BLUEBERRY BOOKS & ORS. v. GOOGLE INDIA PVT. LTD. & ORS.
2014 (58) PTC 62
In 2003, the Plaintiffs published a series of books under the name ‘Moral Stories’ in 4 Parts. They claimed that the stories contained in the aforementioned books are original literary and artistic works of the Plaintiffs and are protected under the Copyright Act, 1957.
In February 2012, Plaintiff discovered that the above four stories were made available by the Defendants through the internet on several applications across several platforms and websites for their users. It was further averred that these applications are downloadable on almost all handy devices including mobile phones, tablets, etc. that run on various Android, BlackBerry, Apple and Windows based platforms and include devices manufactured by Apple, Samsung, Sony Ericsson, LG, Blackberry, etc. It was also averred that these applications are run and are available on different platforms Google Play, Blackberry Applications, APPLE iTunes, Microsoft on Windows Phone.
There were 11 Defendants. Defendant No.1 was Google India and Defendant No. 2 was Google Inc. Defendant No. 3 was Research in Motion Pvt. Ltd. and Defendant No. 4 was Research in Motion. Defendant No. 5 was Apple India. Defendant No. 10 was Amazon.com. Inc.
Defendant No. 1 and Defendant No. 3 filed applications seeking deletions of parties on the ground that they have nothing to do with the Google Play Store and BlackBerry App World and they are merely subsidiaries of Defendant No. 2 and Defendant No. 4 respectively.
The Hon’ble Court deleted the Defendant No. 1 and Defendant No. 3 from the array of parties on the following grounds:
• Merely they are subsidiaries does not automatically make them a necessary or proper party to the present suit.
• They are separate legal entity and have been impleaded separately as such.
• They have nothing to do with the Play Store of the BlackBerry App World
• There are no specific allegations/ averments against them.
Defendant No. 10, Amazon.com Inc. also filed an application for deletion on the ground that no cause of action has arisen under the Copyright Act, 1957 against it in India as the application(App) is downloadable only in United States of America through Amazon Appstore and accordingly this Court has no territorial jurisdiction or subject-matter jurisdiction over Defendant No.10.
The Hon’ble Court deleted the Defendant No. 10 from the array of parties on the following grounds:
• Section 62(2) of the Copyright Act, 1957 is a long-arm provision, but the Copyright Act itself operates only through the territory of India.
• For the infringing activity to constitute a cause of action, it must be shown to have taken place in the territory of India. A commercial transaction should be shown to have been concluded using the website within the jurisdiction of the forum court.
• The decisions in Dodha House v. S.K. Maingi and Exphar SA v. Eupharma Laboratories Ltd., do not support the case of the Plaintiffs that Section 62(2) of the Copyright Act, 1957 would enable the Plaintiffs to bring a suit against a foreign Defendant notwithstanding the fact that no part of the cause of action arose within the territory of the forum Court.
Defendant No.5, Apple India Pvt. Ltd. also filed an application for deletion of it’s name on the ground that Apple India does not exercise any control, direction or oversight over the iTunes store.
However, the said application was dismissed on the following grounds:
• It cannot be said that there is no averment whatsoever concerning Apple India.
• It appears that the iTunes download is available on the website of Apple India.
• Prima facie it does appear that the iTunes store could be visited using the website of Apple India which is the first step towards downloading of the impugned stories.