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Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 3)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the third and concluding part, he looks at the Indian law in the Copyright Act and the Information Technology Act, and concludes that both those laws restrain courts and private companies from ordering an ISP to block a website for copyright infringement.</b>
<p style="text-align: justify; ">In the third part of his study, Ananth Padmanabhan looks into the fair use provisions recently introduced in respect of mere conduit intermediaries by the Copyright (Amendment) Act, 2012, and concludes that there is no scope for any general, or specific, access blocking orders at the behest of the plaintiff in a civil suit, in India. He also argues that the <a class="external-link" href="http://eprocure.gov.in/cppp/sites/default/files/eproc/itact2000.pdf">Information Technology Act, 2000</a> read with the<a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/GSR314E_10511%281%29.pdf"> Information Technology (Intermediaries Guidelines) Rules, 2011</a> do not in any manner permit the Government to override the provisions of the <a class="external-link" href="http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html">Copyright Act, 1957</a> (as amended) while facilitating the denial of access to websites on grounds of copyright infringement, because the Copyright Act, 1957, is a complete code by itself.</p>
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<h2 style="text-align: justify; ">Fair Use Provisions Introduced by the Copyright (Amendment) Act, 2012</h2>
<p style="text-align: justify; ">In 2010, the <a href="https://cis-india.org/a2k/blogs/copyright-bill-analysis" class="external-link">controversial Copyright (Amendment) Bill</a> came up for deliberation before the Parliamentary Standing Committee on Human Resource Development headed by Mr. <a class="external-link" href="http://archive.india.gov.in/govt/rajyasabhampbiodata.php?mpcode=173">Oscar Fernandes</a>. While a major part of the discussion on this amendment revolved around the altered royalty structure and rights allocation between music composers and lyricists on the one hand and film producers on the other, it can be safely stated that this is the most significant amendment to the Copyright Act, 1957 for more than this one reason. The amendment seeks to reform the Copyright Board, bring in a scheme of statutory licenses, expand the scope of performers’ rights and introduce anti-circumvention measures to check copyright piracy. As part of its ambitious objective, the amendment also attempts a new fair use model to protect intermediaries and file-sharing websites.</p>
<p style="text-align: justify; ">The Copyright (Amendment) Act, 2012, which gives expression to this fair use model through Sections 52(1)(b) and (c), reads thus:</p>
<p style="padding-left: 30px; text-align: justify; "><b><i>52. Certain acts not to be infringement of copyright</i></b><i>. - (1) The following acts shall not constitute an infringement of copyright, namely:</i></p>
<p style="padding-left: 30px; text-align: justify; "><i>(a) to (ad) - *****</i></p>
<p style="padding-left: 30px; text-align: justify; "><i>(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;</i></p>
<p style="padding-left: 30px; text-align: justify; "><i> </i></p>
<p style="padding-left: 30px; text-align: justify; "><i>(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:</i></p>
<p style="padding-left: 30px; text-align: justify; "><i> </i></p>
<p style="padding-left: 30px; text-align: justify; "><i>Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;</i></p>
<p style="text-align: justify; ">From a plain reading, it is clear that two important exceptions are carved out: one, in respect of the technical process of electronic transmission and the other, in respect of providing electronic links, access or integration. The material distinction between these exceptions is the presence of a take-down <i>proviso </i>in respect of the latter kind of activity, ie. when providing electronic links, access or integration. This window of opportunity is not provided to the copyright owner when the third party is an ISP involved in the pure technical process of electronic transmission of data.</p>
<p style="text-align: justify; ">In <i>R.K. Productions</i>, the court was not informed of the introduction of these provisions <i>vide</i> the Copyright (Amendment) Act, 2012, despite the hearing happening on a date subsequent to the amendment coming into force. This probably influenced the outcome as well, since the court held that ISPs were liable to block access to infringing content, once the specific webpage was brought to the notice of the concerned ISP. Newly introduced Section 52(1)(b) however makes it abundantly clear that ISPs cannot, in any manner, be held liable when they are acting as mere conduit pipes for the transmission of information. This legal position is also materially different from jurisdictions such as the United Kingdom where, the ISPs though not liable for copyright infringement, are statutorily mandated to lend all possible assistance such as take-down or blocking of access upon notice of infringement being furnished to them. This dichotomy between liability for infringement on the one hand and a general duty to assist in the prevention of infringement on the other is explained clearly by the Chancery Division in <i>Twentieth Century Fox Film Corporation v. British Telecommunications Plc.</i><a href="#fn1" name="fr1">[1] </a></p>
<p style="text-align: justify; ">In <i>Newzbin2</i>, the Chancery Division took note of the safe harbour provisions created by the E-Commerce Directive,<a href="#fn2" name="fr2">[2] </a>particularly Articles 12 to 14 that dealt with acting as a “mere conduit”, caching and hosting respectively. The interesting feature with the “mere conduit” exception, which in all other respects is akin to the exception contained in Section 52(1)(b) of the Copyright Act, 1957, is the additional presence of Article 12(3). This provision clarifies that the “mere conduit” exception shall not stand in the way of a court or administrative authority requiring the service provider to terminate or prevent an infringement. Article 18 of this Directive also casts an obligation upon Member States to ensure that court actions available under national law permit the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved. Similarly, the court looked into the Information Society Directive,<a href="#fn3" name="fr3">[3] </a></p>
<p style="text-align: justify; ">Article 8(3) of which provides that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” This Directive was transposed into the domestic law in UK by the Copyright and Related Rights Regulations 2003, SI 2003/2498, resulting in the insertion of Section 97A in the Copyright, Designs and Patents Act 1988. This provision empowers the court to grant an injunction against a service provider who has actual knowledge of another person using their service to infringe copyright, such as where the service provider is given sufficient notice of the infringement. Finally, the Chancery Division also took note of the Enforcement Directive,<a href="#fn4" name="fr4">[4] </a></p>
