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John Doe
From Wikipedia, the free encyclopedia
This article is about a term for anonymous characters. For other uses, see John Doe (disambiguation).
The names "John Doe" for males, "Jane Doe" or "Jane Roe" for females, or just "Doe" non-gender-specifically are used
as placeholder names for a party whose true identity is unknown or must be withheld in a legal action, case, or discussion. [1] The names
are also used to refer to a corpse or hospital patient whose identity is unknown. This practice is widely used in the United
States and Canada, but is rarely used in other English-speaking countries including the United Kingdom itself, from where the use of
"John Doe" in a legal context originates. The name Joe Bloggs is used in the UK instead,[citation needed] as well as in Australia and New
Zealand.
Contents
[hide]
1 Usage
2 Origin
3 Court cases
4 Other variants
5 See also
6 References
7 External links
Usage[edit source | editbeta]
John Doe is sometimes used to refer to a typical male in other contexts as well, in a similar manner as John Q. Public, Joe
Public or John Smith. For example, the first name listed on a form is often John Doe, along with a fictional address or other fictional
information to provide an example of how to fill out the form. The name is also used frequently in popular culture, for example in
theFrank Capra film Meet John Doe. John Doe was also the name of a 2002 American television series.
Similarly, a child or baby whose identity is unknown may be referred to as Baby Doe. A notorious murder case in Kansas City,
Missouri referred to the baby victim as Precious Doe.[2] Other unidentified female murder victims are Cali Doe and Princess Doe.
Additional persons may be called James Doe, Judy Doe, etc. However, to avoid possible confusion, if two anonymous or unknown
parties are cited in a specific case or action, the surnames Doe and Roe may be used simultaneously; for example, "John Doe v. Jane
Roe". If several anonymous parties are referenced, they may simply be labelled John Doe #1, John Doe #2, etc. (the U.S. Operation
Delego cited 21 (numbered) "John Doe"s) or labelled with other variants of Doe / Roe / Poe / etc. Other early alternatives such as John
Stiles and Richard Miles are now rarely used, and Mary Major has been used in some American federal cases.[3]
The Doe names are often, though not always, used for anonymous or unknown defendants. Another set of names often used for
anonymous parties, particularly plaintiffs, are Richard Roe for males and Jane Roe for females (as in the landmark U.S. Supreme
Court abortion decision Roe v. Wade).
Bearing the actual name John Doe can cause difficulty, such as being stopped by airport security or suspected of being an incognito
celebrity.[4]
The term is sometimes used in lawsuits in Ireland - see for example Keogh -v- John Doe 1 & Ors (2012) IEHC 95 (26 January 2012)
Origin[edit source | editbeta]
The name "John Doe", often spelled "Doo," along with "Richard Roe" or "Roo" were regularly invoked in English legal instruments to
satisfy technical requirements governing standing and jurisdiction, beginning perhaps as early as the reign of England's King Edward
III (1312–1377).[5]
Other fictitious names for a person involved in litigation under English law were John-a-Noakes, or John Noakes/Nokes and John-a-
Stiles/John Stiles.[6]
The Oxford English Dictionary states that John Doe is "the name given to the fictitious lessee of the plaintiff, in the (now obsolete in the
UK) mixed action of ejectment, the fictitious defendant being called Richard Roe".
This particular use became obsolete in the UK in 1852:
As is well known, the device of involving real people as notional lessees and ejectors was used to enable freeholders to sue the real
ejectors. These were then replaced by the fictional characters John Doe and Richard Roe. Eventually the medieval remedies were
(mostly) abolished by the Real Property Limitation Act of 1833; the fictional characters of John Doe and Richard Roe by the Common
Law Procedure Act 1852; and the forms of action themselves by the Judicature Acts 1873-75."
Secretary of State for Environment, Food, and Rural Affairs (Respondent) v Meier and another(FC) (Appellant) and others and another
(FC)(Appellant) and another (2009).[7]
The term 'John Doe Injunction' (or John Doe Order)[8] is used in the UK to describe an injunction sought against someone whose identity
is not known at the time it is issued:
"8.02 If an unknown person has possession of the confidential personal information and is threatening to disclose it, a 'John Doe'
injunction may be sought against that person. The first time this form of injunction was used since 1852 in the United Kingdom was in
2005 when lawyers acting for JK Rowling and her publishers obtained an interim order against an unidentified person who had offered
to sell chapters of a stolen copy of an unpublished Harry Potter novel to the media". [9]
Unlike in the United States the name (John) Doe does not actually appear in the formal name of the case, for example: X & Y v Persons
Unknown [2007] HRLR 4.[10]
Court cases[edit source | editbeta]
The landmark 1973 United States Supreme Court abortion case Roe v. Wade gets half of
its name from Jane Roe, an anonymous plaintiff later revealed to be named Norma
McCorvey.
A Toronto woman, publicly known only as Jane Doe, waged an 11-year court battle
against the Toronto Police Service after being raped in 1986, alleging that the police had
used her as bait to catch the Balcony Rapist. She won the case in 1998, and was
named Chatelaine's Woman of the Year that year.[11] She published a book about her
experience, The Story of Jane Doe: A Book about Rape, in 2003.
A Doe subpoena is a tool of discovery that a plaintiff may use to seek the identity of an
unknown defendant. Doe subpoenas are often served on online service
providers and ISPs to obtain the identity of the author of an anonymous post.[12]
Serial killer Richard Laurence Marquette confessed to the murder of an unknown woman
identified only as Jane Doe.
File sharing websites were blocked in India on July 21, 2011 on some ISPs
including Bharti Airtel , BSNL, and Reliance Communications, because Reliance BIG
Pictures got a “John Doe” order from Delhi High Court allowing them to serve cease and
desist notices on movie pirates pirating the film Singham.[13] This allegedly brought down
piracy of the film by 30%.
On August 29, 2011 Reliance Entertainment procured a 'John Doe' order from the Delhi
High Court to prevent the illegal broadcast or streaming of its upcoming film Bodyguard.
This order gives protection to the intellectual property owner, Reliance Entertainment,
from copyright violation by prospective anonymous offenders.[13]
The use and selection of pseudonyms is not standardized in U.S. courts and the practice itself is opposed on legal grounds by some
and was rare prior to 1969.
"...Currently there are no court rules about pseudonym use. The rules of civil
procedure,...are silent on the matter..." "Rule of Civil Procedure 10(a) reads, '...In the
complaint, the title of the action shall include the names of all the parties . . . .' The
rule contains no guidance as to what parties should do to keep their names
confidential."[14]
"Prior to... 1969, only one Supreme Court case, three court of appeals' decisions,
and one district court decision in the previous quarter-century featured an
anonymous individual as the sole or lead plaintiff. Between 1969 and January 22,
1973, the date when the Supreme Court decided Roe and Doe, there were twenty-
one district court and two court of appeals decisions featuring anonymous
plaintiffs."[15]
Other variants[edit source | editbeta]
In addition to Doe and Roe, other "_oe" names have been used when more than two
unknown or anonymous persons are referenced in U.S. court proceedings. e.g. Jane
Poe,... v. Rick Snyder,...[16] and Friedman v. Ferguson[17]
Jane Poe
Robert Roe
Mark Moe
Harry Hoe
Jackie Joe
Karren Koe
Sammy Soe
Tommy Toe
Vince Voe
Brett Boe
Carla Coe
Donna Doe
Juan Doe
Frank Foe
Grace Goe
Larry Loe
Marta Moe
Norma Noe
Paula Poe
Quintin Qoe
Ralph Roe
William Woe
Xerxes Xoe
Yvonne Yoe
Zachary Zoe
John Smith
In Indian courts, "John Doe" is sometimes called "Ashok Kumar".[18]
See also[edit source | editbeta]
Average Joe
Tommy Atkins
Luther Blissett
Joe Bloggs
Hong Gildong
Israel Israeli
Rudolf Lingens
John Q. Public
Joe Shmoe
John Smith
(name)
Alan Smithee
Identity theft
Meet John Doe
Multiple-use name
Nomen nescio
Placeholder name
Blackacre, Greenacre, Whiteacre, and so on , similar placeholder names in Property
law used in common law jurisprudence.
