The concept of a fictitious defendant is important in legalese. When a plaintiff suspects that a person or persons unknown may commit an offence, lawsuits can be filed against a fictitious defendant. For example, suits to prevent copyright violation are often filed against fictitious defendants. In the United States, these are called “John Doe suits” because John (or Jane) Doe is the accepted American nomenclature for an unknown person. The Indian equivalent is Ashok Kumar. At least, that was the name used by Copyright Labs in Chennai, when it asked the Madras High Court to direct Indian internet service providers (ISPs) to prevent piracy of its movies Dammu and 3. Earlier, Reliance Entertainment sought a similar order from the Delhi High Court to protect Singham against piracy. Even earlier, another Ashok Kumar suit sought to prevent Bollywood music piracy.
The courts duly directed ISPs to prevent piracy of the specified content. Now, there is no way an ISP can prevent piracy without shutting down, since any individual subscriber can upload any digital content whatsoever in multiple ways. However, the court orders compelled ISPs to display a willingness to prevent piracy.
ISPs have, therefore, responded as best they can, by blocking a random list of the more popular file-sharing and video sites. Since mid-April, Indians have been discovering that some of the most commonly accessed sites are “blocked as per court order”. There is a real chance that every Indian movie launch will be preceded by another Ashok Kumar suit. So, we could see a more or less permanent block on an entire class of websites and associated technologies. It would make some sort of sense if this actually prevented piracy. The blocks are easy to circumvent and are only a minor inconvenience for anybody who knows what they’re doing. The pirates will continue to upload, and the content they steal will inevitably be seamlessly mirrored across dozens of other locations.
But the ineffectual nature of the preventative action is not the only point. Multitudes of law-abiding Ashok Kumars use file-sharing to transfer legitimate data, and to broadcast their own content. This is why the entire global IT industry campaigned vigorously to prevent the proposed Stop Online Piracy Act and the Protect IP Act in the US being written into law. The Jaipur Literature Festival, for example, puts all its session webcasts up on Vimeo (one of the blocked sites). Programmers co-operating in different locations use file-sharing to download and debug millions of lines of code. Businesses share presentations and data-dashboards. Electronics manufacturers upload manuals. Music groups, theatre groups, cartoonists and comedians put up their own content. So do yoga and bodybuilding instructors. Alcohol and drug rehab clinics display rehabilitation and recovery step-programme.
Between them, all these law-abiding Ashok Kumars almost certainly contribute far, far more in the way of social and economic value-add than the plaintiffs in the above suits. Their inconvenience should, therefore, count for much more than some sort of token action on behalf of the plaintiffs. However, it is not easy for law-abiding users to respond to the court orders by asking for an “unblocking” of affected sites. Ashok Kumars don’t form a single focused interest group. There hasn’t been an official order instituting blocks anyway. Instead of legal counter-action, a rogue group of programmers, Anonymous, has decided to target Indian government websites with Distributed Denial of Service attacks and vandalism. Given the way governments react, this will probably lead to a hardening of official attitudes in favour of trying to regulate the Net.
This is unfortunate. It happened just as P Rajeeve’s statutory motion against the IT Intermediary Rules led to a face-off in Parliament. The government has promised to consult stakeholders and review the law. It will probably try to use this set of incidents to retain the current provisions, despite their obviously flawed nature. The battle for internet freedom will reach a higher pitch as a result.
