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John Doe Orders and Online Piracy

John Doe, conceptually is a legal personification of the unknown, the untraceable. In this age of rampant online piracy, copyright owners, especially movie studios and online broadcasters face the trouble of not knowing the identity of potential infringers to prevent them from causing any damage. In such a scenario, the courts, taking into consideration the […]

John Doe, conceptually is a legal personification of the unknown, the untraceable. In this age of rampant online piracy, copyright owners, especially movie studios and online broadcasters face the trouble of not knowing the identity of potential infringers to prevent them from causing any damage. In such a scenario, the courts, taking into consideration the huge risk of revenue loss to the plaintiff owing to the copyright infringement and to avoid delay in justice-delivery, name the unidentified defendants as ‘John Doe’ a.k.a ‘Ashok Kumar’(the Indian Counterpart) and then issue ex-parte temporary injunctions by invoking Order 39 Rule 1 and S.151 of the Code of Civil Procedure. Once the identity and particulars of the defendants are found out, they are merely substituted in place of John Doe and thus without further ado the order is instantly made enforceable.

When and how is it made enforceable in practice?

Such orders, essentially, being in the nature of ex-parte injunctions, is subjected to the same standards of judicial tests and safeguards as a precondition. Hence the plaintiff has to establish the well-known triad of prima facie case, balance of convenience and irreparable damage along with details that prove the existence of a right and its potential breach. More often than not, these days such orders are garbed in the secured layer of  a quia timet action in order to prevent imminent violations which may not have already taken place.

John Doe orders, although a brainchild of the English Courts, have found its way to the Indian legal system in recent years, more specifically in the 2003 Delhi High Court Judgment of ‘Taj Television v. Rajan Mandal’ wherein it was held that the lack of identity of the defendant is not a hurdle as the only consideration of the court should be whether their activities fell within the scope of action. Since then John Doe orders have been part and parcel of the copyright jurisprudence and courts generally either direct the Internet Service Providers (ISPs) to block infringing websites and provide identity of illegitimate users or  seek the lesser-trodden path of directing to block only the particular URL that seems to have infringed the copyright.

 

Issues that have cropped up in recent years through judicial pronouncements

The blocking of entire websites in apprehension of potential infringement has lead to multifarious issues that affect not just the copyright owners, but also the ISPs and the legitimate users of the Internet. While the Delhi High Court’s track record of handling such disputes vide cases involving movies like Singham, Bodyguard and Don 2, has proven to be detrimental to the legitimate users owing to the blanket ban on certain websites, it also has resulted in the violation of consumer’s fair use rights under S.52 of the Copyright Act .

Since in most cases it is entrusted upon the ISPs to enforce the ban and thus forced to compromise with the interests of their customers, their avenue of revenue goes at stake. In a follow up to this, consumer complaints were filed against the ISPs citing deficiency in service  when the Madras High Court continued the trend of blocking entire websites on a petition by the production house of the movie ‘3’, by directing the ISPs to do the same. The Madras Court later, at the instance of the ISPs, rectified  its stand by narrowing down the earlier order to have  covered only those particular URLs which were found to be infringing rather than entire websites. Again Courts reverted back to the tradition of blocking websites, supporting the argument that ban on specific URLs would not hold good as a mere change in a character in the URL paves way for circumventing the order with ease.

Conclusion

The only saving grace to this vast pasture of ambiguity came out from the mighty pen of Justice  Gautam Patel of Bombay High Court in his latest Judgment in 2016 while giving John Doe order for the movie ‘Dishoom’, where he set out a well-chiselled framework to prevent ISPs from exercising arbitrary powers while blocking websites, to accommodate aggrieved third parties of the order at the earliest and to enforce the statutory limit of enforceability of John Doe orders as per S.52(1)(c) of the Copyright Act i.e 21 days, thus preventing  the ban to go on indefinitely unless further ban is approved by the Court after the limit. Since the Bombay High Court’s decision will only have a persuasive effect, an Apex court precedent is the need of the hour to smoothen this slippery patch of piracy.