Now, on to the present case. All I know about the hearing between Odex and Pacnet is what I've been able to garner from the media and from journalists. I've reproduced below excerpts of the full text of the oral judgment given by the presiding judge, which I understand was released by the courts to the media on Friday. It makes for interesting reading, which probably explains why there were stories in both TODAY and the Straits Times today. I've omitted the more legal/technical parts, and it does get pretty technical in some parts.
I'll try to break the judgment down in simpler bite-sized chunks:
1. Odex purported to be authorised to take action in respect of a number of anime titles.
2. However, Odex was the exclusive licensee only for one of them, Mobile Suit Gundam Seed. The court decided that Odex was not entitled to take any action in relation to the other titles.
3. For Mobile Suit Gundam Seed, the court ruled that Odex had to prove an "extremely strong prima facie case". The judge's rationale for this was that Pacnet owed its subscribers a duty of confidentiality under the Telecommunications Competition Code, and hence he would not grant the order unless Odex could satisfy that burden of proof.
4. Based on the evidence as provided to the court by Odex, Odex had failed to prove such an "extremely strong prima facie case". Therefore Odex failed in its application.
5. As for Singnet and Starhub, the court order against Singnet was obtained by consent, which meant that Singnet had consented to Odex's application for the court order and so there were no arguments before the court (in fact, courts would invariably not question a consent order).
6. Starhub did resist the application, but their lawyers (Drew & Napier) did not make the same arguments that Pacnet's lawyers (Alban Tay Mahtani & De Silva) did, so presumably the court hearing Starhub's case did not consider those issues.
As I told TODAY (and actually, I did tell ST the same thing), I felt that the judge's decision was very well-written and very well-reasoned. That's not to say I agree with him completely; he made some judgment calls that I don't quite agree with and that I think are likely to come under attack in an appeal. But the judgment clearly sets out the judge's logic, and those judgment calls are really points where I think reasonable people can differ.
I do believe that if this case was upheld on appeal, it sets a pretty high bar for such applications in future. But that's not to say that that is wrong or undesirable. Surely the ISPs' confidentiality obligations ought to mean something, and surely the courts ought to ensure that plaintiffs seeking subscriber information satisfy all applicable legal requirements before granting any orders.
It's quite clear why the judge took such pains to write out his oral judgment in such detail (and in the first place it is quite rare for judges to do so in the Subordinate Courts): he expects to be appealed against, so he wanted to set out and explain his reasoning so as to reduce the chances of his decision being overturned on appeal. Indeed, his final paragraph puts it pretty starkly, because a written judgment is required only if there is an appeal.
It seems that Odex have decided to appeal. It will be very interesting to see what else transpires.
Oral Grounds of Decision for Originating Summons 159/2007
ODEX Pte Ltd v Pacific Internet Limited
23 August 2007, 9.30 am at Chamber J before DJ Earnest Lau
1. The Plaintiff is a private limited company in the business of distributing various anime titles in Singapore. Anime refers generally to cartoon animations originating from Japan. It is a distinct art-form having its own sub-culture and fan base. The Plaintiff claims to be authorized by various anime copyright owners and/or licensees to protect the copyrights subsisting in numerous anime video works exhibited (“Video Titles”).
2. The Defendant is a public company and a local internet service provider licensed under the Telecommunications Act (Cap. 323).
O24 r6(5)
3. The Plaintiff is applying under O24 r6(5) for the pre-action discovery of documents against a non-party “for the purpose of or with a view to identifying possible parties to any proceedings”. O24 r6(5) is subject to O24 r 7. Under Rule 7, the Court may refuse the application is it thinks that the application is not “necessary for disposing fairly of the cause or matter or for saving costs”. The Plaintiff has filed 3 affidavits by Go Wei Ho (Go) in support of this application.
Relevant principles – O24 r6(5)
4. Let me stress that this is a dispute on pre-action discovery. It would be useful to revisit the law on this area beginning with Norwich Pharmacal v. Customs & Excise Commissioner [1974] AC 133.
[...]
11. I make these points because there is now an issue on the meaning of the phrase “any proceedings” used in O24 r 6(5). [...] What do “proceedings” mean in the Rules? The answer is found in O1 r2. The word ‘proceedings” in the Rules necessarily refers to civil proceedings to which the Rules apply. To underline this point, O1 r2 further specifies all the proceedings to which the Rules do not apply. Pointedly, criminal proceedings under the Criminal Procedure Code (Cap 68) are expressly excluded: see paragraph 6 of O1 r2 (2).
12. It therefore appears that O24 r6 (5) only applies to an applicant with an interest in making the wrongdoer a party to civil proceedings to which the Rules apply. Is the Plaintiff therefore a person entitled to make this application under r6(5)?
13. The answer lies in the Plaintiff’s authority to act. The Plaintiff claimed they have authorization by the relevant copyright owners and/or licensees to make this application. 13 separate letters of authority were produced in GWH-2 in Go’s 1st affidavit.
14. Out of these 13 letters, only 3 parties, namely Gonzo Digimation Holding (GDH), GDH K.K. (GDH KK) and Media International Corporation (MICO) directly appointed the Plaintiff to act for them. Common to GDH, GDH KK and MICO is the fact that they themselves are distributors appointed by undisclosed copyright owners (see pages 17, 35 and 41).
