In the realm of copyright law, one of the most widely used remedies, whose laudable object of preventing wholesale infringement has been significantly offset by the chilling effect that it has had on free speech, are the now ubiquitous “John Doe” orders.
As Kartik has noted on this blog before, the regime of John Doe orders is “like an expanding castle of tumour, set within the intricate machine of the legal system, fed by existing infirmities such as the very nature of ex parte proceedings and interim injunctions.”
As Professor Basheer has noted, the only way in which courts can strike the elusive balance between protecting the rights of the copyright owner and ensuring the free flow of Internet content is by mandating selective purging in contradistinction to wholesale blocking.
Two excellent examples of the way in which this balance can be struck, by building robust safeguards into the orders, can be found in Justice Gautam Patel’s recent orders here, here and here. Orders that not only temper the recent onslaught of John Doe excesses, but are exceptional in that they demonstrate a rare breed of judicial humility and take account of valid critiques presented on SpicyIP in earlier posts and infuse further safeguards into these exceptional remedies.
A Progressive Judiciary that Takes Account of Academic Critique:
As noted earlier, what particularly sets apart these latest spate of tempered John Doe orders apart is the court’s willingness to embrace constructive criticism in its stride. Explaining the rationale for hedging the John Doe orders with safeguards, the court referred to articles written by Prof. Basheer available here and Vasundhara Majithia, our SpicyIP Fellow, here.
In these articles, Prof. Shamnad and Vasundhara took note of the manner in which a large majority of John Doe orders are couched in exceptionally capacious language, resulting in legitimate content being treated on the same footing as illicit content.
Justice Patel’s observations about this criticism deserve to be quoted in full:
At this stage, I must briefly note the reason for making these additional demands on the Plaintiffs, especially given that there is a long history of broad-based John Doe orders in the past. I myself have passed some of those orders. But this in itself is no reason to continue with a trend that seems to me if not downright dangerous, at least one that requires the introduction of some caution and circumspection. I have noticed some criticism of such orders on various legal sites and journals particularly as to their width, ambit and tendency to last for a long time without sufficient judicial oversight in the interregnum. (1)
Footnote 1: Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels; – by Prof. Shamnad Basheer, LiveLaw.in; http://bit.ly/29kRyrj; Udta Punjab: An IP Controversy [Part I], by Vasundhara Majithia, Spicy IP.com; http://bit.ly/28NwcVJ
Criticism should always be welcome; studied and measured criticism set out with rancour or invective, even more so. This, after all, is the discourse of law, and I see no reason why orders and judgments should stand outside this discourse. The source of the criticism is surely immaterial, and the fact that the criticism is on a website or portal is not itself reason to view it with either suspicion or disdain. There is a vast body of sound academic writing online. If the law is to progress, an engagement with such criticism is essential. I do not suggest, of course, that any court or decision-making authority or body should be over-sensitive; the nature of the task demands a thick hide. Nor do I suggest that every barb and jibe deserves a response or the indulgence of scarce time and resources. However, where there is a point well-taken, it surely at least merits some thought. We should, I believe, be remiss in the performance of our public duty if we were to ignore a valid critique. Every system must have a process of self-correction where one is needed; nothing is written in stone. In the present case, the point being made is that the entrenched format of the John Doe orders was far too broad and admitted of little or no scrutiny. They had the potential of shutting down entire websites and blocking all content, even legitimate content. As I said last Friday, such orders proceeded on the implicit assumption that the entirety of the content of all these cited websites was illicit; that no verification was necessary; that the illicit content had been established to the satisfaction of the Court; and possibly that the entirety of the content of these sites related only to the immediate complaint at hand. It is, on reflection, impossible to justify any of these. There are, I think, at play here far larger issues, including of unattended and unsupervised and judicially mandated policing of the Internet.
To the best of my knowledge, this is the first time that an Indian court has taken note of criticism embodied in a web article into cognizance while crafting its opinion. Justice Patel’s reaffirmation of the proposition that the Internet contains a vast body of sound academic writing, it is hoped, will make his brother and sister judges more open to the idea of taking judicial notice of views that are well-founded, albeit expressed in traditionally unconventional fora.
