Copyright

Madras High Court Issues ‘Ashok Kumar’ Order to Block the Internet Archive + 2649 Websites


 

Lipstick Under My Burkha, Image from here.

In yet another instance of overbroad and disproportionate online censorship, 2650 entire websites have been ordered by the Madras High Court to be blocked, nation-wide, as an interim measure against the infringement of copyright of certain films. The Madras HC, on July 21, 2017 and August 2, 2017, ordered an interim injunction against several Internet Service Providers (ISPs), in a case of copyright infringement, directing the ISPs to disable access to websites upon the plaintiff’s request, including, perplexingly, the Internet Archive, an online library of public domain works, which also hosts an archive of more than 20 years of the World Wide Web. Any person attempting to access any of the specified websites now gets a message stating that the website has been blocked as per the directions of the Department of Telecom, Government of India (which is incorrect, as the blocking has taken place pursuant to a court order, not a government direction).

The suits for copyright infringement have been filed by Prakash Jha Films, in respect of Lipstick Under My Burqa, as well as by Red Chillies Entertainment, in respect of the film When Harry Met Sejal. While the Orders are not available from the Madras HC online portal, Medianama was able to obtain copies, which are available here and here.

This is not the first time that courts in India have enjoined ISPs in a quest to thwart online piracy. The DelhiMadras and Bombay High Court have repeatedly used such ‘blocking injunctions’ as a blunt tool in their arsenal for fighting piracy. This blog reported the incident of induna, a website selling licensed CD’s and DVD’s, being blocked by ISPs following a John Doe order against it. However, in the back and forth between the rights holder and the ISP or the infringer, the right of the public to access the internet is being severely curtailed, without courts giving much thought to the manner in which their orders are carried out, or whether they are necessary or proportionate.

Ashok Kumar in the Bollywood Hall of Infamy

The Orders, which are largely identical, direct 37 ISP’s to ‘restrain from infringing’ the films, and to block the list of 2650(!) websites provided by the plaintiffs, upon receiving notice of such websites from the producers/film studios. The Order also operates against cable operators as well as certain unknown defendants, impleaded by the court as ‘Ashok Kumar’.

An ‘Ashok Kumar’ or a ‘John Doe’ order, is an order in a suit brought against unknown and unnamed defendants, to counter the possibility that someone, somewhere, may possibly be infringing upon the rights of the plaintiff. Ashok Kumar orders have become the go-to tool for overzealous plaintiffs seeking copyright protection from the Court in respect of online infringement, by claiming the difficulties in identifying the infringing parties. There are several problems with the Order of the Madras HC, which are common to most such Ashok Kumar orders issued by courts in India.

  1. Ex – Parte – The Orders appear to have been passed ex parte, without any of the defendants haven been given a hearing or the chance to put forward their defence. Such orders should only be passed in highly exigent circumstances, and must follow guidelines issued by the Supreme Court of India. However, the Order does not give any details as to why such an order was passed ex parte, not only against the unknown defendants, but against the ISP’s as well.
  2. Standards for injunction not satisfied – The Orders do not specify at all whether the standards for issuing an injunction are satisfied, namely, the plaintiff must have made a prima facie case, with some evidence of infringement; the balance of convenience must be in favour of blocking the websites as against the interest in keeping them accessible, and the plaintiff must show irreparable injury arising from the infringement. However, the Orders do not make any such determination, instead proceeding simply on the basis of the plaintiff’s claim.
  3. Overbroad and disproportionate – The Orders direct ISPs to block entire websites, instead of specific, identified URL’s. The requirement to specify infringing works while issuing a blocking injunction has been noted both by the Bombay High Court as well as by the Madras High Court, however, the present orders pay no heed to this. Further, the Orders direct ISP’s to block websites which host content ‘relating’ to the plaintiff’s copyrighted material. As far as I am aware, a plaintiff only has specified statutory rights under Section 51 of the Copyright Act, and cannot claim any cause of action against any content ‘relating to’ their works. The Internet Archive being blocked is a good example of the overbreadth of the Orders. The Archive does not host video content which is not in the public domain, but only captures HTML web pages as part of an archiving process. It is difficult to identify any claim which the plaintiffs can have in respect of copyright in their films, against the archiving of web pages.
  4. Unclear legal basis – Despite the practice of issuing Ashok Kumar Orders having been adopted by courts in India as early as 2003, the legal basis for directing ISP’s under this Order is unclear. The Copyright Act, 1957, in Section 52(1)(b), clearly exempts ‘mere conduits’ (which includes ISP’s), which provide Internet access, from liability in respect of any infringement. Therefore, the ISPs themselves cannot be held liable for infringement of the films. However, the courts still possess the inherent power, under Section 151 the Code of Civil Procedure, to make such orders requiring the assistance of third parties to ensure the efficacy of their order. The Court of Appeal in the UK recently confirmed the inherent power of UK courts to issue directions to ISP’s who are not actual defendants. However, there is no jurisprudence on the specific issue in India, which leaves us guessing (in some trepidation) as to the scope of this power.