References[edit source | editbeta]
1. ̂ "Twitched Indictment". Justice.gov. Retrieved 2012-10-02.
2. ̂ Goldblatt, Jeff (2002-08-08). "Slain Mystery Girl Brings Community
Together". FOX News Network. Retrieved 2006-06-30.
3. ̂ Quinion M (2003-03-15). "John Doe". World Wide Words. Retrieved 2008-
11-26.
4. ̂ Alison Leigh Cowan (2009-07-29). "Meet John Doe. No, really!". The New
York Times. Retrieved 2009-08-05.
5. ̂ What's In A Name. Merriam-Webster. 1996. ISBN 978-0-87779-613-8.
6. ̂ "World Wide Words - John DoeZ". Worldwidewords.org. Retrieved 2012-10-
02.
7. ̂ "Supreme Court Decided Cases (pdf)". Supremecourt.gov.uk. Retrieved
2012-10-02.
8. ̂ "Obtaining a John Doe order". PressGazette. Retrieved 2012-10-02.
9. ̂ [1][dead link]
10. ̂ "Uncorrected Evidence 75". Publications.parliament.uk. 2009-02-18.
Retrieved 2012-10-02.
11. ̂ "Who is JANE DOE?". Walnet.org. Retrieved 2012-10-02.
12. ̂ See, e.g., Dendrite International, Inc. v. Doe, 775 A.2d 756 (N.J. App. Div.
2001); Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (pdf) (2008).
13. ^ a b Nikhil Pahwa. "Update: Files Sharing Sites Blocked In India Because
Reliance BIG Pictures Got A Court Order". MediaNama. Retrieved 2012-10-
02.
14. ̂ Balla, Donald P., "Pseudonym Use in American Courts" at Arkansas Law
Review. Accessed 2012 February 18
15. ̂ Milani, Adam A. ,"DOE V. ROE: AN ARGUMENT FOR DEFENDANT
ANONYMITY WHEN A PSEUDONYMOUS PLAINTIFF ALLEGES A
STIGMATIZING INTENTIONAL TORT" at lexisnexis.com. Accessed 2012
February 18
16. ̂ Jane Poe,... v. Rick Snyder,... at mi.findacase.com
17. ̂ Friedman v. Ferguson at law.justia.com
18. ̂ ‘Kolaveri' against piracy by R Balaji. The Hindu Business Line. March 29,
2012
External links[edit source | editbeta]
PDF Operation Delego indictment featuring twenty John Does.
Categories:
Anonymity pseudonyms
Placeholder names
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http://en.wikipedia.org/wiki/John_Doe
ohn doe orders and internet outages
Apar Gupta
Aug 18 2011 @ 1:21 PM
5 Replies
Post CategoriesAdjudications, Copyright,Delhi High Court
Post TagsDelhi High Court, Intellectual property
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Image by James Clayton via Flickr
This is a two part series. Since a lot of legal concepts are involved Part – 1 merely seeks to put a background to
john doe orders and presents some data on how such orders have been granted in the past. In Part 2, I will
undertake some analysis on what makes the Singham Order different from orders passed earlier and also look
at ways how we can prevent such massive internet outages.
I have written before on how injunctions when not carefully granted or when misapplied can be
used by private parties to stymie online freedom. One such instance was again revealed last
month when theDelhi High Court passed an interim injunction against suspected and unknown
would be infringers of the movie Singham (read on it here). After getting the Order, it seems that a
broadly worded letter went out to several Indian ISP’s who then blocked access to several file
sharing websites (read on it here).
The order which was passed on 20th July by the Delhi High Court noted that,
Plaintiff is the producer of cinematograph film, “Singham”. Plaintiff apprehends that the said
movie will be copied and DVDs/CDs thereof will be prepared, distributed in the market as also
shown on TV by the cable operators, thereby causing huge financial losses to the plaintiff.
Usually when a copyright infringement or any form of intellectual property violation is alleged the
particulars of the defendant or the person who does the violation are disclosed by the person
making the complaint. However, in this case, the Plaintiff utilized of a carve out in the law,
popularly known as a john doe order. In the words of the court itself:
Perusal of the orders, reliance whereupon has been placed by the plaintiff, shows that such
unknown unauthorized persons can be arrayed as defendant nos. 6 to 30 and a John Doe order
may be passed against such persons enabling plaintiff to serve order upon such persons when
their identity is disclosed. Past practice of unauthorized persons indulging in such illegal activities
of copying the film on CDs/DVDs/Blue-ray disc and distributing the same has also been recognized
in the judgment relied upon by the plaintiff. In the facts of this case as detailed above, in my view
plaintiff has succeeded in making a prima facie case in its favour.
Now the question which arises is, what exactly is a john doe order?
A John Doe/Ashok Kumar order is a type of injunction granted by courts in cases where an
anonymous person maybe committing a breach of the rights of the Plaintiff and cannot be
identified by the Plaintiff at the time of filing of suit. This concept is well entrenched in the
common law jurisdictions of Canada, America, Australia and UK. In an order dated 14th June 2002,
Justice Dalveer Bhandari in the case of Tej Television v. Rajan Mandal recognized its applicability in
Indian cases for the first time. In this landmark decision, which was reported internationally, the
court recognized the exigency in which no other remedies could provide effective relief to a TV
channel to protect its investment in a valuable live broadcast.
Under what conditions can a john doe order be granted ?
An analysis of some Indian judgments leads one to the conclusion that requirements of a John Doe
order are similar to that of obtaining a temporary injunction under order 39 rules 1 and 2 of
the Code of Civil Procedure, i.e. prima facie case, balance of convenience and irreparable loss. The
burden on the plaintiff is to merely disclose the existence of a right and breach, thereof. Hence,
the principles for the grant of an interim injunction seem to have been applied without much
modification to the grant of john doe orders. The only significant change being the Plaintiff in its
pleadings alleging that it anticipates large scale and sporadic infringement and is unable to
ascertain the full particulars of the defendants at the time of seeking relief.
What are the limitations on passing a john doe order ?
Since the concept of a John Doe order is rather recent and judge made, it will take some time and
some cases for the law on it to develop fully. However the recent judgment in The Indian
Performing Right vs Mr. Badal Dhar Chowdhry (read it here) he reflects how John Doe orders can
be restricted. In the case, the Court, pointed to the requirement of specificity of the infringement
for passing a John Doe order. The Court noted that:
7. The court ought not issue an injunction which is vague or indefinite. 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
injunction can be an abuse of the process of the court and such a vague and general injunction of
anticipatory nature can never be granted.
