Containing piracy: A tall task

"Although legal remedies like John Doe orders are available to victims of piracy, it is rampant in case of films, music, games et al. The continuous evolution of technology doesn't make it any easier to thwart this evil.Possibly, a conscious effort on the part of individuals to stop committing such acts would go a long way in curbing piracy... "

Napster – The Big Bang and the Torrential works of Piratebay

It all started with a big bang… a music sharing software developed little over a decade ago allowed the world at large to dance to the tunes of their choice, free of cost. Napster, allowed users to copy songs from other computers over the internet without having to pay a single penny for it. It was an overnight sensation and boasted over 26 million users across the world in a span of two years of its launch. A significant amount of people stopped purchasing music albums and started downloading music illegally over Napster for free.

This triggered a revolt in the music industry and instead of the users that committed the actual infringement, it was Napster that was slapped with multiple law suits by recording companies and music artists. Napster was held liable for contributory infringement as it knowingly encouraged and assisted the infringement as its users shared copyrighted material on its platform and vicarious infringement as it had the right and ability to supervise its user’s conduct and it failed to police their conduct to the fullest extent.

Noting the fame of Napster, other similar software products hit the internet world, with tweaks in their designing/working, allowing them to temporarily escape the claws of the recording studios, music artists and other authors. This led to the recording companies filing infringement suits against individual users, which included children, grandparents, unemployed single mothers, college professors, who shared copyrighted content over such software products. However, the difficulties in pursuing this path are apparent and the pursuit was short-lived.

Lately, we have witnessed a more efficient file sharing technology called Bit torrent, allowing easy and quick transfer of large files, leading to widespread copyright infringement in films, music, games and other works. Piratebay, a website allowing easy trading of torrent files which are required for sharing/downloading films, music, etc. was one of the more popular ones. The developers of Piratebay were sentenced to imprisonment and were heavily fined by the Swedish courts for facilitating illegal file sharing, and knowingly promoting copyright infringement by others. Many other similar websites were shut down on similar grounds. However, research studies show that trading in torrent files is presently back to the same levels as before and websites offering torrent files including Piratebay are accessible in a number of parts of the world.

Piracy shows its ugly face in different forms

The methods in which piracy takes place have continually evolved, starting right from the commercial sale of tape recorders. Today, piracy can be seen by unauthorized users, without a proper licence or permission from the copyright owner, engaging themselves in various methods like communicating, making available, distributing, duplicating, displaying, releasing, showing, uploading, downloading, exhibiting, playing and/or defraying the copyrighted content through different mediums including compact discs, digital versatile discs, Blu-ray Discs, video compact discs, cable television, direct to home services, internet services, multimedia messages, tapes, conditional access systems, pen drives, hard drives leading to large scale evasion of payment of legitimate taxes and royalties.

John Doe’s and Ashok Kumar’s

The right of copyright owners of films and music compositions stems from the Copyright Act, 1957 (“Act”), which gives the owner of the copyright of a film and/or music or the licensee thereof, exclusive right to make copies. In the event of copyright infringement, those who are the victims are entitled to file suits for injunction, damages and/or accounts against those who infringe their copyright. The Act provides for imposition of penalties and sentencing of imprisonment to infringers and those who abet infringement. The Act further gives power to the police to seize, without a warrant, infringing copies and equipment used to make such infringing copies.

In an attempt to battle digital piracy, the latest amendment of 2012 to the Act (“Amendment”) provides for ‘Rights Management Information’, rights to authors of works wherein they may place ‘digital locks’ to protect their works, and those who attempt to alter it without authority or circumvent any such technological measure with an intention to infringe, shall be liable to imprisonment upto the extent of two years.

Due to the continually evolving methods of committing piracy, even on a mass scale, copyright owners have till date faced difficulty in seeking an efficacious remedy and may continue to do so even post the Amendment. Hence, the copyright owners have resorted to something called ‘John Doe Orders’ when the copyright owners had reason to believe that their copyright was being or likely to be infringed. The concept of ‘John Doe order’ took birth in the 18th century in the United Kingdom to grant injunctions against unknown/unidentified offenders to ensure justice not being delayed due to anonymity. The copyright owners usually move court under section 151 read with Order 39 rule 1 and 2 of the Code of Civil Procedure, 1908 seeking to obtain a John Doe order under inherent powers of the court.