15. The other 10 letters of authorization were letters authorizing the Anti Video Piracy Association (Singapore) (AVPAS). These 10 letters were from the following parties (“the Ten”):
(a) Toshiba Entertainment Inc dated 1 October 2006.
(b) Dentsu Tec Inc 1 October 2006.
(c) Sunrise Inc dated 17 October 2006.
(d) TV Tokyo Medianet Inc 1 October 2006.
(e) King Record Co. Ltd dated 1 April 2007.
(f) Yomiuri telecasting Corp. dated 25 January 2005.
(g) Toei Animation Enterprises Limited dated 18 November 2006.
(h) Kodansha Ltd dated 1 August 2006.
(i) Geneon Entertainment Inc dated 1 March 2007.
(j) Kadokawa Pictures Inc dated 1 March 2007.
16. By a 2nd affidavit at page 21, Go produced a letter by AVPAS dated 1 November 2004 signed by himself as the Vice-President of AVPAS. This letter purported to authorize the Plaintiff “to take such steps as may be necessary to protect and enforce Copyrights”. These “Copyrights” refer to the copyright belonging to “various members of AVPAS”. AVPAS, however, is not a party to this application but Go in his 1st affidavit at GWH-1 discloses the Ten to be members of AVPAS.
17. In relation to all these 13 parties, the Plaintiff is a sub-licensee. This is a point conceded by the Plaintiff’s counsel.
18. Go’s 2nd affidavit at page 23, however, discloses a letter of authority from Sunrise Inc who claims to be a copyright owner of one film namely MOBILE SUIT GUNDAM SEED. This letter of authority is valid one year from 9 April 2007. At face value, it appears the Plaintiff is the exclusive licensee for Sunrise Inc in respect of this Video Title.
Plaintiff as sub-licensee
19. In Alliance Entertainment Singapore Pte Ltd v. Sim Kay Teck [2007] 2 SLR 869, Menon JC (as he then was) held that only the copyright owner and the statutory exclusive licensee under section 123 Copyright Act (Cap. 63) has the right to take action under the Act against copyright infringers. [...]
20. On the authority of the Alliance case, the Plaintiff as a sub-licensee has no civil right of action under the Copyright Act against the persons whom the identities are sought. Without any right of action, In British Steel v Granada Television [1981] AC 1096, Lord Wilberforce said that for the plaintiff to succeed, he must have a real interest in suing the source of the information. As a sub-licensee, the Plaintiff would have no interest in making this application.
21. Can the Plaintiff apply for pre-action discovery of wrongdoer identity in aid of criminal proceedings? Under O24 r6(5), the answer is “no”. I have already mentioned that the reference to “proceedings” in O24 r6(5) pertains only to civil proceedings to which the Rules apply.
[...]
26. In the case of a victim of crime with no locus to apply under O24 r6(5), discovery can still be ordered by the court pursuant to its inherent Norwich Pharmacal jurisdiction. These are exceptional situations, where the Norwich Pharmacal jurisdiction must be invoked in order to do justice. [...]
27. Against these guidelines, the Plaintiff also has no locus to apply for disclosure under the Norwich Pharmacal jurisdiction. I should add that the Copyright Act only gives the exclusive licensee the right to take civil action against the infringer. For criminal prosecution, the court cannot take cognizance of an offence unless the complaint is brought by the Attorney General (either directly or by the issue of a fiat) or the person aggrieved by the offence.
Plaintiff as exclusive licensee
28. I now deal with the letter of authority from Sunrise Inc who is the purported copyright owner of MOBILE SUIT GUNDAM SEED. As earlier mentioned, the Plaintiff is prima facie the exclusive licensee for this Video Title.
29. In this respect I wish to point out that in balancing the competing private and public interests in a pre-action discovery application, the court must also consider the matters raised by Lord Cross in the Norwich Pharmacal case at page 199 G: [...]
30. Here I wish to touch on the standard of proof the Plaintiff must show on the strength of his case against the wrongdoer. I have no doubt the Court has to assess the Plaintiff’s case on his prospects of success similar to applications for other pre-action reliefs such as interim injunctions or Anton Piller orders. In fact the point has already been made in the Reebok International Ltd case by Chan Sek Keong JC (as he then was) that the Anton Piller discovery is not only related but derived from the discovery jurisdiction forming the basis of the Norwich Pharmacal order. This is because the objective of the application is to obtain information from one party to sue another. To succeed in an Anton Piller application, the plaintiff must show an extremely strong prima facie case of a civil cause of action in view of the draconian characteristics of the order. Whilst I accept that the right to privacy is no defence to discovery applications, the courts also do not interfere with the privacy of persons without solid reasons. In law, the threshold to be imposed in assessing chances of success corresponds to how draconian or invasive the relief sought. On one end of the spectrum, interim injunctions applying American Cyanimide principles to preserve status quo only require proof of a serious question to be tried. Then we have the freezing of assets by Mareva injunction which requires a slightly higher standard of a good arguable case. I have already mentioned the Anton Piller order which asks for an extremely strong prima facie case.
31. In this application, the Defendant is asked to disclose the identities of subscribers whom they owe a contractual as well as regulatory duty via the Code of Practice for ISPs to keep subscriber information confidential. I cannot justify compelling the Defendant give discovery (which is to order them to do what they have undertaken not to do) unless the Plaintiff has disclosed an extremely strong prima facie case against the wrongdoers. I have intentionally adopted the Anton Piller test for this application but would concede that not all applications for pre-action discovery contain similar confidentiality issues.