In my view and limited understanding, specificity as to the infringement is the least we can hope
from a john doe order. Here, the injunction may clearly contain, (a) the article in which the
infringement is alleged; (b) the anticipated source based on prior experience of infringement; (c)
limited steps which can be taken by the plaintiff to enforce the injunction. According to me, the
direction (c), becomes incredibly important when injunctions are granted for websites.
Some Instances of John Doe Orders passed by Indian Courts
The analysis of the law would appear somewhat incomplete if we do not take into account cases
where such orders have been issued in the past. The case titles as well as a brief of these cases
are presented below.
1.
ESPN Software India Private Ltd. v Tudu Enterprise
In this case Defendants No. 145-173 we declared as “Mr. Raj Sharma’s”
In this case it was pleaded that unlicensed distributors may unauthorisedly transmit the Plaintiff’s television channel via their network without a licence. The courts power under Section 151 of CPC was invoked. While granting a relief restrained from distributing, telecasting and roadcasting/rebroadcasting or in any other manner communicating to the viewing pubic/subscribers either by means of wireless diffusion or by wire or in any other manner the ICC Cricket World Cup, 2011 .
2.
Ardath Tobacco Company Ltd. Vs. Mr. Munna Bhai and Ors
In this case unidentified Defendants No. 7 to 23 were declared as “Mr Ashok Kumar’s”
The defendants were restrained from manufacturing, selling, stocking or dealing in cigarettes under a label, carton or packaging material deceptively similar to the label, carton and packaging material and artistic work as of the STATE EXPRESS 555 of the plaintiff.
3.
UTV software communications limited v Home Cable Network Ltd. and ors
Defendant nos.19 to 50 named as Mr. Ashok Kumar
The plaintiff urges that these defendants are unknown identities who would also telecast the unauthorizedly and illegally telecast pirated version of the plaintiff’s films by their network without any licence. It may be noted that such injunction was granted to prevent the broadcast of not only the Plaintiff’s movie 7 Khoon Maf but also pre-emptively prevent the broadcast of the plaintiffs’ upcoming movie Thank You, much similar to the Singham case.
4. Satellite Singapore PTE Ltd. Vs. Star Cable Network & others
The Court ordered any other person/organization/body who is indulging in the act of piracy of the signal of the Appellant and/or in which the Appellant has the exclusive right is also prohibited/injuncted from distributing or broadcasting the said signal/programme of the Appellant qua the IPL Cricket Tournament.A Commission was also ordered to be executed to visit the premises of the Respondent and/or any other during the hours IPL matches were being
telecast live and seize the receiving and transmitting devices, if it was found that the latter had been downloading Sony Set Max channel signal without proper authorization. Note: This type of order is Known as an Anton Piller order.
5.
Tej Television v. Rajan Mandal (Landmark Case)
Defendants not quatified and blanket permission granted.
The Delhi High Court, on June 14, 2002 granted a path-breaking order authorising a court appointed commissioner to enter the premises of any cable operator in India and record evidence of any unauthorised telecast of the FIFA World Cup football matches. In the present case, the Plaintiff, Taj Television Ltd., based in Dubai, owned and operated an exclusive sports channel by the name of TEN SPORTS. The Plaintiff had acquired the exclusive rights to the telecast of the FIFA World Cup Football matches for India and certain other South Asian countries, from Kirch Sports, an entity that had in turn acquired the worldwide rights from FIFA. Ten Sports was being broadcasted from Dubai in an encrypted form and could be received by only those cable operators with a decoder.
6.
Reliance Big Entertainment Private Limited v Jyoti Cable Networks and Ors
Defendant No. 6 to 30 named s “Ashok Kumar”
The court held that Perusal of the orders, reliance whereupon has been placed by theplaintiff, shows that such unknown unauthorized persons can be arrayed asdefendant nos. 6 to 30 and ?John Doe? order may be passed against suchpersons enabling plaintiff to serve order upon such persons when theiridentity is disclosed Perusal of the orders, reliance whereupon has been placed by theplaintiff, shows that such unknown unauthorized persons can be arrayed asdefendant nos. 6 to 30 and ?John Doe? order may be passed against suchpersons enabling plaintiff to serve order upon such persons when theiridentity is disclosed Perusal of the orders, reliance whereupon has been placed by theplaintiff, shows that such unknown unauthorized persons can be arrayed asdefendant nos. 6 to 30 and “John Doe” order may be passed against suchpersons enabling plaintiff to serve order upon such persons when theiridentity is disclosedthe plaintiff may serve notice to the John Doesas and when their identity is disclosed.
7.
Taj television ltd. v channel communication
Action authorised against any cable operator
It may be noted that the commissioner was authorised to even seize the equipment of the cable operators.
8. Luxottixa Group Ltd v Ashok Kumar
Exact order Not found
On Friday, 16th April 2010, the Delhi High Court passed an order restraining the sale and manufacture of counterfeit optical eyewear and their carry cases bearing the famous trademark RAY
BAN.The local commissions issued by the Court to execute the orders of seizing and sealing the counterfeit goods was a resounding success. Apart from over 2500 imitation products discovered from the persons named in the action, counterfeit goods were also found at various premises in the close neighbourhood of the named defendants through the “Ashok Kumar” orders. The Courts thus recognize that in certain cases of counterfeiting the Ahsok Kumar type orders are the only remerdy for a Plaintiff faced with large volumes of anonymous counterfeiters.
It is important to note here that a lot of such orders are passed at an interim stage and do not
have significant volume or reasoning, often being omitted by the law reports. Hence, the data
which is presented below cannot be anything but hopelessly incomplete.
Having said this most of these John Doe orders are similar and I do not anticipate significant
changes with more data becoming available. So, going in with this limited caveat, in part 2 I hope
to utilize the data above and analyze the Singham Order against it.
Readers as always are welcome to leave their thoughts and comments. Also if we have missed out
some John Doe orders please let us know.
Update 1: Medianama reports that Reliance Big Pictures has again obtained a similar order to prohibit the
piracy of the movie, “Bodyguard” which will be released this week. Two points come through in it, (a) if such
orders are asked by more movie production houses it will lead to a perpetual block on file sharing websites; (b)
an intervention application must be filed to bring to the notice of the court the unintended effects on legitimate
file sharing.
- See more at: http://www.iltb.net/2011/08/internet-outage/#sthash.pbQI3for.dpuf
http://www.iltb.net/2011/08/internet-outage/
Meet Ashok Kumar the John Doe of India; or The Pirate Autobiography of an Unknown IndianMAY 18, 2012
tags: Ashok Kumar, copyright, Internet Censorship in India, john doe, Kolaveri Di, piratebay
by Lawrence Liang
The internet has been abuzz with news of all the major ISPs in India blocking popular websites including
piratebay, vimeo, dailymotion and pastebin etc. This is pursuant to a Chennai high court order available
hereand there are a number of unanswered questions about the validity of the blocking of the websites
including whether the DOT were entitled to ask for a blocking of the site on the basis of the orders, how the
ISPs chose these particular websites since the order itself does not mention any particular website. This is not
to mention the larger question of how the last ten years has seen the dubious rise of John Doe orders as
preemptive measure against copyright infringement.
