In a recent piece in the Wire, I develop the idea of a “neutral IP ombudsman” for “blocking” disputes. For background, do see our posts on the various John Doe orders and the corrective balance being ushered in through the Bombay High Court (and Justice Patel in particular).

What a terrific moment in IP history to see our courts coming up with creative ideas to blunt the rough edges around John Doe’s and strike a balance between IP enforcement and public interest! Much more work remains to be done, especially to ensure that ISP’s take their obligations seriously to not just block, but also unblock those websites that are in the clear.

But one cannot simply limit oneself to the law alone; rather one has to look for solutions outside the law too. And this is where the idea of an IP ombudsman might be worth considering (or worth trashing as the case maybe). This idea was first captured in this terrific piece by Kian Ganz in the Mint where he quotes me as below:

“….We should have a neutral third-party body, an ombudsman of sorts, which could verify individual links and also more efficiently deal with websites like Induna that have apparently been blocked erroneously…..The body could be financed by content owners and telecommunications providers, so no one side has a unilateral interest or stake in it…”.

It was endorsed more recently by Justice Patel in the Dishoom case, as below:

“Mr. Ganz quotes Prof Shamnad Basheer… as recommending a neutral ‘ombudsman of sorts’, a third-party body…. the idea of an ombudsman to serve not only as a watchdog but as some sort of a non-adjudicatory, self- regulatory body is indeed appealing. It is certainly an idea worth exploring and developing further.”

I now develop it further (though much more work remains to be done) in the Wire piece, as reproduced below. Grateful for suggestions, comments and critique.

In Bollywood’s Battle Against Piracy, A Neutral Ombudsman Might Be the Answer

The ‘John Doe’ journey has been a long and adventurous one. Replete with lights, action, drama and all that is typically characteristic of a Bollywood blockbuster; it is only fitting given that Bollywood played a prime role in its promiscuous proliferation. A proliferation that turned cancerous, given the undue skewing of these copyright cases in favour of Bollywood studios; often at the cost of innocent third party defendants and the general public.

But first, who or what is a ‘John Doe’? It began by simply referring to ‘unnamed’ defendants. Over a period of time however, it has come to signify a hybrid legal action of sorts encompassing:

1. A suit for restraining a vast array of defendants (typically ISP’s and websites hosted by them), some named and some not so named;
2. Blocking orders against individual websites through the agency of ISP’s;
3. A quia timet injunction, i.e., to prevent the occurrence of a wrong that is imminent, but yet to occur. Bollywood studios typically approach courts stating that illegal copies of a soon to be released movie are likely to be hosted on a variety of websites, which should therefore be blocked.

Till recently, John Does could be had for the asking; as documented by Ganz, 2,162 websites were blocked between January 2014 and early December 2014, under court orders. Fortunately, the tide began to change earlier this year and a corrective balance is in the offing. Leading the charge is Justice Gautam Patel whose recent orders have begun to infuse much needed safeguards into the John Doe frame.

In Udta Punjab, Justice Patel held in no uncertain terms that the earlier trend of blocking websites wholesale could not continue; rather, plaintiffs were only entitled to have the specific infringing links (or pages) purged:

It is one thing to ask that links to a specific download of the film in question be taken down or rendered inaccessible. But to ask, as the plaintiffs do, that an entire website be rendered inaccessible is in itself unreasonable.

Later, in Dishoom he refused a blanket blocking order to the plaintiffs at the first instance noting that:

I am making it clear that I will not grant an injunction or order to block URLs that point to websites unless it is demonstrated that the entirety of the website contains, and contains only, illicit material.

In a subsequent ruling, he held that third party website owners had the right to know why their websites had been blocked and ordered ISPs to provide case details on pages that they blocked.

Unfortunately, in Udta Punjab, even whilst cautioning against wholesale blocking, Justice Patel went with the plaintiffs’ assertion that more than 800 web links carried infringing content. This is problematic, since plaintiffs in Indian courts are not known to be particularly truthful in their pleadings and that their assertions cannot be conclusively trusted. Further, technical experts hired by plaintiffs are often known to dance to the tune of their paymasters and investigations by them cannot suffice as rigorous enough proof that what the plaintiff pleads, is beyond doubt.

Illustratively, Induna, a website  that sold legitimate movie CDs and DVDs, was blocked simply because it mentioned the name Great Grand Masti (the film) on its website, and announced that the DVD would be available soon. It turns out that technical agencies hired by the plaintiff (Balaji Motion Pictures) simply used automated crawlers to track any online mention of the movie name and included even those sites that simply carried reviews of the movie, without more.

