Just as the Bombay High Court was restoring some sense of sanity by streamlining ‘blocking’ orders demanded by copyright owners against online pirates, a Division Bench of the Delhi High Court has passed orders allowing for the blocking of entire websites rather than specific URLs. This order passed by the Division Bench of the Delhi High Court on July 29, 2016 is weak on law and appears to be grossly erroneous given the specific facts of this case.
Let’s start from the beginning. On December 2, 2014 the plaintiff, Star India Pvt. Ltd. approached the Delhi High Court seeking ‘John Doe’ blocking orders against 73 websites to restrain them from streaming online, Star India’s broadcast signal of the Indo-Australian cricket series consisting of three test matches. Since Star India had approached the High Court even before the series began, it did not have any evidence that these 73 websites were in fact infringing its broadcast signal – this is very different from the orders sought by movie studios, all of whom usually go to court with actual proof of infringement. Star instead argued that there was enough past evidence to establish that these websites were streaming pirated content in the past. Thus apprehending that these websites would violate its broadcast rights in the future once the match started, Star India sought pre-emptive action against the 73 websites. Since there was no question of providing the court with specific URLs because the cricket series had not even begun, Star India sought the blocking of entire websites. It sought to justify such sweeping blocking orders by arguing that URLs were very easy to manipulate. The court notes Star’s submissions as follows:
It is submitted that in case a URL is blocked or disabled, it is extremely easy for the website to provide access to the blocked content through another URL since a mere change of a character in the URL string will results in a completely new URL. Consequently, it is extremely easy for a website to circumvent and thus nullify any order that directs blocking of specific URLs since such websites can very easily provide access to the same content by merely changing one character in the URL string. Thus, unless access to the entire website of the named and unnamed defendants is blocked, there is no alternate and efficient remedy that is open to the plaintiff.
As is usually the case with the Delhi High Court, it granted a sweeping injunction ordering 17 defendants (presumably ISPs) to block 73 websites. The cherry on the cake (although not entirely unusual) is the direction given to the Central Government to ensure compliance with the court’s order – Star India justified this demand on the grounds that the Licence Agreements between the govt. and the ISPs required the latter to ensure that copyright infringing content was not carried on its network.
While giving the Plaintiff everything that it prayed for, Justice S.P. Garg did not think it necessary to provide any safeguards in his order despite the fact that he was passing pre-emptive orders on the mere apprehension that these 73 websites were going to infringe Star’s broadcast reproduction right under Section 37 of the Copyright Act. He also does not explain why the Government should be required to ensure compliance with the court’s order when there is nothing in the law requiring the Central Government to enforce the private IP rights of the plaintiff unless as provided in the Copyright Act – the plaintiff’s argument on the licence agreement is naïve. A licence agreement between the government and a private party cannot be enforced through a civil suit by a third party which is not signatory to the licence.
The order by Justice S.P Garg on December 2, 2014 was passed ex-parte without hearing either the ISPs or the government despite a statutory requirement under Section 80 of CPC requiring the govt. to be heard in any suit where it is made a party. When the court’s order was served on the Central Government, it filed an appeal before a Division Bench of the Delhi High Court requesting for the order to be modified. The Division Bench of the High Court modified the Single Judge’s order on March 10, 2016 to restrict blocking to only URLs and not entire websites – it also ordered the government agency CERT-IND to issue instructions on blocking of websites.
The first problem with this order is that the initial cause of action i.e. the live webcast of the series did not survive any more – the last match was played on December 26, 2014. Thus once the matches were over, the case should have been closed unless Star was seeking damages – given that Star claimed that it could not even get responses to its legal notices, it is unlikely that it would have sought damages from these websites.
The second problem is that even the Division Bench fails utterly to justify in law, its order to CERT-IND, to get involved in enforcing private IP rights – nothing in the law requires the government to enforce the court’s orders to block websites when the technical capability to do so lies with ISPs.
After the Division Bench’s order on March 10, 2016; Star India filed a review petition seeking a modification of the Division Bench’s order. As I mentioned earlier, the matches were over – the case should have been closed because from the Single Judge’s order it appeared that Star India only wanted to stop the live webcast of the cricket series. The Division Bench should have posed this question to Star India. Rather than ask these difficult questions, the Division Bench in its order dated July 29, 2016 did a reverse flip with very little reasoning and agreed with Star India that since URLs were easy to change, entire websites could be blocked. There is not even a whisper of any safeguards in the entire order. Contrast this sledgehammer approach by the Delhi High Court to Justice Gautam Patel who used a fine scalpel to fashion well thought out safeguards while issuing John Doe orders – Rahul had written an excellent post on that order over here.
At the very least, one would have expected the Delhi High Court to lay down certain criteria to determine the circumstances in which an entire website could be blocked – let’s not forget this case was limited to an apprehension of possible breach of IP rights by real time live webcasts in the future – what if it turned out that the website was not even live streaming the match once it started? The court should have devised a mechanism whereby Star India would be required to provide evidence after the match began to establish whether the websites in question were actually violating its broadcast rights and if in case a website was streaming content, the court should be appraised of the nature of the website i.e. whether it was an intermediary platform or a standalone website and then determine if it was possible to isolate the URLs or whether it was possible to elicit a reaction from the website owner to block the offending URLs. Different kinds of platforms require different responses from the courts. Courts cannot pass the same kind of orders in cases where the plaintiff has evidence of illegal downloads and in cases where the plaintiff merely apprehends evidence of future infringement by live webcasts.
This review order dated July 29, 2016 also deals with the issue of the govt. being compelled to enforce the blocking order. The Court’s reasoning is as follows:
On the issue of whether the appellant could be directed to ensure compliance with the blocking order directed against the service providers, suffice it to state that it is the duty of the Government, its instrumentalities and agencies to assist in the enforcement of orders passed by the Courts
This is an incomplete and incorrect articulation of law. The Copyright Act lays down a specific procedure whereby the government can get involved in enforcing broadcast rights through the filing of criminal complaints – Star India did not choose the criminal route of enforcement. It consciously chose the civil route and there is no obligation in law for the central government to get involved in civil disputes.
Interestingly, the order also reveals that ISPs like Airtel had demanded that the Central Government be compelled to issue such directions to ISPs because the company was worried about being sued for breach of contract by both users and website owners (this has happened in the past with Airtel being fined in consumer court) – the order does not clearly mention the logic of why Airtel favoured govt. orders over court orders but I am presuming that while dealing with the court, ISPs end up interpreting court orders and being threatened with contempt proceedings by the IP owners who will seek the most expansive interpretation of the court order. Having to merely enforce govt. orders frees the ISPs from the burden of interpreting the court’s orders and reduces their exposure to contempt proceedings.
To briefly summarise – IP enforcement on the internet in India is a mess with the Delhi High Court determined to drag us back to the darkness, while the Bombay High Court tries to show us the light. For those of you interested in reading more on the issue, Kian Ganz has a nice piece in the Mint, exploring some of these issues in greater detail.