Manupatra Intellectual Property Review (MIPR), in its October issue, published one of my articles, critiquing the ex-parte orders that are issued by the Delhi High Court in copyright and trademark infringement cases. The article focuses on three issues: the abuse of the special jurisdictional clauses, ‘Anton Piller’ orders and ‘John Doe’ orders. The article is available for download from SSRN over here. This post will stress only on the aspect of the ‘Anton Piller’ orders that are granted by the Delhi High Court in software piracy cases filed by the Business Software Alliance (BSA). A few months ago I had carried this post explaining how the Delhi High Court seems to have evolved a standard format for granting ‘Anton Piller’ orders in software piracy raids. This was a welcome development in light of the fact that historically there was a great variation in the wording of these ‘Anton Piller’ orders. Unfortunately, the Delhi High Court is now back to its old ways.
The ‘old ways’ refers to those days where some judges would order the seizure and sealing of computer hard-disks containing pirated software, while other judges would allow for only a symbolic seizure of the hard-disk followed by its return to the owner. A smaller minority of judges would allow the plaintiffs to take only a ‘mirror-copy’ of the defendant’s hard-disks’ while another minority would order the defendants to take only a ‘mirror-copy’ of their hard-disks. Technically ‘Anton Piller’ orders can be granted only for the preservation of evidence. This would mean that it is enough to either take a ‘back-up’ copy or a visual inspection without the requirement for sealing the hard-disk. Unfortunately several judges of the Delhi High Court construe ‘Anton Piller’ orders as a means to enforce ‘interim injunctions’ and thus they order the sealing of ‘hard-disks’ thereby crippling the entire business of the defendant. In a day and age when everything from ‘payrolls’ to ‘tax-filings’ are done through e-filing, these sealing orders by some of the judges at the Delhi High Court is causing chaos for small and medium business. These sealing orders have been sharply criticized on this blog earlier.
The degree of variation in these orders is best evidenced by the various reports of the International Intellectual Property Alliance (IIPA). The IIPA is an alliance of various foreign IP owners, including the BSA who regularly complain to the USTR about poor enforcement of their IP rights in India. These reports of the IIPA are the primary reason for the USTR putting India on its special priority list. Not surprisingly, the IIPA Reports use positive adjectives, in an otherwise negative report, only in the context of the Delhi High Court. Some of the excerpts from these reports are as follows:
The 2008 report: BSA reports good support from the High Court in New Delhi.
The 2009 report: BSA reports that the Delhi High Court has been good at issuing Anton Piller orders (ex parte search orders).
The 2010 report: BSA continues to report that the Delhi High Court has been good at issuing Anton Piller orders (34 ex parte search orders were issued in 2009, the most ever) and that these can be served anywhere in India. This has encouraged infringers to settle cases quickly rather than have their computers and other goods seized and face long-delayed court sessions.
The 2011 report: The industry enjoys a very high success rate with respect to the grant of such orders at the Delhi High Court. Unfortunately, in 2010, such enforcement efforts have become much less effective due to judges imposing conditions on such orders. The footnote then states: With periodic changes to the roster of judges on the Original Side Jurisdiction of the Delhi High Court (which is done as a matter of routine and procedure where the roster changes every 6 months), BSA reports: 1) the imposition of security costs on Plaintiffs; 2) the grant of local commission orders without orders to seize and seal computer systems containing pirated/unlicensed software; 3) granting the right to Defendants to obtain back up copies of their proprietary data while at the same time ensuring that the evidence of infringement is preserved in electronic form; 4) assigning a low number of technical experts for large inspections, making carrying out orders more time-consuming and raising court commissioners’ fees; and 5) ineffective implementation and lack of deterrence from contempt proceedings against defendants who disrupt or defy Anton Pillar orders.
As can be seen from above the IIPA has received thumping support from the Delhi High Court most of the time with the exception of the year 2010 i.e. when most probably Justice Ravindra Bhat was the judge-in-charge of the original side of the Delhi High Court. Surprisingly, the restrictive conditions mentioned by the IIPA in its footnote are actually safeguards in ‘Anton Piller’ orders. Why is it that the IIPA raised the issue of ‘safeguards’ being ‘restrictive conditions’ in only its 2011 report? Why weren’t the Delhi HC judges issuing similar ‘safe-gaurds’ prior to 2010? The answer to these questions can be found in the IIPA’s reports itself and that is the simple fact about roster changes at the Delhi High Court whereby judges on the original side of the Delhi High Court are changed every six months. As a result, the new judges who land up on the original side have little experience in dealing with software piracy cases and since such orders are necessarily ex-parte it is more than likely that the new judges accept BSA’s arguments in totality.
The one solution to this problem is for the Delhi High Court to issue ‘practice directions’ which will not only guide new judges but also help in standardizing the formats of the ‘Anton Piller’ orders. Courts in other countries like Australia have already issued ‘practice directions’ for general ‘Anton Piller’ orders. In the last decade, the BSA has filed close to 800 software piracy lawsuits and by the look of things it will continue to file similar lawsuits in the future. The Delhi High Court must in the larger interests of justice, urgently issue such ‘practice directions’. Of course, before it proceeds to issue such ‘practice directions’ the Delhi High Court will need to agree on its definition of ‘Anton Piller’ orders. I’ve taken the liberty of drafting a set of practice directions at the end of my article.
P.S. I would like to thank the folks at MIPR for assisting in the publication of this article. I would also like to thank Shamnad for his comments on a draft version of the article which finally got published.
