“I found the reliefs to be overbroad. They were directed against to entire websites.”
Justice G.S. Patel of the Bombay High Court, on the 4th of July, passed orders that should hopefully put an end to torrent sites being blocked in India in their entirety, reports SpicyIP. According to the orders (for Balaji Motion Pictures’ Great Grand Masti, here and here and for Yash Raj Films’ Sultan), only specific URLs with infringing content will be blocked, the blocks will be time-bound, till October 4th 2016, and for any additional links, the movie studios will have to approach the Cyber Crime Cell, which will have to verify the infringement before allowing the block.
The order references two Spicy IP articles, one by Prof Shamnad Basheer, here, and one by SpicyIP Fellow Vasundhara Majithia, here. Last month, we explained the modus operandi of movie studios in seeking John Doe orders last month, and also pointed out how courts rely on past John Doe orders to grant new ones. This is a welcome change, and hopefully a shift.
Some notes:
– On specificity of URLs: This ensures that movie studios can prevent sharing of their films between users, but also, unlike in case of previous orders, does not give them a free run by allowing entire sites to be blocked, and without a term in mind. That, incidentally, is what Balaji Motion Pictures was trying to do: it initially gave a list of 800 sites, but was forced prune the list to 482 specific URLs after Justice Patel said that he was:
“…not prepared to give a general direction against any of these websites. Such an order assumes, ex hypothesi, that every single bit of digital matter on every single one of these websites is not just illicit, but that all of this matter on all these websites relates to, and only to, illicit downloads of the Plaintiffs’ film. There is absolutely nothing to support this. [source]”
Once specific URLs had been received:
“These are among the reasons I asked the Plaintiffs in this case to give me more specifics on Affidavit, and to supply me with more cogent material as the basis of the order. The fact that this information has been obtained with such apparent ease leads me to believe that the criticism is in fact well-founded. We just never sought it earlier. I do so now.”
– On the unsupervised nature of John Doe orders: The order points out that these orders result in large scale blocking of websites:
“An order like the one the Plaintiffs seek would result in a large-scale blocking of all these websites, and a denial of access to all their content, even legitimate content; and that, too, without any assessment of what that content actually is. [source]”
“In the present case, the point being made is that the entrenched format of the John Doe orders was far too broad and admitted of little or no scrutiny. They had the potential of shutting down entire websites and blocking all content, even legitimate content. As I said last Friday, such orders proceeded on the implicit assumption that the entirety of the content of all these cited websites was illicit; that no verification was necessary; that the illicit content had been established to the satisfaction of the Court; and possibly that the entirety of the content of these sites related only to the immediate complaint at hand. It is, on reflection, impossible to justify any of these. There are, I think, at play here far larger issues, including of an unattended and unsupervised and judicially mandated policing of the Internet. [source]”
– John Doe orders are a dangerous trend:
“At this stage, I must briefly note the reason for making these additional demands on the Plaintiffs, especially given that there is a long history of broad-based John Doe orders in the past. I myself have passed some of those orders. But this in itself is no reason to continue with a trend that seems to me if not downright dangerous, at least one that requires the introduction of some caution and circumspection.”
– On the need for sunset clauses: In the past, John Doe orders have not specified time limits for which orders have been implemented. MediaNama readers might remember that websites were blocked for the FIFA World Cup in 2014, and blocks remained till after July 22nd 2014, even though the World Cup Final had taken place on July 13th 2014. In the current cases, the court set a sunset clause:
I am also making it clear that any such injunction may be subjected to further terms, and, specifically that I propose to timelimit the order to some reasonable period and not to allow it to continue indefinitely.
– Google removed clips and search results:
“Paragraph 14 of the Affidavit makes an assertion on oath that the period between 29th June and 2nd July saw a sharp surge in number of infringing links and URLs. The Affidavit also says that clips of the film were uploaded to YouTube on 3rd July 2016. The Plaintiffs’ complained and sent out take down notices through Markscan and Aiplex. Those clips have now been removed.”
The filing also had 482 links which pointed towards individual download links of the film. “Some of these links have the name of the film and the year (2016) as part of the URL. The statement on Affidavit is that these are suspected or potentially infringing links. Some of these have been checked. The last column of this chart has a column called ‘status’. Some of the links have the status “approved”. I am informed by Mr. Sushant on behalf of the Plaintiffs, who is present in Court, that this means that the Plaintiffs approached Google, which in turn has, after verification, removed all search results that display these links. Not all these links have been “approved”. Many are yet pending review. The Affidavit itself in paragraph 13 references this chart and the fact that this has been prepared by these two agencies commissioned by the Plaintiffs.
Recent John Doe orders (with Sultan and Great Grand Masti not making it to this list)
1. Content: HouseFull 3 (Movie)
Date: June 1, 2016
Court: Bombay High Court
Filed by: Eros International
Judge: Justice B. P. Colabawalla
2. Content: Veerappan (Movie)
Date: May 25th, 2016
Court: Bombay High Court
Filed by: Viking Media & Entertainment
Defendent: BSNL
Judge: Justice B.R. Gavai
3. Content: Waiting (Movie)
Date: May 25th, 2016
Court: Bombay High Court
Filed by: Ishika Focus Film Production LLP
Judge: Justice B.R. Gavai
4. Content: Azhar (Movie)
Date: May 12th 2016
Court: Delhi High Court
Filed by: Sony Pictures Network India Private Limited
Judge: Justice V. Kameswar Rao
5. Content: Ki & Ka (Movie)
Date: 30th March 2016
Court: Bombay High Court
Filed by: Eros International Media Limited & Anr.
Judge: Justice G.S. Patel
6. Content: Dilwale (Movie)
Date: December 17, 2015
Court: Bombay High Court
Filed by: Red Chillies Entertainment Pvt. Ltd.
Judge: Justice AK Menon
7. Content: Bhajirao Mastani (Movie)
Date: December 17, 2015
Court: Bombay High Court
Filed by: Eros International Media Ltd
Judge: Justice AK Menon
8. Content: Prem Ratan Dhan Payo (Movie)
Date: October 30th 2015
Court: Delhi High Court
Filed by: Fox Star Studios India
Judge: Justice Najmi Waziri