<p style="text-align: justify; ">Article 11 of which provided that Member States shall ensure that copyright owners are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right. This entire legislative scheme compelled the court in <i>Newzbin2</i> to conclude that an order of injunction could be granted against ISPs who are “mere conduits”, restraining them from providing access to websites that indulged in mass copyright infringement. The court reasoned that the language used in Section 97A did not require knowledge of any particular infringement but only a more general kind of knowledge about certain persons using the ISPs’ services to infringe copyright. Thus, it is seen that in the United Kingdom, though a “mere conduit” activity is not infringement at all, the concerned ISP can be directed by the court to block access to a website that hosts infringing content on the basis of the above legislative scheme. The enquiry should therefore be directed towards whether India has a similar scheme for copyright enforcement.</p>
<h3 style="text-align: justify; ">The Information Technology Act – An Inapplicable Scheme for Website Blocking</h3>
<p style="text-align: justify; ">The Information Technology Act, 2000<a href="#fn5" name="fr5">[5]</a>read with certain recently framed guidelines provides for a duty that could be thrust upon even “mere conduit” ISPs to disable access to copyrighted works. This is due to the presence of Section 79(2)(c) of this Act, which makes it clear that an intermediary shall be exempt from liability only where the intermediary observes due diligence as well as complies with the other guidelines framed by the Central Government in this behalf. Moreover, Section 79(3) provides that the intermediary shall not be entitled to the benefit of the exemption in Section 79(1) in a situation where the intermediary, upon receiving actual knowledge that any information, data, or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit an unlawful act, fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. In pursuance of Section 79(2)(c), the Central Government has also framed the Information Technology (Intermediaries Guidelines) Rules, 2011, which came into effect on 11.04.2011. Rule 4 of these Rules, when read along with Rule 2(d), casts obligation on an intermediary on whose computer system, copyright infringing content has been <i>stored, hosted or published</i>, to <i>disable</i> such information within thirty six hours from when it is brought to actual knowledge of the existence of such content by any affected person.</p>
<p style="text-align: justify; ">One way of understanding and interpreting in harmonious fashion, the provisions of the IT Act and the Rules therein and the recent amendments to the Copyright Act, is to contend that the issue of infringement of copyright by “mere conduit” ISPs is governed by Section 52(1)(b), which completely absolves them of any liability, while that of enforcement of copyright through the medium of such ISPs is governed by the IT Act. This bifurcation suffers from the difficulty that Section 79 of the IT Act is not an enforcement provision. It is a provision meant to exempt intermediaries from certain kinds of liability, in the same way as Section 52 of the Copyright Act. This provision, read with Section 81, makes it clear that the IT Act does not speak to liability for copyright infringement. From this, it has to necessarily follow that all issues pertaining to liability for such infringement have to be decided by the provisions of the Copyright Act. Therefore, the scheme in the IT Act read with the Intermediaries Guidelines Rules cannot confer additional liability for copyright infringement on ISPs where the Copyright Act exempts them from liability. More to the point, the intermediary cannot be liable for copyright infringement in the event of non-compliance with Section 79(3) or Rule 4 of the Intermediaries Guidelines Rules read with Section 79(1)(c) of the IT Act. Rule 4 of the Intermediaries Guidelines Rules, 2011, to the extent that it renders intermediaries outside the protective ambit of Section 79(1) upon failure to disable access to copyrighted content, is of no relevance as “mere conduits” have already been exempted from liability under Section 52(1)(b). Moreover, since these provisions in the IT Act do not deal with enforcement measures such as injunction orders from the court to disable access to infringing content in particular or infringing websites in general, it would be wrong to contend that the scheme in India is similar to the one in the United Kingdom where the issue of infringement has been divorced from that of enforcement.</p>
<p style="text-align: justify; ">To conclude, Section 52(1)(b) is a blanket “mere conduit” exemption from liability for copyright infringement that stands uninfluenced by the presence of Section 79 of the IT Act or the Intermediaries Guidelines Rules. In the absence of a legislative scheme for enforcement in India akin to Section 97A of the UK Copyright, Designs and Patents Act 1988, Indian Courts cannot grant an injunction directing such “mere conduit” ISPs to block access to websites in general or infringing content in particular and any such action is not even maintainable in law post the insertion of Section 52(1)(b). The decision to the contrary in the <i>R.K.Productions </i>case is incorrect.</p>
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<p>[<a href="#fr1" name="fn1">1</a>]. [2011] EWHC 1981 (Ch.). Hereinafter referred to as <i>Newzbin2.</i></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. European Parliament and Council Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (8 June 2000). This Directive was transposed into the domestic law in UK by the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. European Parliament and Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (22 May 2001).</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. European Parliament and Council Directive 2004/48/EC on the enforcement of intellectual property rights (29 April 2004). This Directive was transposed into the UK domestic law primarily by the Intellectual Property (Enforcement, etc.) Regulations 2006, SI 2006/1028.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. Hereinafter referred to as the IT Act.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3</a>
</p>
No publisherananthFeaturedHomepageCopyrightAccess to Knowledge2014-02-14T05:13:36ZBlog EntryCan Judges Order ISPs to Block Websites for Copyright Infringement? (Part 2)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the second part, he looks at the law laid down by the U.S. Supreme Court and the Delhi High Court on secondary and contributory copyright infringement, and finds that those wouldn't allow Indian courts to grant "John Doe" orders against ISPs.</b>