32. Against this finding of law, I now turn to the Plaintiff’s affidavits to ascertain whether this legal threshold is satisfied.
(a) Go claims that in late 2006, they engaged a US company called BayTSP to provide them with an online tracking solution to track down and collect details of unauthorized uploading and downloading of the respective Video Titles via the internet using a “Bit Torrent protocol”. He explains what Bit Torrent protocol is by exhibiting extracts from the Bit Torrent website.
(b) Go claims that evidence obtained using this particular tracking solution has been accepted in the US Courts such as Paramount Pictures Corp. v John Davis [US District Court for the Eastern District of Pennsylvania, Civil Action No. 05-0316, 26 July 2006].
(c) Go also claims that he obtained a license to use this tracking solution for an agreed period. In paragraph 15, Go claimed he set the tracking solution to run from 29 January 2007 to 6 May 2007. At the end of the period, he sorted out the results and compiled a table of the information received.
33. I was given to understand that the tracking solution is a software application used by Go to detect downloaders. On that assumption, I adjourned the 1st hearing for the Plaintiff to furnish supplementary evidence on the reliability of the tracking solution.
34. Go then filed a 3rd affidavit to produce a copy of the Paramount case and various articles on BayTSP.
35. Perusing the evidence, however, it appears that the so-called “tracking solution” is not a software product but really a service provided by BayTSP: see BayTSP’s website explanation in page 55 Go’s 1st affidavit. [...]
36. Furthermore, standard reports are generated by BaySTP and not by the client: see BayTSP’s website explanation in page 57 Go’s 1st affidavit. [...]
37. In other words, the website information suggests that if BayTSP was engaged, it would not have been Go but BayTSP themselves who would run the tracking solution and compile the relevant statistical information. Apart from a bare allegation, there is no evidence that the Plaintiff engaged BayTSP to undertake the tracking of anime downloaders. This tracking solution does not appear to be a simple software tool meant for the use of unsophisticated end-users. Even if Go had operated a supposed software himself, there is nothing to convince me that he possessed the necessary credentials and expertise to operate the tracking solution and interpret its data to the conclusions maintained by him. Moreover, Go is a managing director of the Plaintiff and is ostensibly a businessman in the video distribution trade, a field somewhat removed from internet software investigations.
38. The articles and the Paramount case produced by the Plaintiffs also do not mention of any software tracking solution. The articles in Go’s 3rd affidavit at GWH-2 all talk about BayTSP as a corporation and the investigative services they provide to customers. One of the articles explains: see page 39 Go’s 3rd affidavit. [...]
39. The Paramount case tendered by the Plaintiff also, contrary to their submissions, does not show that evidence gathered from any specific tracking solution was accepted by the US court. Rather, the case reveals BayTSP as an internet detective agency helmed by Mark Ishikawa, an experienced hacker. Ishikawa testified that BayTSP has successfully tracked illegal downloaders of motion picture content. It was Ishikawa’s testimony that was accepted by the court. The facts of that case did not explain how Ishikawa or BayTSP discharged their investigative duties. There was no mention of any tracking solution. Thus, there is no basis to conclude that the software purportedly used by Go here was the same as that used by BayTSP in the Paramount case.
40. In summary, the Plaintiff has shown that BayTSP is prima facie a reputable internet investigation agency with documented successes in tracking illegal downloaders. But there is no proof that the Plaintiff engaged the services of BayTSP in this matter and BayTSP has given no evidence in favour of the Plaintiff in this case. BayTSP plays the role of the private investigator and the Plaintiff ought to have supported their application with an affidavit from BayTSP.
41. I am also uncomfortable with the expediency by which the Plaintiff has approached this case. This is an application that will impact potentially thousands of persons. The alleged breach of copyright is inferred from how the Bit Torrent protocol works. The function and effect of the Bit Torrent protocol is a subject matter for expert opinion. It is not sufficient for the Plaintiff to adduce website information before a court of law or for Go (not knowing his qualifications and expertise) to explain the mechanics of Bit Torrent protocol.
42. Notwithstanding the above, the Plaintiff produced various media reports documenting their actions against Singnet and Starhub subscribers. According to Go, many of those subscribers have since admitted their acts of infringement. The Plaintiff therefore points to this as indication that the evidence of infringement is accurate. That may well be the case but against the overall complexion of this application, this single factor alone does not assist the Plaintiff to discharge their evidential burden.
43. In the circumstances, I find that the Plaintiff in their capacity as exclusive licensee for Sunrise Inc has failed to satisfy the legal test for this application.
44. I have not addressed all the other submissions raised by the Defence counsel as they are not necessary for this oral decision. I would also like to explain why my decision differs from the Plaintiff’s application against the other 2 ISPs, namely Singnet (in Originating Summonses 95/2007 and 158/2007) and Starhub (in Originating Summons 157/2007).
(a) For the Singnet case, the orders were made by consent. In particular, counsel for the Plaintiff mentioned for Singnet in those 2 applications to record the consent order before the court.
(b) For the Starhub case, Starhub was represented by counsel. However, the issues raised here were never fully argued before the court.
