Sunday, 10 July 2016

Relevancy of online academic writing in passing of Judgment

At this stage, I must briefly note the reason for making these
additional demands on the Plaintiffs, especially given that there is a
long history of broad-based John Doe orders in the past. I myself
have passed some of those orders. But this in itself is no reason to
continue with a trend that seems to me if not downright dangerous,
at least one that requires the introduction of some caution and
circumspection. I have noticed some criticism of such orders on
various legal sites and journals particularly as to their width, ambit
and tendency to last for a long time without sufficient judicial
oversight in the interregnum.1
 Criticism should always be welcome;
studied and measured criticism set out with rancour or invective,
even more so. This, after all, is the discourse of law, and I see no
reason why orders and judgments should stand outside this
discourse. The source of the criticism is surely immaterial, and the
fact that the criticism is on a website or portal is not itself reason to
view it with either suspicion or disdain. There is a vast body of
sound academic writing online. If the law is to progress, an
1 Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels; - by
Prof. Shamnad Basheer, LiveLaw.in; http://bit.ly/29kRyrj; Udta Punjab:
An IP Controversy [Part I], by Vasundhara Majithia, Spicy IP.com;
http://bit.ly/28NwcVJ

engagement with such criticism is essential. I do not suggest, of
course, that any court or decision-making authority or body should
be over-sensitive; the nature of the task demands a thick hide. Nor
do I suggest that every barb and jibe deserves a response or the
indulgence of scarce time and resources. However, where there is a
point well-taken, it surely at least merits some thought. We should, I
believe, be remiss in the performance of our public duty if we were
to ignore a valid critique. Every system must have a process of selfcorrection
where one is needed; nothing is written in stone. In the
present case, the point being made is that the entrenched format of
the John Doe orders was far too broad and admitted of little or no
scrutiny. They had the potential of shutting down entire websites
and blocking all content, even legitimate content. As I said last
Friday, such orders proceeded on the implicit assumption that the
entirety of the content of all these cited websites was illicit; that no
verification was necessary; that the illicit content had been
established to the satisfaction of the Court; and possibly that the
entirety of the content of these sites related only to the immediate
complaint at hand. It is, on reflection, impossible to justify any of
these. There are, I think, at play here far larger issues, including of
an unattended and unsupervised and judicially mandated policing of
the Internet.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 1940 OF 2016
IN
SUIT (L) NO. 694 OF 2016
Balaji Motion Pictures Ltd. & Anr. …Plaintiffs
Versus
Bharat Sanchar Nigam Ltd. & Ors. …Defendants

CORAM: G.S. PATEL, J
DATED: 4th July 2016



2. This matter was moved in urgency on Friday, 1st July 2016.
On that day I passed an order setting out why I was unprepared to
grant the injunction in the terms that were then placed before me. I
found the reliefs to be overbroad. They were directed against to
entire websites. I left it open to the Plaintiffs to renew that
application after placing on an Affidavit additional and more precise
information and data about offending links that point to illicit
downloads of the film in question, Great Grand Masti. This film’s
scheduled release is 22nd July 2016.

3. Mr. Dhond renews the application today. He does so on the
basis of an Additional Affidavit dated 4th July 2016 affirmed by one
Mr. Ayan Roy Chowdhury, the Plaintiffs’ general counsel. This
Affidavit sets out considerably more detail. I propose to consider
some of the material of this Affidavit. To begin with, the Affidavit
points out that someone named of Wasim Akram Ansari posted a
message to Twitter on 29th July 2016 reporting the leak of Great
Grand Masti. A copy of this Twitter post is at page 6 to this Affidavit
(it is also annexed to the Plaint). The post appears to have a screen
shot of a scene from the film. In the bottom right hand corner of that
screenshot is a a clearly imprinted legend: “censor copy”. On that
very day, the Plaintiffs were also notified by the film’s actors about a
possible, and entirely illegal, leak of this film. As the present
Affidavit itself says, there are two possibilities: either the entire film
was leaked or someone obtained an image of that solitary scene. But
even the second scenario posits that any person who took such a
screen shot would, at a minimum, have have had to have access to
the film. That access is clearly unauthorised. But this was all
previously available material, and it did not, on its own, form a
sufficient basis for the injunction.
4. Mr. Dhond then points out that there are now other
screenshots at pages 60 to 62, Exhibit “C”, to the present Affidavit
of messages from other Twitter users. These Twitterati seem to
have obtained multiple screenshots of the film. The second and
third messages report a leak of the film. What is curious is the first
message at page 60. This says that the second half of this film is
“Supebb”. Even allowing for the linguistic damage caused by this
medium, there can be no mistake about what the message conveys.

