This is the second part (for part one – click here) of an analysis of the Singham Order passed by the Delhi High Court in which a john doe injunction was passed to prevent the piracy of the movie Singham. The Order resulted in the blocking of several file sharing websites by Indian ISP’s, causing concern and anger amongst the internet community in India. In the wake of the Order several people started blaming the ISP’s who blocked the filesharing websites, Rights Holder of Singham who approached the Court, the Courts, the Department of Telecom and even the IT Act.
In this post, I take an approach which rather than apportioning blame to any party, hopes to analyze what exactly happened and what were the causes for such a wide block. Going back to the last post which contained a detailed analysis of some John Doe orders which were passed recently, I explained that when John Doe Orders are passed, the Plaintiff establishes that, (a) it is the rights owner; (b) which anticipates large scale infringement; (c) from unknown parties.
Here only the third leg which is the identity of the infringer is indeterminate at the time the Plaintiff approaches the court. However, this indeterminacy only lasts till the Plaintiff does not utilize the Order, since to apply the order the Plaintiff needs to identify the infringement and the identity of the Defendant. Once the defendant is known the indeterminacy vanishes. It is due to this reason, John Doe Orders are not considered overbroad and allowed by courts.
Its quite clear that this did not happen in the case of the Singham Order. Here, the Plaintiffs who obtained the John Doe Order informed the probable defendants about it though an Email dated 30th July, 2011 (a copy of which was posted by Torrent Freak). The email after extracting the Order and called upon the recipient to:
“Our clients state that the Cinematograph film “Singham” which is the exclusive copyright of our clients is being made available by you on your websites in India. It is submitted by our clients that the capability of accessing your website for the upload/download of the movie “Singham” by any person in India is a clear breach of the Order passed by the Hon’ble High Court of Delhi. In these circumstances, our clients request you to kindly block access to any copyrighted material of our clients including the movie “Singham”, its snip ads, its pictures or songs or any audio or video format from your website immediately and notify your consumers/ customers not to download / up load the movie “Singham” by putting it on your websites homepage.”
This email throws up plenty of concerns. Starting out it is addressed to an Internet Intermediary in the same way it would be sent to a Local Cable Operator. This is not an overreach solely on the part of the Plaintiff as the Email was certainly enabled by the John Doe Order. The Order clearly stated that the John Doe Defendants were injuncted from making unauthorized transmissions of Singham through any modes which may be either, Television or the Internet. What makes this peculiar is that instances of John Doe Orders when passed in the past were against local cable operators who without due authorization transmitted the movie. These unauthorized transmissions were on their own local networks in their local transmission areas. However, the Order and the Letter enforces the John Doe remedy for the first time (to my knowledge) in India on Internet Intermediaries as well. Further, in the absence of any limitation in the Order the Letter seeks to enforce the Order, against internet intermediaries who may own the pipes but unlike cable operators do not make the unauthorized transmissions themselves.
Other areas of concern are:
- Absence of identification of infringement - It does not specifically state the URL or the location of the Singham File on the intermediaries servers. It generally avers that, “Our clients state that the Cinematograph film “Singham” which is the exclusive copyright of our clients is being made available by you on your websites in India.”
- Ipso facto illegality due to Upload/Download capability -It points out that “the capability of accessing your website for the upload/download of the movie “Singham”” would amount to a breach of the Order. This is particularly worrisome.
- Calling on internet intermediaries to be made liable for the mere capability of upload/download as amounting to a potential copyright infringement is extremely intolerant of the internet web 2.0 culture and results in threat of fastening liability under a High Court Order, even when no such liability may eventually flow.
- Even if the intermediary installs a filter for the word “Singham” what happens to people who want to upload Singham Parodies. There is also an impact on the rights to free speech, comment and parody at stake here. (if you think this an academic watch this clip)
Now the response of an intermediary to such an email differs from what kind of intermediary it is and where it is situated. A torrent website which is based in Sweden will obviously take this less seriously than an ISP situated in India. There a more chances that the ISP will be hauled up in court on “non-compliance” of the Email and it will zealously apply the Order seeking to avoid any legal liability. This goes back to the same point I made in my post on the Intermediary Rules, 2011 that an Internet Company though may be interested in protecting the free speech of its user’s, will be more interested in preventing any litigation costs. Hence, though many would find it undesirable it would understandable for us to expect ISP’s to block filesharing websites enmasse (this is presuming the emails to them were like the one which was published by torrentfreak and they only contained a list of websites).
To my mind this entire discussion and the blocking of file sharing websites brings into focus, the necessity of a higher specificity in Judicial Orders as well as letters and emails seeking to enforce such Orders. Here understandably Courts will have to take the lead towards devising norms as to how John Doe Orders may be applied and enforced in a better fashion. I remain hopeful that as the law develops it keeps pace with technology and understands the medium it seeks to regulate.
Update 1: Medianama reports that Reliance Big Pictures has again obtained a similar order to prohibit the piracy of the movie, “Bodyguard” which will be released this week. Two points come through in it, (a) if such orders are asked by more movie production houses it will lead to a perpetual block on file sharing websites; (b) an intervention application must be filed to bring to the notice of the court the unintended effects on legitimate file sharing.
Image by mstefano80 under CC BY-SA 2.0 License
- john doe orders and internet outages (iltb.net)