<p style="text-align: justify; ">In the second part of his study, Ananth Padmanabhan proceeds to examine applying a general theory of secondary or contributory copyright infringement against ISPs. He traces the basis for holding a third party liable as a contributory by closely examining the decisions of the U.S. Supreme Court in Sony Corp. v Universal City Studios<a href="#fn1" name="fr1">[1] </a>and MGM Studios, Inc. v Grokster, Ltd.<a href="#fn2" name="fr2">[2] </a>and concludes that this basis does not hold good in the case of a mere conduit intermediary such as an ISP.</p>
<p>[<a href="#fr1" name="fn1">1</a>]. 464 U.S. 417 (1984). Hereinafter referred to as <i>Betamax</i>.</p>
<p>[<a href="#fr2" name="fn2">2</a>]. 545 U.S. 913 (2005). Hereinafter referred to as <i>Grokster.</i></p>
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<h2>Primary and Secondary Infringement</h2>
<p style="text-align: justify; ">Liability for copyright infringement can either be primary or secondary in character. In the case of ISPs, liability as primary infringers does not arise at all, and it is in their capacity as conduit pipes facilitating the transmission of information that they could be held secondarily liable. Even in such cases, the contention of copyright owners is that once the ISP is notified of infringing content, it has the primary responsibility of preventing access to such content. This contention is essentially rooted in a theory of secondary infringement based on knowledge and awareness, and the means to prevent further infringement.</p>
<p style="text-align: justify; ">The controversy around a suitable model of secondary infringement is reflected in two judicial pronouncements – separated by a gap of more than two decades – delivered by the U.S. Supreme Court. In <i>Sony Corp. v Universal City Studios</i>,[<a href="#fr3" name="fn3">3</a>] the US Supreme Court held that the manufacturers of home video recording devices known in the market as Betamax would not be liable to copyright owners for secondary infringement since the technology was capable of substantially non-infringing and legitimate purposes. The U.S. Supreme Court even observed that these time-shifting devices would actually enhance television viewership and hence find favour with majority of the copyright holders too. The majority did concede that in an appropriate situation, liability for secondary infringement of copyright could well arise. In the words of the Court, “<i>vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another</i>”. However, if vicarious liability had to be imposed on the manufactures of the time-shifting devices, it had to rest on the fact that they sold equipment with constructive knowledge of the fact that their customers <i>may</i> use that equipment to make unauthorized copies of copyrighted material. In the view of the Court, there was no precedent in the law of copyright for the imposition of vicarious liability merely on the showing of such fact.</p>
<p style="text-align: justify; ">Notes of dissent were struck by Justice Blackmun, who wrote an opinion on behalf of himself and three other judges. The learned Judge noted that there was no private use exemption in favour of making of copies of a copyrighted work and hence, unauthorised time-shifting would amount to copyright infringement. He also concluded that there was no fair use in such activity that would exempt it from the purview of infringement. The dissent held the manufacturer liable as a contributory infringer and reasoned that the test for contributory infringement would only be whether the contributory infringer had <i>reason to know or believe </i>that infringement would take place and <i>not whether he actually knew of the same</i>. Off-the-air recording was not only a foreseeable use for the Betamax, but also its intended use, for which Sony would be liable for copyright infringement.</p>
<p style="text-align: justify; ">This dissent has considerably influenced the seemingly contrarian position taken by the majority in the subsequent decision, <i>MGM Studios, Inc. v Grokster, Ltd.</i><a href="#fn4" name="fr4">[4]</a> This case called into question the liability of websites that facilitated peer-to-peer (P2P) file-sharing. Re-formulating the test for copyright infringement, the US Supreme Court held that ‘<i>one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties</i>’. In re-drawing the boundaries of contributory infringement, the Court observed that contributory infringement is committed by any person who intentionally induces or encourages direct infringement, and vicarious infringement is committed by those who profit from direct infringement while declining to exercise their right to limit or stop it. When an article of commerce was good for nothing else but infringement, there was no legitimate public interest in its unlicensed availability and there would be no injustice in presuming or imputing intent to infringe in such cases. This doctrine would at the same time absolve the equivocal conduct of selling an item with substantial lawful as well as unlawful uses and would limit the liability to instances of more acute fault than the mere understanding that some of the products shall be misused, thus ensuring that innovation and commerce are not unreasonably hindered.</p>
<p style="text-align: justify; ">The Court distinguished the case at hand from <i>Betamax</i>, and noted that there was evidence here of active steps taken by the respondents to encourage direct copyright infringement, such as advertising an infringing use or instructing how to engage in an infringing use. This evidence revealed an affirmative intent that the product be used to infringe, and an <i>active </i>encouragement of infringement. Without reversing the decision in <i>Betamax</i>, but holding that it was misinterpreted by the lower court, the Court observed that <i>Betamax</i> was not an authority for the proposition that whenever a product was capable of substantial lawful use, the producer could never be held liable as a contributory for the use of such product for infringing activity by third parties.<i> </i>In the view of the Court, <i>Betamax </i>did not displace other theories of secondary liability.<i> </i>This other theory of secondary liability applicable to the case at hand was held to be the inducement rule, as per which any person who distributed a device with the object of promoting its use to infringe copyright, as evidenced by clear expression or other affirmative steps taken to foster infringement, would be liable for the resulting acts of infringement by third parties. However, the Court clarified that <i>mere knowledge of infringing potential or of actual infringing uses would not be enough</i> under this rule to subject a distributor to liability. Similarly, ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability etc. would not by themselves attract the operation of this rule. The inducement rule, instead, premised liability on <i>purposeful, culpable expression and conduct</i>, and thus did nothing to compromise <i>legitimate</i> commerce or discourage innovation having a <i>lawful</i> promise.</p>