It extols the films, and it extols a specific portion of it. That would
be impossible without a viewing. Any such viewing outside the
certification board is illicit.
5. It is in this context, and following my previous order, that the
Plaintiffs have now over the weekend engaged the services of two
professional anti-piracy agencies, viz., Aiplex Software Private
Limited and Markscan, with a mandate to analyse potentially
infringing web-based links to illicit downloads of the films. Both
agencies deployed some software and web-based technology,
including web crawlers. They identified a list of potential URLs on
different web pages that, prima facie, point to specific illicit
downloads of the film.
6. Paragraph 14 of the Affidavit makes an assertion on oath that
the period between 29th June and 2nd July saw a sharp surge in
number of infringing links and URLs. The Affidavit also says that
clips of the film were uploaded to YouTube on 3rd July 2016. The
Plaintiffs’ complained and sent out take down notices through
Markscan and Aiplex. Those clips have now been removed.
7. The Plaintiffs say that they have not been able to locate the
culprits, but they have approached the Cyber Police Station, Bandra
Kurla Complex, Mumbai. Paragraph 17 and 18 of this Affidavit set
out the potential loss and damage likely to be caused to the
Plaintiffs.

8. In fairness, when I pointed out that the cast of the prayers in
the Motion is much too wide and relates to entire websites, Mr.
Dhond agreed to amend these. He now places a draft amendment to
the Motion. This is taken on record and marked “X” for
identification. Leave to amend forthwith, without need of
reverification. The amendment introduces prayer a(iv). The cast of
this prayer is more accurate. It is directed to individual infringing
URLs or weblinks. I will set out the wording of the prayer shortly.
9. At this stage, I must briefly note the reason for making these
additional demands on the Plaintiffs, especially given that there is a
long history of broad-based John Doe orders in the past. I myself
have passed some of those orders. But this in itself is no reason to
continue with a trend that seems to me if not downright dangerous,
at least one that requires the introduction of some caution and
circumspection. I have noticed some criticism of such orders on
various legal sites and journals particularly as to their width, ambit
and tendency to last for a long time without sufficient judicial
oversight in the interregnum.1
 Criticism should always be welcome;
studied and measured criticism set out with rancour or invective,
even more so. This, after all, is the discourse of law, and I see no
reason why orders and judgments should stand outside this
discourse. The source of the criticism is surely immaterial, and the
fact that the criticism is on a website or portal is not itself reason to
view it with either suspicion or disdain. There is a vast body of
sound academic writing online. If the law is to progress, an
1 Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels; - by
Prof. Shamnad Basheer, LiveLaw.in; http://bit.ly/29kRyrj; Udta Punjab:
An IP Controversy [Part I], by Vasundhara Majithia, Spicy IP.com;
http://bit.ly/28NwcVJ

engagement with such criticism is essential. I do not suggest, of
course, that any court or decision-making authority or body should
be over-sensitive; the nature of the task demands a thick hide. Nor
do I suggest that every barb and jibe deserves a response or the
indulgence of scarce time and resources. However, where there is a
point well-taken, it surely at least merits some thought. We should, I
believe, be remiss in the performance of our public duty if we were
to ignore a valid critique. Every system must have a process of selfcorrection
where one is needed; nothing is written in stone. In the
present case, the point being made is that the entrenched format of
the John Doe orders was far too broad and admitted of little or no
scrutiny. They had the potential of shutting down entire websites
and blocking all content, even legitimate content. As I said last
Friday, such orders proceeded on the implicit assumption that the
entirety of the content of all these cited websites was illicit; that no
verification was necessary; that the illicit content had been
established to the satisfaction of the Court; and possibly that the
entirety of the content of these sites related only to the immediate
complaint at hand. It is, on reflection, impossible to justify any of
these. There are, I think, at play here far larger issues, including of
an unattended and unsupervised and judicially mandated policing of
the Internet.
10. These are among the reasons I asked the Plaintiffs in this case
to give me more specifics on Affidavit, and to supply me with more
cogent material as the basis of the order. The fact that this
information has been obtained with such apparent ease leads me to
believe that the criticism is in fact well-founded. We just never
sought it earlier. I do so now.

