DEAR JOHN

CURB ORDER: A still from Gangs of Wasseypur whose producer, Viacom 18, obtained a John Doe order before its release

When Viacom 18 Motion Pictures, the producers of Gangs of Wasseypur, got an interim injunction called a “John Doe order” from the Bombay High Court to prevent their film from being illegally shown on cable TV, DVD format, or online, the film’s director, Anurag Kashyap, tweeted, “What is this John Doe order?”

Others may be equally baffled. For though Bollywood’s film producers are queuing up to get John Doe orders from the courts, not many are aware what the injunction is all about.

John Doe injunctions — common in countries like the UK, the US, Canada and Australia, where they are applied to intellectual property rights matters — have been used earlier in India in trademark and copyright infringement cases.

John Doe refers to your average person or, as the Merriam-Webster Dictionary puts it, a person who is “party to legal proceedings whose true name is unknown”. What makes a John Doe injunction unique is that some defendants are not named because their identity may be unknown at the time. The plaintiff lists them merely as John Doe or, as they are commonly referred to in India, as Ashok Kumar.

A John Doe order is given — under Order 30 Rule 1 of the Civil Procedure Code — if there is prima facie evidence that the unknown person or persons are likely to commit an infringement. As Lawrence Liang, a lawyer with Alternative Law Forum, explains, “It is a remedy in anticipation of an infringing act, an injunction to do or not to do.” For instance, in 2005, a John Doe was obtained by J.K. Rowling’s publishers when some people were attempting to sell yet-to-be-published copies of one of her Harry Potter books.

In India, the injunction has suddenly become a hit with film production houses that are seeking JDs from courts to restrain cable TV operators and Internet service providers (ISPs) from showing their new films. The rationale is that if pirated versions of the movie are shown on cable or the Internet, the audience won’t go to the theatres to watch it, thereby resulting in huge financial loss for the producers.

“We find JD orders effective, especially in cases of online piracy, because some ISPs immediately respond by taking down the illegal content. In some cases there is a 60-65 per cent removal of pirated content,” says Avishek Ghosh, senior counsel, Viacom 18.

And it’s not just Viacom 18 that has sought relief via a John Doe order.

Earlier this year, the producers of the Tamil film 3, which contains the famous Kolaveri di song, got a John Doe order from the Madras High Court. In April 2011, UTV Software Communications too sought a John Doe order to prevent cable networks from violating the copyrights of its films 7 Khoon Maaf and Thank You. Reliance Big Entertainment soon followed suit and obtained John Does for its films Singham and Bodyguard.

In all these cases, the plaintiffs’ list of those committing or about to commit infringements include a few known cable TV operators, major ISPs and end with a number of “Ashok Kumars”. Once the infringers are identified, their names replace the “Ashok Kumars” in the list, say lawyers.

By and large, the plaintiffs are required to show evidence of irreparable loss being caused to the party as a result of the infringement. According to Harish Ram, owner of the Chennai-based Copyright Labs, which got a John Doe order from Madras High Court for the producers of 3, the judge in this case was convinced that the production house would incur losses to the tune of Rs 2 crore if people viewed the film online.

Adds Ram, “Recently, we got the high court to clarify that pirated content should be removed within 48 hours from the time the John Doe order is served on the offenders.”

The first ever instance of a John Doe order being obtained in the entertainment business was in the Taj Television vs Rajan Mandal case in July 2002. Taj Television sought a John Doe order to restrain unlicensed cable TV operators from illegally broadcasting the FIFA World Cup 2002, to which the former had the broadcasting rights.

According to M.S. Bharath, partner at Anand and Anand, the law firm which handled the Taj Television case, the court-appointed commissioners had walked into unlicensed cable TV operators’ offices and had shut down the unauthorised World Cup transmissions.

So are John Doe orders equally effective in film piracy cases?

“Well, the ISPs are willing to listen to us once we have this high court order,” says Althea Lopez, CEO of a Mumbai based online anti-piracy firm (she prefers not to name the company) hired by film production houses to keep tabs on where their pirated films are being shown online. “The order is effective in keeping the film out of popular websites like YouTube which is accessible to the general public,” she adds.

However, Lopez admits that given the nature of the Internet, it is difficult to wipe out pirated content completely. Luckily, though, production houses are mostly interested in getting the John Doe order to work during the crucial time frame of four to six weeks after the movie’s release.

“The order is useful chiefly for the time the film is in the theatres. In the film business, the first few weeks is the most important when the maximum revenue is generated,” points out Viacom 18’s senior counsel Ghosh.

However, many say that John Doe orders have some serious downsides. An entire body of Internet supporters feels that the order often translates into attempts to put curbs on Internet freedom. “Being an ex parte order, it does not give the opposing party the chance to get a hearing,” says Lawrence Liang. “Instead of acting on the infringement and blocking a particular link, they are often used to arbitrarily block websites.”

Indeed, even the courts have said that such injunctions ought to be passed after careful consideration. In April 2010, in the Indian Performing Right Society vs Badal Dhar Chowdhry and Ors case, Justice Rajiv Sahai of the Delhi High court observed, “Breach of injunction has serious consequences for the violator. However, before the defendant can be so injuncted the defendant ought to be made aware of the precise act which he is prohibited from doing.

“…A vague and general injunction of anticipatory nature can never be granted.”

That said, John Doe orders have certainly come as a boon to Indian production houses. “The courts are taking cognisance of piracy and gaps are being bridged with these available tools,” says Bharath. And while they will certainly not root out piracy, they seem to be going some way in ensuring that the movie business gets protection from copyright infringements.