<p style="text-align: justify; ">These seemingly divergent views on secondary infringement expressed by the U.S. Supreme Court are of significant relevance for India, due to the peculiar language used in the Indian Copyright Act, 1957.<a href="#fn4" name="fr4">[4]</a></p>
<p style="text-align: justify; ">Section 51 of the Act, which defines infringement, bifurcates the two types of infringement – ie. primary and secondary infringement – without indicating so in as many words. While Section 51(a)(i) speaks to primary infringers, 51(a)(ii) and 51(b) renders certain conduct to be secondary infringement. Even here, there is an important distinction between 51(a)(ii) and 51(b). The former exempts the alleged infringer from liability if he could establish that <i>he was not aware and had no reasonable ground for believing that </i>the communication to the public, facilitated through the use of his “place”, would amount to copyright infringement. The latter on the other hand permits no such exception. Thus, any person, who makes for sale or hire, or by way of trade displays or offers for sale or hire, or distributes for the purpose of trade, or publicly exhibits by way of trade, or imports into India, any infringing copies of a work, shall be liable for infringement, without any specific <i>mens rea</i> required to attract such liability. It is in the context of the former provision, ie. 51(a)(ii) that the liability of certain file-sharing websites for copyright infringement has arisen.<a href="#fn5" name="fr5">[5]</a></p>
<h3 style="text-align: justify; ">Mere Conduit ISPs – Secondary Infringement Absent</h3>
<p style="text-align: justify; ">In <i>MySpace</i>, the Delhi High Court examined the liability for secondary infringement on the part of a website that provides a platform for file-sharing. While holding the website liable, the Single Judge considered material certain facts such as the revenue model of the defendant, which depended largely on advertisements displayed on the webpages, and automatically generated advertisements that would come up for a few seconds before the infringing video clips started playing. Shockingly, the Court even considered relevant the fact that the defendant did provide for safeguards such as hash block filters, take down stay down functionality, and rights management tools operational through fingerprinting technology, to prevent or curb infringing activities being carried on in their website. This, in the view of the Court, made it evident that the defendant had a <i>reasonable apprehension or belief </i>that the acts which were being carried on in the website <i>could</i> infringe someone else’s copyright including that of the plaintiff. The logic employed by the Court to attribute liability for secondary infringement on file-sharing websites is befuddling and reveals complete disregard for the degree of regulatory authority available on the internet even where the space, i.e., the website, is supposedly “under the control” of a person. However, a critical examination of this decision is not relevant in understanding the liability of mere conduit ISPs. This is for the reason that none of the factual considerations relied on by the Single Judge to justify imposition of liability on a file-sharing website under Section 51(a)(ii) arise when the defendant is an ISP that only provides the path for content-neutral transmission of data.</p>
<p style="text-align: justify; ">This was completely ignored by the Madras High Court in <i>R.K.Productions v. B.S.N.L.</i>,<a href="#fn6" name="fr6">[6] </a>where the producers of the Tamil film “3”, which enjoyed considerable pre-release buzz due to its song “Kolaveri Di”, sought an omnibus order of injunction against all websites that host torrents or links facilitating access to, or download of, this film. Though this was worded as a John Doe plaint by branding the infringers as unknown administrators of different torrent sites and so on, the real idea was to look to the resources and wherewithal of the known defendants, ie. the ISPs, to block access to the content hosted by the unknown defendants.</p>
<p style="text-align: justify; ">This prompted the ISPs to file applications under Or. VII, Rule 11 of the Civil Procedure Code, seeking rejection of the plaint on the ground that the suit against them was barred by law. The Single Judge of the Madras High Court dismissed these applications for rejection of the plaint, after accepting the contention that the ISPs are necessary parties to the suit as the act of piracy occurs through the channel or network provided by them. The High Court heavily, and incorrectly, relied on MySpace without appreciating the distinction between a mere conduit ISP and a file-sharing website such as MySpace or YouTube, as regards their respective roles and responsibilities, the differing degrees of regulatory control over content enjoyed by them, and most importantly, the recognition and formalisation of these distinctions in the Copyright Act, 1957, vide the Copyright (Amendment) Act, 2012.</p>
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<p>[<a href="#fr3" name="fn3">3</a>]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.</p>
<p>[<a href="#fr4" name="fn4">4</a>]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.</p>
<p>[<a href="#fr5" name="fn5">5</a>]. Hereinafter the Act.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. <i>Super Cassette Industries Ltd. v MySpace Inc.</i>, MIPR 2011 (2) 303 (hereinafter referred to as <i>MySpace</i>). This decision of the Delhi High Court has been rightly criticised. <i>See </i><a href="https://cis-india.org/a2k/blogs/super-cassettes-v-my-space">http://cis-india.org/a2k/blog/super-cassettes-v-my-space</a> (last accessed on 24.03.2013).</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2</a>
</p>
No publisherananthAccess to KnowledgeCopyrightPiracyFeaturedHomepage2014-03-06T16:48:18ZBlog EntryCan Judges Order ISPs to Block Websites for Copyright Infringement? (Part 1)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this part, he looks at the theory behind John Doe orders and finds that it would be wrong for Indian courts to grant "John Doe" orders against ISPs.</b>
<p style="text-align: justify; ">The Madras High Court, in its 2012 order in <a href="https://cis-india.org/internet-governance/resources/john-doe-order-r.k.-productions-v.-bsnl-mtnl-and-ors.-movie-3" class="external-link"><i>R.K.Productions v. B.S.N.L.</i></a>,<a href="#fn1" name="fr1">[1] </a>has affirmed the possibility of a suit against internet service providers (ISPs) to block access to certain webpages upon notification by the copyright owner. Though this appears to be a reasonable order at first glance, keeping in mind the fact that access to identified copyrighted works alone is targeted and not websites in their entirety, the legal basis for the same is highly questionable. In this two-part study, Ananth Padmanabhan explores the legal sanctity of these orders, especially post the coming into force of the Copyright Amendment, 2012. The first part of this study explores the genesis of <a class="external-link" href="http://lawmantra.co.in/recent-inclination-of-indian-judiciary-to-pass-john-doe-orders-a-critical-analysis-on-the-perspective-of-copyright-infringement-of-film-productions/">John Doe orders</a> and proceeds to examine the conceptual problems arising from tagging along website blocking orders within the broad sweep of John Doe action. This part concludes that website blocking orders against ISPs stand separately from, and cannot be justified in the same manner as, John Doe orders.</p>
