Widespread blocks to filesharing websites reported after a John Doe Order is issued for Don 2

Image, “Act of Sharing” licensed by Frits Ahlefeldt-Laurvig under a CC BY-ND 2.0 license.

 

In previous posts (here and here), we have extensively analysed the dangers posed by expansionary john doe orders on access to file sharing websites. Last week only proved a continuation of this trend when an Order issued by the Hon’ble Delhi High Court in Reliance Big Entertainment v. Multivision Network and Ors (CS(OS) 3207/2011) on 19.12.2011 was widely applied.

Blocks on Filesharing Websites

News reports by the Bussiness Standard, the Times of India and Torrentfreak state that:

  • The John Doe Order was most enthusiastically applied by Reliance Telecom which acts as an ISP and is a sister concern of Reliance Big Entertainment which obtained the Order for preventing piracy of the upcoming release of a movie produced by it.
  • The compliance by Reliance Telecom resulted in widespread blocks of filesharing websites such as, Megaupload, Filesonic and even bittorrent websites such as BtJunkie. These blocks were for entire domains rather than specific URL’s. When an user visited one of the blocked domains, the following notice was displayed, “This site has been blocked”; “Copyright Reliance Entertainment, All Rights Reserved.”
  • This is not the first time such blocks have been applied by Reliance Telecom and it has been blamed by its users for widespread blocks to entire domains rather than specific file URL’s in the past.

the John Doe Order

The operative portion of the Order dated 19.12.2011 states that:

In the facts of this case as detailed above, in my view plaintiff has succeeded in making a, prima facie, case in its favour. Plaintiff has exclusive copyright over the film “DON2″ which is yet to be released.

In case, CDs/ DVDs/Blue-ray discs/VCDs are made and the film is copied by using any other device and uploaded on internet by the defendant Nos. 1 to 15 and other unidentified persons and distributed and shown on cable TV, DTH, internet, MMS, Tapes and CAS, plaintiff will indubitably suffer irreparable loss and injury.

For the forgoing reasons, defendants and other unnamed and undisclosed persons, are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie “DON2″ in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff’s copyright in the said cinematograph film “DON2″ through different mediums like CD, DVD, Blue-ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner.

Whats the way out ?

Its quite clear that the Order does not expressly authorize a widespread domain block. Here when seeking application of the Order the letter from the Plaintiff’s addressed to the ISP’s seeking compliance of the Order becomes a material document. Since, a wide block on file sharing websites will be in the interest of the Plaintiff, it will attempt to seek application of the Order as widely as possible. At the same time the ISP in order to avoid liability and getting dragged into the litigation will not dispute the claims of the Plaintiff. In such a scenario it becomes essential to revisit the issuance of such John Doe Orders and to examine ways to limit their application. In a previous post when commenting on the Singham John Doe Order, I stated that,

…specificity as to the infringement is the least we can hope from a john doe order. Here, the injunction may clearly contain, (a) the article in which the infringement is alleged; (b) the anticipated source based on prior experience of infringement; (c) limited steps which can be taken by the plaintiff to enforce the injunction. According to me, the direction (c), becomes incredibly important when injunctions are granted for websites.

Also…

While I remain critical of the practice of applying such orders widely to block entire domains in itself, this criticism is moderated by the impossibility of policing content online. Though the burden to police the property rights are placed on the rights holder, the incessant ability of users to upload more copies and spring new links when earlier ones are identified and removed makes an absolute application the duty to police seem onerous.

Here even though it may sound fair and reasonable to make a large conglomerate like Reliance to police every such link, such a rule is not in the best interests of small and independent film makers. Of course they may explore alternative modes of revenue generation, but revenues through sales of tickets and DVD’s remain their mainstay.  It may also be difficult for them to police their own content or even to outsource it third parties given their limited resources.

Another issue which brings a shade of grey to this entire debate is the response by foreign file hosting websites. Many of them respond to attorney emails and notices to take down content in a manner which is not considered expeditious by the rights holders. Some of them are also known to refuse compliance stating they are not bound by Indian Law. All this complicates this mix of internet policy and intellectual property law.

Keeping in mind that more bollywood production houses are likely to take john doe orders in future, what’s the best way to limit the extent and application of such orders ? what are your thoughts on this ?

  • Anirban

    Nothing can be solved unless a citizen can show constitutional violation of his rights and gets himself impleaded, or files a writ. What is a legitimate use of filesharing website affecting Art. 19(1)(a), 19(1)(g) and Art. 21?

    • Anonymous

      I agree that someone will have to fight this out in court for a ruling that will limit the application of such orders. But who will do it ? It is certainly too much to expect from either an ISP or even an individual user.

      Also, your point on such conduct as a fundamental rights violation is interesting. To my mind in the absence of a SC pronouncement that the right to internet access is fundamental right, legitimate file sharing may be a stretch.

  • http://www.facebook.com/brassic.bhai Brassic Bhai

    the law is there, (in terms of intermediaries guidelines). the court can appropriately tell anyone and everyone to follow the legal prescriptions as mandated by the guidelines which can take care of this scenario (legally speaking). however the problem here is one of economics, as you touched upon faintly. websites dont wanna set up monitors each time a mega bollywood movie is set to schedule as it will only increase costs for them. and production houses dont wanna set bout scanning specific url’s and bringing to the websites’ notice each and every time. but ideally the court should go into the very economics of it and find out the balance of inconvenience therefrom. If its reliance in this case, (then) depending upon whichever way the balance shifts vis-a-vis a simple website, the court should grant its decision. If its a small production house, for who monitoring the net can be cost restrictive, the balance of convenience (in my perception) should lie in their favour.

    The court needs to stop making this a practice and must consider each one on substantive facts and the economics involved. on a side note – If i were a small production house, I would want my film to be easily uploaded and spread around. Ideally I would not have a problem with people blatantly copying my production as it helps things spread. remember kolaveri di? and if it dont spread, then it was not good enough. simple!

    • Anonymous

      Well the law that you refer to does not in any way limit the application of such john doe orders. This is due to the holding in the Myspace judgement, whereby the Hon’ble Delhi High Court has held that the immunity under Sec. 79 of the IT does to extend to remedies under the Copyright Act. Hence, since the intermediaries guidelines are delegated legislation under Sec. 79, even they will not apply/limit the grant of such john doe orders. Even though I personally do not agree with this reasoning, this seems to be the law for now. 

      Secondly I agree that the “balance of convenience” prong which is a pre-requisite for the grant of an interim injunction needs to be developed better. At times one finds that mere lip service is paid to it once the Plaintiff is able to demonstrate a good prima-facia case. Issues of cost and convenience can be naturally bundled here as your have commented above. 

      Thirdly, I cannot find myself to agree with you on your reasoning as to unauthorized copies of small and independent movies/songs. While it is true that sometimes such content does earn a windfall profit from going viral on the net, in most cases I doubt this happens. Also a natural extension of your argument would mean a type of compulsory licensing of the performance right of the content, when it is done online. I have a great amount of discomfort with taking this away from the rights holder. 

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