The plaintiff is required to satisfy the court on three main points:

1. they have a prima facie case i.e. they have strong reason to believe and are able to establish that widespread piracy could take place;
2. the balance of convenience lies in their favour; and
3. irreparable harm, injury and loss would be caused to them viz. in the case of films, cine goers may not go to theatres, music listeners may not purchase the music albums resulting in huge financial losses and poor/inferior quality copies would affect the reputation of the copyright holder.

In such proceedings, the unknown/unidentified infringers are made parties by the fictitious name of John Doe. Such a name is usually one of the common names in the concerned country and hence in India, we have Ashok Kumar. If a case is made out, the courts in India are inclined towards passing a John Doe order as it is a settled common law principle widely followed in UK, USA, Canada and Australia, which have a similar basic judicial system as ours.

Further, in an effort to protect the rights of the copyright owners of films like 'Singham', 'Speedy Singhs', 'Bodyguard', 'Don 2' and '3', the courts have passed John Doe orders so as to injunct identified and/or un-identified unauthorized users from committing piracy in the aforementioned manner.

India saw one of its orders similar to a John Doe order in 2002 in the matter of Taj Television Limited v/s Channel Communication Suit No. 1297/2002 wherein the Hon’ble Delhi High Court passed an injunction order against the defendants (being cable operators) therein from broadcasting the television channel of the plaintiff in violation of the copyright of the plaintiff and directing the local commissioner to enter the premises of not only the defendants but also other cable operators and seize their equipment/wires that could be used to illegally broadcast the channel of the plaintiff.

Recently, the Delhi, Madras and Bombay High Courts have passed a good number of John Doe orders, a trend set and initiated by the Hon’ble Delhi High Court. In 2011, the Delhi High Court in the matter of ESPN Software India Private Limited v/s Tudu Enterprise CS(OS) 384/2011 passed an order inter alia restraining unnamed and undisclosed persons from illegally telecasting or broadcasting the ICC Cricket World Cup being exclusively telecast on Star Cricket, ESPN and Star Sports channels leading to copyright infringement.

Further, in an effort to protect the rights of the copyright owners of films like ‘Singham’, ‘Speedy Singhs’, ‘Bodyguard’, ‘Don 2’ and ‘3’, the courts have passed John Doe orders so as to injunct identified and/or un-identified unauthorized users from committing piracy in the aforementioned manner. John Doe orders are general in nature having a widespread impact and are usually allowed to be published in the newspapers as they affect a large portion of the population.

Further, the order holders are allowed the assistance of the police for enforcement and are able to seize material causing infringement. However, due to the generality of the order, the possibility of misuse of the same is foreseeable, and order holders are known to have approached internet service providers (ISPs) to block entire websites containing copyrighted material or allowing sharing/viewing of such material.

Hence, websites like Piratebay and Vimeo have been blocked by ISPs in the past, leading to much protests by internet groups endorsing freedom of speech over the internet, as open licensed works or public domain works were also being blocked. Hence, the Madras High Court, in order to mitigate the effect of one such John Doe order subsequently clarified that only the relevant URL containing the infringing material be blocked and not the entire website. However, the continuous identification of each such URL whould be a rather difficult task. The Amendment provides for intermediaries like ISPs to block infringing content pursuant to a complaint for a period of 21 days, however necessitating the requirement of a court order for continuation.

Conclusion

Despite all of the above, we still see widespread piracy of films and music every day, marking the need of the hour for better systems to be in place. But the continuous evolution of technology makes it easier to commit piracy and difficult to stop it. So then does it all boil down to a conscious effort on the part of the individuals to stop committing piracy and endorse campaigns against piracy?

Disclaimer–Views of the author are personal and do not reflect the views of the firm.