In an order passed three days ago, Justice Patel asked all ISPs to replace a faulty error message that caused much problem in public perception. He also pressed the need for a neutral ombudsman for verification of plaintiffs’ claims and resolution of blocking disputes; an idea proposed by Prof. Basheer and developed in a recent piece in the Wire.
But first the background:
Last week, we busted a baloney that merely viewing a “blocked” URL could land you in jail. Unfortunately that baloney arose from a sadly worded “blocking” error message from Tata Communications Limited (TCL) as below:
“This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at [email protected] who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance”.
This led a number of publications to argue that mere viewing of illicit copies of a film could land one in jail. We corrected this mistaken impression in our post here, noting that: “viewing a webpage is not an offence, even if the page contains illicit content, unless one copies or downloads or transmits that content in some way, in which case it will amount to a copyright infringement”. It was only the bad drafting of the message that had led to the confusion.
Clarification by Bom HC and Amended Message
Justice Patel took note of this controversy in his order on August 24:
“The offence is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright–protected material. These error pages appear to have confused the penal provisions regarding obscenity with penalties under the Copyright Act, 1957.”
In a later order (dated August 30), Justice Patel asked all ISPs to display a more accurate generic message worded as follows:
“This URL has been blocked under instructions of a competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Infringing or abetting infringement of copyright-protected content including under this URL is an offence in law. Ss. 63, 63-A, 65 and 65-A of the Copyright Act, 1957, read with Section 51, prescribe penalties of a prison term of upto 3 years and a fine of upto Rs.3 lakhs. Any person aggrieved by the blocking of this URL may contact the Nodal Officer at [email protected][isp-domain] for details of the blocking order including the case number, court or authority to be approached for grievance redressals. Emails will be answered within two working days. Only enquiries regarding the blocking will be entertained.”
He made it clear that this message is to be displayed by all ISPs, who are to also designate a nodal officer whom aggrieved persons could contact for details on the blocking.
The matter has now been listed for 23rd September, when the court will examine if a more complete error message can be displayed by the ISPs. TCL had submitted that the display of a more detailed message is technically infeasible because its inbuilt software does not permit display of a file exceeding 32KB. Finding this to be unacceptable, Justice Patel has asked TCL to forward the copy of this order to its overseas suppliers and impress upon them the need to increase the permissible file size.
ISPs Urged to Consider Neutral Ombudsman Proposal
In his latest order, Justice Patel refers to the Wire article and asks ISPs to pursue this idea more seriously, noting as below:
“I have raised the question how one is supposed to monitor the functioning of this Nodal Officer or whether the Court is supposed to take these ISPs on faith. The answer at least for today is that we will have to take them on faith. I am not at all satisfied by this answer. But I do not see what option is currently available. This underscores the need, one that has been expressed in a previous order and which I have more recently seen in an article entitled In Bollywood’s Battle Against Piracy, A Neutral Ombudsman Might Be the Answer, by Prof. Shamnad Basheer for these ISPs to come together in an association and establish an office of an ombudsman, to whom all such grievances and complaints could be routed. In the form in which it has been conceptualized, I imagine that such an agency would be of great assistance to the Court in these John Doe matters and other ISP, Internet, and software-related issues. In John Doe cases, the ombudsman might serve to provide a first level of checking of the Plaintiffs’ claim. At a later stage, it could monitor the addressing of individual grievances (in the context of Great Grand Masti, there was a complaint by such an individual of a wrongful blocking). The ombudsman might also work more closely and meaningfully with ISPs to ensure effective communications and responses to aggrieved parties. I would urge the ISPs to consider this proposal urgently.”
He further highlighted the range of problems that could crop up in the John Doe cases and for whose resolution an ombudsman was urgently needed. It has to now be seen whether there is enough of a will amongst ISPs, Bollywood content producers and others to come together and form this ombudsman.
Do John Doe Blocks Help Bollywood Flops?
In his inimitably witty style, Justice Patel ends his order by noting a hilarious submission by Mr. Tulzapurkar (who represented TCL) that “these blocks and John Doe orders seem to be sought only for forthcoming or anticipated box office flops”. Perhaps there is some truth to this axiom after all! John Does and blocks may help publicise otherwise mediocre movies. And to this extent IP enforcement plays out in stranger ways than we’ve come to expect!
By the look of it, this last order almost signals the end of the Dishoom John Doe saga…one that saw the infusion of much needed John Doe safeguards and the idea for a third party neutral ombudsman to help resolve these disputes more expeditiously than trudging to court each time.
Image from here.