Sunday, June 03, 2012

What's with this Kolaveri about John Doe Injunctions?


What's with this Kolaveri about John Doe Injunctions?


[This is a revised version of an article originally published in the Down to Earth website]

On 29 March 2012, at the instance of a firm called Copyright Labs, the Madras High Court issued an injunction intended to prevent the illegal copying and distribution of the film "3", perhaps best known for it song "Why this kolaveri (killer rage)".  Those interested may read the order for themselves, (courtesy of the BGR blog); as injunctions go it was certainly a most unusual one. It was ex parte in nature, that is, it has been issued by hearing only one side. Moreover, it was in the nature of a "John Doe injunction", that is, it applied to any and all persons, even unknown ones. The plaintiffs used this feature to persuade ISPs to altogether block access to both P2P sites and video sharing sites like Vimeo and Dailymotion, regardless of whether or not they actually contained or gave access to the concerned material. Predictably, this caused outrage and confusion in equal measure. Even to someone like me who can claim some connection with the law for the last seventeen years, the incident did not make sense. How could an ex parte John Doe injunction of such sweeping ambit be ever contemplated? And how can an injunction to prevent piracy apply to ISPs and video sharing sites anyway?

To understand the facts better, perhaps the quickest strategy is to fall back on beer, the law student's time-tested analytical tool. Consider a situation (needless to say, completely hypothetical), where United Breweries discovers some enthusiasts brewing, on a limited scale, a beer near-identical to Kingfisher Ultra. Its purveyors have no intention of passing it off as genuine KF. Neither is this faux KF sold or transacted for material gain, but only "shared" amongst its (re)creators. At the same time, the purveyors are open about their product's resemblance to the genuine KF, and indeed their declared intention has been to recreate its taste and colour. Over time this community of enthusiasts starts cutting into UB's revenue, or at least UB claims so. The company tries to approach law courts, but it turns out  that the places where the sharing takes place lies beyond the the courts' jurisdiction. UB then takes out a court order forbidding anyone to help these exchanges. 'Anyone' means literally just about anybody. It includes not only sharing venues, but also certain clubs or societies where microbrewery enthusiasts gather to discuss and sample (not consume) each other's products. Since these sampling clubs also lie outside the court's jurisdiction, the injunction does not help UB much. Now what does it do? It goes and informs bus and taxi companies that the terms of the court order are so wide as to cover them also. Hence they are prohibited from carrying passengers to the sharing venues and sampling clubs. This prohibition extends even to passengers who have no interest in KF, but want to go to a sampling club to taste brews that have nothing at all to do with UB.

The natural response to this admittedly absurd scenario is that beer (and likewise chocolate, toothpaste or shoe polish) are inherently different from films or audio recordings. Replicating beer entails a process not only skilful but also cumbersome and expensive, which tends to restrict such not-for-profit endeavours to "small beer", literally. This is one major flaw in our above example: it is very difficult to sustain volumes large enough to dent UB's profit margins unless one resorts to outright fakery and passing off. In contrast, films can be easily copied and distributed over the internet at little to no cost.

But should this difference alone justify such sweeping injunctions and render plausible in respect of films what we just acknowledged as absurd in the case of beer? In other words, can certain procedures otherwise uncalled for be justified merely because the subject matter concerns intellectual property? This means the matter pertains not so much to copyright as it does to civil procedure and how it is to be applied to enforce rights deriving from intellectual property laws. This is a vast issue, well beyond the scope of this article.  Here I shall only raise a few points that I consider germane.

Protecting intellectual property, and particularly copyrights, presents an unprecedented challenge to legal systems the world over. Advances in digital technology has made it possible to copy and distribute over the internet music recordings, films and even books with unprecedented speeds and reach. Despite many efforts, no satisfactory legal response has been devised so far. "Satisfactory" is a loaded term, so it is perhaps a good idea to specify what exactly I mean by it. First, it must bear strong connections with the idea of efficiency, that is, securing the objective with minimal wasted effort and "collateral damage". The last is particularly significant. Applied to the present context, it means simply that the measure must (a) be effective in restricting piracy, and (b) cannot be so broad in its ambit as to encroach upon individuals' legimitate interests. This includes the various fair use rights recognised under S. 52 of the Copyright Act; the right to access on Vimeo and Dailymotion videos that have been legally uploaded there; and even the right to distribute over BitTorrent material whose copyright status is not in dispute (I myself have used BitTorrent on several occasions to download software like Ubuntu Linux). Which means that expressed in simple terms, an effective remedy must also incorporate elements of balance - a balance between various differing, and at times mutually inconsistent, individual and social interests.

