Many Indian ISPs blocked the Internet Archive in the past week due to two orders from the Madras High Court, it has surfaced. The orders came following cases filed by Red Chillies Entertainment and Prakash Jha Productions, who filed motions for the block to protect their films, “Jab Harry Met Sejal” and “Lipstick Under My Burkha” respectively. 2,650 URLs were blocked as a part of the order: the exact same list of sites was used by the both the plaintiffs.
MediaNama has reached out to Prakash Jha Productions and Red Chillies Entertainment to find out why the Internet Archive was a part of their list — and why both their block lists were identical.
Several hours before MediaNama broke the story on the website being blocked, the Internet Archive had already found out about the block and attempted to reach out to the Indian government, to no avail.
There’s something interesting about these orders (Nikhil adds)
Both are interim injunctions, applicable for a week. The “Jab Harry Met Sejal” order was dated 2nd of August 2017, so is applicable till the 8th, and the block should have been lifted by now. The “Lipstick Under My Burkha” order was dated 21st of July 2017, so should have lapsed by now. We’re not aware if an extension has been granted. But there is something of note in the order. Since the orders are largely similar, we’ve taken “Lipstick Under My Burkha” as an illustrative example below:
it is ordered as follows:
That [defendants 1 to 37, all ISPS] and any other person or entity be and are hereby restrained by an order of interim injunction for a period of one week from this date infringing cinematographic film “Lipstick Under My Burkha” and said Work be directed to block all websites/web pages including websites mentioned in Schedule-A hosting contents that relate to plaintiff’s copyright protected cinematographic film “Lipstick Under My Burkha” in any manner, thereby restraining the unauthorised copying, transmission, communication or make available or display or release of show or upload or download or exhibit or play and/or in any manner, communicate in and/or through their services immediately of receipt of details of such infringing websites/webpages in writing from the plaintiff or its authorised representative.”
A second part of the order prevents cable operators from 5 cable operators from distributing the movie, but it is the third part that is interesting:
3. That [Ashok Kumar, defendants 43 to 50] are hereby restrained by an order of interim injunction for a period of one week from this day infringing the said cinematographic film “Lipstick Under My Burkha” by themselves, their partners/proprietor/directors, heirs, representatives, agents, servants or any one claiming through them or under them from infringing the applicants copyrighted cinematographic film “Lipstick Under My Burkha” by copying, recording, reproducing, or allowing camcording or allowing others to transmit, communicate or make available or distributing or duplicating or displaying or releasing or showing or uploading or downloading or exhibiting or playing and/or in any manner whatsoever communicating the said work without proper license from the applicant or in any manner which would violate / infringe the applicant’s copyright cinematographic film “Lipstick Under My Burkha” through [different mediums] or in any other medium/manner whatsoever.
Here’s what this means:
The first part of the order directs the ISPs to block 2650 sites to prevent uploading. There’s a specific list of sites, and no “Ashok Kumar/John Doe” isn’t a defendant being blocked from transmission of content. And thus this isn’t a John Doe order against the websites: they are named.
The John Doe order is against everyone, including ISPs, recording entities, uploaders, downloaders, torrentors: The John Doe/Ashok Kumar order is against any person who records (etc etc), or, more importantly, allows others to transmit, upload or download (etc etc). Thus, this includes individuals using torrents, who upload and download content, but also torrent services who allow this. More importantly, it could also cover ISPs who allow others to transmit content.
While this is an interim injunction, the approach is worrying, because under Section 79 of the IT Act, ISPs and websites have safe harbour regarding infringement by their users. They’re treated as intermediaries and only have to take down content on being informed of specific infringement, and only via – if I remember correctly – a court order or a competent authority (the change that was brought in with the Shreya Singhal judgment).
The trouble with John Doe orders
As a Bombay High Court judge has pointed out, blocking entire websites as a pre-emptive measure to block websites is problematic. Asking for more specific URLs to block instead of entire websites, he said that he is:
“…not prepared to give a general direction against any of these websites. Such an order assumes, ex hypothesi, that every single bit of digital matter on every single one of these websites is not just illicit, but that all of this matter on all these websites relates to, and only to, illicit downloads of the Plaintiffs’ film. There is absolutely nothing to support this. [source]” (emphasis ours)
The Internet Archive, one of the world’s largest repositories of legally free books, films, and other historic archival content, found itself in the list of websites that the studios thought might pirate their film in the future. This is a perfect illustration of just how John Doe orders — too many to count — can lead to inadvertent censorship under the garb of pre-emptively preventing piracy. The Internet Archive’s Wayback Machine usually only hosts static websites, since video streaming — which the court order seeks to prevent — is mostly done through CDNs, which it is not very practical for the Internet Archive to cache along with webpages that it archives.