What is therefore required is a system that does not rely solely on the plaintiff’s assertions and/or those of agencies hired by it – perhaps a neutral verification agency and ombudsman (NVAO). Such a third party agency would not only verify the illicitness of web links, but also act as an ombudsman of sorts to resolve disputes that arise in the context of John Doe orders. As I have previously said in  a piece in the Mint, “The body could be financed by content owners and telecommunications providers, so no one side has a unilateral interest or stake in it.”

This idea was recently endorsed by Justice Patel in a case involving the movie Dishoom.

Functions of the NVAO:

The NVAO would function as a multi-stakeholder self-regulator of sorts and tasked (amongst other things) with two critical functions:

Verifying Infringement/Copyright

1. To verify instances of infringement alleged by the IP owner. This has been one of the main concerns with injudicious John Doe orders, where copyright owners simply list out a wide array of websites/links, without verifying whether such links contain unauthorised copies the movies.
2. To verify that the plaintiff who brings the suit is indeed the copyright owner of the alleged content. This is a serious concern, as demonstrated by a recent Madras high court case where two different parties claimed copyright ownership over the same set of movies. One of them had clearly been duped by a third party who pretended to own rights to the movies and had assigned them to him. This uncertainty in copyright ownership stems from the nature of the current regime, where copyright registration is optional. A neutral agency that does the job of verifying copyright ownership could lend a great more certainty and transparency in the system.

Ombudsman to resolve disputes

Apart from verification, the proposed third party agency (NVAO) could act as an ombudsman of sorts to expeditiously resolve complaints between the various stakeholders implicated in a John Doe order.

The Induna case is telling proof of why we need such a redressal forum sooner than later. Despite the fact that the Indunawebsite was blocked for egregiously wrong reasons (simply because it announced the arrival of the movie Great Grand Masti), the block is yet to be lifted by some of the ISP’s.

Even after multiple emails and telephone calls, neither the ISP’s that implemented the block nor the plaintiff, Balaji Motion Pictures (who had wrongly included Induna’s name in their list of websites to be blocked by the court) did anything to help. All of this caused severe losses to the Induna owners, including serious reputational harm that comes with the ‘pirate’ tag.

It is here that one must appreciate the assumption that ISPs would defend the interests of their clients (those that use their network to build and host websites) is unfounded. A report from the Centre for Internet and Society demonstrated that ISPs often blindly adhered to take down notices without contesting their veracity and without offering any opportunity to the website/link sought to be taken down through the request.   

An example of an ombudsman type system for copyright disputes is Ombudsman Services, a neutral agency set up in the UK in 2002. Amongst other things, it helps resolve complaints by consumers against collective management organisations that administer copyrights. It is funded through annual subscription and a per-case fee paid by the companies that have signed up for its services for resolution of consumer complaints against them.

A similar independent body can be set up for complaints by victims of erroneously implemented John Doe orders, as discussed in some detail below.

Institutional structure

The NVAO ought to comprise of diverse stakeholders: representatives from ISPs, copyright content owners (such as Bollywood studios), individual website owners (such as Induna) and even civil society (particularly those working on digital issues). It could also be funded in part by the government to constitute a public private partnership. Whatever be the final structure of this body, care must be taken to ensure that no one stakeholder has a significant enough share or control to threaten the perceived neutrality of such a body.

Importantly, it must also be made clear that this body cannot substitute for courts in any way. Rather the NVAO must merely function as a third party mediator, which helps resolve complaints between various contesting stakeholders at the first instance. Even if the dispute ultimately lands up in court, the court will have the benefit of fact finding by a neutral third party body.

Conclusion 

While we’ve come a long way with restoring the John Doe balance (particularly in so far as they apply to Bollywood films), the following challenge still remains: how do we institute a system where the plaintiff’s assertions (of both copyright in the content and that it is being infringed by a third party website/link) can be authenticated in a robust manner without demanding an excessive deployment of resources by either the plaintiff or the courts?

Secondly, how does one institute a system where those aggrieved by John Doe orders are able to expeditiously resolve their grievances, without having to trudge to court each time, suffering the labyrinthine longevity of the law?

I advocate a neutral third party agency (NVAO) as one of the possible ways in which we might be able to better balance out the various interests, without unduly burdening the plaintiffs, the defendants or the courts. However, such a body will not substitute itself for courts of law in any way. Rather, it will simply operate as neutral third party mediator to help resolve disputes expeditiously in an enlightened self-regulation sort of mode.

The author is Honorary Research Chair Professor of IP Law at Nirma University and founder of SpicyIP. The author wishes to thank Pankhuri Agarwal for her excellent research assistance.

ps: Image from here.