others [2018] SGHC 206.
[6] Justice Pratibha M Singh, ‘Evolution of Copyright Law: The Indian Journey’ (2020) 16(2) IJLT.
[7] Tata Sky Ltd v Youtube Llc & Ors CS (COMM) 223/2016.
[8] Patanjali Ayurved Limited & Anr. v Google LLC & Ors CS (OS) 104/2019.
[9] Star India Private Limited v. Haneeth Ujwal 2014 (60) PTC 504 (Del).
[10] UTV Software Communication Ltd. and Ors v 1337x.to and Ors CS (COMM) 724/2017.
[11] Pooja Kapadia & Gowree Gokhale, ‘Rogue or Not? -Delhi High Court grants its first dynamic injunction to curb online piracy’ (Nishith Desai Associates, 3 May 2019), <https://www.nishithdesai.com/SectionCategory/33/Technology-Law-Analysis/12/60/TechnologyLawAnalysis/4447/1.html> accessed 19 June 2023.
[12] Eros International Media Ltd & Anr v Bharat Sanchar Nigam Ltd. & Ors Suit No.751/2016.
[13] Department of Electronics and Information Technology v Star India Pvt Ltd, FAO (OS) 57/2015; Star India Private Limited v 7movierulz.tc and Ors CS (COMM) 604/2022.
[14] Warner Bros Entertainment v http.otorrents.com & Ors CS (COMM) 402 OF 2019.
[15] Snapdeal Private Limited v Snapdeallucky – Draws.org.in & Ors CS (COMM) No.264/2020.
[16] Living Media India Ltd & Anr. v www.news-aajtak.co.in & Ors CS (COMM) 395/2020; Gujarat Cooperative Milk Marketing Federation Ltd & Anr v Amul Franchise.in & Ors CS (COMM) 350/2020; Disney Enterprises Inc & Ors v Kimcartoon.to & Ors CS (COMM)  275/2020.
[17] Berdien van der Donk, ‘How Dynamic Is a Dynamic Injunction? An Analysis of the Characteristics and the Permissible Scope of Dynamic Injunctions under European Law after CJEU C-18/18 (Glawischnig-Piesczek)’ (2020) 15(8) JIPLP, <http://dx.doi.org/10.2139/ssrn.4046195> accessed 19 June 2023.
[18] Hannibal Travis, ‘Enjoining the Cloud: Equity, Irreparability, and Remedies’ (2019) VLRF, <http://dx.doi.org/10.2139/ssrn.3411780> accessed 17 June 2023.
[19] Jessica Wood, ‘The Darknet: A Digital Copyright Revolution’, (2010) 16(4) RJLT, <http://jolt.richmond.edu/v16i4/article14.pdf> accessed 16 June 2023.
[20] Aroon Deep, ‘Delhi High Court Issues Dynamic John Doe Blocking Order for Disney Pirate Sites’ (MediaNama, 15 December 2020) <https://www.medianama.com/2020/07/223-delhi-high-court-john-doe-disney/> accessed 30 June 2023.
[21] Despoina Farmaki, ‘The effectiveness of blocking injunctions against ISPs in respect of online copyright infringement in Europe’ (2021) 4(2) SIPLR, 6-17 <https://stockholmiplawreview.com/wp-content/uploads/2022/01/Online_IP_nr-2_2021_A4.pdf> accessed 21 June 2023.

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