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The eBay-Rowling imbroglio – PART I


When Shamnad drew my attention to a report on the purported injunction against eBay as granted by an Indian court, I was quite surprised (to put it very mildly)!

In India the courts have traditionally taken a stand against ISP liability and if such an injunction had indeed been granted it would diametrically change this position.

Yet, despite the news.com report (hyperlinked above) having used fairly cautious language, other media reports on the issue such as times online contain unequivocal statements such as, “it is the first time the company has been obliged to police its sellers’ auctions for copyrighted material“. Others such as www.auctionbytes.com, the source of the animation above, admit to using the Times Online report as a basis for their information.

However, after having managed to lay my hands on the orders, I have to strike a discordant note with my own very personal interpretation of their import.

It appears that a civil suit was filed by J K Rowling and Warner Brothers Entertainment Inc. against 4 publishers/ book sellers in 2004 where it was alleged that certain books were being sold by the latter as Harry Potter e-books on baazee.com (the then Indian counterpart of eBay) when neither J K Rowling nor her publishers had at any point in time themselves reduced the print versions of the Harry Potter books into-e-book form nor sold them as such. Hence it was alleged that the latter were committing not only an act of passing off but were also diluting the Harry Potter trademarks. Baazee was named as Defendant No. 5 in the action as the e-books were being sold through them.

When the matter came up for hearing for the first time on 4th November 2004, an ex parte injunction was granted against the publishers/ sellers (Defendants 1 to 4) restraining them from “marketing or advertising the works of the plaintiff …on the website of defendant No. 5 or in any other manner“.

No injunction was granted against Defendant No. 5, i.e. Baazee.

The matter came up again on 16th November 2004 when the counsel for Baazee informed the court that the offending e-book displays of the five published Harry Potter titles had been removed from the site as soon as the summons in the suit were received by them. He also informed the court that the offending ads of Defendant Nos. 1 to 4 will not be displayed any further on their site. The Judge accordingly held that there was “no cause for any interim injunction against Defendant no. 5 at this stage without considering their reply.”

(Note: Both these orders can be accessed at www.delhihighcourt.nic.in – just remember that the matter type is “Suit” and the case name is J.K. Rowling and anr. v. Vinay Varma and ors., CS (OS) 1242 of 2004)

The matter was heard several times in between and once again came up for hearing on 24th February 2005 when the court simply observed that the interim order was to continue pending further orders.

Finally when the matter came up on 24th January 2007, 13 issues were framed for consideration in the matter where issue no. 12 read “Whether the suit is maintainable as against the defendant No. 5”.

On that date the Court observed, “In view of the statement dated 16.11.2004 of the defendant No. 5 and further that counsel for the defendant No. 1 does not oppose the prayer for interim injunction, order dated 4.11.2004 read with statement dated 16.11.2004 is made absolute till the disposal of the suit”.

(Note: This order is not yet accessible online and those of you who are interested can write to me separately and I will email it to you).

The only possible interpretation of this in my humble opinion, is that eBay is required to stand by its commitment of the offending ads of the publishers will not be displayed further on Baazee/eBay.

This is not and cannot be interpreted as an injunction against eBay.

P.S. Today, eBay moved the court for contempt against the Plaintiffs for misrepresentation of the court proceedings as well as sought a mandatory injunction against them from going to the media with such statements. The Court has simply renotified the matter for hearing on 14th March 2007. Watch this space for Part II of this post.

3 comments.

  1. AvatarNandz

    Very interesting story… but got confused with the legalese. If I understand this correctly, the crux of the matter is the court’s answer to the following question — “Whether the suit is maintainable as against the defendant No. 5”

    If the court says “Yes”, does that mean that an ISP is liable for what happens on its network? In other words EBay will have to verify that none of the goods sold through its website are contraband articles?

    This will spell bad news for social networking sites like Orkut as well!

    If the court says “no”, then it means that once notified about copyright infringement (or other unlawful activities) ISPs will have to take steps to stop thos activities within a reasonable time. Else, they may be sued.

    Is this correct?

    Reply
  2. AvatarShwetasree Majumder

    Not entirely Nandz. Maintainability of a suit against a Defendant is essentially a test of whether there is any case made out by the Plaintiffs against that particular Defendant – whatever the case may be. So it may well be that the original suit itself does not seek a “watchdog” responsibility for eBay but only demands that it remove objectionable content/ infringing articles etc. In that case the suit may be maintanable without changing the ISP liability position. However given the hue and cry in this matter, I suspect that is not the case. Will try to lay my hands on the plaint and give you an accurate position as soon as possible. Watch this space!

    Reply

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