Film; Balaji Motion Pictures Ltd. Vs. Bharat Sanchar Nigam Ltd. [Bombay High Court, 04-07-2016]

Cinema Law – Offending links that point to illicit downloads of the film in question, Great Grand Masti – Injunction restraining intermediaries and cable/DTH operators from making any broadcast or making available any form of download of this film without a specific written authorisation from the Plaintiffs.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CORAM: G.S. PATEL, J

DATED: 4th July 2016

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

Mr. V. R. Dhond, Senior Advocate, with Mr. Shailesh Mandon, a/w Mr. N. Rodriguse, i/b R. M . Partners, for the Plaintiffs. Mr. Sushant Mohendru, Technical Director of Aiplex Software Privaate Limited, present.

1. Not on board. Mentioned. Taken on board.

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 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.