by Kartik Khanna
Kartik Khanna is a fourth year student of NUJS, Kolkata. He blogged very recently here.
Bollywood has seen a growing number of John Doe orders over the past year. Spicy IP covered this trend here and here. While the previous posts discussed the advent of the tool in India, I will touch upon a substantial case of misuse of the same.
The Times of India, in a report dated December 24, 2011 (available here) states that Reliance Communications [‘RCOM’] has blocked file-sharing websites such as Megaupload and Filesonic. The reason for doing so was a John Doe order obtained by Reliance Entertainment, the producers of the Hindi film, Don 2, against any possible piracy of the film. In a communication received by TOI, RCOM claims that the action was justified and it stated,"Under Section 79 of the IT Act, an ISP has to adhere to any copyright infringement notice and court orders. Given that Reliance Entertainment has obtained a specific copyright protection online piracy related Delhi High Court order for Don-2, we are in full compliance of law(sic)."[Find a copy of the said order here].
It is pertinent to note that the order recognizes the threat that the movie can be uploaded on the Internet, thus, infringing Reliance’s copyright. It does not mention any remedy under the IT Act for the same and clearly, only those under the Copyright Act, 1957 are implicitly referred to. I will touch upon the implication of the same later.
A John Doe Order, as discussed in Tania’s guest post, is a protection in the form of an injunction sought by the owner of copyright. The injunction allows the owner to take action against anyone who is found to be infringing copyright. The element of ‘John Doe’ implies that the person against whom the order is enforced is unknown and may apply to anybody indulging in the said act. The order does not specify any one defendant in particular.
Now, the order states “defendants and other unnamed and undisclosed persons are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading or exhibiting, or playing, and/or defraying the movie DON2 in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff’s copyright in the said cinematograph film DON2 through different mediums like CD, DVD, Blue- ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner.”
It is arguable that ISPs can be held liable under such a widely phrased John Doe order for infringing copyrighted content. In other words, these intermediaries can be secondarily liable under the Copyright Act, as was held in Super Cassettes Industries v. Myspace Inc. &Anr [MIPR2011(2)303]. This liability could possibly stem from Section 51(a)(ii) of the Copyright Act for permitting for profit, any place for communication of a work. However, the intermediary can only be liable if he is aware of infringement. An ISP like RCOM cannot be aware of any copyright infringement unless brought to its notice. It cannot claim to be bound by the order as it must first be made aware of any infringement and only then, move to prevent the infringement.
Further, the remedy possible under the order is wide enough to allow website blocking if the entire website amounts to an infringement of copyrighted content. In case a specific part or page is infringing copyright, the page or content therein may be removed. Website blocking however, an extreme remedy in itself, is possible only when the infringement takes place and NOT before that. It has not been showed in this case that infringing content was uploaded on these websites. If RCOM has pre-empted copyright infringement, their act of blocking the website may amount to a misinterpretation of the order and hence, be illegal.
Strangely, RCOM has relied on Section 79 of the Information Technology Act, 2000 [IT Act] to claim that it is bound by the John Doe order to block the said websites. This mandates a look at the said provision. Watch this space for more on the same in Part II of this post.
P.S-Are ISPs the right intermediaries at all?
Admittedly, by definition in the IT Act, ‘intermediary’ would cover ISPs such as RCOM. There seems to be a lack of clarity however, with respect to what kind of intermediary can prevent infringement in such cases. I believe the intermediary concerned differs from case to case. In the instant case, the websites have hosted the information and hence, they have the primary liability of removing such content seeing as could be expected to be aware of the same [Arguable in case of a file-sharing website]. ISPs on the other hand, provide access to the Internet. Surely, providing access cannot mean the same as providing a means of infringement. That logic would extend to cyber cafes (also intermediaries) as well. That would mean that cyber cafes would have to close their shops each time such an order is passed to prevent infringement.
An ISP like RCOM is not the concerned intermediary in this case as it not the entity hosting the content. Otherwise, every time a John Doe order is granted, all ISPs will compulsorily need to start scouring the Internet to hunt for infringing works, which is clearly not envisaged.
The order affirms that Don 2 enjoys copyright and that no infringing act concerning the same can be taken. This means that if someone notifies Filestube that it has hosted an infringing work, then Filestube, which is an intermediary as well, will be bound by the order and its IT Act obligations.