Copyright

Breaking News: John Doe Denied For Dishoom!


dishoom-poster-759In a significant development for both IP law and Bollywood, the movie Dishoom (starring John Abraham, Varun Dhawan and Jacqueline Fernandez) was denied a John Doe order by the Bombay high Court yesterday.

This might perhaps rate as the first ever Bollywood movie where a John Doe order was denied in such strong terms (though the order leaves some scope for plaintiffs to return to court with a fresh application).

In a scathing ruling that tore into the Plaintiff’s callous disregard for the truth (whether or not the web-links cited by them actually contained unauthorized copies of the movie), Justice Patel held as under:

“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. Without that being attested to and established on Affidavit, I will not consider an order that results in the blocking of an entire website. I believe the Plaintiffs, who are no strangers to either such suits or to my orders on them, are sufficiently aware of my reluctance to give them such sweeping orders any longer.”

The judge then goes on to assess the legitimacy of the various links provided by the Plaintiff:

“The real difficulty with this revamped list is that I cannot tell whether the links and URL it sets out point to entire websites, individual web pages (two very different things, one a subset of the other), individual links, sub-domains or something else. It does not appear that every one of these references an illicit download of the entire movie or any part of it. On the barest scanning, some of these links obviously point to trailers: for example, serial numbers 2, 11, 17, 30, 33, 40, 41, 42, 43, 49, 50, 55, 59, 60, 90 and 95. These are only the ones that I myself have found in a very cursory run- through. There may be others. I do not know. The list is not on Affidavit. There is no statement saying that these are all links to illicit downloads of the entire film or infringing parts of it. I have reason to believe that some of these links may in fact be of vendors advertising forthcoming DVDs or official downloads. For example, I do not know what the URL at serial number 47 points to. It clearly references as part of the URL a product category and a product reference number.”

The order ends on a strong note:

“It is no longer possible for Plaintiffs to now come and expect to get sweeping orders just for the asking. I expect a far higher standard of care. I understand that the Plaintiffs are anxious to protect their copyright. As against that, there are other public law rights of wider import that Courts must protect. I have very little doubt as to which is the more important.”

As mentioned earlier, the decision leaves some scope for the plaintiff to return with a more well researched application, duly verified and authenticated:

“Once they have properly verified the material (and by this, I mean an actual check, not a hypothesis or an extrapolation), and once that revised link is suitably attested to, the Plaintiffs may renew their application.”

The End of an Era for John Doe Jaunts?

Given the rather promiscuous proliferation of sweeping John Does in the last several years, this is an extremely welcome development. And much in line with earlier cautionary caveats on John Does’ from the stable of Patel J.

Copyright protection is no doubt important; however, it cannot come at the cost of the wider public interest. More so when it impacts innocent third party service providers who are put to severe losses as a result of the plaintiff’s callous clubbing together of a bunch of links, even those that point to trailers. Or more problematically, those that merely announce the movie with “coming soon”. As happened with Induna, a legitimate seller of DVDs that continues to face the brunt of a bashful blocking by Balaji Telefilms. Certainly no grand masti for Induna, given that some of the ISP’s (that blocked) have  ignored it’s repeated calls to unblock the site/link.

India is at the cusp of an interesting shift in John Doe jurisprudence. And one hopes that when the matter is taking up again at the next date of hearing, Justice Patel’s court will lay down a nuanced, comprehensive and balanced framework for the issuance of such orders in future. And importantly, one that will investigate the precise legal character of a John Doe action. The judge hints at this at the start of his ruling, noting that:

“The Defendants are the usual suspects: cable operators, internet service providers and, of course, from Defendants Nos. 43 to Defendant 50, our John Does or Ashok Kumars, persons unknown. Yet again this is said to be a ‘hybrid’ action. What exactly this is supposed to mean is something that I propose to consider at length when I take this matter again.”

And even as wait on this jurisprudential clarity, let’s shed a few tears as the curtain closes in on an epochal era of (in)judicious John Doe’s! For Patel J’s ruling might well be the final nail in the coffin, holding as it does that John Doe’s just cannot be dish(oom)ed out for the asking anymore!

Ps: Unfortunately, and perhaps paradoxically, the Bombay High court website does not support stable web-links (that resolve to their latest decisions). And is a nightmare to navigate (with no explanations for the various abbreviations that come with each case reference). So for those interested, here is the citation for the case. Eros International and Another Vs BSNL & Others, Notice of Motion (L) No. 2147 Of 2016 in  Suit (L) No. 751 OF 2016.

pps: Image from here.

 

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

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