Amidst the censorship controversy that had already engulfed Udta Punjab, the movie was leaked online just two days before its scheduled release. What’s more, the leaked torrent bears the “for censor” watermark, indicating that someone from within the censor board leaked the copy online. It has even been speculated that the censor board was trying to seek revenge from the move producers for their censorship victory. While this is not the first time that allegations of piracy have been made against the CBFC, it’s certainly the most controversial.
Just hours before its release, the producers of the film filed an urgent application before the Bombay High Court, requesting for a kind of ‘hybrid relief’; combining the principles of John Doe (or Ashok Kumar) orders, and Order I, Rule 8 and Section 151 of the Civil Procedure Code, 1908.
The plaintiffs provided a long list of websites, which hosted links for the illicit download of the movie and prayed, inter alia, that all of these websites be blocked by the ISPs (also defendants herein). The Court however, applied the principles of intermediary liability and reasoned that it was unreasonable to block entire websites on unwarranted claims that they hosted only illicit content and nothing else. Such reliefs, opined the Court, would operate as “pre-censorship” or “gag’ orders and would not be technically feasible.
Further, the Defendant No.5 argued that it was unclear from the URL listing whether any of those related to secure websites, i.e. those websites which were subscription or fee-based. The court here reasoned that subscription or fee-based websites were already regulated as to their content and had a “built-in liability”. There was thus, no possibility of these websites illicit content and the burden of proof was on the plaintiffs to point of specific instances of violation.
Hence, the court passed John Doe orders and directed the defendants to remove the torrent links or render them inaccessible. However, the court found it unreasonable to block entire websites, especially those which were “secure” or fee-based.
In times where the court grants John Doe orders without much application of mind, these orders by Justice G.S. Patel seem reasonably well balanced and do not go overboard in granting relief to the plaintiff. The court ordered that entire websites must not be blocked and only the specific download links be removed or rendered inaccessible. This order is a welcome change, considering that courts have, in the past, ordered that entire websites be blocked in contravention of the net neutrality principle (Read more here, here and here). As the Court pointed out in this order, such relief would essentially be a ‘gag’ order’ which is an unconstitutional and excessive relief.
However, these orders are by no means, flawless.
Firstly, the order does not mention that the judge actually viewed the given URLs provided by the plaintiff, and it seems as if the plaintiff’s word was just taken for it. This sets a dangerous trend. It is the prerogative of the judge to actually view the links provided and verify the plaintiff’s claim. A similar relief was granted in Star India Pvt. Ltd. and Ors. v. Roy Ma and Ors., which was criticized by Mr. Prashant Reddy here.
Secondly, the Court held, “I have no doubt that if and when the Plaintiffs draw attention to any of these intermediaries or cable operators to any site that contain illicit material, those intermediaries and cable operators will undoubtedly cooperate as they are required to do so under statute.”
As per the proviso to Section 52(1)(c) of the Copyright Act, 1957, which provides a “safe-harbour” to intermediaries, an intermediary providing transient or incidental storage of a work or performance for the purpose of providing electronic links does not have to permanently take down such work in the absence of a specific court order. He must only remove it for 21 days and if he does not receive a court order within this period, he may continue to provide the facility for such access. Hence, in such cases, the plaintiffs will have to seek fresh relief every time a new link crops up, a cumbersome and expensive affair for the plaintiff. In this light, it is rather surprising that the orders do not even mention Section 52(b) and (c), despite the fact that these amendments were introduced by the Copyright (Amendment) Act 2012, a victory that was hard won.
Thirdly, the court made a rather curious distinction between free links and subscription-based websites. It held, “The orders of restraint sought cannot, therefore, cover any fee-based websites irrespective of whether they are listed in the plaint or not. I must proceed on the footing that subscription and fee-based websites are already regulated as to their contents. They have a built-in liability. There is no possibility of these websites hosting illicit content and being permitted to charge access fees. I will leave it open to the Plaintiffs to point out specific instances of violation or default by any fee-based secure website and to move again in respect of those.” Here, it is apparent that even though the listed websites were not actually viewed, the court simply assumed that the fee-based ones could not possibly host any infringing content and the free ones were most definitely hosting such content. This bias, although not unfounded, is rather presumptuous. The orders do not spell out the rationale behind such a distinction.
(Image from here)