This is the first of a two part blog post that critically analyses the practice of website blocking for the prevention of copyright infringement. Part I looks at the legal framework in which such orders are attempted to be issued while Part II reviews the ramification and effectiveness of such practices.
The exploitation of technology and online platforms for unauthorised access to sound recordings, music and cinematographic films by users or viewers of peer to peer file sharing or torrent sites, is a practice that has spanned for a little over a decade. Instances as recent as episode leaks of Game of Thrones or access to movies prior to their official release date, are illustrative of how common place and frequent such activities have become. However, authors or the right holders of copyright have sought court intervention for the regulation of the cyberspace to prevent the infringement of their copyright over cinematographic films. About a month back, the Madras High Court passed orders for the blocking of entire websites hosting or allegedly hosting contents that are likely to infringe copyright over films such as Jab Harry met Sejal and Lipstick under my Burkha through ex parte Jon Doe orders. Resultantly, works which were otherwise not infringing copyrights over any work were also blocked from public access, including online libraries such as Internet Archive.
Website blocking has become the most common relief resorted to by courts in multiple jurisdictions, to appease the right holders of copyright. While the jurisprudence or relative cost benefit analysis of the infringement, banning and resultant liabilities have been at the least, addressed in some countries, the legal basis for such blanket orders in India remains dubious. The scope of this post is to therefore, understand and analyse how these Jon Doe orders fit into the legal framework and the effect they have on online freedom.
Jurisdiction of courts in passing John Doe Orders
With the development in the field of IP law protection, we have seen a paradigm shift in the extent to which courts are willing to go to protect IP rights of individuals. With the dawn of the digital age, a new dimension of IP protection is required against unknown entities online. This has led to the Indian Courts resorting to the practice of passing John Doe orders/ injunctions. In the context of IPR, John Doe orders are orders passed by the courts against unknown persons given ex-parte to protect the IPR of a person alleging a violation. In India, there has been a general trend of passing such orders (referred to as Ashok Kumar Orders) to protect the copyrighted materials of movies, books and live sporting events. These are in the nature of cease and desist orders directing that the copyrighted material not be displayed.
A John Doe order or an Ashok Kumar Order (as it is referred to in India) for violation of a copyright may be issued by Courts under Section 151 when read with Order 39 Rule 1 and 2 of the Civil Procedure Code.[i] Order 39 Rules 1 and 2 allow for courts to grant interim injunction against parties. When read with Section 151, these can be issued ex-parte and take the form of Ashok Kumar orders. Aimed at curtailing online piracy, these orders aim at issuing a ‘cease and desist’ order against the broadcasting of such copyrighted material. These orders can include; Stopping of URL’s by the Internet Service Providers[ii], Seizure of equipment of the network broadcasting such material to stop the same[iii], preventing cable operators without proper licences from showcasing these copyrighted materials[iv] etc. It should be noted that there should be a strong case made out against the party infringing the IPR otherwise the order is not passed (Although in practice this is not the case).[v]
The very nature of these orders is such that they are not directed against any individual person but rather against some unknown entity/entities like Cable Networks, Websites, ISP’s, Newspapers etc.[vi]Most litigation in the context of IPR and John Doe orders have been for Bollywood Production houses claiming a IPR violation on piracy websites.[vii] The huge losses in terms of lost revenue and the willingness of the courts to pass more and more of such orders has caused an increase in Bollywood Production Houses filing for such claims.
Who are Online Intermediaries?
Under the Copyright Act, 1957 (“the Copyright Act”), any person providing for profit, a platform for the communication of works in a manner that infringes copyright, is said to be infringing copyright himself. The Information Technology Act, 2000 (“the IT Act”) defines an online intermediary as any person who, on behalf of another person receives, stores or transmits electronic messages or provides related services.[viii] Person being a word of wide import, could be meant to include any intermediary ranging from a network service provider, website host or even a brick and mortar cyber café, each having varying degrees of involvement with an allegedly infringing content.
For the purposes of website blocking, let us assume, while keeping in trend the nature of parties impleaded in Jon Doe orders, that the intermediaries concerned are online intermediaries, this category in itself may include Internet Service Providers (ISPs) (i.e. network or broadband service providers), torrent sites, peer to peer file sharing sites, online archives and directories or websites equipped with search engines for and providing links to other websites (for example, search engines, website assimilators, etc.). However, most Jon Doe orders issued by various high courts have been against ISPs.
Role and Liability of Online Intermediaries
Up until the Amendments of 2012 made to the Copyright Act, no safe harbour provisions were provided to intermediaries with regard to secondary infringement of copyright wherein third party users or file sharers upload or communicate works which are otherwise infringement of copyright. Furthermore, the proviso to Section 81 of the IT Act dealing with overriding nature of the said act, has effectively exposed online intermediaries to offences under the Copyright Act.
However, the fair use provisions under Section 52(1)(b) and (c) provide some respite to online intermediaries. Both these provisions considers as fair use, the transient and incidental storage of a work or performance. However, while sub clause (b) exempts such storage for purposes purely for the technical process of electronic transmission, clause (c) exempts storage of works for assimilation of electronic links which are not expressly prohibited by the copyright, the two overlapping in all practicality.
The latter clause has a further rider that if the person responsible for incidental or transient storage is made aware of the infringing nature of the work stored, he may either on his volition or mandatorily upon a court order, take down such content. From the understanding of the language of Section 52(1)(c), websites involved with secondary infringement may, while unknowingly storing copyrighted works for assimilation or providing access, are required to take down content upon due notice.
Terms such as ‘transient’ and ‘incidental’ storage, ergo undefined, may be understood as temporary or having lack of knowledge of infringement, which is a qualifier for the fair use exemption. However, courts have, despite the 2012 amendments, imparted liability on Internet Service Providers (“ISPs”) for filtering the content on their websites, as a pre infringement measure and have justified blocking of entire websites as due to the low cost of shifting of URLs by infringers renders injunctive actions ineffective unless the website is blocked as a whole.[ix]
Website blocking has not been restricted to cinematographic films but also online repositories of music, wherein similar liabilities have been imparted to ISPs, in some instances, such as the Guruji.com debacle, leading to incrimination of persons responsible for websites concerned with the assimilation of electronic links to infringing work.
Therefore, courts while making Jon Doe orders, fail to identify the nature of involvement of different types of intermediary and the relative infringing contents of the websites, thereby giving rise to jurisprudential concerns. In such an environment, and due to the low cost of takedown of URLs, network service providers may indulge in collective blocking upon due orders from courts or the telecom authorities. However, this is detrimental to owners as well as users of websites which have are blocked in entirety, either for a determinate or indeterminate period.
[This post has been written by Nayana Dasgupta and Abhishek Hazari, 5th year and 3rd year law students at WBNUJS, Kolkata respectively and edited by Drishti Das, a 5th year law student at WBNUJS, Kolkata].
[i]ESPN Software India Private Ltd. vs. Tudu Enterprise and others
[ii]R.K. Productions v. BSNL Ltd and Ors. [O.A.No.230 of 2012 in the High Court of Madras].
[iii]Taj Productions v. Rajan Mandal and Ors. [2003 F.S.R. 2].
[iv]Viacom 18 Motion Pictures v. “John Doe” Cable Networks and Ors. [I.A. No. 11242/2011, in the Delhi High Court].
[viii] The Information Technology Act, 2000, § 2(1)(w).
[ix] Star India Pvt. Ltd. v. Haneeth Ujwal & Ors. [Delhi High Court, CS(OS) 2243/2014].