11. Having read the new Affidavit, I am satisfied that the
Plaintiffs have met the threshold criteria. I must also commend Mr.
Dhond for so readily accepting that the frame of the prayers was
much too wide and for suggesting a perfectly acceptable alternative
by way of the present amendment.
12. Finally, I turn to Exhibit “D” to this Affidavit. This is a
tabulation on a larger fold-out sheet of some 482 individual links.
This analysis has been carried out by the two agencies mentioned
earlier. The links are not to websites but point to individual
download links of the film in question. Some of these links have the
name of the film and the year (2016) as part of the URL. The
statement on Affidavit is that these are suspected or potentially
infringing links. Some of these have been checked. The last column
of this chart has a column called ‘status’. Some of the links have the
status “approved”. I am informed by Mr. Sushant on behalf of the
Plaintiffs, who is present in Court, that this means that the Plaintiffs
approached Google, which in turn has, after verification, removed
all search results that display these links. Not all these links have
been “approved”. Many are yet pending review. The Affidavit itself
in paragraph 13 references this chart and the fact that this has been
prepared by these two agencies commissioned by the Plaintiffs.
13. As to the prima facie case, I believe Mr. Dhond has made this
out sufficiently with references to the posts to which I have referred.
14. I am satisfied that this is sufficient material for the grant of
the narrowed relief that Mr. Dhond now seeks. There will,

therefore, be an ad-interim injunction in terms of prayer clause a(iv),
which reads as follows:
“(a)iv. Grant an order of temporary injunction directing
the Defendants to take measures to block
access to the 482 urls/web links at page 63 of
the Additional Affidavit dated 4th July 2016
and/or other active urls/weblinks which contain
or purport to contain, an infringing or illicit copy
of the said Film “Great Grand Masti” or part
thereof, upon the Plaintiffs or their authorised
representatives, providing details of such
infringing urls/ web links to the Defendants or
upon the Senior Inspector of the Cyber Police
Station, Bandra Kurla Complex notifying the
Defendants about the same;”
15. I am making it clear that the Plaintiffs will be at liberty to
move against all or any of those 482 URLs if they are found to be
active. In other words, it is not expected that these links should be
active today at the time when this order is passed.
16. In addition, the Plaintiffs will be at liberty, without further
reference to Court, but only during the time when this order is
operative, to approach the Cyber Crime Cell with any other weblink
or URL pointing to an individual download. Before the Cyber Crime
Cell the Plaintiffs will place such material as it has obtained
verifying that download. Of course, the Cyber Crime Cell is also
expected to carry out an independent assessment before acting
further in the matter.

17. As regards intermediaries and cable/DTH operators, there
will be an injunction restraining them from making any broadcast or
making available any form of download of this film without a
specific written authorisation from the Plaintiffs.
18. The Plaintiffs will comply with the provisions of Order
XXXIX Rule 3 of the Code of Civil Procedure, 1908 in respect of the
named Defendants within a period of one week from today. The
Plaintiffs will also be at liberty to issue a public notice setting out the
substance of this order. This will be a sufficient service on the John
Doe Defendants.
19. Liberty to any of the named Defendants to apply for a
variation, modification or recall of this order after four clear working
days' notice to the Advocates for the Plaintiffs.
20. This injunction will operate till 4th October 2016.
21. List the Notice of Motion on the supplementary board for
further ad-interim reliefs on 3rd October 2016.
22. All concerned to act on an authenticated copy of this order.
(G. S. PATEL, J.)

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