For those unfamiliar with John Doe orders, they are ex parte injunctions ordered against unknown persons.
Just to put this in context, ex parte injunctions are not the easiest things to obtain since they are based on the
denial of another person’s right to be heard. So even for cases of violence against women getting an ex parte
restraining order is not easy. In contrast the last ten years we have seen the ease with which one can obtain
these orders for copyright infringement cases.
A number of legal innovations in the realm of injunctions have been developed to tackle the problem of
anonymity in this domain. The three specific tools that have been used include
Ex-parte injunctions (injunctions that are granted even without hearing the other party)
John Doe Orders (Issued against anonymous offenders; E.g Mirabhai Films got a John Doe Order against all
cable operators before the release of Monsoon Wedding)
Anton Piller Orders ( Search and seizure orders) including breaking down doors of shops which are closed
For an analysis of the dangers of John Doe orders by Nikhil Pahwa in medianama see this
But for the moment I want to focus on the fascinating order itself and its incarnation of an unknown Indian
person Ashok Kumar as well as the spectral fear of the copy.
The order names twenty respondents. Of these the first fifteen include all the major ISPs (BSNL, MTNL,
Airtel, Tata, Reliance etc) and respodents No. 16 to 20 are Ashok Kumar, unknown person.
I am not sure why there are four Ashok Kumars when one would have done the trick? Is it a bug in the matrix
and Nos. 17to 20 are merely the pirated versions of respondent no. 16? Could it be a viral infection from
within the film and its well known song which also has a habit of repeating itself (why this Kolaveri Kolaveri
Kolaveri Kolaveri di? )
The order basically says that Ms. Fifteen Majors ISPs and Mr Ashok Kumar, Ashok Kumar, Ashok Kumar,
Ashok Kumar and Ashok Kumar should not infringe the copyright of the film “3”.
It is ordered that
the respondents/ defendants herein, and other unknown persons by themselves, their partners/ proprietor,
heirs, representatives, successors in business, assigns, distributors, agents or anyone claiming through them
be and are hereby restrained by order of interim injunction until further orders of this court from, in any
manner infringing the applicants copyright in the cinematographic films/ motion picture “3″ by copying,
recording, reproducing or allowing camcording or communication or allowing others to communicate to
making available or distributing or duplicating or releasing or showing or uploading or downloading or
exhibiting or playing in or in any manner communication in any manner without a proper license form the
applicant or in any manner that would violate/ infringe the applicants copyright in the said cinematograph film
“3″ through different mediums including CD, DVD, Blu-Ray disc, VCD, Cable TV, Direct to home services,
internet services, multimedia messaging services, pen drives, hard drives, tapes, conditional access systems
or in any other like manner whatsoever
So in addition to the unknown Ashok Kumar, we have the addition of other unknown persons (Kishore, Rajesh,
Anup evam Indrajit?), their heirs, agents, representatives etc. of these unknown persons. This is followed by a
list of prohibited acts (copying, uploading, downloading) through a set of prohibited objects (hard drives, pen
drives, DVDs etc.)
This straight forward assault on the everyday passion that people invest in cinema and music is intriguing if
not all that surprising in the history of copyright infringement. Companies have regularly benefited from the
passionate investment of viewers, spectators and users in their goods before taking out their copyright sledge
hammer to control the indisciplined passions of the same users and viewers. Consider for instance the fact
that Microsoft did not enforce their copyright over illegal copies of their Operating system or products such
as Microsoft office for years (despite being one of the ‘best’ software companies in the world). They only
started enforcing their copyright when there was enough of a mass marker that had been created and a lock
in secured for their goods. Learning a software includes a huge investment of time and effort on the part of
users and unlike toothpaste cannot be changed over night.
In the same way Kolaveri became what it is because of Ms. Ashok Kumar, Ashok Kumar, Ashok Kumar, Ashok
Kumar and Ashok Kumar copying, communicating, uploading, downloading, modifying and distributing over
the internet, through CDs, hard drives and pen drives the song and all its hundred variations. This wasn’t just
a catchy song going viral but an attitude going global. Fan clubs in south Indian have been marked by the
excess investment that they make in stars and in films, an excess that moves between the monetary economy
of box office hits and profits on the one hand and the libidinal economy of love, passion and enthusiasm on the
other.
For owners of copyright, an ideal world would be one where you could control one through the control of the
other. So one benefits from all the passion of fans and enthusiasts even as one hopes that this will convert into
mass hysteria at the box office. But there is that little thing about having one’s cake and eating it too. For an
interesting account of how Kolaveri went viral see this
The copy which promised abundance but then threatens to eat into the film makers profits seems to parallel
the larger movement of the word copy whose etymological roots in copia “plenty” moves in English from an
original sense of “abundance” to the more recent sense of derivativeness. It passes thereby from a sense of
plenty to a sense of scarcity (For detailed history see New Keywords).
Apart from the questionable logic of the film makers turning fans and enthusiasts against their own film what
we probably need to do for the future is to think of how the investment of ‘excessive energy’ allows us to
make claims of ownership and limit the hackneyed argument of a film being the private property of the film
maker. This is a domain which necessarily takes us away from the usual focus either on the language of rights
or even the language of openness and what we need is a Political language of Passion and Enthusiasm which
can supplement the existing languages of denial and access. The excessive response of the film makers in
securing this order and in the blocking of the websites is plainly disrespectful of the excess that they thrived
on just a few months ago.
The absolute ignorance and arrogance of the film makers in trying to secure a ban on these websites shows
their blindness to the way that the internet works. Imagine a Facebook without faces, a youtube without
uploaders, and twitter without tweeters. It is said that Kafka came across a reference to a cinema for the blind
in Prague, and he was intrigued by it and came to believe that all cinemas should be called The Cinema of the
Blind, because their flickering images blind people to reality. What we have with the Ashok Kumar order is
perhaps the inauguration of the cinema of the blind film maker because their flickering profits blind them to
reality.
http://kafila.org/2012/05/18/meet-ashok-kumar-the-john-doe-of-india-or-the-pirate-autobiography-of-an-unknown-indian/
DEAR JOHNPosted on July 11, 2012
FROM THE TELEGRAPH
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.
http://www.telegraphindia.com/1120711/jsp/opinion/story_15714941.jsp#.T_10lcWqEz0
http://www.lawexams.in/legalarticles/category/john-doe-order/
http://www.mylaw.net/Article/John_Does_Munnys_and_Ashok_Kumars__2/#.UheR3RufgWY
Dadamuni, a.k.a. John Doe?
Image above is from the Wikimedia Commons here.
Continuing from where I had stopped, I will now seek to study the evolution of John Doe
Orders in India. Inevitably, the decision inTej Television Limited v. Rajan Mandal, [2003]
F.S.R. 22, will have to find first mention, since these kind of orders against unidentified
defendants hit the shores of the Indian legal landscape through this decision.