45. Even though the Plaintiff has not succeeded here, let me end by saying I fully accept the Plaintiff’s submissions that the protection of intellectual property rights is of paramount importance to Singapore from a public policy standpoint. The right to privacy can never be equated to a right to steal intellectual property in secret. 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 here.
46. In summary my findings are as follows:
(a) To succeed under O24 r6(5) (read with Rule 7), the Plaintiff must disclose an interest to proceed against the wrongdoer in civil proceedings. If shown, the Court will then consider whether it is just to order discovery taking into consideration the necessity of discovery for the fair disposal of the cause or matter or for saving costs.
(b) As a sub-licensee, has no right of civil action against the wrongdoers: see the Alliance case. It follows that the Plaintiff has no interest to make an application under O24 r6(5).
(c) The Plaintiff as party with no right of civil action against the wrongdoer cannot also apply under O24 r6(5) for identity information for the sole purpose of commencing criminal proceedings. This is because the phrase “any proceedings” in O24 r6(5) necessarily refers to civil proceedings to which the Rules apply.
(d) It is however possible for a party with pre-existing civil cause of action to apply for identity information in aid of criminal proceedings under the residual Norwich Pharmacal jurisdiction. Adopting the guidelines expressed in the Ashworth case, this recourse is only open to victims of crime. There is no evidence that the Plaintiff is a victim of any crime committed by any of the Defendant’s subscribers. In any event the Norwich Pharmacal jurisdiction, being rooted in the inherent jurisdiction of the Court, is only exercise sparingly in exceptional circumstances on the touchstone of need. The Plaintiff has shown no evidence of necessity to justify the activation of this jurisdiction. If anything, the Plaintiff has argued that it is only convenient for copyright owners to act through the Plaintiff in enforcement action. Unfortunately, the Norwich Pharmacal jurisdiction cannot be invoked on grounds of convenience.
(e) As regards the Plaintiff’s capacity as exclusive licensee, there is no issue with their locus to make this application under O24 r6(5). To succeed, the Plaintiff must show, inter alia, an extremely strong prima facie case against the wrongdoers. This is because the Court must balance the Plaintiff’s private rights with the public interest of compelling the Defendant to breach their duty of confidence owed to their customers under contract and to the regulators under the Code of Practice. Hence, the Court must be satisfied that there are strong grounds to compel the Defendant to divulge subscriber information, which is the very act they have promised to their customers and the regulators they will not do.
(f) On the facts, the Plaintiff’s affidavits do not disclose a strong enough case to justify an order for the Defendant to breach their undertaking to their customers and the regulators.
(g) The Plaintiff claimed that by means of a BayTSP tracking solution, they uncovered that certain IP addresses have used a Bit Torrent protocol to download the Video Titles. They claim that the Bit Torrent protocol works by uploading and downloading internet data. Hence, it can be inferred that there would be copyright infringement if the transferred data is the Video Titles. If the Plaintiff had used the BayTSP software themselves, then the Plaintiff should satisfy me that Go as the user of the software had necessary expertise and qualification to use the software and interpret its results. If the Plaintiff had hired BayTSP as an internet investigator, the Plaintiff should then file an affidavit by BayTSP to give evidence of their investigation. Unfortunately, no such evidence was available. The Plaintiff should also have asked an expert to give evidence to establish the mechanics of the Bit Torrent protocol. Website information on Bit Torrent protocol is insufficient. Unless there is clear evidence before the court as to how Bit Torrent protocol really works, it would be premature to draw any inferences of infringement.
47. These are my main grounds of decision. They are given orally without prejudice to such other additional grounds I may include in the event a written judgment is required. I therefore dismiss the application and will hear parties on the issue of costs.
39 comments:
Wow, many thanks for posting the written judgement and explaining it to us laymen! :-)
Dear Sir,
Thank you for your explanation. It is clear and concise.
The key point is the consumer's privacy.
While the private entity obtained a court order to get the end user information based the provided evidence, do governmental agencies need to obtain court orders to get private citizens' personal information from the ISPs.
Will this court case sets the precedence for this kind of private information access by the government?
Thank you for your time.
Dear Sir,
I hold much thanks for the explaination about the grounds of decision regarding this case.
I have two questions withstanding currently.
1. Will this written judgement by DJ Earnest Lau be released to public viewing?
2. Your thoughts on how this case's result be affecting StarHub's stance on the case, and if StarHub may take action to revoke the court order as laid out( in Originating Summons 157/2007)?
Thank you Sir, for your time responding to this comment.
Thank you for shedding light on the issue.
1. If Odex, as a sub-licensee, has no right of civil action against the wrongdoers, then does it have the right to demand settlement costs as it did from the Singnet users?
2. If Odex only engaged the use of a software solution from BayTSP, it is curious how come Odex claims on its website that "The amount paid to Odex so far has not covered even 20% of Odex’s enforcement costs incurred to date."
Some interesting points to note.
I wonder if Odex can be counter-sued by the people they extracted payment from. If Odex indeed has no right of action as a sub-licensee, then what they did is seems like some form of threat, which I presume is illegal.
Just a thought.
Hi. I noted something.
Odex was only allowed to use "BayTSP"'s application from 29 January 2007 to 6 May 2007..But records shows that they were even tracking after 6 may 2007.
