India - John Doe orders, the new weapon for combating digital piracy

[Len]

Among various technological developments in the past two decades, the internet and other digital means of communication and publication have taken the highest leap. However, parallel to the escalation in the use of the internet and other digital media, piracy has mushroomed, which has depleted the fruits of labour for intellectual property (IP) right owners in various domains of work, especially cinematographic films.

Every day, news reports evidence the ubiquitous and perilous nature of digital piracy. Movies and TV shows are leaked for Torrent downloads and online streaming within hours or days of their release. Sometimes films, TV shows or their scripts are leaked even before their scheduled date of release, robbing their authors/owners of right of first publication as well.

Uglier sides of piracy have been witnessed in recent weeks, with hackers demanding ransom from the producers in exchange for not leaking the works online (the Game of Thrones fiasco). What makes digital piracy so prone to risk and tough to curb is the inability of IP owners to identify the infringers due to the omnipresent nature of digital media and the resultant exponential number of pirates.

For combating digital piracy, John Doe orders or their Indian version, Ashok Kumar orders, have acted as Lucifer in both its connotations (i.e. as the devil and the morning star). While these orders have served as destroyers for pirates/infringers, they have also brought light for IP owners.

To elaborate, a John Doe order is an injunction sought against a person whose identity is not known at the time of the issuance of the order. It enables the right holders to serve notice and take action against anyone who is found to be infringing their IP rights. It also allows the plaintiff to search the premises and seize evidence of infringement of its rights by unknown defendants.

Such an order is granted under order 39 rules 1 and 2 of the Code of Civil Procedure, 1908, which refer to the court’s power to grant a temporary injunction, read with section 151 of the code, which provides for inherent powers of the court. John Doe order jurisprudence in India traces its origin to Taj Television Limited v Rajan Mandal (2002), in which Delhi High Court, invoking its jurisdiction under section 151, issued a John Doe order against various cable operators to restrain unauthorized broadcast of the Football World Cup. To obtain a John Doe order, the plaintiff needs to establish (1) a prima facie case, (2) likelihood of irreparable damage if the order is refused, and (3) balance of convenience in favour of the plaintiff.

In recent times, a number of cases have been instituted seeking John Doe injunctions and the courts have granted the orders with full vigour. In March this year, Delhi High Court granted a John Doe order against a number of multi-system operators and local cable operators to protect Sony India’s exclusive media and broadcasting rights in respect of VIVO IPL 2017.

However, when it comes to internet blocking, two distinct approaches have emerged regarding the nature of John Doe orders. On one side is Madras High Court, which has recently issued sweeping John Doe orders directing internet service providers to disable access to a large number of websites while adjudicating suits for copyright infringement filed by Prakash Jha Productions, in respect of the film Lipstick Under My Burkha, and by Red Chillies Entertainment, in respect of its film When Harry Met Sejal. Through these orders, the high court has restrained unauthorized copying, transmission, display, release, show, upload, download, exhibit, play or in any manner communication of these films. Internet archives (http://www.archive.org/) and 2,649 other websites were specifically ordered to be blocked under the orders.

Last year as well, a whopping number of websites were blocked under the order of Madras High Court to curb unauthorized hosting of the film A Flying Jatt. In the past, a parallel approach was taken by Delhi High Court in a case regarding broadcast of the FIFA 2014 World Cup.

On the other side is Bombay High Court, which has favoured granting of limited John Doe orders, based on concrete and precise information, to block specific URLs and links hosting the infringing material (rather than entire websites), as was the case in infringement suits in respect of the movies Udta Punjab and Dishoom.

The jurisprudence of John Doe orders is still at a nascent stage in India and will continue to evolve as more cases arise. However, the need of the hour is a clarification or penning down of a test on the part of judiciary to determine the approach to be taken in cases of internet blocking.