Ten Sports challenges the might of the local cable guy
Here, the plaintiff owned the Ten Sports television channel and had procured the
broadcasting rights to several important sporting events, including the 2002 Football World
Cup matches. Being a paid channel, the cable operators had to part with royalty to the
plaintiff for airing the programs broadcast on this channel. To the plaintiff’s consternation,
many local cable operators were airing these sporting events without obtaining licenses
from the plaintiff, or its authorised marketing agency. This resulted in the channel
approaching the Delhi High Court and seeking, for the first time, a John Doe Order against
unidentified defendants. The channel had some evidence of unauthorised broadcasting of
the initial matches by certain cable operators and apprehended that this conduct by more
operators would not only result in revenue loss but also cause the 1,377 cable operators
who had taken licenses from the plaintiff to re-think the very necessity of doing so when
they could air the sporting events in an unauthorised manner without any fear of liability.
Another concern was the ease with which those who carried on the practice of unauthorised
transmission could destroy any evidence of such conduct.
The plaintiff’s prayer was for an ex parte order against six named cable operators and John
Doe Orders against a further fourteen unnamed persons who, the plaintiff claimed, were
wrongfully transmitting the Ten Sports channel. The order against unidentified defendants
was sought to be justified on two broad grounds: (i) Section 151 of the Code of Civil
Procedure, 1908, which gives courts the inherent power to evolve a fair and reasonable
procedure for meeting exigent situations; and (ii) international practice in the form of John
Doe Orders issued by courts in various countries, including the United States, the United
Kingdom, Canada, and Australia.
The High Court refused to grant a John Doe Order on the facts and circumstances of this
case but also clarified that in an appropriate situation, courts could well award a John Doe
Order even in India. The Court granted the plaintiff relief by appointing a Court
Commissioner who was authorised to visit the premises of various cable operators, search,
make an inventory, and take into custody all equipment and wires used for the broadcast of
the plaintiff’s channel. The Court empowered the Commissioner to take the assistance of
technical experts and police officials in carrying out this order, and directed him to prepare
a report after gathering evidence of cable piracy in the form of video recordings and
photographs. The Court also considered itself at liberty, on the basis of this report, to issue
notices to all alleged violators. TheCourt Commissioner was also empowered to issue
warnings to such prospective violators though there was no mention of any contempt
proceedings against the violators for ignoring theCommissioner’s warning. Upon close
examination, this order was nothing but a mild modification of the power vested in
the Courtunder Order XXVI, Rule 9 of the Civil Procedure Code, 1908.
Final and interim John Doe Orders
The decision in Tej Television has been followed by decisions of the Delhi High Court where
possibilities of a John Doe Order have been considered, though not granted. Take, for
instance, Ardath Tobacco Company Limited v. Munna Bhai and Others, 2009 (39) PTC 208
(Del). The plaintiff was the proprietor of a tobacco brand, ‘State Express 555’. Aggrieved by
the conduct of the defendants, who were distributing ‘Peacock’ cigarettes in packaging and
trade dress that bore deceptive similarity to that of the plaintiff’s brand, the plaintiff sought
a John Doe Order against all such distributors, including unidentified ones. From the report,
it appears that an ex parte order appointing Court Commissioners, similar to the order inTej
Television, was awarded by the High Court initially. In the final order, the Court was
constrained to confine the order of permanent injunction to the named defendants, since
the plaintiff had failed to add any subsequently identified John Doe to the array of parties
for the purpose of securing injunctive relief who was carrying on similar trademark
infringement and found to be doing so by the Court Commissioner upon searching their
premises. The same was found to be the case in 3M Company v. A. Patel, Order dated
January 15, 2009, in C.S. (O.S.) 1771 / 2006, reported as MANU/DE/1991/2009, where the
final order of injunction was granted only against the two identified defendants.
In these cases, a distinction seems to be made between the interim orders that may be
passed against the unidentified defendants, and the final relief granted by the court. The
principle that emerges from these decisions is that orders against unidentified defendants
can only go to the extent of collecting evidence against them through search of their
premises by theCourt Commissioner. No final relief can be granted against any person who
is unnamed in the array of parties as a defendant. The purpose of a John Doe Order is only
to bring such persons on record.
Image above and on article thumbnail is from Yiie's photostream on Flickr.
Ray Ban seeks a ban
Recently, the Delhi High Court has enunciated, with sufficient clarity, the procedure to be
followed while granting interim orders against unidentified defendants. In Luxottica
S.R.L v. Mr. Munny and Others, Order dated September 25, 2009 in C.S. (O.S.) 1846/2009,
available here, the plaintiff, which owned the popular trade mark ‘Ray Ban’ in respect of
sunglasses, sought John Doe Orders from the Delhi High Court with the aim of tackling
rampant piracy and counterfeiting of its products. Surprisingly, there was no particularly
urgent event being cited as the reason by the plaintiff for such an order, unlike the Billy Joel
Case, Metallica Order,Brockum Case, or the decision in Bloomsbury Publishers, or even the
earlier decision of the Delhi High Court in Tej Television. Piracy had been going on in the
past, and it is still going on – that was, broadly, the plaintiff’s case here. Despite this,
the Delhi High Court went on to issue an order of ex parte injunction restraining third
parties from carrying on such counterfeiting activities. Extending the powers of the Court
Commissioner, the High Courtheld:
“The Commissioners are also authorized to visit any other premises/warehouse/store where
they may have reason to suspect and/or information be received that counterfeit optical
sunglasses bearing the Plaintiffs trademark RAY BAN are being stored/sold/offered for sale
and thereafter. In respect of such Ashok Kumar Defendants, upon the seizure of any
infringing/counterfeit products, the Commissioners shall forthwith serve such Ashok Kumar
Defendants with a complete set of papers and a copy of the notice and summons. The
Commissioners will seize and make an inventory of all the infringing goods including
packaging material, cartons, stationery, literature, dyes, blocks, moulds, etc. bearing the
impugned RAY BAN trademark and sign all books of accounts including ledgers, cash books,
purchase and sale records etc., and return the seized goods on suprdari to such Ashok
Kumar defendants and obtain undertakings from each of them that they will produce the
seized goods as and when directed by the Court.”
The object behind this order seems to be the prevention of any destruction of the evidence.
In consonance with this object, theHigh Court has even made provision for return of the
seized material to the unnamed defendants during the pendency of this order, and given
them the option of approaching the Court and vacating the ex parte order of injunction
issued against them. In my view, this Luxottica decision can be considered India’s
equivalent of the Metallica Order, as it gives a clear roadmap for courts that pass such
orders in the future. Considering that John Doe Orders have attracted criticism on the
ground that they make serious inroads into defendants’ rights, these safeguards,
specifically articulated by the Court, do go a long way in addressing this criticism and
mitigating the hardship caused to defendants. Hopefully, the practice of awarding John Doe
Orders to tackle exceptional and rampant acts of piracy shall be confined to the rarest of
rare situations and even when so, with appropriate safeguards.
ohn Does, Munnys and Ashok KumarsJAN 17, 2011 | ANANTH PADMANABHAN
Ananth Padmanabhan explains the evolution of John Doe Orders in the U.S. and similar
concepts elsewhere
Last week, I noticed attention being rekindled during my session in Cochin on “Enforcement
of Copyright: Civil and Criminal Remedies”, for district judges, when I reached my two
slides on what are popularly known as John Doe Orders. I was thankful, considering I was
the last speaker for the day and battling against a dwindling attention span from those who
are a lot more learned and aged than I am. The follow-up was in the form of a pleasant boat
ride on the backwaters, and that saw several queries and requests for orders passed by
Indian courts awarding this kind of a relief. The most common concern, of course, was how
can we award such orders when the Code of Civil Procedure, 1908, is totally silent about
such wide judicial powers?