In this light, let us examine the nature of the present injunction. First, it was ex parte in character. Since such orders override a fundamental principle of natural justice that all parties should be given a fair hearing, they are to be issued with much restraint, and only in exceptional situations (such as when the other party persistently fails to appear, or when any delay will lead to significant injustice).

Secondly, the only specific parties the order names (at p. 3-4) are some fifteen India-based ISPs, whom it proceeds to restrain "from in any manner infringing the applicant's copyright in the cinematographic film/motion picture '3' . . .." No mention is made of any P2P or even video sharing sites, whose direct involvement in infringing the plaintiffs' copyright is much more feasible and also likelier. As a Medianama report correctly points out, ISPs are only intermediaries, and cannot by themselves infringe an copyrights. (It also says the order makes ISPs responsible for infringing copyright. Admittedly it does refer to certain other suit documents which are not in my possession right now, and hence whose content cannot be verified. However, to my mind there is nothing in the order at least that holds ISPs responsible for copyright infringement. It is as absurd as holding taxi drivers responsible for infringing UB's intellectual property merely by driving passengers to beer sharing venues.)

But it is the third characteristic of the order that makes it so remarkable. Apart from the ISPs mentioned, it specifies five other parties all denoted by the fictitious name "Ashok Kumar", and then also "other unknown persons", against whom the injunction applies. In many legal systems, particularly western ones, this is known as a "John Doe" order. Its use in India is rare. Even in the west it remains something of a novelty, but its use there is certainly more frequent than in India. As a result some jurisprudence has developed around around it, mainly in the nature of safeguards preventing it from arbitrary application. The question that arises naturally here how the present injunction fares when evaluated against these safeguards.

The most frequent use of the John Doe concept is not really relevant to us. It is when fictitious names like John Doe or Jane Roe are used to mask the identity of parties who cannot be named for concerns of privacy or other legal factors: examples include victims of rape or other sexual offences, parties who are underage and so on. More applicable to our case are instances when an injunction or some other relief is sought in regard to a person or persons unknown. This is gaining popularity internationally in intellectual property cases. An interesting example concerns Harry Potter books. The release of each volume in the series was greated with much public frenzy and, inevitably, media hype. This resulted in at least two separate cases of pre-publication copies being stolen with the intention of leaking to the tabloid press. On both occasions, an injunction was issued prohibiting person or persons unknown from "disclosing any information concerning the book or dealing in any way with any copies of the book or disclosing any part of any copies they might have to any third parties . . .." The first time it happened, before the launch of "Harry Potter and the Order of the Phoenix" (volume 5), the injunction pertained specifically to the unidentified individuals who had offered the illicit copy to the Sun, the Daily Mail and the Daily Mirror. When it happened again with the next volume "Half-Blood Prince", the resultant injunction covered "any person or persons who have or have had physical possession of a copy  . . . or any part thereof without the consent of the claimants." What is significant here is that such injunctions have always been issued with a great deal of caution. Even the second Potter injunction was very specific in its application (i.e. the content of "Half-Blood Prince"); entailed a clearly defined  timeframe (from 3 June 2005, when the threat of leakage was detected, till 12.01 AM on 16 July, when the book was released); and pertained to individuals, albeit unknown, whose actions amounted to a direct and tangible copyright breach.

Similarly, take John Doe subpoenas popular in US, which are designed to compel disclosure of parties' identities, and are popular in cases of online defamation as well as copyright infringement. Since the net provides considerable scope for anonymous libel, obtaining the perpetrator's identity is usually a complicated process that involves first securing a court order (specifically, a subpoena) directing the hosting website to disclose the IP address from which the defamatory statement was made, and then securing another order this time directing the ISP that owns the address to reveal which account used that address at the time the statement was made.

