Anime in court: 2 ISPs, 2 different outcomes
Judge's ruling in favour of PacNet against Odex only throws up more
questions
Thomas Koshy
IT WAS a case of third time unlucky for Odex in its application to
court for a discovery order to find out the names of subscribers
who had allegedly downloaded copyright infringing anime off the
Internet.
After successfully obtaining such orders against SingNet and
StarHub, its similar application against Pacific Internet (PacNet)
failed last week.
Since similar information was sought in presumably similar
circumstances against all three Internet Service Providers (ISPs),
the natural question that arises is why PacNet succeeded where
SingNet and Starhub had failed.
More importantly, the decision throws up more questions about the
already controversial saga.
District Judge Ernest Lau, who decided the PacNet case, explained
that the issues raised in the PacNet case were never fully argued
in the StarHub case.
What he said about the SingNet case was, however, more
troubling: "For the SingNet case, the orders were made by
consent."
This means that SingNet did not even argue against Odex's
application for subscriber information. The ISP did not even
instruct its lawyers to attend the court hearing of Odex's
application.
The Telecommunications Competition Code (TCC) prohibits
unauthorised release of subscriber information by ISPs.
Although the TCC provision may be trumped by a court order, should
SingNet not have argued against Odex's application rather than
consent to it?
If the ISP does not argue for its subscribers' rights to privacy,
who will?
Without a voice in court, the prohibition in the TCC becomes
effectively an empty promise.
One also wonders whether SingNet has acted in breach of the spirit
of the TCC provision and, if so, whether punitive measures are
warranted.
So, what were the arguments that PacNet raised, which the other
ISPs had not?
Essentially, PacNet challenged both Odex's right to make the
copyright infringement claims and the reliability of Odex's tracing
of copyright infringers.
The challenge to Odex's claim was largely successful because Odex
was not the copyright owner or exclusive licensee of all but one
anime video titled Mobile Suit Gundam Seed. For all the rest, it
was a mere sub-licensee and, therefore, not entitled to pursue
claims for copyright infringement only copyright owners or
exclusive licensees may do so.
Accordingly, the court held that Odex had "no civil right of action
under the Copyright Act against the persons whom the identities are
sought".
Copyright infringers should, however, bear in mind that even though
Odex may not have the right to pursue such claims, the actual
copyright owners or exclusive licensees would have such a
right.
It was reported that Odex might appeal against the PacNet
decision.
But what about the enforcement action that Odex has already
taken?
Should it desist from further pursuing any claims unless it manages
to get the PacNet decision reversed?
What about the funds that Odex has collected in settlement of its
supposed claims? Is Odex obliged to return those funds if the
PacNet decision is not overturned on appeal?
This brings to the fore another aspect of the Odex case that the
Odex letters of demand to subscribers were apparently not sent by
lawyers but by Odex itself.
Letters of demand sent by lawyers are subject to rules on legal
conduct. For example, a lawyer may not "demand anything other than
that recoverable by due process of law".
Should such provisions be made broader so as to embrace letters of
demand sent by persons such as Odex as well?
Otherwise, a client sending out a letter of demand himself even
if after procuring legal advice may easily circumvent them.
Another interesting snippet from the decision of District Judge Lau
concerns the costs incurred by Odex in tracing the copyright
infringers.
Odex engaged an American company, BayTSP, to track the
copyright infringers. Odex's Peter Go had quoted an article in his
affidavit, which highlighted the low cost of BayTSP's services
tracing up to 100 files for only $12 per month, with a setup fee of
$25 for 100 images.
In a notice that has been put up on its website, Odex stated that
"many of those who received Odex's letter have ... settled the
matter. The average amount of compensation paid by those who have
settled is about $3,000 to $5,000."
And yet, in a letter issued to the media last week, Odex had said
the total amount it has recovered so far "has not covered even 20
per cent of Odex's enforcement costs".
The revelation of BayTSP's low costs heightens the mystery
surrounding Odex's "enforcement costs" and revives the question of
whether the quantum of the sums demanded by Odex to settle its
claims against copyright infringers is excessive.
In the fog of all the negative perceptions generated by Odex's
pursuit of copyright infringers, it should not be forgotten that
copyright infringement is illegal and offenders run the risk of
civil and criminal penalties.
But the Odex case has highlighted that all parties involved must
pay more than lip service to the due process of the law.
The writer is a legal academic.
These are his personal views.
http://www.todayonline.com/articles/207695.asp
