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John Does, Many Woes

The spate of John Doe orders against potential infringers bypasses prescribed legal mechanisms and the response is shocking.

Recently, the Delhi High Court passed an order on the basis of a complaint filed by the producers of the Bollywood film ‘Singham’. The order sought to curb piracy and the potential violation of the producers’ exclusive rights to distribute and publicly display the film. The court observed that once a film was broadcast by cable operators without authorisation or illegally posted on websites, the sales of movie tickets was considerably affected. Once the order had been pronounced, the Department of Telecom hastened to send a notice to Indian internet service providers (ISP’s) to block access to websites that host infringing material. It later emerged that Airtel blocked access to file sharing sites such as Megaupload and Mediafire, which are services used around the world for legitimate reasons.

Unknown Infringer or Potential Infringer

What is interesting about the order is that it refers to what is known internationally as a ‘John Doe’ order. ‘John Doe’ is used to refer to an individual whose identity is not known or intended to be kept secret. In pertinent part, the court remarked that:

Since names and addresses of such cable operators/persons are not known, they have been collectively arrayed as defendant nos. 6 to 30 in the assumed name of ‘Mr. Ashok Kumar’. It is contended that in this regard ‘John Doe’, practice may have to be resorted which is well recognized not only in United States of America, Canada, England and Australia but also in India.”

On a closer reading, the order could be seen to apply to ‘potential infringers’. The order states that “many unknown persons may also indulge in similar activity.” Although John Doe orders have been passed in India in the past, the Delhi High Court’s implementation of the practice is interesting, to say the least. It should be noted that an ‘unidentified infringer’  (an unkown person, in the words of the court) is wholly different from a ‘potential infringer’. A John Doe order may be passed against an individual on the basis of his or her IP address, which may have recorded some unlawful activity, even though his real identity is not known to the authorities. On the other hand, a potential infringer is one who may have indulged in unlawful acts in the past, but may unfairly fall within the scope of the order. This shows complete disregard for the presumption of innocence, which is central to the rule of law.


Procedural Lapses

In a separate but related case, the Delhi High court passed a similar John Doe order in relation to the film Don 2. The relevant portion of the order is as follows:

 “… the 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 ‘Don 2′”

There is nothing in the order to suggest that the entire website in question must be blocked. Although the restricted acts include ‘making available’ and ‘distributing’ unauthorised copies of the film, this can easily be effected without blocking the website in its entirety. The bigger concern however is that the actions of the ISP’s complete bypass the prescribed mechanism. Under Indian law, specifically the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules), there is no provision for entire websites to be blocked on copyright grounds. The Blocking Rules only pertain to Section 69A of the Information Technology Act and blocking requests must be made to the Department of Information Technology through designated nodal officers. This is significant because the press release by Reliance Communications commenting on the order states that:

Under Section 79 of the IT Act, an ISP has to adhere to any copyright infringement notice and court orders. Given that Reliance Entertainment has obtained a specific copyright protection online piracy related Delhi High Court order for Don-2, we are in full compliance of law”.

It appears that Reliance has complied with the order in view of its obligations under Section 79 of the IT Act. However, blocking of websites is not envisaged under that provision. It is also interesting to note that the Delhi High Court order does not refer to any provisions of the IT Act, so it is hard to imagine that the producers approached the Department of Information Technology.

Blocking Access Illogically 

More worryingly, ISP’s themselves have failed to appreciate the scope of such an order, at the cost of its customer’s rights. Instead of blocking access to specific URL’s where pirated copies of the film where made available, the ISP’s restricted access to the entire website. In this context, it is useful to refer to the case between Viacom and YouTube, where the latter was sued for making allegedly infringing videos available to the public. Now think of a situation where an ISP decides to block access to all of YouTube, instead of just removing the specific videos that Viacom has identified as infringing. To provide another analogise, imagine if the Delhi Police were to shut down all of Connaught Place on the basis of a complaint about Palika Bazaar.

Indian laws prescribe a notice and takedown system to deal with precisely such situations. It allows copyright holders to submit ‘infringing’ links ensuring that internet intermediaries can remove only specific content. To some, the ISP’s have perhaps reacted as expected, erring on the side of caution to avoid liability and government scrutiny. But it is nice to see that they have responded to the backlash and restored access to the websites (Airtel tweeted the following day that the restrictions have been removed). Perhaps the biggest irony is the fact that copies of ‘Singham’ are being freely distributed in DVD stores across the country and currently finds itself in the ‘Top 100 Torrents’ list on The Pirate Bay website.

(Image from the public domain)

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About Amlan Mohanty

Amlan is a lawyer based in India. He engages in research, writing, speaking and teaching at the intersection of technology, law and policy.