Billy Joel in concert, 2007.
Image above and on article thumbnail is from Samira Khan's photostream on Flickr.
The “Piano Man” and the pirates
Billy Joel, the musician, and successful recording artist since 1973, found to his annoyance
that the success of his first solo Piano Man, had spawned a curious underground industry
that capitalised on his popularity through the sale of merchandise, usually T-shirts bearing
Joel's picture and name. These sales were carried on by unauthorised persons who showed
up at Billy Joel's concerts with the merchandise and sold them outside the concert halls
where Joel was performing.
Billy Joel had in fact granted his recording company the exclusive right to market such
merchandise, and the company was doing so inside the concert halls. Obviously, the
presence of the unauthorised vendors outside the concert halls hurt the company’s sales
and Joel’s revenue share. This compelled Joel to approach the District
Court in Wisconsin seeking injunctive relief against various “John Does” or unidentified
defendants who were carrying on the unauthorised sale of merchandise. The order was
specifically sought seeking an ex parte temporary restraining order prohibiting certain
unnamed persons from selling merchandise bearing Joel’s name or likeness outside
the Milwaukee Arena, where Joel was scheduled to appear on that day. Thus, the order
sought was confined to one particular instance and the situation demanded expedient
preventive action since the concert was on the very same day.
The District Court, in Billy Joel v. Various John Does, 499 F.Supp. 791 (1980), while finding
the propriety of an order against unidentified defendants “troubling”, still went ahead and
passed the order sought for. The Court felt that the problem of the defendants’ identities
would be met if the copies of the summons, complaint, and restraining order itself were to
be served on all persons from whom Billy Joel merchandise was seized on the night of the
concert. Additionally, the Court clarified that all these parties would be entitled to have
their names added as parties to the cause title and even otherwise, to contest the seizures.
The plaintiff had also furnished a bond to cover damages that may arise due to the
awarding of such relief.
Basically, the Court applied the principle of ubi jus ibi remedium – where there is a wrong
done, there has to be a remedy in law, while granting this relief. This is clear from the last
paragraph of the judgment, where the Court says:
“Were the injunction to be denied, plaintiffs would be without any legal means to prevent
what is clearly a blatant infringement of their valid property rights. While the proposed
remedy is novel, that in itself should not weigh against its adoption by this court. A court of
equity is free to fashion whatever remedies will adequately protect the rights of the parties
before it.”
Subsequently, various courts in the United States have granted such relief. However, most
such instances of judicial intervention in cases of piracy have confined themselves to
specific instances of piracy as opposed to orders of wider applicability extending to more
than one instance of apprehended or real piracy. For instance, in Brockum Intern.,
Inc. v. Various John Does, 551 F.Supp. 1054 (D.C.Wis.,1982), the plaintiff sought a nation-
wide order prohibiting the same activity in other cities visited by the popular rock
band, The Who, on its national tour. The Courtdeclined.
John Doe relief in New Zealand and United Kingdom
In New Zealand, the High Court has specifically applied the principle of ubi jus ibi
remedium while justifying the issuance ofJohn Doe Orders. In Tony Blain Pty.
Limited v. Splain and other Persons Unknown, [1994] F.S.R. 497, the plaintiff was the
exclusive authorised merchandiser for Metallica and Sir Paul McCartney, and the piracy
alleged was similar to the one in Billy Joel’s case. Here too, the order was sought in respect
of a specific concert to be held in Auckland within the next few days. The plaintiff
innovatively sought an order by virtue of which certain solicitors named in the plaintiff’s
application would, due to their status as officers of the court, be authorised to accost
bootleggers at the concert venues and require them to provide their current addresses and
evidence of identity, and these bootleggers would have to surrender up to these named
solicitors all merchandise including T-shirts, head-bands, badges, or programmes in their
possession or control.
While granting this order, the Court likened this kind of relief sought against unidentified
defendants, to an order in the nature of an Anton Piller remedy. The Court stated that both
these orders involved a common feature, being an intrusion into the privacy of the
defendants. However, such an intrusion would be justified applying the maxim of ubi jus ibi
remedium. According to the Court, “in circumstances where it is plain that persons are
infringing proprietary interests which the law recognises, or deceiving the public by way of
trade in a manner which may indirectly affect the commercial interests of others, the law
should, if it reasonably can, provide a remedy”. Emphasising the conduct-centric nature of
these reliefs, the Court held that John and Jane Does will be known by their works.
However, in its attempt to bring in some kind of safeguard before passing such an order,
the Court held that it would be better in the future to bring such applications a little in
advance so thatamicus curiae could be appointed to represent the viewpoint of the John
and Jane Does. Further, the Court held:
“It must be recognised as a possibility that a mistake could occur in the execution of the
process sought. It is therefore important to build into the procedure appropriate
protections, including means of informing persons served with orders for injunction in clear
language and simple terms what their remedies are. These remedies will include a right to
apply to the court within 24 hours for a review of the orders and a right to claim damages
in an appropriate case, not merely on the basis of the usual undertaking to be given by
plaintiffs, but also on the basis of the ancient but still extant tort of misfeasance of public
office. I do not doubt that damages would lie against a person executing the orders
oppressively or excessively, or if such persons act otherwise outside the scope of the
authority to be given herein… It will also be necessary, in my view, for the plaintiff to file
and serve in this court as soon as reasonably practicable after the concert dates in
question, a full report verified by affidavit of the process of execution of the particular
orders. I will also require the plaintiff to undertake to pay not merely such damages as
might be awarded by the court, in terms of the usual undertaking, but also all reasonable
costs on a solicitor/client basis of persons against whom the orders may have been wrongly
executed.”
It is thus seen that the High Court, though keen to do justice by providing a remedy that is
effective enough to protect the plaintiff’s rights, also tried to mitigate the harshness of the
measures proposed by bringing in some safeguards. This decision gave birth to
the Metallica Order in New Zealand, the New Zealander’s equivalent of a John Doe. It has to
be added that the nature of the order passed by the High Court in this case is very detailed
and can be used as a standard template by all courts that pass similar orders.
In the United Kingdom, similar orders have been passed to tackle large scale piracy, a case
in point being Bloomsbury Publishing Group Limited v. News Group Newspapers Limited
and Others, [2003] 3 All E.R. 736. After Lord of the Rings, the Harry Potterseries is arguably
the most popular work of fantasy fiction written. In the Bloomsbury case, the publishers of
the Harry Potter series sought an injunction immediately before the release of the fifth part.
This was necessitated by the presence of at least three copies of the book in the public
domain without authorisation from the printers. These copies were offered to the press at
varying prices. Since the origin of these copies was shrouded in mystery, the publisher was
prompted to approach the Court seeking a John Doe type of order. The great Justice
Laddie (may his soul rest in peace and his immense and invaluable contribution to
intellectual property law remain in our memory forever) gave an ex parte order against
these unidentified defendants for a brief while. The issue before the Chancery Division in
this case was whether this order must be extended till the date of release of the book.
