Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

The High Court of Delhi on June 23, 2014 issued a John Doe injunction restraining more than 400 websites from broadcasting 2014 FIFA world cup matches. News reports indicate that the Single judge bench of Justice V. Kameswar Rao directed the Department of Telecom to issue appropriate directions to ISPs to block the websites that Multi Screen Media provided, as well as “any other website identified by the plaintiff” in the future. On July 4, Justice G. S. Sistani permitted reducing the list to 219 websites.

Background

Multi Screen Media (MSM) is the official broadcaster for the ongoing 2014 FIFA World Cup tournament. FIFA (the Governing body) had exclusively licensed rights to MSM which included live, delayed, highlights, on demand, and repeat broadcast of the FIFA matches. MSM complained that the defendants indulged in hosting, streaming, providing access to, etc, thereby infringing the exclusive rights and broadcast and reproduction rights of MSM.

The court in the instant order held that the defendants had prima facie infringed MSM’s broadcasting rights, which are guaranteed by section 37 of the Copyright Act, 1957. In an over-zealous attempt to pre-empt infringement the court called for a blanket ban on all websites identified by MSM. Further, the court directed the concerned authorities to ensure ISPs complied with this order and block the websites mentioned by MSM presently, and other websites which may be subsequently be notified by MSM.

Where the Court went Wrong

The court stated that MSM successfully established a prima facie case, and on its basis granted a sweeping injunction to MSM ordering blocking 471 second level domains. I’d like to point out numerous flaws with the order-

1. Dissatisfactory "Prima facie case"

Out of the 472 websites (list provided in the order by MarkScan)-

471 are file streaming websites, video sharing websites, file lockers, URL shorteners, file storage websites; only one is a specific URL [http://www.24livestreamtv.com/brazil-2014-fifa-world-cup-football-%20%C2%A0%C2%A0live-streaming-online-t ].

The order calls for blocking of complete websites. This is in complete contradiction to the 2012 Madras High Court’s order in R K Productions v BSNL which held that only a particular URL where the infringing content is kept should be blocked, rather than the entire website. The Madras High Court order had also made it mandatory for the complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site. MSM did not adhere to this and I have serious doubts if the defendants brought the distinguishing Madras High Court judgment to the attention of the bench. The entire situation is akin to MarkScan scamming MSM by providing their clients a dodgy list, and MSM scamming the court and the public at large.

3. Lack of Transparency – Different blocking messages on different ISPs

The message displayed uniformly on blocked websites was:

"This website/URL has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications."

I observed that a few websites showed the message “Error 404 – File or Directory not found” without the blocking message (above) on the network provider Reliance, and same Error 404 with the blocking message on the network provider Airtel highlighting the non-transparent manner of adherence to the order. Further, both the messages do not indicate the end period of the block.

Legality of John Doe orders in Website Blocking

It is pertinent to reiterate the ‘misuse’ of John Doe orders to block websites in India. The judiciary has erred in applying the John Doe order to protect copyrightable content on the internet. While the R K Productions v BSNL case appears reasonable in terms of permitting blocking of only URL specific content, the application of John Doe order to block websites remains unfounded in law. Ananth Padmanabhan in a three part study (Part I, II and III) had earlier analysed the improper use of John Doe injunctions to block websites in India. The John Doe order was conceived by US courts to pre-emptively remedy the irreparable damages suffered by copyright holders on account of unidentified/unnamed infringers. The interim injunction allowed collection of evidence from infringers, who were identified later as certain defendants and the final relief was accordingly granted. The courts routinely advocated judicious use of the order, and ensured that the identified defendants were provided and informed of their right to apply to the court within twenty four hours for a review of the order and a right to claim damages in an appropriate case. Therefore, the John Doe order applied against primary infringers per se.

On the other hand, whilst extending this remedy in India the courts have unfortunately placed onus on the conduit i.e. the ISP to block websites. This is tantamount to providing final relief at the interim stage, since all content definitely gets blocked; however, this hardly helps in identifying the actual infringer on the internet. The court is prematurely doling out blocking remedies to the complaining party, which, legally speaking should be meted out only during the final disposition of the case after careful examination of the evidence available. Thus, the intent of a John Doe order is miserably lost in such an application. Moreover, this lends an arbitrary amount of power in the hands of intermediaries since ISPs may or may not choose to approach the court for directions to specifically block URLs which provide access to infringing content only.