[This
is a revised version of an article originally published in the Down to Earth website]

To understand the facts better, perhaps the quickest strategy is to
fall back on beer, the law student’s time-tested analytical tool.
Consider a situation (needless to say, completely hypothetical),
where United Breweries discovers some enthusiasts brewing, on a limited
scale, a beer near-identical to Kingfisher Ultra. Its purveyors
have no intention of passing it off as genuine KF. Neither is this faux
KF sold or transacted for material gain, but only “shared” amongst
its (re)creators. At the same time, the purveyors are open about their
product’s resemblance to the genuine KF, and
indeed their declared intention has been to recreate its
taste and colour. Over time this community of enthusiasts starts
cutting into UB’s revenue, or at least UB claims so. The company tries
to approach
law courts, but it turns out  that the places where the sharing
takes place lies beyond the the courts’ jurisdiction. UB then takes out
a
court order forbidding anyone
to help these exchanges. ‘Anyone’ means literally just about anybody.
It includes not only sharing venues, but also certain clubs or
societies where microbrewery enthusiasts gather to discuss and sample
(not consume) each other’s products. Since these sampling clubs also
lie outside the court’s jurisdiction, the injunction does not help UB
much. Now what does it do? It goes and informs bus and taxi companies
that the terms of the court order are so wide as to cover them also.
Hence they are prohibited from carrying passengers to the sharing
venues and sampling clubs. This prohibition extends even to passengers
who have no interest in KF, but want to go to a sampling club to taste
brews that have nothing at all to do with UB.

The natural response to this admittedly absurd scenario is that
beer (and likewise chocolate, toothpaste or shoe polish) are inherently
different from films or audio recordings. Replicating beer
entails a process not only skilful but also cumbersome and expensive,
which tends to restrict such not-for-profit endeavours to “small beer”,
literally. This is one major flaw in our above example: it is very
difficult to sustain volumes large enough to dent UB’s profit margins
unless one resorts to outright fakery and passing off. In contrast,
films can be easily copied and distributed over the
internet at little to no cost.

But should this difference alone justify
such sweeping injunctions and render plausible in respect of films what
we just acknowledged as absurd in the case of beer? In other words, can
certain procedures otherwise uncalled for be justified merely because
the subject matter concerns intellectual property? This means the
matter pertains not so much to copyright as it does to civil procedure
and how it is to be applied to enforce rights deriving from
intellectual property laws. This is a vast issue, well beyond the scope
of this article.  Here I shall only raise a few points that I
consider germane.

Protecting intellectual property, and particularly copyrights,
presents
an unprecedented challenge to legal systems the world over. Advances in
digital technology has made it possible to copy and distribute over the
internet music recordings, films and even books with unprecedented
speeds and reach. Despite many efforts, no satisfactory legal response
has been devised so far. “Satisfactory” is a loaded term, so it is
perhaps a good idea to specify what exactly I mean by it. First, it
must bear strong connections with the idea of efficiency, that is,
securing the objective with minimal wasted
effort and “collateral damage”. The last is particularly
significant. Applied to the present context, it means simply that the
measure must (a) be effective in restricting piracy, and (b) cannot be
so broad in its ambit as to encroach upon
individuals’ legimitate interests. This includes the various fair use
rights recognised under S. 52 of the Copyright Act; the right to access
on Vimeo and Dailymotion videos that have been legally uploaded there;
and even the right to distribute over BitTorrent material whose
copyright status is not in dispute (I myself have used
BitTorrent on several occasions to download software like Ubuntu
Linux). Which means that expressed in simple terms, an effective remedy
must also
incorporate elements of balance – a balance between various differing,
and at times mutually inconsistent, individual and social interests.

In this light, let us examine the nature of the present injunction.
First, it was ex parte
in character. Since such orders
override a fundamental principle of natural justice that all parties
should be given a fair hearing, they are to be issued with much
restraint, and only in exceptional situations (such as when the other
party persistently fails to appear, or when any delay will lead to
significant injustice).