If that's the case, do they have to right to track users after 6 may 2007? Is there any law that states that "Tapping on ISPs before you are allowed is hacking, which is wrong."
And let's not forget that even when Odex won against starhub, it's on 25 aug 2007. By then, Odex shouldn't have been tracking using the tracking solution. If that's the case, what should odex present to the alleged downloaders from starhub to state that they have been downloading?
Odex clearly have been tapping on ISPs to steal information. Is that allowed? Pls email me your repliess. Thanks.
What I find more disturbing is the following excerpt from the notice they had published on the Straits Times:
"Based on searches conducted over a 6-month period from November 2006 to April 2007 on 50 anime titles only using BayTSP’s tracking solution, Odex found that there were more than 400,000 instances of downloading in Singapore. Singapore was found to have the highest level of anime downloading in the world by population."
Yet, they have testified in Court that they were licensed to employ the tracking solution from "29 January 2007 to 6 May 2007". Where does the truth lie?
Good day,
I do have 3 questions though.
1. Starhub users’ information is being released to ODEX on grounds of Copyrights infringement. And definitely they will be asking for a settlement. Do the users who receive the letter have to settle the amount of settlement proposed? Or any amount for that matter?
2. For those who had paid the settlement amount, what can they do? Besides paying the settlement, they were also asked to sign something to 'declare that they will not download again'. Should those users still uphold the terms?
3. ODEX and AVPAS have a long list of animes which supposed to be licensed. Does that mean that no forms of sharing of those video titles are allowed? What will happen if somebody recorded the anime from Arts Central and share it among friends? Does this constitute to a breach of Copyrights?
Thanks for posting the judgment and thanks in advance if you do reply to my 3 questions.
Dear Sir
With respect, and without having read the whole judgment with the technical analysis of the law, I share your sentiments that His Honour DJ Mr Earnest Lau's judgment is very well-reasoned.
I can't quite decide if I agree with you that the judge has set too high a bar for such applications. However, my humble view is that even if a lower bar has been set, Odex is still unlikey to succeed in its application. In my humble view, it appears from the judgment that the evidence before the court would not have satisfied even a lower threshold.
Strict legal rights aside, one also questions the approach Odex had taken in its dealings with the Singnet subscribers (which it identified due to Singnet releasing its subscriber information pursuant to the consent order).
It would appear from the reports and from the online forums that many of these people who received letters of demand from Odex that they (and a lot of other people as it would appear from the forums) are labouring under the impression that the payment of settlement of $3-5K amounts to a "fine" and that payment of the same would mean that future prosecution will not be forthcoming.
However, if Odex is not the exclusive licensee to most of the anime titles, the threat of prosecution still hangs over the heads of these people.
Further, it is my understanding that any lawyer worth his/her salt would advise their client who is the party effecting payment of monies to settle a potential claim against himself to settle on a without prejudice basis (i.e. without any admission of liability). I would think that it is rare in practice for persons paying the settlement sum to sign "confessions" as to their liability. The fact that persons who settled with Odex by making payments of $3-5K purportedly had to sign a letter of undertaking to undertake that they will no longer carry out any downloading of animes in future would suggest that these persons are mostly unrepresented by lawyers and the circumstances under which they reached a settlement with Odex smacked of duress.
I have not sighted the letters of demand Odex actually sent out to the Singnet subcribers whose privacy and confidential information Singnet did not bother engaging lawyers to protect. But if Odex had hinted of criminal prosecution in its letters of demand to them, surely that must be unethical since Odex is not a government agency empowered to "prosecute" people per se.
As much as legitimate businesses must be protected from illegal acts of the public, the public must also be protected from unethical/unsavoury business practices of companies. Given that the common man would not have the financial muscle most companies have, I would think the need to protect the public from unethical/unsavoury business practices of companies should be a greater one.
NMP, please huh, consider raising the point about blanket licensing in parliament, can?
http://asia.cnet.com/blogs/rehashplus/post.htm?id=63000281
The Paramount v. John Davis reference prompted me to google/wiki BayTSP.
Apparently it's not all reliable and accurate: http://bmaurer.blogspot.com/2007/02/big-media-dmca-notices-guilty-until.html
sorry for the long link. may not be entirely applicable, but still interesting enough.
regards
To gerald tan: No problem.
To coder: It really depends on which government agency it is and what statutory powers of investigation it is purporting to exercise. For instance, the police has certain powers of investigation under the Criminal Procedure Code. In any case, many if not most governmental investigations in Singapore will be criminal in nature, in which case this case (which is a civil action) would not have precedential value.
To tian yu: Re your Q1: I don't know. The Subordinate Courts had released the written judgment to the media, which is where I obtained my copy from. Having said that, if Odex does appeal, the judge will have to write a written judgment, which would then be publicly accessible here under "Subordinate Courts Judgments" for three months.
Re your Q2: Again, I can't make any meaningful comment here. It all depends on what was argued and decided there. Having said that, I believe that the deadline for filing an appeal in that case has already expired (if I remember correctly, a notice of appeal must be filed within 14 days of the decision).
To slf: Re your Q1: Yes, possibly. It appears from the judgment that Odex were authorised to commence proceedings on behalf of the copyright owners/AVPAS. This authorisation may extend to the right to enter into binding settlements on behalf of the copyright owners/AVPAS. The exact terms of the settlement agreements would be able to shed some light on it.