This process is not only cumbersome, but also potentially infringes the privacy of the unnamed person. Consequently, courts have always been careful about issuing such subpoenas, and in various judgments formulated different tests and criteria to ascertain if a subpoena is appropriate. In Sony Music Entertainment Inc. v. Does 1-40 (326 F. Supp. 2d 556 (2004)), which in fact concerned copyright infringement through p2p networks, a New York district court held that a subpoena to disclose the identity of the file-sharers can be issued only if a prima facie case is made out against specific persons, no other means of obtaining their identity is possible and so on. This apporoach was followed in Doe v. Cahill (884 A.2d 451 (2005)), a Delaware Supreme Court concerning online defamation. Here the court ruled that no subpoena may be issued unless the plaintiff first demonstrates that the impugned comments can be "capable of a defamatory meaning". Subsequent cases have held that even after this prima facie test is satisfied, the plaintiff's interests must be balanced with those of the anonymous defendant. In Mobilisa, Inc. v. Doe (170 P. 3d 712 (2007)), the Arizona Appellate court followed Cahill and the older New Jersey decision of Dendrite International v. Doe No. 3 (A-2774-00T3 (2001)) to conclude that that even after the plaintiff establishes a prima facie case, a further set of five criteria must be fulfilled. For example, the plaintiff must make reasonable efforts to inform the anonymous party that a request to disclose anonymity exists; the intimation must be made through the same medium as the statement imputed to be defamatory, and so on.

All this serves to illustrate one crucial point: In jurisdictions where the law of copyright is much more matured as compared to India, John Doe injunctions are issued very judiciously, and by balancing the interests of all parties concerned - even the anonymous ones. Moreover, in most of the cases we saw, John Doe injunctions are issued subsequent to the commission of a legal wrong, not to pre-emptively restrain persons from committing them. In exceptions to this (such as the Harry Potter case), the terms of the injunction are tightly defined. These characteristics do not hold true for India. Once earlier also, the Delhi High Court had issued a similar John Doe injunction blocking the illegal distribution of the Reliance Big Pictures' film Singham before its official release (a copy of the order is available here). Since the injunction was not targetted at any specific individual, Reliance interpreted it to mean it could serve notices to anyone it wanted. So it went about serving cease and desist notices on both ISPs and torrent sites directly. The latter strategy did not work, since most of them lay outside the jurisdiction of Indian courts. The owner of BitSnoop, for example, made it clear that he had every intention to ignore the notice. Hence, presumably, when Copyright Labs decided to obtain a John Doe injunction, it made specific mention only of ISPs, who at worst can only aid the infringement of copyrighted materials by allowing subscribers to access them.

To conclude, let us revert to the question posed much earlier: can certain procedures otherwise uncalled for be justified merely because the subject matter concerns intellectual property? While it is manifest that the differences between beer and cinema call for dissimilar treatment, our above exegesis makes it equally clear that regardless of the nature of the subject, a balance must be maintained between different legitimate interests. Harish Ram, CEO of Copyright Labs, has claimed that ISPs had misinterpreted the order, and that the Labs' intention was only to block specific URLs. This explanation does not hold water. The ISPs acted not directly on the court order, but on the legal notice based on it that the Labs had sent them. It was therefore incumbent on the latter to be clear about what they were seeking.

Then again, perhaps questions like what the notice actually contained and whether or not the misunderstanding on the part of the ISPs was caused by ambiguities in the legal notice, do not really matter. Even if the wording of the notice contains no shortcomings, one grave issue still remains. It is respectfully submitted that by granting injunctions of such width, the Delhi and Madras High Courts have not taken due regard of this balance. To the extent that they have granted to the plaintiffs what amounts to a carte blanche to send cease and desist notices to anyone they fancy.  A strategy that upholds one interest to the exclusion of others is necessarily flawed. And that is why, given the way in which sites were blocked, the Kolaveri generated by the entire episode was perhaps inevitable.
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