Curtailing Online Access

The trend of wantonly issuing directions against ISP’s and making them liable or responsible for removing infringing works has the potential to severely curtain access to online content. Most ISP’s are private, for-profit corporations, whose course of action is necessarily the one entailing least economic costs. As such, ISP’s already have more of an incentive to be overbroad in their compliance with copyright law, to avoid any possibility of liability accruing on themselves. In this scenario, ISP’s are unlikely to put up much of a defence against court orders requiring them to block access to online content and services. The plaintiffs in these cases, the rights holders, similarly have an incentive to obtain as broad an injunction as possible (although it is disappointing that the producers of Lipstick under my Burqua, after a massive publicity campaign against censorship, did not choose to be more cautious in asking for online censorship). The biggest impact of such orders is on the users of online services – for example, the author of a legal work whose creation is removed, or the users trying to access a website that hosts legal content.

There have been efforts to buck the trend, and develop the jurisprudence around the court’s power in issuing blocking injunctions. In particular, this blog reported Justice Gautam Patel’s judgements from the Bombay High Court, which were circumspect with blocking websites on the asking of the plaintiff, and which laid down guidelines on which blocking injunctions should be granted, and also introduced a remedy for third parties affected by the order and who may want to challenge it. The Court also recognised the implications to public interest in these private copyright disputes, noting that:

“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.”

The Court also took a cue from academics, and suggested the idea of a neutral third party, who could verify the links suggested to be infringing by the plaintiff and also provide a simplified and expeditious forum for resolving disputes which may arise between third parties and the plaintiffs or ISPs.The Bombay High Court’s course correction was a significant departure from the existing practice, and a step towards developing jurisprudence around the issue of blocking injunctions. However, as the present orders Orders show, courts still choose to act heavy-handedly while dealing with claims of intellectual property infringement, and unfortunately, the Courts charged with protecting the interests of the online community do not seem to take into account the aspect of public interest involved in being judicious with the use of a power to curtail Internet access.

 

 

 

 

 

Divij Joshi

Divij Joshi is a lawyer and general-purpose enthusiast. In his alter-ego, he regularly saves the world by using technology for the greater good, until he wakes up.

6 comments.

  1. Bharat Dube

    What an ill-informed article, and I strongly disagree with the author’s views.
    The orders from the Madras High Court are forward looking, well grounded in the law, and in line with judicial decisions in other countries. They block access within the country to specific ‘rogue’ sites that would otherwise screen pirated versions of films. This kind of order ought to be lauded rather than criticised!

    Reply
    1. Divij Joshi Post author

      Thank you for your comment and voicing your disagreement! Could you please point out specifically which part of the post you find ‘ill informed’? I’m only aware of blocking injunction jurisprudence in the UK and US, which do not issue similarly broad and unreasoned orders. Could you please point out specific judicial decisions in other countries which are in line with these orders?

      Reply
      1. Bharat Dube

        The whole thrust of your article! What do you find defensible about pirated content appearing on ‘rogue’ sites, or efforts by rights owners to try and block access to such sites via court orders? And do you really expect the folks behind the innumerable Pirate Bay clones which have sprung up, or other torrent sites, to be appearing before courts in India even if the proceedings were to have been on an inter-partes basis? As for other jurisdictions where such orders have issued, in addition to the US and UK, one could cite Australia, Malaysia, South Korea, and all member states of the EU. So, MR. Joshi, the Madras High Court is in rather exalted company…

        Reply
        1. Divij Joshi Post author

          As far as I am aware, the UK (in compliance with the EUCD), Australia as well as Singapore have specific legislations which provide for the specific power and limitations under which blocking injunctions can be issued to ISP’s. Please do correct me if I am wrong. The thrust of this article is not a defence of flagrant piracy, but an introspection on the means the court is using to enforce copyright over and above other important factors, including the freedom of information. The article specifically points to the injunction issued against the Internet archive, which, as explained in the article, does not host non-public domain film works, therefore, the order is clearly wrong at least in that aspect. Further, no attempt has been made by the court to satisfy itself that any of the websites actually carry the infringing content, instead relying on the Plaintiffs ipse dixit. The court has given a clearly unreasoned order with far reaching effects (a nationwide block to thousands of websites) without even undertaking the basic exercise of whether the conditions for grant of injuncitve relief (which exist in many similar jurisdictions) have been satisfied. Please cite specific judgements in other jurisdictions where similar orders have been passed, if you wish to refute the arguments based on a comparative.

          Reply
  2. Bharat Dube

    p.s. I forgot to include Singapore in the list, which was remiss of me especially as this is where I’m based. Also, for the sake of accuracy, the rulings against ISP’s in South Korea, Indonesia, and Malaysia are administrative, rather than court-ordered, and regulatory oversight of service providers.

    Reply
  3. Angelus

    Blocking the Internet Archive is not only ill informed, but extreme to the extreme extent. This is a testament to how ill informed the judges are about the internet, and how overbroad the film industry is in asking for these bans. This kind of censorship does more harm than good, all in the name of copyrights for a movie that will be forgotten by next year.

    Sure, piracy is not ideal, but piracy has and always will be a consequence of the media industries themselves who are scattered and are averse to coming together and providing a unified platform to stream released movies for a reasonable monthly fee, to an audience who have moved past the older and pricey ways of accessing content past their run in the cinemas. Pirate sites have shown that this is possible and desired by the end users, based on their popularity.

    What’s next, ban all newspaper websites that criticize a movie because it caused the studio a loss, even though they made a crappy movie?

    Reply

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