Irritated, frustrated and angry. These three reactions capture the mood of internet users over the past month when, instead of the file sharing or video streaming websites they requested, the title of this article jumped out of a Kafka Novel onto their web browsers. The notice did not reveal the particulars of the Order or the Court which issued it. But as soon as the block started, murmurs could be heard on twitter that the block was due to a John Doe order. There was valid reason for the suspicion as even last year such blocks were caused due to a John Doe Order. John Doe Orders have been around for more than 10 years in India but such website blocks did not occur before. If they did, certainly they were not so widespread. Something had changed.
by Apar Gupta
Irritated, frustrated and angry. These three reactions capture the mood of internet users over the past month when, instead of the file sharing or video streaming websites they requested, the title of this article jumped out of a Kafka Novel onto their web browsers. The notice did not reveal the particulars of the Order or the Court which issued it. But as soon as the block started, murmurs could be heard on twitter that the block was due to a John Doe order. There was valid reason for the suspicion as even last year such blocks were caused due to a John Doe Order. John Doe Orders have been around for more than 10 years in India but such website blocks did not occur before. If they did certainly, they were not so widespread. Something had changed.
John Doe Orders were originally fashioned by the Delhi High Court to be remedies for rights holders against local cable operators who used to serve low quality camera capture prints on complementary channels in order to protect their turf from other competing cable wallas. With a massive shift to CAS boxes and DTH services this battle was won by the rights holders through technology rather than the courts. However to many in the content industry, technology seemed to be a faustian bargain. The corner VCD rental store has shut shop but now people in Indian cities were increasingly using the internet to copy and share copyrighted content.
To check this practice, rights holders again approached the Courts and sometime around 2010 John Doe Orders were modified to state that the Orders would now apply to any other mode including, "through internet". The insertion of this line viewed strictly within the cross hairs of the law did not pose much of an issue. A Court could easily reason that an Order which is enforceable to protect the copyright of a Plaintiff under one medium should equally apply to others. However, the small insertion which seemed innocent turned out to be not-so-innocent and this time the devil was in the absence of detail. In the absence of any limitation, the newly modeled John Doe Order was utilized by Plaintiffs in an increasingly generalized manner to shut down file sharing and video streaming services en masse rather than specifically targeted URLs which contained the unauthorized copy.
This practice first came into notice when Reliance Big Entertainment obtained such an injunction for its movie, "Singham". Acting under it, a broadly worded cease and desist notice was sent by its lawyers to several Indian ISP's and file sharing websites. Threatened with a potential contempt proceeding, Indian ISP's blocked access to several file sharing websites. After the first two weeks of "Singham" release, after it turned a profit, the blocks were removed. "Singham" was not the last movie which was made by Reliance Big Entertainment or the last John Doe order which was granted by the Delhi High Court. Over the course of the year it came to file three more cases in which John Doe Injunctions were granted. In 2012, one of its company executives even boasted in a MINT article that, they had obtained a John Doe Order, “this time not just for a single release but for most big-budget films this year".
Other big production houses also joined in the party, Viacom 18 filed three cases in which John Doe Injunctions were granted in 2011 and this year it has already got four. This is just the Delhi High Court and one can never be sure as to how many John Doe Orders are floating around as John Doe Injunctions are not detailed orders reported in Court Reports and Journals. Several internet activists and users started fearing a perpetual block on file sharing websites in India given how obtaining a John Doe Order was becoming relatively easy and most major production houses were engaging lawyers at the same time they were engaging advertising agencies to prepare publicity stills.
These fears came true with more courts granting John Doe Orders and Plaintiffs acting under them shooting off cease and desist notices to ISP’s. The John Doe Order, which was essentially a resident of the Delhi High Court, travelled to other Courts. The District Court in Ongole, Andhra Pradesh granted an interim injunction in 14 Reels Entertainment Pvt. Ltd. v. P. Srinivasulu for the movie "Dookudu" referring to a Delhi High Court John Doe Order dated 20.07.2011. Even last week, the Bombay High Court granted a John Doe Order to Viacom 18 for the movie "Gangs of Wasseypur".
It is to be noticed that Plaintiffs also increasingly became emboldened as the recent batch of cases out of the Madras High Court has demonstrated (R.K. Productions v. BSNL, Creative Commercials v. BSNL). In these cases, the ISP’s themselves have been made primary parties to the litigation in addition to the John Does. The Plaintiff also filed a complaint with the Hyderabad City Police Cyber Crime Department. It is important to bear in mind that ISP’s never host the material and at best only provide a connection to the infringing copy. This demonstrates an increasing tendency of Plaintiffs to shift the burden of policing the protection of their intellectual property from them to the ISP’s. The ISP’s when made primary parties to such litigation will surely block whatever is requested from them.
Dim as much as the story sounds till now, we can certainly hope for some specificity in future John Doe Orders. Last week access to file sharing websites was restored just as mysteriously as blocks were placed. The cause of this was a clarification order dated 15.06.2012 to the John Doe Order dated 25.04.2012 passed by the Madras High Court in Creative Commercials v. Bharat Sanchar Nigam Limited (C.S. No. 294/2012) [Credit: Medianana]. The Order stated that the Plaintiff is obliged to identify the “particular URL where the infringing movie is kept” and the block shall not extend to the entire website. In future, placing such a requirement at the first instance when the John Doe Order is granted will go a long way in checking the misuse of John Doe Orders.
Another reason to hope for greater reform in the process is the recent amendment to the Copyright Act, 1957 which contemplates an imperfect and incomplete though workable notice and takedown mechanism. The mechanism obligates the owner to identify the infringing file and then back it up with a Court notice. Though, many would argue that this will have a limited impact on John Doe Orders since they are more concerned with civil procedure than copyright, the mechanism in my view represents another remedy to copyright owners to effectively police their content without resorting to the extreme step of sending broad cease and desist notices acting under John Doe Orders.
Hackneyed as it may sound the life of law is experience, even a bad one. The wide ranging blocks on file sharing and video streaming websites which lead to large public outcry has already moved the law towards reform and brought more specificity to one John Doe Order. One can reasonably expect more Courts to adopt a similar approach in future turning a lone instance into a continuous practice.
Apar Gupta is a Partner at Advani & Co, Delhi