http://www.straitstimes.com/Free/Story/STIStory_153986.html
The legal battle over Japanese animation movies called anime is
turning out to be quite an animated tale itself.
Odex, a local anime distributor, had tracked down the Internet
addresses of fans whom it said had downloaded its anime from the
Internet illegally. In June, it got a court order to compel SingNet
to divulge their identities. Odex then threatened them with legal
action, so some settled for $3,000-5,000 per person.
Because these were mostly students, the youngest aged just nine,
people were outraged. Riled netizens began to flame about Odex,
especially after they unearthed an Internet posting by its
director, Stephen Sing, that was laden with disparaging remarks
about anime fans. Online death threats were even made against Mr
Sing and his family, and he filed a police report.
In the meantime, Odex got a court order to compel StarHub to
divulge its subscribers' identities as well. At this point, The
Straits Times pointed out in a Review column that downloading anime
could well come under an open-ended exception in the law that
allows copying under circumstances other than education or news
reporting.
The various exceptions under the Copyright Act serve to protect
consumers from 'groundless threats' of legal action for copyright
infringement. Though some lawyers felt that fans faced an uphill
task in court, energised netizens decided to organise a defence
fund to fight Odex.
Unflustered, Odex went after PacNet, the smallest ISP here. In a
twist however district court judge Earnest Lau threw out its
request.
Twist in the tale
FOR one thing, Odex is not the sole distributor of anime here.
Other licensed distributors include Poh Kim and Blue Max, while
some titles aren't even licensed at all.
In fact, Odex is only a sub-licensee of various Japanese
distributors which are licensed by anime creators who actually hold
the copyright. As a sub-licensee, Odex had no legal standing to act
against alleged illegal downloaders. Only the copyright owner and
its exclusive licensee have that right.
For another thing, Odex appears to be the exclusive distributor
(for one year from April 9 this year) for just one anime movie
called Mobile Suit Gundam Seed, having been authorised to act for
Sunrise Inc 'who claims to be a copyright owner of (that) film',
the judge said. Thus Odex had standing only to ask PacNet to
divulge who owned the Internet addresses of those it said had
downloaded Mobile Suit Gundam Seed illegally.
Should its request be granted? ISPs are required to protect
subscriber identities under their service contract. Also, the
Telecommunications Competition Code prohibits them from revealing
subscriber information without a court order. Since this
informational privacy is a public good, should it be overridden by
Odex's very narrow private interests?
It is an established legal requirement that if you want the court
to help you identify someone who may have wronged you, you must
show you can clearly win the case even though you can't identify
him yet. Then and only then will the court help you identify the
wrongdoer.
In this respect, Odex fell far short. To track down the offending
Internet addresses (sans real identities) which it then used to
obtain its court orders against the ISPs, Odex said it hired an
Internet detective agency called BayTSP. According to Mr Peter Go,
Odex's managing director, BayTSP had helped several US clients win
high profile copyright cases.
Mr Go claimed that BayTSP had licensed Odex to use its tracking
solution, which he suggested was a computer software that he ran
from Jan 29 to May 6 this year to track downloaders. After that, he
supposedly sorted out the data and compiled the information.
Adjourning the first hearing to investigate this, the judge
discovered that there was no such software to be licensed. Rather,
if engaged, BayTSP would itself do the tracking, compile the
statistics, and generate the reports. Mr Go submitted various news
articles about BayTSP but neither reports nor receipts from it to
prove he had engaged its services.
'Apart from a bare allegation,' the judge surmised, there was no
proof Odex had engaged BayTSP at all. Thus its case against alleged
downloaders of Mobile Suit Gundam Seed looked shaky. Accordingly,
its request was thrown out. Odex had acted with too much
'expediency', the judge opined.
Another twist
WHILE still reeling from this setback, Odex's name was further
sullied. A fan - purportedly a woman named Akizuki Hikoto -
e-mailed several journalists various details culled from the
Accounting and Corporate Regulatory Authority database that showed
Mr Go had been a shareholder in a firm called Games Mart that sold
video games and game consoles. Both Odex and Games Mart shared the
same corporate address, had the same company secretary, Joni Wong,
while Mr Sing had been a director in Games Mart as well.
In 1999, Games Mart was raided by the police for peddling pirated
consoles. It went out of business in 2000. The following year, Mr
Go and Mr Sing took Odex, incorporated in 1987, into anime
distribution. Games Mart was struck off in 2004. Fans now wondered
if the pot was calling the kettle black.
On Friday, Mr Go wrote to the Forum page of The Straits Times to
say that neither he nor Mr Sing were implicated in the police
investigation.
At this point, Odex said it would appeal. This week, the
representatives of two anime studios and two Japanese distributors
held a press conference to say that they had indeed authorised Odex
to act on their behalf. However, the judge had noted at the time
that these were 'distributors appointed by undisclosed copyright
owners' while the two studios had authorised not Odex but the Anti
Video Piracy Association (Singapore) which, the judge noted, was
not a party to the suit.
Odex now has about a week left to appeal. Meanwhile, the case has
piqued interest in some policy issues.
Four issues
FIRST, SingNet came under fire once it was known that its lawyers
had not appeared in court to fight the Odex claim. StarHub's
lawyers did, but failed to raise the substantive issues PacNet did.
Users now wonder how far ISPs should go in defending the
informational privacy of subscribers. Perhaps market forces will
settle this.
Second, Odex's seeming ability to track down the Internet addresses
of some downloaders despite no evidence it ever employed BayTSP
suggests that there are now private, extra-judicial monitoring and
enforcement systems out there which can detect and impact consumer
behaviour. How will the authorities oversee such private mechanisms
of surveillance?
Third, if intellectual property rights (IPRs) used to act merely as
armour that protects IP from acts of theft, the Odex saga suggests
that they may have become offensive weapons on the Internet that
private owners can deploy to enforce certain standards of use and
expression or speech.
Anime fans add English subtitles to help others understand the
Japanese dialogue for example, but copyright owners can curtail
such expression. Yet expressive freedoms are important in a
democracy. So there is a need to examine carefully if expanding
IPRs impacts on democracy.
Finally, shouldn't privacy be respected more robustly? Though the
judge said 'the right to privacy is no defence' against such
applications, he added that 'the courts also do not interfere with
the privacy of persons without solid reasons'. Note that the
individual whose privacy is to be set aside - the alleged infringer
- is not represented in court at all. Instead, his rights are
relegated to a process that will cost him time and money, a process
that can only proceed after disclosure and harm have already
occurred.
The law here recognises only a right for the protection of
confidences, not privacy per se. However, that 'right of
confidence' exists only where there is an obligation to keep
information confidential that someone has consented to reveal to
you. PacNet shows that privacy is invaded precisely when the victim
does not consent to having private information about himself
divulged to a third party. In fact, he may not even be aware that
his information is being taken.
All this seems to make it look like the appropriate juncture for
Parliament to consider creating privacy rights by statute.
Officially.
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