Bombay HC Effectively Transforms John Does from Swords to Shields – Delineates Most Robust Safeguards to Date

Last week, Professor Basheer discussed
the Bombay High Court’s refusal to grant a John Doe order for the movie Dishoom, which is slated for release on the 29th of July.
Noting that Justice Patel’s refusal to grant a John Doe order merely on the basis of the ipse dixit of the plaintiff marks a paradigmatic shift in the John Doe jurisprudence of Indian courts, Professor Basheer had expressed the hope that Justice Patel would lay down a “nuanced, comprehensive and balanced framework” for the issuance of John Doe orders after perusing the plaintiff’s modified application.

As we noted
a couple of days ago, the order that Justice Patel issued after examining the plaintiff’s modified application, that was based on thorough research and appropriately authenticated information, effectively transforms the adjudication of John Doe orders in India from a plaintiff-driven process to an exercise in reconciling competing interests in an objective and dispassionate fashion.

Staying true to his promise of discussing the scope and ambit of hybrid actions in his final order, Justice Patel began his discussion by noting how several reliefs in the realm of intellectual property law have now acquired a hybrid character. Citing examples of Anton Pillar orders that mandate compelled compliance and Mareva Injunctions that include blocking of assets, he substantiated the argument that hybrid orders have become the order of the day, insofar as reliefs in IP infringement suits are concerned.

Against this backdrop, the judge sought to explain the importance of reconciling competing rights in a balanced fashion, noting pithily: “blocking access is very like cutting off the oxygen or blood supply.”

Diagnosing the principal reason for wrongly crafted John Doe orders as law’s failure to keep pace with rapid technological advancements — what scholars have described as the law lag — he notes: “the trouble stems, I believe, from the constantly shape-shifting nature of Internet and digital technology, the swiftness of which is no match for the glacial pace of legislative and jurisprudential change; and perhaps, too, from a real fear that the Internet represents something both unknown and unknowable. Since we see ourselves as incapable or at least ill-equipped to forge a narrowly tailored definitions of those we propose to subject to judicially evolved restraints, the chosen course has often been to broaden the parameters on the footing that, once sufficiently broadened, the restraint net will almost certainly stop any miscreants who might otherwise slip through.”

Recognizing the need for courts to be cognizant of the fact that piracy results in a ‘direct’ and ‘immediate’ revenue loss to copyright holders, he hastened to add that this legitimate interest of copyright holders cannot serve as a justification for issuing orders that are in the nature of a “carpet-bombing or scatter-shot salvo.”

Based on this rationale, he emphasized the importance of adopting a granular approach, one that not only prevents any ‘collateral damage’ to innocent service providers in cyberspace, but also upholds their legally and constitutionally protected rights and freedoms.

Very significantly, Justice Patel agreed to grant an order in the plaintiff’s favour only after the information provided by them had been tested by a 3-step verification process. The steps in this process were as follows.

First, Aiplex, the agency commissioned by the plaintiff, verified each of the 134 links that the plaintiff contended contained an illicit copy of the film. Aiplex substantiated this claim by attaching the screenshots of each of the links that it had identified.

Second, the links identified by Aiplex were verified not only by the Group General Counsel of one of the plaintiffs but also by the advocates representing the plaintiffs.

Finally, the information as regards the links containing the infringing material was presented to the court by way of a sworn affidavit, lending further credence to the plaintiffs’ claim.

However, instead of issuing a John Doe order on the basis of this authenticated information, the judge, recognizing the wide-ranging ramifications of such orders, took two additional steps to prevent such orders from being misused.

First, adopting a pragmatic approach, he noted that while it is not possible for courts with heavy caseloads to individually verify each link in question, they should nonetheless find some way to test the veracity of the information presented. Therefore, he briefly analyzed the links and screenshots presented by the plaintiffs, in order to detect any discrepancies and to ensure that no webpages containing trailers of the movie or belonging to legally sanctioned shopping portals were covered by the order.

While these features definitely make this order sui generis and put India’s John Doe jurisprudence on a progressive path, the main factor that sets this order apart is the court’s grant of a nuanced, balanced and sophisticated remedy to the plaintiffs. 3 key features of this remedy merit emphasis.

First, as with its earlier order in GGM, the court explicitly invokes Section 52(1) (c) of the Copyright Act, holding that the ISPs can block any authenticated infringing web links that the plaintiffs may bring to their notice, in contradistinction to entire websites, for a period of 21 days, as mandated by the section. The plaintiffs cannot compel the defendants to restrict access to the links in question beyond the 21-day window without obtaining a court order to that effect. The invocation of this section is important, because it mandates a maximum time period for which an infringing link can be blocked and forecloses the possibility of a web link being indefinitely blocked without the sanction of a judicially trained mind.

Second, the order directs the defendants to put up a special default error page in place of the original web link that is blocked. This page must contain details of the specific offence for which the link has been blocked, along with information about the legal consequences of that offence. Further, the page must also mention the suit number and date of order pursuant to which the blocking is conducted. This is a powerful safeguard, one that will go a long way in nipping the arbitrary and high-handed approach often adopted by ISPs in the bud while exercising their blocking powers.

Third, and most important, the court carves out a much-needed remedy for third parties, who do not participate in the suit, but are nonetheless adversely impacted by the court’s order. Calling such a party the ‘non-John Doe John Doe’, the court holds that whenever any restraint sanctioned by it operates to the detriment of a party, even though it was not designed to affect that party, the party in question can seek appropriate reliefs from the court. To this end, the order directs the ISPs to explicitly state on the default error page that any such party can approach the court with 48 hours prior notice to the plaintiffs.

This jurisprudential innovation by the court could not have come at a more opportune time for parties like Induna, a legitimate seller of DVDs which was adversely impacted by the court’s John Doe order for the movie Great Grand Masti, even though it was not arraigned as a defendant in the suit.

In sum, this order marks both a paradigm shift and a quantum leap in the John Doe jurisprudence of Indian courts and takes the project of circumscribing John Doe orders with sufficient safeguards, started
by Justice Patel while issuing such orders for Great Grand Masti and Sultan, to its logical and appropriate conclusion.

It marks a paradigm shift because it recognizes the time-tested principle that the act of a court shall not prejudice anyone – actus Curiae neminem gravabit. As Justice Patel rightly notes, “(it is) unthinkable that a judicial order should so operate as to cover a multitude of unnamed entities and yet leave the innocent or blameless among them without a remedy.”

And it marks a quantum leap because the court recognizes the folly in relying on self-serving statements of plaintiffs and instead institutes a 3-step verification process, topped by additional verification by the court, as a result of which only those links which can withstand rigorous scrutiny will be blocked.

It would, therefore, not be an exaggeration to state that John Doe orders have now been restored to their proper place — as shields for defending the monetary value flowing from one’s copyright, instead of being used as a sword to cut down the rights of others.

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