<p>[<a href="#fr1" name="fn1">1</a>]. (2012) 5 LW 626. Hereinafter referred to as <i>R.K. Productions</i>.</p>
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<h2>John Doe Orders and their Conceptual Understanding</h2>
<p style="text-align: justify; ">The concept of <i>John Doe Orders</i> in <i>ex parte </i>proceedings for copyright infringement came in due to the peculiar character of copyright piracy. Orders of this nature were being passed in jurisdictions across the world till they were, probably for the first time, passed in India in 2003. Since then, such orders have become a somewhat regular feature. In short, such orders permit the plaintiff to enforce an injunction order against unidentified / unnamed defendants, ‘John Doe’ being a generic name for such defendants. To understand the nature and mechanism of such enforcement and the various guidelines governing such orders, exploring the genesis of these orders is imperative.</p>
<p style="text-align: justify; ">In <a class="external-link" href="http://www.leagle.com/decision/19801290499FSupp791_11189"><i>Billy Joel v Various John Does</i></a>,<a href="#fn2" name="fr2">[2]</a> one of the earliest instances of a <i>John Doe </i>order, the plaintiff who was a musician and a successful recording artist, found to his annoyance that his success had spawned an underground industry that capitalised on his popularity through the sale of merchandise, usually T-shirts bearing his picture and name. These sales were carried on by unauthorised persons who showed up at his concerts with the merchandise and sold them outside the concert halls where he was performing. The plaintiff had in fact granted his recording company the exclusive right to market such merchandise, and the company was doing so inside the concert halls. Obviously, the presence of the unauthorised vendors outside the concert halls hurt the company’s sales and the plaintiff’s revenue share. This compelled him to approach the district court in Wisconsin seeking injunctive relief against various <i>"</i>John Does" or unidentified defendants who were carrying on the unauthorised sale of merchandise. The order was specifically sought seeking an <i>ex parte</i> temporary restraining order prohibiting certain unnamed persons from selling merchandise bearing the plaintiff’s name or likeness outside the Milwaukee Arena where he was scheduled to perform on that day. Thus, the order sought was confined to one particular instance and the situation demanded expedient preventive action since the concert was on the very same day.</p>
<p style="text-align: justify; ">The district court, while finding the propriety of an order against unidentified defendants "troubling", still went ahead and passed the order sought for. The court felt that the problem of the defendants’ identities would be met if the copies of the summons, complaint, and restraining order itself were to be served on all persons from whom merchandise connected with the plaintiff was seized on the night of the concert. Additionally, the<i> </i>court clarified that all these parties would be entitled to have their names added as parties to the cause title and even otherwise, to contest the seizures. The plaintiff had also furnished a bond to cover damages that may arise due to the awarding of such relief. The court applied the principle of <i>ubi jus ibi remedium</i> – where there is a wrong done, there has to be a remedy in law – while granting this relief. This is clear from the last paragraph of the judgement where the Court says : "<i>Were the injunction to be denied, plaintiffs would be without any legal means to prevent what is clearly a blatant infringement of their valid property rights. While the proposed remedy is novel, that in itself should not weigh against its adoption by this court. A court of equity is free to fashion whatever remedies will adequately protect the rights of the parties before it.</i>"</p>
<p style="text-align: justify; ">Subsequently, various courts in the United States have granted such relief. However, most such instances of judicial intervention in cases of piracy have confined themselves to specific instances of piracy as opposed to orders of wider applicability extending to more than one instance of apprehended or real piracy. For instance, in <a class="external-link" href="http://www.leagle.com/decision/19821605551FSupp1054_11443"><i>Brockum Intern., Inc. v Various John Does</i></a>,<a href="#fn3" name="fr3">[3]</a> the plaintiff sought a nation-wide order prohibiting the same activity in other cities visited by the popular rock band, The Who, on its national tour. The court declined to do so.</p>
<h3 style="text-align: justify; ">The Metallica Order</h3>
<p style="text-align: justify; ">In New Zealand, the High Court has specifically applied the principle of <i>ubi jus ibi remedium </i>while justifying the issuance of <i>John Doe Orders</i>. In <a class="external-link" href="http://swarb.co.uk/tony-blain-pty-ltd-v-splain-1994/"><i>Tony Blain Pty.Limited v Splain and other Persons Unknown</i></a>,<a href="#fn4" name="fr4">[4]</a> the court likened this kind of relief sought against unidentified defendants, to an order in the nature of <i>Anton Piller </i>remedy. The court stated that both these orders involved a common feature, being an intrusion into the privacy of the defendants. However, such an intrusion would be justified applying the maxim of <i>ubi jus ibi remedium</i>. According to the court, "<i>in circumstances where it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy"</i>. Emphasising on the conduct-centric nature of these reliefs, the court held that John and Jane Does will be known by their works.</p>
<p style="text-align: justify; ">However, in its attempt to bring in some safeguards before passing such an order, the court held that it would be better in the future to bring such applications a little in advance so that amicus curiae could be appointed to represent the view point of the John and Jane Does. Further, the court observed that it was important to build into the procedure appropriate protections, including means of informing persons served with orders for injunction in clear language and simple terms what their remedies were. These remedies, in turn, would include a 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, not merely on the basis of the usual undertaking to be given by plaintiffs, but also on the basis of the tort of misfeasance of public office. It will also be necessary for the plaintiff to file before the court, a full report verified by affidavit, of the process of execution of the particular orders.</p>