Answering in the affirmative, the Court held that some of the earlier decisions necessitating
the naming of the defendants while issuing a writ were given in the context of the Supreme
Court Rules and would not be applicable once the new Civil Procedure Rules came into
effect. In short, the Court preferred substance over form and extended the interim order
issued against unidentified defendants till the date of the order. This is again a case where
there was urgency in granting such an order considering the facts and circumstances.
In the next part of this article, I will examine how Indian courts have treated the same
issue, and whether there is need for any safeguards here when it comes to the manner in
which such orders are passed.
Ananth Padmanabhan is an advocate practising in theMadras High Court.
Nandita Saikia explains how the Copyright (Amendment) Bill 2010http://www.mylaw.net/Article/John_Does_Munnys_and_Ashok_Kumars/?past=Editor's%20Pick#.UheTcxufgWY
Tuesday, September 13, 2011
INJUNCTION AGAINST UN-NAMED AND UNDISCLOSED PERSONUTV approached Hon’ble High Court of Delhi seeking relief against large scale violation of its copyright in earlier films produced by it by several known and unknown cable operators who telecast pirated version of the films of the plaintiff on cable networks, violating rights of the plaintiff and causing irreparable loss and damage.
They invoked the inherent power of the court under Section 151 of the CPC to evolve a fair and reasonable procedure to address the peculiar facts and circumstances over the pleaded violations on the ground that they have not signed any agreement with regard to the film, which amounts to violation of section 14(1)(d) and 16 of the Copyright Act. Hon’ble High Court granted interim injunction and observed that the modus operandi adopted by unauthorized cable operators is to prepare poor copies of the films when they are being screened in the picture hall and telecast the same on their network to cable homes attached to them. It would appear that public interest would also suffer on account of poor programme quality. There is prima facie substance in the plaintiffs’ contention that the same would impact the plaintiff’s reputation as well. Prima facie appears that unlicensed broadcast of the reproduction rights vested in the plaintiff by telecasting the plaintiffs’ films in the foregoing manner is illegal, unfair and deserves to be prohibited. Balance of convenience and interest of justice are in favour of the plaintiff and against the defendants…….
IN THE HIGH COURT OF DELHI AT NEW DELHI*CS(OS) No. 821/2011
UTV software communications limited Versus Home Cable Network Ltd. and ors.HON'BLE MS. JUSTICE GITA MITTAL
O R D E R04.04.2011
IA No.5384/20111. Exemption allowed subject to just exceptions.CS(OS) No.821/20112. Subject to the plaintiff taking steps within one week, issue summons in the suit to the defendants by ordinary process, registered cover and through approved courier, returnable on 14th July, 2011 before the Joint Registrar.3. The summons to the defendants shall indicate that a written statement to the plaint shall be positively filed within four weeks of the receipt of the summons. Liberty is given to the plaintiff to file replication and rejoinder within two weeks of the receipt of the advance copy of the written statement and reply.4. In case the written statement is not filed within the time stipulated above, the same shall be taken on record only subject to imposition of heavy costs.5. The parties shall file all original documents in support of their respective claims alongwith their respective pleadings. In case parties are placing reliance on a document which is not in their power and possession, its details and source shall be mentioned in the list of reliance which shall be also filed within the pleadings.6. Admission/denial of documents shall be filed on affidavit by the parties within two weeks of the completion of the pleadings. The affidavit shall include the list of the documents of the other party. The deponent shall indicate its position with regard to the documents against the particulars of each document.7. Learned counsel for the plaintiff submits that without prejudice to its rights, contentions and claims in the suit, his client would be willing to explore the possibility of settlement by recourse to mediation.8. The summons shall indicate that it is open to the parties to access the facility of negotiating a settlement with the other side before the Delhi High Court Mediation and Conciliation Centre in the court complex. In case the defendants are so desirous of pursuing negotiations, it shall be open to them to do so. Such participation in the mediation shall be without prejudice to their rights and contentions in the suit.9. In such eventuality, the defendant shall inform the plaintiff as well as his counsel of the same by a written notice. Such written notices shall be treated as consent of the parties to the mediation process.10. The plaintiff and/or defendants may then approach the Delhi High Court Mediation and Conciliation Centre for facilitating mediation in the matter. Any or both of the parties shall place the copy of this order as well as the written notice before the Delhi High Court Mediation and Conciliation Centre which shall proceed in accordance with the rules of the Centre.11. During the course of mediation, it shall be open to the mediator to join any other person(s) considered necessary for effective mediation and dispute resolution.12. The Registry shall enclose the information brochure published by Samadhan the Delhi High Court Mediation and Conciliation Centre with the summons.13. The parties shall appear before the Joint Registrar for marking of exhibits on 14th July, 2011.14. The matter shall be fixed before the court for reporting outcome of the mediation/framing of issues on 15th September, 2011.15. The schedule fixed by this order shall not be interdicted by the pendency of the matter in mediation.IA No. 5383/2011 (Under Order 39 Rule 1 and 2 CPC)
16. Issue notice, returnable on 15th September, 2011.17. The plaintiff is the producer/co-producer/distributor of several movies detailed in the plaint including the film 7 Khoon Maaf which has been recently released. It is asserted that the latest film produced by the plaintiff titled Thank you is to be released on 8th April, 2011.18. The suit has been necessitated for the reason that the plaintiff has experienced large scale violation of its copyright in earlier films produced by it by several known and unknown cable operators who telecast pirated version of the films of the plaintiff on cable networks, violating rights of the plaintiff and causing irreparable loss and damage. A single telecast by the defendants and other operators would simultaneously reach several hundred thousand homes. As a result, the loss which results to the plaintiff is irreparable and cannot be computed in terms of money.19. The plaintiff also complains that additionally the quality of the film which is telecast by these cable operators is inferior and impacts its reputation. Loss to the exchequer by way of collection of entertainment tax etc. has been also pointed out.20. Based on its past experience, it is urged by Mr. Vikas Singh, learned senior counsel for the plaintiff that an investigation was undertaken into the business being run by the defendant no.1 and extensive positive information with regard to the violation of the plaintiff’s copyright in the plaintiff’s film 7 Khoon Maaf, has been received. The investigation report obtained by the plaintiff has been placed on record.21. It has also been urged at great length that apart from the cable operators who have been arrayed as defendants, there are several other cable operators in the field who operate in an identical manner to cause violation of the plaintiff’s copyright. The plaintiff is not able to establish the full particulars of these persons which have consequently not been placed in the plaint. Such persons have been collectively arrayed as defendant nos.19 to 50 named as Mr. Ashok Kumar. The plaintiff urges that these defendants are unknown identities who would also telecast the unauthorizedly and illegally telecast pirated version of the plaintiff’s films by their network without any licence.22. The plaintiff invokes the inherent power of this court under Section 151 of the CPC to evolve a fair and reasonable procedure to address the peculiar facts and circumstances over the pleaded violations by the defendants including defendant nos.19 to 50. In this regard, reliance is placed on the internationally adopted John Doe practice obtaining in USA, Canada, UK, Australia and otherjurisdictions as well as this country’s obligation under the TRIPPS agreement to effectively enforce IPR rights of parties including those as in the present one. It is urged that a similar order deserves to be passed in the present case.23. In support of this submission, my attention has been drawn to a judgment dated 14th June, 2002 passed in CS (OS) No. 1072/2002 Taj Television Ltd. and Ors. Vs. Rajan Mandal and Ors. reported at 2003 FSR 22 on similar facts, this court had noticed the following submissions of counsel for the plaintiff seeking a John Doe order: - xxxxx11. Mr. Anand submitted that conduct of various unscrupulous cable channel companies/distributors such as the defendants is well known. The aspect of channel is being illegally aired on the local cable networks has almost taken on a regular feature. He prayed that in the facts and circumstances apart from giving necessary directions be also given for defendant Nos. 7 to 20, in other words, the court may pass John Doe orders.12. Mr. Anand placed reliance on Trade Marks Law of Canada in which it is mentioned that John Doe? orders enabling the order to be served upon persons whose identity is unknown to the plaintiff at the time the action was commenced, but whose activity falls within the scope of the action. This form of naming a party is considered a mere ?misnomer?, and as long as the ?litigating finger? is pointed at such person then the misnomer is not fatal. This proposition has been taken from Jackson v/s Bubels (1972) 28 DLT. (3d) 500 (B.C.C.A.) and Dukoff vs. Teronto General Hospital (1986),54,O.R.