Secondly, the only specific parties the order names (at p. 3-4) are
some fifteen India-based ISPs, whom it proceeds to restrain “from in
any manner infringing the applicant’s copyright in the
cinematographic film/motion picture ‘3’ . . ..” No mention is made of
any P2P or even
video
sharing sites, whose direct involvement in infringing the plaintiffs’
copyright is much more feasible and also likelier. As a Medianama
report correctly
points out, ISPs are only intermediaries, and cannot by themselves
infringe an copyrights. (It also says the order makes ISPs responsible
for infringing copyright. Admittedly it does refer to certain other
suit documents which are not in my possession right now, and hence
whose content cannot be verified. However, to my mind there is nothing
in the order at least that holds ISPs responsible for copyright
infringement. It is as absurd as holding taxi drivers responsible for
infringing UB’s
intellectual property merely by driving passengers to beer sharing
venues.)

But it is the third characteristic of the order that makes it so
remarkable. Apart from the ISPs mentioned, it specifies five other
parties all denoted by the fictitious name “Ashok Kumar”, and then also
“other unknown persons”, against whom the injunction applies. In many
legal systems, particularly western ones, this is known as a “John Doe”
order. Its use in India is rare. Even in the west it remains something
of a novelty, but its use there is certainly more frequent than in
India. As a result some jurisprudence has developed around around it,
mainly in the nature of safeguards preventing it from arbitrary
application. The question that arises naturally here how the present
injunction fares when evaluated against these safeguards.

The most frequent use of the John Doe concept is not really relevant to
us. It is when fictitious names like John Doe or Jane Roe are used to
mask the
identity of parties who cannot be named for concerns of privacy or
other legal factors: examples include victims of rape or other sexual
offences, parties who are underage and so on. More applicable to our
case are instances when an injunction or some other relief is
sought in regard to a person or persons unknown. This is gaining
popularity internationally in intellectual property cases. An interesting example
concerns Harry Potter books. The release of each volume in the series
was greated with much public frenzy and, inevitably, media hype. This
resulted in at least two separate cases of pre-publication copies being
stolen with the intention of leaking to the tabloid press. On both
occasions, an injunction was issued prohibiting person or persons
unknown from “disclosing any information
concerning the book or dealing in any way with any copies of the book
or disclosing any part of any copies they might have to any third
parties . . ..” The first time it happened, before the launch of “Harry
Potter and the Order of the Phoenix” (volume 5), the injunction
pertained specifically to the unidentified individuals who had offered
the illicit copy to the Sun, the Daily Mail and the Daily Mirror. When
it happened again with the next volume “Half-Blood Prince”, the
resultant injunction covered “any person or persons who have or
have had physical possession of a copy  . . . or any part thereof
without the consent of the
claimants.” What is significant here is that such injunctions have
always been issued with a great deal of caution. Even the second Potter
injunction was very specific in its application (i.e.
the content of “Half-Blood Prince”); entailed a clearly defined 
timeframe (from 3 June 2005, when the threat of leakage was detected,
till 12.01 AM on 16 July, when the book was released); and pertained to
individuals, albeit unknown, whose actions amounted to a direct and
tangible copyright breach.

Similarly, take John Doe subpoenas popular in US, which are designed to
compel disclosure of parties’ identities, and are popular in cases of
online defamation as well as copyright infringement. Since the net
provides considerable scope for anonymous libel, obtaining the
perpetrator’s identity is usually a complicated process that involves
first securing a court order (specifically, a subpoena) directing the
hosting website to disclose the IP address from which the defamatory
statement was made, and then securing another order this time directing
the ISP that owns the address to reveal which account used that address
at the time the statement was made.

