Digital copyright enforcement and the relevance of John Doe orders

The rapid advance of digital technology presents enormous opportunities for copyright creators as it expands their customer base, lessens distribution costs and almost nullifies territorial barriers. The flipside is that, unless regulated properly, it exposes copyrighted works to the threat of flagrant infringement across different mediums, including the internet. While copyrighted works have always been susceptible to threats of piracy, the ease with which the internet enables infringement, in a few seconds by a large number of users spread across different jurisdictions, is ominous.

Ensuring adequate copyright protection is a demanding challenge requiring innovative enforcement mechanisms that can effectively implement legal provisions. One such enforcement mechanism, employed extensively by India’s judiciary in recent times, is a stringently worded John Doe order covering both known and unknown defendants.

Role of John Doe orders

The anonymity that internet grants its users, coupled with its speed and reach, has created an industry propelled and sustained by copyright infringement. The beneficiaries of this illegal scheme often remain shrouded in mystery, and copyright owners may not be able to ascertain their identity even after spending time and money, or identification may be too late to be of any use. This is where John Doe orders prove to be an effective enforcement strategy.

In one sweep, these orders prohibit not only alleged infringing activities by unknown entities, but they also prevent any potential infringing activity by enjoining all unknown categories of persons from engaging in any infringing activity. The orders also allow for immediate action in case any instance of infringement comes to light after the court order, as the copyright owner only needs to serve the copy of the John Doe order on the erring party rather than filing a new suit and seeking an injunction while infringing copies continue to be downloaded.

Judicial trends in India

John Doe orders received recognition by India’s Judiciary back in 2002 in Taj Television v Rajan Mandal, when Delhi High Court affirmed their validity, specifying that “such orders may be enforced against persons whose identities are unknown at the time of instituting the suit but whose activities fall within the scope of action, if litigating finger is directed at unknown defendants, the inability to identify him by name is a mere misnomer”.

However, it is only in recent years that the judiciary started granting these orders generously and at a regular pace, especially for blocking websites. Accordingly, John Doe orders have been granted in quia timet actions prior to the release of several new movies, against a host of file-sharing websites and other unidentified potential infringers.

Further, during the FIFA World Cup 2014, Delhi High Court not only banned as many as 472 websites – later curtailed to 219 – but it also restrained any organisation/person/body from providing access to and/or communicating to the public, through the internet, the broadcast of FIFA world cup matches, thus mandating that the internet service providers (ISPs) indiscriminately block all infringing websites.

The order is distinct in the sense that it significantly deviates from an earlier Madras High Court order, in RK Productions v BSNL, where the court initially granted a broadly worded John Doe order prior to the release of the movie 3, but later, on petition from ISPs, narrowed its scope and limited the injunction to include only specific URLs where the infringing copy of the movie was kept.

The applicant was also directed to inform the court about the particulars of the specific URL where the infringing copy was kept within 48 hours of the order. The order tried to ensure that copyright owners did not have carte blanche in blocking websites, unlike Delhi High Court’s order, which not only ordered the blocking of a substantial number of websites instead of URLs, but also relied solely on the list provided by the applicants, without requiring any further proof of infringement.

While its broadly worded John Doe order may have adverse repercussions for internet freedom, Delhi High Court has reaffirmed its rigid stand in a later order in Star India Pvt Ltd v Haneeth Ujwal, where it directed a blocking of over 100 websites and other similar infringing websites, proclaiming that there is no alternative and efficient remedy available to plaintiffs other than blocking entire websites. Blocking of URLs was considered an insufficient remedy by the court on the grounds that websites can easily create a new URL by merely changing one character in the old URL string and provide access to the infringing content, nullifying the sanctity of the court’s order.

Important considerations

There is no denying that John Doe orders are effective tools for enforcing copyright in a country notorious for being a hub of internet piracy. However, these orders need to be appropriately tailored, especially when they mandate blocking websites, so that they do not endanger the legitimate interests of innocent users. After all, all the content even on the “rogue websites” – Delhi High Court used this term to describe websites that predominantly host illegal content – may not be infringing, and all users may not be accessing/downloading infringing content, but may be dependent on the websites for other important services.

Before a website is completely blocked, website owners should be given a judicial notice directing them to take down infringing content within a specified time, failing which the website may be blocked. This is important, considering file-sharing websites are often considered per se illegal and blocked, which obviously is not correct as many of them contain original content and are important information sharing channels.

Another area that needs attention is the enforcement of John Doe orders. Considering that these orders are applicable against unnamed websites, their implementation should not be left to copyright holders, or even ISPs, but should be supervised by a court-appointed commissioner, or they could even be used to harass harmless websites.