Re your Q2: That is possible. There could have been other investigation costs. There would have been Odex's own legal costs. And Odex would have been ordered to pay costs to Singnet and Starhub. Obviously, this also depends on exactly how much Odex has received to date.
To aaron: I can envisage two possible causes of action, but the applicability of each would depend heavily on a variety of facts that remain unclear/unknown, such as the language used in Odex's letters and the terms of the settlements. Firstly, the Copyright Act permits an aggrieved person to sue for something called groundless threats of infringement proceedings. Having said that, it is possible to avoid this threat by using carefully, appropriately worded language. Secondly, depending on the terms of the settlement agreements, people who have settled with Odex may or may not be able to sue for a breach of a warranty (whether express or implied) by Odex that it is authorised to enter into the settlement agreement. But like I said, this is wholly speculative, and depends on a number of things.
To tan: I don't know if you can really allege that there has been "tapping on ISPs" -- I don't really follow what you are trying to say. As for the date of the hearing, that would presumably have pertained to acts that took place during the appropriate period when BayTSP was engaged, not in August.
To t.m.: I don't know, but you have sharp eyes!
To raymond: Re your Q1: That is really up to the persons in question and their individual circumstances. I cannot advise them.
Re your Q2: Again, I cannot comment here. But they should not engage in copyright-infringing activities as a matter of general practice, quite regardless of the undertaking.
Re your Q3: Recording a TV programme off free-to-air TV is permissible under the Copyright Act, provided it is for personal use. Distribution would taken it outside the scope of that defence. And no, you cannot record a show and then distribute it to other persons, in exercise of such other persons' own right to the defence -- the defence is not "delegable" or "transferable" in that sense.
To rin: I believe that the judge has set a high bar. I would not go further, since this matter is likely to be the subject of an appeal.
As for what people believe and for the threat of future prosecution in respect of activity that was the subject of a settlement agreement, I really doubt if some third party would crawl out of the woodwork to sue. Odex may not be an exclusive licensee, but presumably it has the requisite authority and right to enter into settlement agreements, and to promise to infringers that they would not be sued by others. Really, if I were advising someone who had received a letter from Odex, and Odex refused to indemnify or protect that person against subsequent third-party claims in respect of the activities in question, I would advise that person not to sign the settlement. If a third-party does appear to sue, then I think recourse to Odex should certainly be possible and I can think of a number of possible causes of action off the top of my head (such as breach of contract and misrepresentation).
As for the point on settlement "without prejudice", well, that is really a question of negotiation. You can ask to settle without an admission of liability, but if the other party refuses, then you can choose either to settle on their terms or to fight it out. Signing of an undertaking not to infringe in future is actually very standard for infringement cases.
Re Odex's ability to prosecute people -- there seems to be a perception that only the government can prosecute people for criminal offences. That's not really true. A person can take out a private summons, which is really a criminal prosecution by a private entity. For IP cases in particular, criminal enforcement is frequently done by IPR owners under a fiat (i.e. an authorisation) from the Public Prosecutor.
To michael tan: That is not a new suggestion. You are proposing some form of collective licensing. Collective licensing (think Compass) is almost always a privately-driven enterprise. I don't think it appropriate for government to step in. And when government steps in, it typically takes some form of compulsory licensing or levy. There are pros and cons to such systems. Suffice to say, my personal belief is that such systems are not likely to be workable unless they are private sector-driven initiatives.
To alex: That is definitely interesting. I hope PacNet's lawyers have seen that page!
Thanks for taking the effort to reply to our comments.
I'm sure all of us, anime fans or otherwise, would await the outcome of the appeal eagerly.
What if someone really use another person's wireless router to connect to internet and download. The people in Singapore are not really well versed in this but practically every ISP is promoting wireless. So IP address to ISP cannot be totally reliable.
I do not care ODEX's or AVPAS survival because that is not within anyone's concern when we talking about downloading. If ODEX fails, it's their business model.
What I am uncomfortable is that ODEX is taking the law in their own hands. What ODEX submit and show to the press cannot be justified fully yet. And as a MP, you are not recognizing this fact but supporting them?
My comments only
Dear Sir,
Thank you for taking the time to reply.
I wonder if you will share your opinion on the extent in which companies ought to go to enforce their IP rights.
It appears that Odex's aim to stop illegal downloading has definitely succeeded especially with the media attention. (Though, illegal behaviour can never be totally erradicated.)
The ongoing lawsuit and flying in experts from the US will surely drive up enforcement costs which would in turn have to be obtained from settlements costs. Doesn't this sound like a vicious cycle?
Your views and legal perspective are really needed for a community in confusion.
Thank you!
To victor: Re the mooching point, that is definitely true. But it does not affect the present application which is to seek the identity of the subscribers using the IP addresses identified by Odex. The next step is for Odex to prove that the subscriber in question did in fact infringe. If the subscriber did not, it is open to him/her to dispute Odex's allegations. Indeed they should.
In one of the mooching cases prosecuted by the police where the moocher posted a bomb hoax, they traced the IP address back to the subscriber, but upon investigation realised that she did not post the bomb hoax. So it is not the end of the world to have the IP address traced back to you, if you are innocent.
