In the first such case in India, Tej Television Ltd. v. Rajan Mandal,94 a Court Commissioner was appointed to make an inventory of infringing material, equipment used, etc., with the help of technical staff and the police, and to produce a report to be used by the Court. Nowadays, it is common for producers to sub-contract the job of combing through infringing or potentially-infringing websites to external agencies, who tend to err on the site of caution and list more websites for blocking than strictly necessary. As Kian Ganz has noted: [U]ntil now, such agencies have had little incentive to get it right. Their bill is usually paid by the copyright holder, who has filed the John Doe order in court and usually doesn’t mind if overblocking of websites takes place. And courts realistically do not have enough time to manually check hundreds of file-sharing websites.95 Intellectual property rights professor Shamnad Basheer has also noted that it is not practical to require the judges to determine whether the links pertain to specific pages containing the infringing copies: [I]s it reasonable of us to expect an overworked and underpaid judge (hit with the pendency pressures and all that) to wade through all 800 links and ascertain infringement for himself/ herself? What then is to be done? How are these competing concerns to be balanced out?96 The Bombay High Court’s Justice Gautam Patel has in the past pointed to the disproportionate nature of blocking and has required a three-step verification before the blocking of URLs, so that the blocking orders are narrowly tailored.97 State laws touching on intellectual property rights and their infringement provide an additional challenge where freedom of speech and expression is concerned: going above and beyond what the Indian Copyright Act allows for, they consider copyright infringement as a violation worthy of preventive detention. States like Tamil Nadu, Maharashtra 94 [2003] FSR 22. 95 Ganz, K. (2016, 2 August). The messy battle against online piracy. Livemint. http://www.livemint.com/Consumer/ YtbRN9fv6ZgZCZOexcsWMI/The-messy-battle-against-onlinepiracy.html 96 Basheer, S. (2016, 27 June). Udta Punjab: Of Courts, Cuts, Copyrights and Conflicted Counsels. Spicy IP. https://spicyip. com/2016/06/udta-punjab-linking-courts-cuts-copyrights-andconflicted-counsels.html 97 Bajaj, R. (2016, 28 July). Bombay HC Effectively Transforms John Does from Swords to Shields – Delineates Most Robust Safeguards to Date. Spicy IP. https://spicyip.com/2016/07/bombay-hceffectively-transforms-john-does-from-swords-to-shieldsdelineates-most-robust-safeguards-to-date.html and Karnataka have made amendments to the respective states’ preventive detention laws, to make it possible to arrest “audio and video pirates” and “digital offenders”.98 For example, in August 2014, the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, was amended to include offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. The amendments also brought new categories of “video or audio pirates” and “digital offenders” under the purview of the Act. Section 2(f ) of the Act defines “digital offender” as: [A]ny person who knowingly or deliberately violates for commercial purposes any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or for any other person or commits any of the offences specified under section 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000. Further, per Section 2 (vii): (vii) In the case of a Video or Audio pirate, when he is engaged or is making preparations for engaging in any of his activities as a Video or Audio pirate habitually for commercial gain, which affect adversely, or are likely to affect adversely, the maintenance of public order. In the explanation to the section, the meaning of the phrase “video or audio pirate” is further defined: (k) “Video or Audio pirate” means a person who commits or attempts to commit or abets the commission of offences of infringement of copy right habitually for commercial gain, in relation to cinematograph film or a record embodying any part of the sound track associated with the film, punishable under the Copy Right [sic] Act, 1957 (Central Act XIV of 1957). Section 13 of the Act allows the state government to undertake preventive detention of suspects, without the requirement to be produced before a magistrate for up to 90 days (which may extend up to a year). By allowing for preventive detention of 98 Chari, M. (2014, 06 August). Why many states are using the 1923 Goondas Act to curb digital piracy. Scroll. http://scroll.in/ article/673042/Why-many-states-are-using-the-1923-GoondasAct-to-curb-digital-piracy 66 / Unshackling Expression