<p style="text-align: justify; ">It is thus seen that the High Court, though keen to do justice by providing a remedy that is effective enough to protect the plaintiff’s rights, also tried to mitigate the harshness of the measures proposed by bringing in some safeguards. This decision gave birth to the <i>Metallica Order</i> in New Zealand, the New Zealander’s equivalent of a <i>John Doe Order</i>. It has to be added that the nature of the order passed by the High Court in this case is very detailed and can be used as precedent, even for the requisite format, by all courts that pass similar orders.<a href="#fn5" name="fr5">[5] </a></p>
<h3 style="text-align: justify; ">John Doe Orders in India</h3>
<p style="text-align: justify; ">The decision in <a class="external-link" href="http://www.institute-ip-asia.org/articles/IndiaReport2004.pdf"><i>Tej Television Ltd. v Rajan Mandal</i></a>,<a href="#fn6" name="fr6">[6]</a> will have to find first mention since these kind of orders against unidentified defendants hit the shores of the Indian legal landscape through this decision. Here, the plaintiff owned the Ten Sports television channel and had procured the broadcasting rights to several important sporting events including the 2002 Football World Cup matches. Being a paid channel, the cable operators had to part with royalty to the plaintiff for airing the programs broadcasted on this channel. To the plaintiff’s consternation, many local cable operators were airing these sporting events without taking licenses from the plaintiff / its authorised marketing agency. This resulted in the channel approaching the Delhi High Court and seeking, for the first time, a John Doe order against unidentified defendants. The channel had some evidence of unauthorised broadcasting of the initial matches by certain cable operators and apprehended that this conduct by more operators would not only result in revenue loss but also cause the 1377 cable operators, who had taken licenses from the plaintiff, to re-think the very necessity of doing so when they could air the sporting events in an unauthorised manner without any fear of liability. Another concern was the ease with which those who carried on the practise of unauthorised transmission could destroy any evidence of such conduct. The prayer sought by the plaintiff was an <i>ex parte</i> order against six named cable operators and “John Doe” orders against a further fourteen unnamed persons who, the plaintiff claimed, were wrongfully transmitting the Ten Sports channel. The order against unidentified defendants was sought to be justified on two broad grounds: (i) Section 151 of the Code of Civil Procedure, 1908, which gives courts the inherent power to evolve a fair and reasonable procedure for meeting exigent situations, and (ii) international practise in the form of John Doe orders issued by courts in various countries including the United States, United Kingdom, Canada and Australia.</p>
<p style="text-align: justify; ">The High Court refused to grant a John Doe order on the facts and circumstances of this case but also clarified that in an appropriate situation, courts could well award a John Doe order even in India. The court granted relief to the plaintiff by appointing a Court Commissioner who was authorised to visit the premises of various cable operators, and search, make an inventory, and take into custody all equipment / wires used for the broadcast of the plaintiff’s channel. The court empowered the Commissioner to take the assistance of technical experts and police officials in carrying out this order, and directed him to prepare a report after gathering evidence of cable piracy in the form of video recordings and photographs. The court also considered itself at liberty, on the basis of this report, to issue notices to all alleged violators, and after the hearing, to initiate civil and criminal action against them in accordance with law. The Court Commissioner was also empowered to issue warnings to such prospective violators though there was no mention of any contempt proceedings against the violators for ignoring the warning given by the Commissioner. Upon close examination, this order was nothing but a mild modification of the power vested in the court under Order XXVI, Rule 9 of the CPC.</p>
<h3 style="text-align: justify; ">Final and Interim John Doe Orders</h3>
<p style="text-align: justify; ">The Delhi High Court has, in some subsequent decisions, considered the possibility of a John Doe order without expressly granting the same. In <i><a class="external-link" href="http://delhicourts.nic.in/Jan09/Ardath%20Tobacco%20Co.%20Ltd.%20Vs.%20Mr.%20Munna%20Bhai.pdf">Ardath Tobacco Co. Ltd. v Munna Bhai & Ors</a>.</i>,<a href="#fn7" name="fr7">[7] </a>the plaintiff was the proprietor of a tobacco brand, “State Express 555”. Aggrieved by the conduct of the defendants who were distributing <i>"</i>Peacock" cigarettes in packaging and trade dress that bore deceptive similarity to that of the plaintiff’s brand, the plaintiff sought a John Doe order against all such distributors including unidentified ones. From the report, it appears that an <i>ex parte </i>order appointing Court Commissioners, similar to the order in <i>Tej Television</i>,<i> </i>was awarded by the High Court initially. In the final order, the court was constrained to confine the order of permanent injunction to the named defendants since the plaintiff had failed to identify any John Does and add them to the array of parties for the purpose of securing injunctive relief. The same was again found to be the case in <i>3M Company v A. Patel</i>,<a href="#fn8" name="fr8">[8] </a>where the final order of injunction was granted only against the 2 identified defendants.</p>
<p style="text-align: justify; ">Thus, in these cases, a distinction seems to be made between the interim orders that may be passed against the unidentified defendants, and the final relief granted by the court. The principle that emerges from these decisions is that orders against unidentified defendants can only go to the extent of collecting evidence against them through search of their premises by the Court Commissioner, or with the assistance of the Station House Officer (S.H.O) as was directed in <i><a class="external-link" href="http://indiankanoon.org/docfragment/100370340/?formInput=espn%20software%20india%20%20doctypes%3A%20judgments">ESPN Software India Private Ltd. v Tudu Enterprises</a>.</i><a href="#fn9" name="fr9">[9]</a> No final relief can be granted against any person who is unnamed in the array of parties as a defendant. The purpose of an <i>Ashok Kumar </i>order (as such orders are branded in India) is only to bring such persons on record.</p>
<h3 style="text-align: justify; ">John Doe Orders – Procedure and Guidelines</h3>