As for your statement "What I am uncomfortable is that ODEX is taking the law in their own hands. What ODEX submit and show to the press cannot be justified fully yet. And as a MP, you are not recognizing this fact but supporting them?", I do not understand what you are trying to say. Perhaps you can elaborate.
To date, I have merely commented on the case. I have not at any time stated any support for Odex or what they have done. I have refrained from stating my personal views about the morality or appropriateness (from a non-legal, policy perspective) of Odex's enforcement actions, because I had previously acted for them and I feel that it would be inappropriate and unprofessional for me to do so. I have only sought to try to shed some light on what has been happening, because the media have been asking me for quotes.
If you think that I have made any statements of support for Odex, please do identify them. I imagine you would be hard-pressed to do so. And I really do not see what my being a NMP has to do with it -- I will state my views, whether or not I hold this post.
Finally, I should add that simply because I have not condemned Odex's actions, does not mean that I support or endorse them. Obviously the converse is true -- simply because I have not supported their actions, does not mean that I oppose or object to them.
To slf: I am going to talk about this in another post.
Thank you sir for responding to the questions.
Finally, just to make a note that since this incident has started, the awareness of "Odex" and Singapore has been more widespread.
Animation has a larger community then everyone thinks.
Because of this, Singapore is now a internationally recognized name, and i hope that this can end in a good way, for the people in Singapore, and so that the international community will not have us in a bad light.
Pacific Internet is an Asia ISP service provider unlike Starhub and Singtel which is just a local telcos. Pacific Internet should reserve the rights not to reveal customer information as that might involved customer privacy and confidential as the list might get involve oversea. I mention that Pacific Internet is not just a local operation but a solution to SouthEast Asia. I restricted their decision.
If you talk about downloading, i think it right just to preview for a while as some might download for short one or just miss that particular episode.
Dear SIR,
Just to clarify, let say if the downloader download none of the anime that odex have license over. Can the person not response to their letter?
Or am i right to say that the only civi rights that Odex have is the exclusive licence title "Moblie Suit Gundam Seed" and not even their sub llicences?
If any speculation, what do you think the outcome would be even if the bayISP people come to singapore to be a witness?
Thanks!
Dear Sir,
As what darren cheong said,if the person who got the letter from Odex did indeed downloaded some anime which is in the list that Odex have sub licenes but not the one that Odex is having exclusive licence title "Moblie Suit Gundam Seed" do Odex still have the right to charge the 'Settlement' fee or is the letter from Odex still valid.
Thanks!
Dear Sir,
Referring to this article here: http://www.straitstimes.com/Latest+News/Singapore/STIStory_153203.html, it appears that four Japanese studios support Odex's legal action. Furthermore, it is also stated that the owners of these studios may make a physical appearance in Singapore, if the courts require them to do so.
With this in mind, I would like to seek your opinion on how this issue would affect the present Odex case. Specifically, if the judge had decided that only the copyright owners and other such parties can commence legal proceedings, what would happen if the owners of the studios possessing the copyrights were to appear physically in Singapore to testify that Odex is authorised to act on their behalf?
Thank you, Sir.
Dear Mr Siew,
http://www.straitstimes.com/Latest%2BNews/Singapore/STIStory_153203.html
I refer to the above article.
There are certain issues I wish to ask for your views.
In the above article, it was mentioned that a spokeperson from the Japanese companies have stated that they had infact issued authorisation letters for Odex to carry out the actions.
I wish to clarify as to whether this is sufficient to circumvent Coram Lau's misgivings that Odex is infact not the correct persons to bring such actions notwithstanding the authorisation letters.
Coram Lau had went to lengths to clarify that only the actual Copyright owners or their exclusive licensee has the rights to bring such civil actions.
It has been shown that Odex is the exclusive licensee of one anime title, Mobile Gundam Suit.
The reasoning of Coram Lau is wholly in line with the law on licensing.
I'm concerned that in the event that if such authorisation letters are taken to suffice as replacements for actual licenses, would this not make a mockery of the licensing system?
Given the total lack of transparency by Odex in relation to their breakdown of costs, lack of information of their licensing activities, lack of so-called products in the market(I am not considering the claims of the substandard products.)
Further to this, would this not set a precedent that commercial companies can simply bring such civil actions armed simply with authorisation letters?
Would this not be sending out a wrong message to other companies?
To jeff kewin: That is wholly inaccurate, and will end up spreading misconceptions. PacNet operates in Singapore and is subject to Singapore law. The fact that it has operations outside Singapore is immaterial.
To darren cheong and recycle: I cannot advise on any specific situations. Having said that, if Odex is not authorised to represent title XYZ (whether as exclusive licensee or sub-licensee), it then obviously has no rights to claim for compensation on behalf of the rights owners.
Having said that, if Odex is only a sub-licensee, it is not permitted to commence an infringement lawsuit on behalf of the rights owner. But if it has the appropriate authority, it can nevertheless enter into a binding settlement on behalf of a rights owner.
To bryan: I would hesitate to say anything because it is pure speculation right now, plus the Odex matter seems to be under appeal.
Having said that, the Copyright Act is clear -- only a copyright owner or an exclusive licensee may sue to enforce a copyright. But we are not talking about an infringement lawsuit here, but an application for pre-action discovery. It is currently not clear if a sub-licensee like Odex can make such an application. District Judge Earnest Lau ruled that it cannot. That may be one of the points being appealed against by Odex. I really cannot say anything more.
