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John Doe Vs Piracy!

Published on Sat, Aug 08,2015 | 11:33, Updated at Mon, Aug 10 at 22:00Source : CNBC-TV18 |   Watch Video :

Gangs Of Wasseypur, Bang Bang, Piku, Bombay Velvet and now, Masaan… Movies in India are relying on John Doe to fight piracy! Who is John Doe? And why is he shutting down not just pirated copies but entire websites? Aayush Ailawadi reports that the battle against pirates is wounding the good guys as well!
 
Two days before critically acclaimed movie, Masaan hit the cinema halls, producer Phantom Films approached the Bombay HC to seek an order against film pirates. The petition sought to block named and unnamed pirates ‘based on apprehensions of a breach of copyright’. Phantom Films argued that there were dormant online links of its movie on several websites and it anticipated that these links would become active around the time of the movie’s release. It claimed that it would be practically impossible to monitor downloads if such an order was not passed. So, the Bombay HC granted what’s called a John Doe order against named and unnamed entities.

Ameet Naik
Managing Partner, Naik Naik & Company
Lawyer For Phantom Films
“A John Doe order is where you make a cable operator and an ISP provider as a defendant and thereafter you seek an order against all the unknown defendants. In India, we call it popularly as the Ashok Kumar order, that’s the nomenclature that we give. But basically it is an order against an unknown defendant, very similar to a representative suit. So, effectively any time there is a violation or contemplation that there will be any kind of piracy on the apprehension of that piracy, in pure copyright language, what we commonly call it is a quia timet action! So a quia timet action is an action for apprehension of breach on the basis of which you maintain a John Doe order.”
 
Just outside the Bombay High Court, pirated films are available for as little as 200 rupees. Policing DVD selling hawkers or little known local cable channels running pirated movies is tough but not impossible. But the modern day pirate is a nameless, faceless torrent stream, shifting from server to server and country to country. More and more filmmakers are asking for “John Doe” orders or “Ashok Kumar” injunctions to save themselves crores in financial losses.

Apar Gupta
Advocate, New Delhi
“The producer approaches the court stating that they anticipate large scale piracy of a movie and one of the modes that is specified by them is the Internet. Within this they may sometimes annex a list of popular file sharing websites which allow users to upload or stream content online or sometimes they may not even include this list, stating they do not know the identity of the person. Hence, the nature of the order is called John Doe, which is that at the point the suit is filed and injunction is issued, the plaintiff does not know who may cause infringement of his material but has a reasonable apprehension that such infringement may be caused!”

Over the last 4 years, there’s been a growing trend of high courts passing such orders.

1.    In 2011, Reliance Entertainment was granted a John Doe order by the Delhi HC for its movie, Bodyguard.
2.     In 2012, the Madras High Court granted sweeping orders for the Tamil films 3 & Dammu, which resulted in the blanket blocking of torrent websites as well as popular video streaming websites Dailymotion and Vimeo and even Pastebin, a website used to store text!
3.    In the same year, the Bombay High Court followed suit and granted its first John Doe order to Gangs of Wasseypur.
4.    In 2014, Fox Star Studios requested the Delhi High Court for a John Doe order to prevent piracy of its big release, Bang Bang, as a result of which nearly 70 sites were blocked.

This year, such orders were issued in the cases of Piku, Bombay Velvet and most recently for Masaan.
 
Chinmayi Arun
Research Director, Centre for Communication Governance
National Law University, Delhi
“Experiences of John Doe orders in the past have included what amounts to ‘overbroad blocking’. So the way this actually happens is that the copyright holder submits a long list of URLs. Now under the Copyright Act, they are required to submit a very specific URL, right? That’s the link to the specific infringing content. But, if you submit a list of 250 URLs, then the court doesn’t have the resources to sit and check whether each one leads to specific infringing content and so you could have a URL to something like PasteBin and end up blocking the entire site because if it’s 173 on the list, then nobody has the time or resources to go and see whether it actually leads to your copyrighted content and to that extent it is quite a misuse!”
 
Ameet Naik
Managing Partner, Naik Naik & Company
Lawyer For Phantom Films
“Can I ask you a question? Let’s surf the net right now? And see the amount of downloads you get! Let’s understand the objective. You see a copyright statute is an archaic statute which has now sought a lot of modification and you see a new copyright statute in place. Even the Cinematographic Act and the Mudgal committee report, which is being considered for the amendment of the Cinematographic Act actually contemplates how piracy can be curbed. So, really in terms of statute and the landscape and the legislation, there is a movement to see that- look, ultimately civil and criminal liability is the only process you have on the statute books. We’ve gone beyond the statute books and tried to take law to its logical end and to serve its purpose. So therefore today with the rampant piracy that takes place and how easy it is to download any film or any copyrightable material, I think there must be a line somewhere.”
 