This process is not only cumbersome, but also potentially infringes the
privacy of the unnamed person. Consequently, courts have always been
careful about issuing such subpoenas, and in various judgments
formulated different tests and criteria to ascertain if a subpoena is
appropriate. In Sony Music Entertainment Inc. v. Does 1-40
(326 F. Supp. 2d 556 (2004)), which in fact concerned copyright
infringement through p2p networks, a New York district court held that
a subpoena to disclose the identity of the file-sharers can be issued
only if a prima facie case is
made out against specific persons, no other means of obtaining their
identity is possible and so on. This apporoach was followed in Doe v. Cahill
(884 A.2d 451 (2005)), a Delaware Supreme Court concerning online
defamation. Here the court ruled that no subpoena may be issued unless
the plaintiff first demonstrates that the impugned comments can be
“capable of a defamatory meaning”. Subsequent cases have held that even
after this prima facie test
is satisfied, the plaintiff’s interests must be balanced with those of
the anonymous defendant. In Mobilisa, Inc. v. Doe
(170 P. 3d 712 (2007)), the Arizona Appellate court followed Cahill and the older New Jersey
decision of Dendrite
International v. Doe No. 3 (A-2774-00T3 (2001)) to conclude that
that even after the plaintiff establishes a prima facie case, a
further set of five criteria must be fulfilled. For example, the
plaintiff must make reasonable efforts to inform the anonymous party
that a request to disclose anonymity exists; the intimation must be
made through the same medium as the statement imputed to be defamatory,
and so on.

All this serves to illustrate one crucial point: In jurisdictions where
the law of copyright is much more matured as compared to India, John
Doe injunctions are issued very judiciously, and by balancing the
interests of all parties concerned – even the anonymous ones. Moreover,
in most of the cases we saw, John Doe injunctions are issued subsequent
to the commission of a legal wrong, not to pre-emptively restrain
persons from committing them. In exceptions to this (such as the Harry
Potter case), the terms of the injunction are tightly defined. These
characteristics do not hold true for India. Once earlier also, the
Delhi High Court had issued a similar John Doe injunction blocking the
illegal distribution of the Reliance Big Pictures’ film Singham before its official release
(a copy of the order is available here).
Since the injunction was not targetted at any specific individual,
Reliance interpreted it to mean it could serve notices to anyone it
wanted. So it went about serving cease and desist notices on both ISPs
and torrent sites directly. The latter strategy did not work, since
most of them lay outside the jurisdiction of Indian courts. The owner
of BitSnoop, for example, made it clear
that he had every intention to ignore the notice. Hence, presumably,
when Copyright Labs decided to obtain a John Doe injunction, it made
specific mention only of ISPs, who at worst can only aid the
infringement of copyrighted materials by allowing subscribers to access
them.

To conclude, let us revert to the question posed much earlier: can
certain procedures otherwise uncalled for be justified merely because
the subject matter concerns intellectual property? While it is manifest
that the differences between beer and cinema call for dissimilar
treatment, our above exegesis makes it equally clear that regardless of
the nature of the subject, a balance must be maintained between
different legitimate interests. Harish Ram, CEO of Copyright Labs, has claimed
that ISPs had misinterpreted the order, and that the Labs’ intention
was only to block specific URLs. This explanation does not hold water.
The ISPs acted not directly on the court order, but on the legal notice
based on it that the Labs had sent them. It was therefore incumbent on
the latter to be clear about what they were seeking.

Then again, perhaps questions like what the notice actually
contained
and whether or not the misunderstanding on the part of the ISPs was
caused by ambiguities in the legal notice, do not really matter. Even
if the wording of the notice contains no shortcomings, one grave issue
still remains. It is respectfully submitted that by
granting injunctions of such width, the Delhi
and Madras High Courts have not taken due regard of this balance. To
the extent that they have granted to the plaintiffs what amounts to a carte blanche
to send cease and desist notices to anyone they fancy.  A strategy
that upholds one interest to the exclusion of others is necessarily
flawed. And that is why, given the way in which sites were blocked, the
Kolaveri generated by the entire episode was perhaps inevitable.