Similar article in TODAY newspaper
Anime case: Odex had 'no right of civil
action'
Company was only a sub-licensee for titles, says judge's
ruling
Weekend August 25, 2007
Loh Chee Kong
[email protected]
ANIME distributor Odex had "no right of civil action" against
illegal downloaders because it was just a sub-licensee not the
copyright owner or exclusive licensee for most of the anime
titles sold here.
That was the rationale behind the court's surprise dismissal of
Odex's bid to get Pacific Internet (PacNet) to disclose its
customers' identities. The judge's 13-page grounds of decision was
released to the media on Friday.
Noting that the firm was also in no position to initiate criminal
prosecution, District Judge Earnest Lau who on Thursday ordered
Odex to pay legal costs of more than $7,000 expressed unease over
the hasty manner in which Odex tried to go after some 1,000 PacNet
subscribers.
In particular, he was unconvinced of the investigation method it
used to uncover the IP addresses and pinpoint the alleged
wrongdoers.
Industry observers had expected the court to rule in Odex's favour
especially after it had successfully forced two other Internet
service providers StarHub and SingNet to hand over the data of
those suspected of illegal downloading.
Noting that SingNet did not engage lawyers to resist Odex's
application, Judge Lau raised several issues that he felt "were
never fully argued before the court" in the hearing involving
StarHub, which was handled by a different judge.
Out of the 13 letters that Odex produced to support its claims that
it was authorised to go after the illegal downloaders, only three
parties all distributors themselves had "directly appointed"
Odex to act for them.
The other 10 letters had authorised the Anti-Video Piracy
Association (Singapore) to do so, Judge Lau pointed out.
In its letters of demand, Odex is asking for $3,000 to $5,000
compensation and also hinted of criminal prosecution should the
subscriber refuse to pay up.
But the judge said under the Copyright Act, "only the copyright
owner and the statutory exclusive licensee
have the right to take
action against copyright infringers".
Odex appeared to be the exclusive licensee for just one title,
Mobile Suit Gundam Seed, the judge added.
Even then, the Act only gives the exclusive licensee the right to
take civil action against the infringer.
For criminal prosecution, the complaints must be brought about by
the Attorney-General's Chambers or "the person aggrieved by the
offence".
Judge Lau said he "could not justify" compelling PacNet to release
the data unless Odex had an "extremely strong prima facie case"
against the wrongdoers.
In this regard, the evidence provided by Odex was found wanting,
said the judge.
Last year, Odex engaged BayTSP an Internet investigation firm in
the United States to provide an online tracking solution to track
down and collect details of unauthorised uploading and downloading
of anime via BitTorrent, a peer-to-peer online file sharing
platform.
But the judge said Odex director Peter Go who filed the affidavit
had "no proof" that his firm had engaged the services of BayTSP
in this matter, and neither did Bay-TSP give evidence in favour of
Odex.
Mr Go merely provided articles and FAQ information on Bay-TSP's
website on the services it provides.
Adding that he was "uncomfortable" with the "expediency by which
(Odex) approached this case", the judge said: "This is an
application that will impact potentially thousands of persons. The
alleged breach of copyright is inferred from how the BitTorrent
protocol works. It is not sufficient for (Odex) to adduce website
information before a court of law or for (Mr Peter Go) to explain
the mechanics."
Even though Odex lost the case, Judge Lau said: "If a clear case of
infringement is proven, copyright owners and their exclusive
licensees can expect pre-action assistance from the Court subject
to the principles laid out (in the judgement)."
Nominated Member of Parliament and lawyer Siew Kum Hong said Judge
Lau's judgement "seems to set a high bar" for such
applications.
"Very often, including in the media, there is insufficient
recognition of people's rights, or even the rights of the
infringers. The judge put in a lot of effort and took pains to
consider that."
When contacted, Mr Go said Odex would be appealing against the
judgement.
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