<p style="text-align: justify; ">Recently, the Delhi High Court has enunciated, with sufficient clarity, the procedure to be followed while granting interim orders against unidentified defendants. In <i>Luxottica S.R.L v Mr. Munny & Ors.</i>,<a href="#fn10" name="fr10">[10]</a> the plaintiff which owned the popular trade mark "Ray Ban" in respect of sunglasses, sought John Doe orders from the Delhi High Court with the aim of tacking rampant piracy and counterfeiting of its products. Surprisingly, there was no exigent necessity cited by the plaintiff for justifying the grant of such an order, unlike in <i>Billy Joel</i>, <i>Metallica</i>, <i>Brockum,</i> or <i>Tej Television</i>. Piracy had been going on in the past, and it continues to occur – that was broadly the case of the plaintiff here. Despite this, the Delhi High Court went on to issue an order of <i>ex parte </i>injunction restraining third parties from carrying on such counterfeiting activities. Extending the powers of the Court Commissioner, the High Court held:</p>
<p style="text-align: justify; padding-left: 30px; "><i>The Commissioners are also authorized to visit any other premises/warehouse/store where they may have reason to suspect and/or information be received that counterfeit optical sunglasses bearing the Plaintiffs trademark RAY BAN are being stored/sold/offered for sale and thereafter. In respect of such Ashok Kumar Defendants, upon the seizure of any infringing/counterfeit products, the Commissioners shall forthwith serve such Ashok Kumar Defendants with a complete set of papers and a copy of the notice and summons. The Commissioners will seize and make an inventory of all the infringing goods including packaging material, cartons, stationery, literature, dyes, blocks, moulds, etc. bearing the impugned RAY BAN trademark and sign all books of accounts including ledgers, cash books, purchase and sale records etc., and return the seized goods on suprdari to such Ashok Kumar defendants and obtain undertakings from each of them that they will produce the seized goods as and when directed by the court.</i></p>
<p style="text-align: justify; ">The object behind this order seems to be the prevention of any destruction of the evidence. In consonance with this object, the High Court has even made provision for return of the seized material to the unnamed defendants during the pendency of this order, and given them the option of approaching the court and vacating the <i>ex parte </i>order of injunction issued against them. This Luxottica decision can be considered as India’s equivalent of the <i>Metallica Order</i>, as it gives a clear roadmap for courts that pass such orders in the future. Considering that John Doe orders have attracted criticism on the ground that they make serious inroads into the rights of the defendant, these safeguards specifically articulated by the Court do go some way in addressing these concerns and mitigating the hardship caused to the defendants.</p>
<h3 style="text-align: justify; ">Website Blocking Orders</h3>
<p style="text-align: justify; ">An extension of the John Doe orders discussed above is the recent spate of decisions from various High Courts blocking access to certain websites that upload, or permit the uploading of, copyrighted content such as sound recordings and cinematograph films, without authorisation from the copyright owner. The relief granted is either movie-specific but against unknown persons, or website-specific.</p>
<p style="text-align: justify; ">To give a sample of the movie-specific relief: <i>For the foregoing reasons, defendants and other unnamed and undisclosed persons, are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie ‘DON2’ in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff?s copyright in the said cinematograph film ‘DON2’ through different mediums like CD, DVD, Blue- ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner.</i><a href="#fn11" name="fr11">[11] </a></p>
<p style="text-align: justify; ">Similarly, in <i>R.K.Productions Pvt. Ltd. v B.S.N.L. & Ors.</i><a href="#fn12" name="fr12">[12]</a>an order of the above nature has been passed in respect of the Tamil film "3". There are a few more that have already been passed by the Delhi and Madras High Courts, indicating that these kind of protective orders under Or.XXXIX R.1 and 2, read with Section 151 of the Code of Civil Procedure, 1908 are well going to be the order of the day, especially when it comes to online piracy of copyrighted content.</p>
<p style="text-align: justify; ">The Indian Music Industry and a sound recording label have also approached the Calcutta High Court and obtained an order of the second kind, ie. a direction to the known defendants who are Internet Service Providers (ISPs), to block access to various websites listed in the Schedule to the Plaint, which are used exclusively for providing unauthorised access to copyrighted sound and video recordings. The order<a href="#fn13" name="fr13">[13]</a> is extracted below:</p>
<p style="padding-left: 30px; text-align: justify; "><i>This is an application by the plaintiffs in aid of a suit complaining of copyright infringement. The plaintiff no. 1 and the members of the plaintiff no. 2 are the copyright owners of Hindi film songs. It is argued that the website mentioned in the prayers are posting and playing the songs, without any copyright or licence. This application is made ex parte on the apprehension that if notice of this application was served on the website they would shift their service to a different website. </i></p>
<p style="padding-left: 30px; text-align: justify; "><i>In those circumstances, I pass an order of injunction in terms of prayer (a) of the Notice of Motion till further orders. I direct the respondent ISPs to indicate to the plaintiff the address of the website owner/operator referred to in the prayers.</i><i><br /><br />I also make it clear that the above order of blocking should be confined to the above website only and <span>should not otherwise interfere with internet service</span>.</i></p>
<p style="text-align: justify; ">The last part of the last sentence extracted above has been emphasised as this is precisely what is happening as a consequence of the dual kind of orders discussed in this section. Though the first kind of order is, on its own terms, confined to only the film that is the subject matter of the suit, ISPs have used it to block access to entire websites in contravention of all recognised principles of network neutrality. Even in the case of the second kind of orders, there is absolutely no transparency as to how ISPs have been interpreting the order, and what websites are being targeted by them under the garb of such an order.<a href="#fn14" name="fr14">[14]</a> It is a well-established maxim that courts and judicial orders cannot be used as a vehicle for oppression, harassment, or to perpetrate abuse of power. This is precisely what has been witnessed since the last year in relation to the website blocking, and film-access blocking, orders passed by different courts. It is felt that legislative intervention is absolutely necessary in this field without any further delay to lay down parameters for exercise of judicial power under Section 151 of the Code of Civil Procedure, which power can otherwise be construed in any manner by any Court with little checks and balances on the possibility of such exercise of power.<a href="#fn15" name="fr15">[15] </a></p>
