Should torrent sites have a right to contest blocking orders or is it ok to ban them outright ex parte?

We rereported earlier this week that the SpicyIP blog was cited by Bombay high court Justice Gautam Patel as having made a persuasive argument about not issuing blanket bans of websites against persons unknown (John Doe), in-part swaying Patel to only issue a narrow block of specific URLs on file sharing websites.

It seems that now Justice Patel has changed his mind and passed a wider order in light of new evidence submitted on behalf of Balaji Motion Pictures senior advocate VR Dhond, advocate Shailesh Mendon and RM Partners partner Nikhil Rodrigues.

This has resulted in his order asking internet service providers (ISPs) to block 110 alleged file sharing websites’ domains completely, including well-known torrent and file sharing websites thepiratebay.org, kat.cr and isohunt.to (which also host some content that does not violate any copyright or other laws, although such content on those sites is generally dwarfed by content that apparently violates copyright laws).

Incidentally, many of those sites are already blocked in India under orders of the Department of Telecommunications, which had banned 857 pornography, file sharing and comedy sites in August 2015, although they remain relatively easily accessible over proxies, virtual private networks (VPNs) or anonymising services such as Tor.

Background

Balaji Motion Pictures filed a suit for a John Doe injunction order to block illegal download links of the movie Great Grand Masti, which was scheduled for release on 22 July 2016.

The normal practice would have been to file a suit a week before the movie was released but in this case Balaji was faced with a situation when a tweet appeared on 29 June 2016 indicating that the movie had already been leaked online.

Balaji immediately filed a suit and moved the court for urgent relief.

However, Patel called upon Balaji to show actual instances or apprehension that the movie was going to be leaked and passed a direction on 1 July directing Balaji to point out individual links where the movie was available for illegal download.

The information was given to Patel on 4 July, who then passed an injunction on the internet providers to prevent access to the URLs that facilitated the download of the pirated movie.

Patel relied upon the arguments made by SpicyIP on its blog, holding that entire sites should not be blocked and that overly broad John Doe orders were a bad idea:

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.

SpicyIP had argued that:

the regime of John Doe orders is “like an expanding castle of tumour, set within the intricate machine of the legal system, fed by existing infirmities such as the very nature of ex parte proceedings and interim injunctions.” ... the only way in which courts can strike the elusive balance between protecting the rights of the copyright owner and ensuring the free flow of Internet content is by mandating selective purging in contradistinction to wholesale blocking.

In short, sites that are being blocked have no right to be heard in John Doe orders, and when entire websites or domain names can be blocked for hosting a single piece of pirated content, this could have negative consequences on a free internet.

Reverse to broader block

However, on 6 July, anti-piracy bodies Aiplex Software Solutions and Markscan found websites where the movie continued to be available for download or streaming, directly or indirectly.

Based on this information a further order was passed for 24 hours completely restraining interim access to 139 websites.

Today (8 July) Patel then followed this with a full order injuncting only 110 of those 139 websites from being accessed at all, rather than just blocking individual links, after several of the sites appeared to have complied with legal notices and takedown requests concerning the links in question.

Of those 110 websites, said Patel, citing the anti-piracy bodies’ research, 66 were peer-to-peer (P2P) torrent websites (that share a link containing information that lets users download the file from other internet users also downloading the file), 33 websites actually hosted copies of the pirated movie file (or had “recorded copies”, according to Patel), while 11 permitted live streaming of the movie.

Patel held:

The torrent sites provide trackers for downloading pirated content from seeders and leechers. Evidently, the websites that have recorded the film have copies on their dedicated servers. This is probably also true of those sites that offer to stream the film. I have no manner of doubt that access to all these 110 websites must be blocked. There will be an order in those terms effective today.

His decision was based on the anti piracy agencies having submitted information on record based on its research that despite the 4 July order the movie was still available for download on those websites.

Hosting or not hosting?

Patel also wrote about whether a site hosting P2P torrent files was protected by the anti-piracy exception of “transient or incidental storage”, since torrents do not actually store illegal files themselves but only “facilitate access” according to Patel (by containing information about how to download parts of the file from other users also downloading the same file).

Patel held:

In my view, the words ‘transient’ or ‘incidental storage’ must be read broadly to serve the purpose of the statutory intent, which is to prevent online piracy of copyright-protected works. If interpreted too narrowly, the statute would have the effect of remaining very far behind the present technology. It cannot possibly have been the statutory intent to limit the operation of Section 52(1)(c) only to those sties that offer downloads, but to allow illicit peer-to-peer or P2P and streaming sites to continue.

The failure of the internet providers to “comply with their statutory obligations” “may will (sic) ultimately invite a claim in damages against them from the Plaintiffs”, suggested Patel.