To kaboomimew: As I have said, I will not speculate. It may also be sub judice to make comments as detailed as what you seem to be asking for, given that the matter is apparently under appeal.
Dear Sir,
Thanks for the prompt reply.
Do the downloader have the right to ask them to show the "appropriate authority" in form of letter or whatever it may be and request to to be taken to any legal personal to view?
Do Odex have the right to increase the so call "settlement fee" if the amount is aleady been told to the downloader and if the downloader bother Odex too much.(E.g. Request Odex to show me this document and that etc...)
Thanks!
I thought this judgement was really what we need.
Judge Lau was right to set the bar high in view of what ODEX needs to do to get the information.
ODEX have issued letters of demands to parties without warning letters. In the process, claiming thousands of dollars from people without a stable source of income. This should not be how we set the standard for copyright holders to pursue actions against those who did not respect copyrights. I like to see people given a second chance.
If we were to set this standard low, we are saying that any party with partial rights can contract with a dubious party like BAYTSP and demand from ISP user informations and uses that information to hope for settlements out of court. This is a bigger problem to our society than infringing copyrights.
As you can see, people have paid up and in my mind, more will do so if this pacnet ruling did not take place. That will be a unpleasant event.
Bear in mind that the people whom these companies are hurting are people who may not be able to afford those things comfortably in the first place. Those settlements will hurt them more than it should.
I really hope someone counter-sue ODEX for what they did with their demand-first approach, which is clearly dubious given their rights.
On a sidenote, pretty good review of what has happen in this saga.
Dear Sir, as far as I know Odex claim that the 3-5k settlement is due to cost from tracking and finally getting our IP address. What they said was the cost was from charges from singnet, the tracking company and lawsuit.
I'm abit new to the laws and such, but once a court warrant issure against singnet do they still have to right to charge Odex? So far from the tracking system show on newspaper report it reads a small fee involve only. So does lawsuit charges up to 3k per warrent issure?
My question is does singnet still have the right to charge ppl once they were issure a court warrent to release the infomation and does court warrent really cost so much, cos I heard that odex ppl claim that every IP address they get means 1 more court warrent thus more money involved that's why the expensive settlement fee.
Can we ask for a receipt where the cost come from since they claim they are not getting any profit from this settlement yet 3k-5k seems too much cost involve.
To recycle: The settlement process is, in principle, a matter of private contractual negotiation between the alleged infringer and Odex. So as a matter of law, it's up to the alleged infringer what he/she wants to request of Odex, and what Odex is willing to grant. Obviously some courses of action would be fairer than others, but that would not be a matter of law. Similarly, until and unless a legally binding settlement agreement is signed, Odex has the legal right to revise the proposed settlement fee, fairness of doing so being a separate issue.
To think: Most of your comments are directed at broader issues in IPR and not Odex per se. I've posted separately about them.
To zerorage: Please see my reply to recycle. As for Odex's costs, I can't comment because I don't have enough information, but they have -- in yesterday's and today's papers -- undertaken not to make any profits from this enforcement exercise.
As for the "charges" by Singnet that you allude to, I don't think Singnet imposes a "charge" per se. But under the court rules, the defendant of such an application by an IPR owner has a right to be awarded legal costs. That may be what Odex was referring to. As a reference, IIRC from press reports, the judge awarded $7000 in costs to PacNet.
Mr.Siew,
Hi,I was searching for news on Odex out of intrest on the net when saw your blog's article and read it out of intrest as well and thanks a lot for the trouble of writing it down, it did help me in understanding the current situation reguarding odex, but I've got a question would like to ask you...
If it is true that as a Sub-Licensee Odex cannot take any legal actions against the downloaders, what can some of my friends do, as they have already paid the 3K+ "Fines" to odex when they receive those letters? but as heard from them, the laters were taken back by odex upon paying the "Fines" for the so call legal damages.
so is there any advice you could give?, and that if the people whom got the letters form odex (not the producers/exclusive licensees) does it actually means that odex cannot do anything to them in court and that they could simply ignore the letters?
I thank you in advance for the reply...
To keitaro: I am not able to comment on your specific queries because I am not privy to the terms of the settlement. In any case, it seems like you are asking very specific questions relating to very specific facts, and I am not able to provide legal advice since I am no longer in private practice.
A couple of points caught my attention whilst reading the learned judge's statement:
Go claimed in his affidavit he used a "tracking solution" to compile the list of downloaders. But the judge found that the so-called
solution is not a software product but "really a service provided by BayTSP". The judge further observed that the reports would have been
generated by BayTSP and not by the client (Go).
Secondly, and more important, Go's investigation activity resuting in the printouts were conducted in breach of Prvate Investigations and Security Agencies Act (Cap. 249). This is because Go is not a person
authorised under the Private Investigations and Security Agencies Act to conduct investigation activity.
Who will address these trangressions?
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Thanks for all the information so far. It has been very helpful.
After all the hoo-haa between PacificNet and ODEX, I thought that ODEX would just lie low until the appeal case is finalised. However, I am taken aback when I received an email from ODEX saying that they want to resolve the "unresolved cases". And in the email, it seems like they are still going to proceed with the "fine" of between 3k-5k.
I would like to know whether are they able to do this while still awaiting their appeal case?
Thank you.
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