<h3 style="text-align: justify; ">Conceptual Differences between John Doe and Website Blocking Orders</h3>
<p style="text-align: justify; ">The most crucial point of distinction between these two types of orders is that while <i>John Doe </i>orders speak to the primary infringer, website blocking orders impose onerous responsibility on the ISP. <i>John Doe</i> orders as used in India thus far have served the purpose of a blanket search and seize mandate to gather evidence of direct infringement. As seen above, the final relief in the suit is granted only against those John Does who are subsequently identified and arrayed as parties to the main suit.<a href="#fn16" name="fr16">[16]</a> Website blocking orders, on the other hand, amount to granting the final relief at the interim stage itself, as access is blocked to web links hosted by unknown persons by taking recourse to the ISP.</p>
<p style="text-align: justify; ">Moreover, there is a vital difference between holding primary infringers liable and making mere conduits, such as ISPs. parties to a civil suit. The maxim <i>ubi jus ibi remedium</i> is clearly applicable in the former case, because the remedy is fashioned to bring on board the primary infringer and then afford him an opportunity of hearing before confirming the <i>ex parte </i>order against him. In the case of website blocking orders, the court straightaway directs the ISP to block access to the content, and the third party infringer is really a non-entity in the whole process as the attempt is not to bring him on board or to gather evidence. Hence, it is impermissible for an Indian court to grant an <i>ex parte </i>order directing the denial of access to a website or webpage by taking umbrage under its power to grant a John Doe order. However, Indian courts have done so, and the recent decision of the Madras High Court in <i>R.K.Productions v. B.S.N.L.</i><a href="#fn17" name="fr17">[17] </a>has also affirmed the legality of such action. The court has judicially created a responsibility on ISPs that is akin to the take-down requirements thrust upon file-sharing websites, and which kicks in upon notice of infringing content given to the ISP by the copyright owner. This decision deserves serious critical evaluation, and an understanding of the different types of liability for copyright infringement is material for the same.</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. 499 F.Supp. 791 (1980). Hereinafter referred to as <i>Billy Joel</i>.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. 551 F.Supp. 1054 (D.C.Wis.,1982). Hereinafter referred to as <i>Brockum</i>.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. [1994] F.S.R. 497. Hereinafter referred to as <i>Metallica. </i>The plaintiff here was the exclusive authorised merchandiser for Metallica and Sir Paul McCartney, and the piracy alleged was similar to the one in Billy Joel’s case. Here too, the order was sought in respect of a specific concert to be held in Auckland within the next few days. The plaintiff innovatively sought an order by virtue of which certain solicitors named in the plaintiff’s application would, due to their status as officers of the court, be authorised to accost bootleggers at the concert venues and require them to provide their current addresses and evidence of identity, and these bootleggers would have to surrender up to these named solicitors all merchandise including T-shirts, head-bands, badges, or programmes in their possession or control.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. <i>See <a class="external-link" href="http://www.5rb.com/case/Bloomsbury-Publishing-Group-Ltd-v-News-Group-Newspapers-Ltd-%28No.2%29">Bloomsbury Publishing Group Limited v News Group Newspapers Ltd</a>.</i> [2003] 3 All E.R. 736.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. [2003] F.S.R. 22. Hereinafter referred to as <i>Tej Television</i>.</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. 2009 (39) PTC 208 (Del).</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Order dated 15.01.2009 in C.S. (O.S.) 1771 / 2006, reported as MANU/DE/1991/2009.</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. MANU/DE/1061/2011.</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Order dated 25.09.2009 in C.S. (O.S.) 1846 / 2009, available at <a href="http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=173895&yr=2009">http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=173895&yr=2009</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. Order of the Delhi High Court dated 19.12.2011 in I.A. No.20510/2011 in C.S.(O.S.) No. 3207/2011 (<i>Reliance Big Entertainment Pvt Ltd v Multivision Network & Ors.</i>)<i>, </i>available<i> </i>at <a href="http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=269404&yr=2011">http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=269404&yr=2011</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. Order of the Madras High Court dated 29.03.2012 in O.A.No. 230 of 2012 in C.S.No. 208 of 2012, the link to which is provided at <a href="http://spicyipindia.blogspot.in/search?q=madras+high+court+first+john+doe">http://spicyipindia.blogspot.in/search?q=madras+high+court+first+john+doe</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Order of the Calcutta High Court dated 27.01.2012 in GA No. 187 of 2012 in CS No. 23 of 2012 (<i>Sagarika Music Pvt. Ltd. & Ors. v Dishnet Wireless Ltd. & Ors.</i>), available at <a href="http://www.indiankanoon.org/doc/147345981/">http://www.indiankanoon.org/doc/147345981/</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. The prayers sought in some of these civil suits are in complete contravention of the salutary principle in Or.VII, R.7 of the Code of Civil Procedure, 1908, that “<i>every plaint shall state specifically the relief which the plaintiff claims</i>”.</p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. The website blocking order dated 29.01.2013 passed by a District Court in Dabra near Gwalior in respect of websites that posted content related to the Indian Institute of Planning and Management, a Business School, and the subsequent unblocking order by the same Court dated 28.02.2013 have again brought back the spotlight on the legality of such orders passed by the judiciary. <i>See </i><a href="http://economictimes.indiatimes.com/tech/internet/unblock-urls-about-iipm-court/articleshow/18743461.cms">http://economictimes.indiatimes.com/tech/internet/unblock-urls-about-iipm-court/articleshow/18743461.cms</a> (last accessed on 24.03.2013).</p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. <i>Ardath Tobacco Co. Ltd. v Munna Bhai & Ors.</i>, 2009 (39) PTC 208 (Del); <i>3M Company v A. Patel</i>, MANU/DE/1991/2009.</p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. (2012) 5 LW 626. Hereinafter referred to as <i>R.K.Productions</i>.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1</a>
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No publisherananthPiracyCopyrightAccess to Knowledge2014-01-31T06:00:47ZBlog Entry