Apar Gupta
As of today Vimeo, Piratebay, Pastebin and many other websites have been blocked by indian ISPs. The blocking of such filesharing and video streaming websites has caused tremendous discomfort to internet users in India and even prompted Anonymous to begin denial of service attacks against websites of the Supreme Court (it has since ceased it), the All India Congress Committee and Copyright Studios. The blocks started out with users of Reliance internet services reporting blocks on the Pirate Bay where a message that stated, “the site has been blocked as per instructions from the Department of Telecom”. (Read on Medianama | Mint)
This was followed up with reports later in the week as to how Airtel was now blocking not only filesharing websites such a piratebay but also completely legitimate video streaming websites such as vimeo. Airtel users who attempted to visit these websites were informed that, “access to this site has been blocked as per Court Orders”. (Read on Medianama)
Medianama is compiling a list and reporting as to the status of these blocks.
The abuse of ashok kumars and john does
This is a dangerous trend which many pointed out last year when the first few john doe or ashok kumar orders were sought to be applied to entire websites as opposed to specific pages and links which contained copyrighted content posted without the authorisation of the owner. I stated that such orders are being abused by plaintiffs and broadly worded cease and desist notices are being sent by lawyers working for movie producers who have obtained these orders (ILTB Post extracting one such legal notice).
In a previous post, I stated that such orders only are anticipatory with regard to the potential infringement and the only laxity being allowed to the Plaintiff is the exemption from identifying the potential infringers. This is as the Plaintiff anticipates large scale sporadic infringement and it may be too late by the time it approaches a court and gets the injunction. Here it is reasonable for it to have the injunction already in hand and apply it when it sees an infringement.
A John Doe/AshokKumar injunction does not in any way allow the Plaintiff to ask parties to refrain from anything till the point they infringe. Hence, the Plaintiff may apply the injunction to any person, only after such a person becomes an infringer. Even then its right under the injunction only extends to the specific part of the activity which is infringing. Hence an entire website cannot be blocked for one offending link covered by the injunction. (ILTB Post on the analysis of john doe injunctions).
However now Plaintiffs have started making ISP’s themselves primary parties to such litigation’s. The latest blocks are the result of orders which emanate out of the Madras High Court which clearly list the ISP’s to be parties themselves. They are made as principal defendants and appear right up the ladder starting from Defendant №1. In effect, the primary infringement is now being complained against the ISP and not against the file sharing website or the user who ultimately may share the blame. Is this the result of the holding of the Hon’ble Delhi High Court in Myspace v. Super Casesstes Industries one does not know now, but I think that the ruling in the coming days will cause more headache for intermediaries who face issues of copyright compliance in India.
Whodunnit ?
Since Reliance displayed a message that it had blocked the webpage as per orders of the DOT apprehension the first apprehension which arose was that this was done as per an executive order or instructions from the DOT to Reliance. However, in the past the DOT has denied that it ever issued any such order for the blocks or it sent any communication to this effect. This has further been confirmed by newsreports which laid the blame on john doe orders recieved from courts (these were obtained by Reliance BIG Pictures, ILTB post on it here). Hence not only was this vague order leading users on a wild goose chase to know why their access had been stopped and which order DOT had passed, but on the other hand constituted misdirection.
An article in Mint confimed this, a day after the blocks were first reported:
Sanjay Tandon, vice-president, music and anti-piracy, Reliance Entertainment, said the company has got a so-called John Doe order from the Delhi high court which directs all Internet service providers (ISPs) to block video-sharing websites, this time not just for a single release but for most big-budget films this year.
After this news report came out I searched on the Delhi High Court website, for any filings by Reliance Big Pictures or Reliance, no recent filings or orders showed up. This was strange considering that such injunctions are granted on the day the case is first filed and heard by the Court. It was also surprising for me that as per Sanjay Tandon, they got the Order not only for one movie but, “his time not just for a single release but for most big-budget films this year.” This way such orders are being applied this would mean a perpetual block order.
After this the Airtel blocks started. Medianana quickly reported that they were emanating from an order passed by the Madras High Court. The post stated that:
We have been informed that the block has been imposed following a John Doe order taken byCopyright Labs, Chennai, from the Madras High Court, for preventing piracy of Tamil Films Dammu and 3. Copyright Labs CEO, Harish Ram, has confirmed the same to MediaNama and we’ve requested him for a copy of the order. We had reported about the John Doe order taken by the producers of 3.
I quickly checked up the Madras High Court website for the party names of Copyright Labs, quickly realized that the Plaintiffs in such suits are usually the producers so I quickly searched for the producers of Dammu and it showed up the case of M/s Creative Commercials v. Bharat Sanchar Nigam Limited (Case Number 358/2012, last listed on 28th April, 2012). I thought I hit the jackpot, but I could not be sure since the orders passed in the case were not available on the court website.
Later on the in the day, an order dated 29.03.2012 issued for the movie 3, in a case titled as R.K. Productions v. Bharat Sanchar Nigam Limited (Case №230/2012) appeared online. Since the Order was available in this case, I thought probably the blocks were in this case.
I am still not sure. The Creative Commercial Case has been filed later in time when the blocks started. Moreover if the plaintiffs allready had the John Doe injunction in R.K. Productions since 6 weeks why did the blocks only start this week ? was i missing something ? was I in one of Frank Kafka’s unfinished manuscripts, one which had a thousand doors leading to the same dark cellar.
The point I am making is that blocking a website is as much as a function of safeguarding a private right as much as it is interfering with the right to access of the general public. (ILTB Post on how injunctions cause public loss). There is certainly a public interest in content which is blocked by the state. Which is why blocks or bans when done by an executive order is done by the authority some authority under a provision of law and published and made publicly available in the official gazette. However, no such limitations are presently prescribed when ISP’s block websites pursuant to court Orders.
Reliance has said it blocked as per a DOT order, Airtel says its blocked it as per a High Court Order. Airtel does not even reveal which state High Court passed the Order. When one of my friends wrote to them asking for details of the Order, they refused to provide any details on it. Is this a super injunction ? What are they afraid of ?
The rules which exist with regard to Blocking of Websites namely the Information Technology (Procedure And Safeguards For Blocking For Access of Information By Public) Rules, 2009 state that websites can be blocked by judicial orders however do not mention any further formalities as to disclosure by the DOT or ISPs to Users.
Is this fair ? Is this reasonable ?
Things are certainly getting out of hand. Interim injunctions are meant to preserve the status of the parties and prevent the frustration of the result of a legal proceeding. Interim injunctions are not meant to create a new status and provide the Plaintiff with protection with which it can bully our timid and cowering ISP’s into meek compliance under the threat of contempt of court for not obeying court orders. Its time they challenged these Ashok Kumar choke-a-blocks injunctions.