(2d) 50(H.C.).13. Mr. Anand submitted that ?John Doe? orders are passed by American, English, Canadian and Australian Courts frequently. He further submitted that this court also possesses enormous inherent powers to formulate the orders which are necessary to meet the peculiar facts and peculiar situations., In the first U.S. Federal John Doe order, Shaw vs. Various John Does, No 80 Civ,722 (S.D.N.Y.Fe,6,1980) the court held that a court of equity was always free to fashion a decree in keeping with the needs of the litigants. Similarly, in Billy Joel vs. Various John Does, 1980 U.S. Dist LEXIS 12841 the Court held: Were the Injunction to be denied, Plaintiffs would be without any legal means to prevent what is clearly a blatant infringement of their valid property rights. While the proposed remedy is novel, that in itself should not weigh against its adoption by this court. A court of equity is free to fashion whatever remedies will adequately protect the rights for the parties before it.14. Mr. Anand placed reliance on the judgment of the Supreme Court in Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527. The Court held that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the court is free to exercise them for the purposes mentioned in
Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature. Mr. Anand placed reliance on EMI Records Ltd . v. Kudhail and others (1985) FSR 36, (1983) Com LR 280. Mr. Anand , Learned counsel for the plaintiffs, has made references to a large number of Canadian, Australian, English and American cases but I would not like to burden this order with all the judgments on which reliance has been placed at this stage. Since ?John Doe? orders are passed in the court of Canada, America, England, Australia and in some other countries. The judicial systems of all these countries have basic similarity with our judicial system. Therefore, looking to the extra ordinary facts and circumstances of the case, in the interest of justice the courts in India would also be justified in passing John Doe orders. It is noteworthy that after such finding keeping in view the peculiar facts of the CS(OS) No. 1072/2002, a John Doe order was not passed.24. My attention has also been drawn to an order dated 24th November, 2006 in CS(OS) No. 2189/2006 wherein the court has granted an injunction order in terms of the above observations. This court as such has the jurisdiction to pass an order in the nature of a John Doe order injunction unknown persons in circumstances as have been pleaded by the plaintiff in the present case. 25. Mr. Vikas Singh, learned senior counsel for the plaintiff has placed reliance on the following observations of the court in Tej Television (Supra) in the context of cable operators:- Xxxxx17. I have carefully considered the relevant documents, averments of the application and judgments of various courts. Undoubtedly, the cable operators in India have a long history of violating copyrights. A very large number of court orders are testimony to this. The cable operators are encouraged owning to the unique nature of cable piracy and the unstructured nature of the cable industry, the speed with which any trace of infringement can be erased by the cable operators, enforcement of rights in conservative nature is unlikely to effectively redress the plaintiffs? grievance.26. The plaintiff has approached this court seeking protection of its valuable rights against such unwarranted, unauthorized and illegal actions of the defendants nos. 1 to 18 as well as the Mr. Ashok Kumars arrayed as defendant nos. 19 to 50 which have violated and diluted the exclusive copyright vested with the plaintiff in respect of the films 7 Khoon Maaf. The plaintiff has expressed apprehensions that the defendants would violate the plaintiffs’ rights in its film Thank You. 27. The plaintiff has asserted violation of its rights and violations of the Copyright Act, 1957, the Cable Network (Regulation) Act, 1995 before this court. The material placed before this court would show that the plaintiff has copyright in the films produced by it and only authorized licensees can telecast the films.28. The plaintiff has specifically averred that the defendants in the suit have not signed any agreement with regard to the film. As such telecast of these films is violative of section 14(1)(d) and 16 of the Copyright Act.29. It is urged that unauthorized cable transmission of the plaintiffs’ films shall result in irreparable loss and damage to the plaintiff. It would also encourage other cable operators who have currently procured licenses/entered into agreements with the plaintiff and possess valid license/agreements, to also telecast the films without making necessary payments. In support of the grievance that the damage would be irreparable, it is pointed out that the cable industry has an unstructured composition and it would be impossible to assess the damages which may result on account of unauthorized telecast/broadcast/distribution.30. The modus operandi adopted by unauthorized cable operators is to prepare poor copies of the films when they are being screened in the picture hall and telecast the same on their network to cable homes attached to them. It would appear that public interest would also suffer on account of poor programme quality. There is prima facie substance in the plaintiffs’ contention that the same would impact the plaintiff’s reputation as well. 31. In view of the foregoing, it would prima facie appear that unlicensed broadcast of the reproduction rights vested in the plaintiff by telecasting the plaintiffs’ films 7 Khoon Maaf and the forthcoming film Thank You in the foregoing manner is illegal, unfair and deserves to be prohibited. Consequently, unless injunction as prayed for is granted by this court, the business of the plaintiff herein would be irreparably impacted. Balance of convenience and interest of justice are in favour of the plaintiff and against the defendants.32. It is accordingly directed as follow:-(i) that the defendants/their agents, representatives, franchisees, sub-operators, head ends and/or anyone claiming under them are hereby restrained from telecasting or in any other manner communicating to the viewing public/subscribers either by means of wireless diffusion or by wire a pirated version of the films 7 Khoon Maaf and Thank You and/or in any other manner infringing the copyright of the plaintiff therein.(ii) It is further directed that till the present order is vacated or modified, the direction shall operate against the defendants, their agents, representatives, franchises, sub-operators or any person claiming under them an injunction.(iii) Further injunction in terms of serial no. (i) above is passed against un-named and undisclosed persons who may be likewise committing breach of the rights of the plaintiff in a similar manner.
(iv) The SHO/Superintendent of the concerned police station(s) are directed to render assistance to the plaintiff should any be required for purposes of enforcement of the present order as it is the obligation of the police authorities and the State to enforce judicial orders passed.(v) The plaintiff is permitted to publish the John Doe injunction order issued today in local newspapers in all states where it has expressed apprehensions of violation of its rights. Consequences in accordance with law would thereafter follow.(vi) The plaintiff shall comply with the provisions of the proviso to rule 3 of order 39 of the CPC within a period of ten days from today. Copy of this order be given dasti as well as dasti under the signatures of the court master of this court.
GITA MITTAL, JAPRIL 04, 2011
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