Entire sites can’t be banned because of a few users violating copyright but the internet can’t be used to perpetuate such infringements
Prashant Reddy" height="83" alt="Prashant Reddy" hspace="5" width="68" align="left" src="/newsimgfiles/2012/may/29052012/053012_01.jpg" />Prashant Reddy
“A more reasonable interpretation of the court orders would require, not ISPs, but only “un-named” file-sharing websites to remove the offending files or links from their websites”
Over the last year, the Delhi and Madras High Courts have granted several “John Doe” orders on the request of the producers of movies such as Singham, Bodyguard, Don 2, Speedy Singh, 3 (featuring the Kolaveri Di song) and Dhammu.
The novelty of these “John Doe” orders lies in the fact that they can be enforced against persons and corporations that are not even named in the original lawsuit. These “extraordinary” orders trace their origin to a Billy Joel concert in the US, where Joel’s representatives needed an interim arrangement to seize and restrain “fly-by-night-operators” – small-time vendors – from selling Joel-related merchandise outside concert venues without prior authorisation from the artiste. These vendors would appear right before the concert and disappear shortly after and there was no way to sue them without a judicial innovation that did away with the most fundamental requirement of civil procedure — naming the defendant in the lawsuit.
In India, such “John Doe” orders were originally granted to sports broadcasters like ESPN to enforce against cable operators illegally broadcasting sporting events such as the soccer or cricket World Cup. Gradually, producers such as Reliance Big Entertainment started to seek such orders against “cable operators” who were making it a habit to broadcast new releases of big-banner movies. Given the increased internet penetration in India and the popularity of file-sharing sites among techy-savvy Indians, it is no surprise that production houses have started to move against “file-sharing” websites and ISPs.
Using the original orders against cable operators as precedents, the producers of the aforementioned movies have convinced the courts to issue similar interim injunctions against “un-named” defendants, presumably “file-sharing websites” and a number of “named” ISPs such as Airtel, Hathaway and so on without first giving them an opportunity to be heard.
The most serious problem with these orders lies in the manner in which they are being interpreted. For instance, all of the Delhi High Court orders, coincidentally passed by the same judge, and the Madras High Court order forbid the named and unnamed defendants from violating the copyright in the said films “through different mediums like CD, DVD, Blue-ray, VCD, Cable TV, DTH, Internet, MMS, Tapes, Conditional Access System or in any other like manner”. In all these cases, ISPs and the producers seem to have interpreted the term “internet” to block entire websites.
File-sharing sites can be used to share a large number of files that may or may not be legal and it makes no sense to shut down the entire website because a few users are violating copyrights.
It would be unreasonable to assume that the Delhi High Court and the Madras High Court would instruct the closure of an entire website for the simple reason that some of the users of the websites are violating copyright law by sharing infringing copies of the movies in question. For example, in previous cases by music companies against YouTube, the Delhi High Court had ordered the removal of only specific content from YouTube without ordering the entire video-sharing website to be shut down. Thus, a more reasonable interpretation of such orders would require, not ISPs, but only “un-named” file-sharing websites to enforce such orders by removing the offending files or links from their websites and even that is required to be done only when the producer can identify such offending files or links. In normal circumstances, such blatant misrepresentation of judicial orders would invite the wrath of contempt proceedings.
The larger question, however, is whether cable-operators, ISPs and popular file-sharing websites can be equated to the fly-by-night vendors at Joel’s concert. In my opinion, there is simply no comparison.
Pavan Duggal" height="83" alt="Pavan Duggal" hspace="5" width="68" align="left" src="/newsimgfiles/2012/may/29052012/053012_02.jpg" />Pavan Duggal
“Some portions of the websites – which violate the intellectual property rights of relevant stakeholders – could be banned. However, this is the best that the government can do”
In today’s context and given the nature of the internet’s architecture, it is impossible for any country to completely, absolutely and unconditionally ban a website. The internet has made geography a thing of the past and because of this it is impossible for any government to ban a website for an indefinite period. Banning is an antiquated phenomenon and has no relevance in today’s times. However, sometimes it may come to the notice of a country’s government that certain websites and file-sharing sites are infringing copyrights and other intellectual property rights of different stakeholders by continuing to host, transmit and display pirated copies of literary, artistic, cinematographic and dramatic works of original copyright holders. In such a situation, it cannot be asserted that governments are powerless and that they should not take any action.
In India, we have a strong intellectual property rights legal regime that includes the Indian Copyright Act, 1957; the Trademark Act, 1999; and the Patent Act. As such, it is but natural to expect that the Indian government would want to block at least those portions of the electronic content hosted on such sites that violate the intellectual property rights of legitimate holders. In such a case, some portions of the websites – which violate the intellectual property rights of relevant stakeholders – could be banned. However, this is the best that the government can do. It has to appreciate the fact that imposing a ban brings unnecessary media exposure and unwarranted internet traffic to the banned website. Moreover, given the internet’s inherent design, it is always possible for users to access the banned content indirectly on other websites.
Governments across the world have to realise that the internet is a free paradigm and its inherent nature does not permit absolute control. File-sharing websites, to the extent that they use legitimate non-infringing content, can help boost creativity and enhance the market for entertainment. There is a need to come up with a proactive approach that takes care of the various requirements of all stakeholders. Therefore, we need an approach that not only protects the internet as a legitimate platform for spreading information and entertainment, but also protects the intellectual property rights of various stakeholders.
Moreover, the government must also understand that though it has mandated all internet service providers, or ISPs, to block any electronic content on various grounds, ISPs are still not deploying the various technological means and methodologies so as to block only the relevant content directed and not the website. Consequently, we find that on various occasions, ISPs have been blocking the entire website, when the court or the government in question has only ordered the blocking of specific content on specific websites.
With the Indian Copyright (Amendment) Bill, 2010, now being passed by both the Houses of Parliament, the Copyright Act would, hopefully, be strengthened so as to be extremely relevant and topical in the context of the electronic ecosystem. However, we need more innovative and holistic approaches to deal with piracy on the internet. Blocking a website is a redundant exercise that has outlived its utility, given the internet’s ubiquitous nature. Governments across the world have to look at more pragmatic ways of dealing with copyright infringements and piracy on such websites, while ensuring that at no time should the access to legitimate content be blocked.
* Also advocate in the Supreme Court