Against this backdrop, it would be fruitful to examine the specific details of the two cases.
Details of orders:
In the first of these cases, Justice Patel was asked by Balaji Motion Pictures to grant a John Doe order for the blocking of, inter alia, approximately 800 websites containing pirated copies of the movie, Great Grand Masti, which is slated to release on the 22nd of July.
Holding that it would be incorrect to block a raft of websites on the basis of sketchy and formless pleadings, Justice Patel held that the plaintiffs’ prayer was founded upon the erroneous premise that the websites in question contained only illicit copies of the plaintiffs’ film and were devoid of any legitimate content.
Recognizing the need for the plaintiffs to craft their prayer for relief with greater specificity and exactitude, he asked them to concretely delineate the URLs containing illicit copies, get the affidavit verified from a technically competent official and get a sufficient quantity of the said links checked by a technically competent person to find out if they actually contained illicit copies.
In order to comply with this direction, the plaintiffs commissioned the services of two anti-piracy agencies, whose mandate was to precisely identify the links pointing users to illicit copies of the film. Through the use of web technology such as web-crawlers, the agencies were able to identify the specific links that pointed to illicit content.
After having perused the affidavit containing the amended prayer, which sought a narrower relief, Justice Patel arrived at the conclusion that the plaintiffs were entitled to the grant of interim injunction. Pertinently, however, the injunction only extends to the 482 URLs, in contradistinction to entire webpages/websites, that were identified by the two anti-piracy agencies as pointing to infringing material.
Further, the Court held that these links were to be taken down by the defendants on the plaintiffs or a Senior Inspector in the Cyber Police informing them about the same.
Three other safeguards were set forth in the order.
- First, the plaintiffs were directed to serve a notice to the defendants about the grant of ex-parte interim injunction, as mandated by Order 39, Rule 3 of the CPC.
- Second, the defendants were given liberty to apply against the grant of injunction with prior advance notice of 4 days to the plaintiffs.
- Finally, recognizing the need to circumscribe the duration of the injunction, the Court held that it would operate up to the 4th of October.
Similarly, in the second case in which the Court was confronted with a prayer by the plaintiff, Yash Raj Films, for the grant of an interim injunction to block the websites containing illicit download links of the movie Sultan, the Court adopted the same approach. More specifically, the court narrowly tailored the injunction in such a way as to make it applicable only to the 102 links that were identified by the anti-piracy agency commissioned by the plaintiff as containing infringing material. The other safeguards were the same.
While most judges would accept the proposition that constructive criticism is central to a well-functioning judicial system, few would be willing to go so far as to acknowledge that their own view on a given issue needs to be revisited in light of such criticism and then alter their view accordingly. Viewed through this lens, Justice Patel’s observations are particularly refreshing.
At a time when the IP jurisprudence of the Delhi High Court is moving in a more plaintiff-friendly direction, well-reasoned orders by the Bombay High Court, such as these, are likely to restore the balance in a significant way.
Further, these orders are also likely to mark a sea change in the way courts construe the assertions of plaintiffs in IP disputes. Instead of treating such bald assertions as gospel truth – a tendency that Prof. Basheer expressed grave concerns about here and Prashant also criticized in the context of a recent Madras High Court decision here, courts are likely to demand that plaintiffs substantiate their averments and tailor their prayers as narrowly as possible.
If the principles set forth in these orders are adhered to by courts across the country, India would doubtless become one of the most progressive jurisdictions in the sphere of IP law insofar as the grant of John Doe orders is concerned.
In sum, since the Court expressly recognizes that wrongly crafted John Doe orders can result in judicial policing of the Internet, it is hoped that courts will make a concerted attempt to hedge these orders with sufficient safeguards in future so as to make sure that a shield designed with the goal of ensuring that copyrighted content is used in legitimate ways is not transformed into a sword for blocking content that is no less legitimate.