Apar Gupta
Advocate, New Delhi
“The legislature has quite clearly placed the burden on the copyright owner, keeping in mind the policy that the principal burden should be on the person that claims the right as opposed to a person who’s part of the general public and may like to view other material which may be outside the bounds of the right claimed by such person. It’s also important for us to consider that amendments were recently caused to the Copyright Act and specific rules were made by the Copyright rules in 2013. The rules in Rule 75 contemplate a specific takedown of a specific URL along with particulars with respect to the infringement which is asserted by the owner. It also requires the owner to approach a court within 21 days to confirm the takedown and in case they do not approach such a court then the website is not obligated to respond to future notices by such an owner with respect to that work. What comes through quite clearly is that copyright owners seem to be shifting the burden with respect to the enforcement and they are not interested to a large degree or find it quite inconvenient to comply with the law in its intent.”
 
Ameet Naik
Managing Partner, Naik Naik & Company
Lawyer For Phantom Films
“From an industry perspective, let me tell you, today you are aware that a film’s life is pegged at 3-4 days. Also, if you look at theatrical businesses, they contribute some part to the video on demand business, which today is a very sizable market. For a person who is spending money, should that business get depleted by this kind of piracy?”
 
But the battle against piracy is taking down the good guys as well and also violating our freedom of expression…

Chinmayi Arun
Research Director, Centre for Communication Governance
National Law University, Delhi
“It’s like using a hammer where a needle is necessary and it’s also that the citizens of India do have the right to access information it’s part of our right to free speech and so if we are going to have a lot of content that we can rightfully be able to access also blocked then they are interfering with our constitutional rights.”
 
It’s sad that despite the sweeping scope of these orders and the resultant mass blocking of websites, the bad guys often get away scot free. That’s because blocked torrent links mutate and re-appear before you can say ‘popcorn’!
 
Apar Gupta
Advocate, New Delhi
“There has been a general tendency with respect to producers as well as financers when they put their money on such movies to take all sorts of protection. This is seen by them as a sort of a product, a sort of insurance to be taken and also the ingenuity of the IP bar in marketing these kinds of injunctions and saying that it will be effective in checking piracy especially in the first few weeks when a movie releases. This shows a larger absence of understanding of how the internet works. Yes, it is beneficial to some extent where such movies are not accessible and their piracy is just not that prevalent. However, there are always ways to get around it!”
 
So, the question is- in this digital age, are John Doe orders the solution to India’s piracy problem?
 
Chinmayi Arun
Research Director, Centre for Communication Governance
National Law University, Delhi
“When we talk about regulation, we are always talking about command control regulation, which is that the state bans something or criminalizes something and then the state machinery has to go and enforce it! It can end up being really expensive, can burden our courts and can end up being really ineffective too as you can see happens with John Doe orders! And so part of this moving into the digital age is also thinking of regulations as much as the developed world does as something that leverages markets and social norms and intelligently comes up with a system which changes user behaviour, Basically, the modern definitions of regulation are using mechanisms that change behaviour. It doesn’t have to be banning or criminalization! So if you think of it that way, then encouraging the creation of a Pandora, Netflix, Spotify type of platform, is in my opinion the more likely way of changing user behaviour. We have tried command and control, it doesn’t work. It has a lot of detrimental effects! It’s high time that the government and industry think of more innovative solutions and incentivize these platforms that will work for everybody..”
 
Apar Gupta
Advocate, New Delhi
“I think the solution will not come from our courts as directly as it may come from the legislature or copyright office issuing a clarification wrt to the rules or amending the rules itself to clarify and to negate such future injunctions. The burden wrt policing content specifically for each link individually lies on a copyright owner and that is a position of law that should be maintained in India as well. Following the principle as it has been applied in the US, under the digital copyrights millennium act. Now, what is also important to consider is that the same arguments as to protecting the interests of the artists as well as the creative industries versus tech and startups has been considered in USA, and look at it today! Because of an absence of John Doe injunctions, but the prevalence of the DMCA which is the prevalent mode to take down any content which infringes the rights of the owner. The tech industry has progressed and innovated to a degree.”

Ameet Naik
Managing Partner, Naik Naik & Company
Lawyer For Phantom Films
“The genesis of piracy is that people believe that there is no deterrent to it. I believe that an order like a John Doe orders or Ashok Kumar orders is that deterrent. With that deterrent there must be a mechanism in place to make sure that every deterrent actually has a remedial effect to remedy the cause of piracy which is so rampant… I think an implementation of these orders is most critical. In terms of legislation I think as far as DoT is concerned we try to make them parties to each order we get, but if there is breach of these orders, you must come down heavily! I believe there must be freedom of speech and expression and ISP providers must have that freedom and prerogative but not at the cost of infringement.”
It’s ironic that despite all efforts to prevent the piracy of Masaan, it’s been available for download on all torrent Websites, since its release. After all, taming the internet is a ‘Mission Impossible’ even for Ethan Hunt. But thankfully, for some of us, enjoying a movie at the cinema makes a lot more sense than evading John Doe.
 
In Mumbai, Aayush Ailawadi

 
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