The Work of Art in the Age of Mechanical Injunctions

The internet has been abuzz with news of all major Internet Service Providers (ISP) in India blocking popular websites like Piratebay, Vimeo, Dailymotion and Pastebin pursuant to a Madras High Court order issued in response to a petition by the makers of the Tamil movie, 3. For those who don't know, this is the film which features the song, “Kolaveri,” whose viral journey around the world was celebrated by virtually everyone, including the film-makers.

There are a number of unanswered questions about the validity of this, including whether the Department of Telecom was entitled to ask for sites to be blocked on the basis of the order and 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 10 years have seen the dubious rise of John Doe orders as a pre-emptive 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, in the last decade we have seen the ease with which one can obtain these orders for copyright infringement cases.

High Court order

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.

But for the moment I want to focus on the fascinating High Court order itself and its incarnation of an unknown Indian person, Ashok Kumar, as well as the spectral fear of the copy.

The order names 20 respondents. Of these, the first 15 include all the major ISPs (BSNL, MTNL, Airtel, Tata, Reliance, etc) and respondents Nos.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? Are Nos.17 to 20 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 M/s 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 straightforward 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.

Microsoft case

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 market 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 overnight.

In the same way “kolaveri” became what it is because of M/s 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 India 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.

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.

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 visionless film-makers because their flickering profits blind them to reality.

(Lawrence Liang is a lawyer and researcher based at Alternative Law Forum, Bangalore. He can be contacted at [email protected])

Click to read the original in the Hindu.