Saturday, August 18, 2007

Odex Showdown: A Fighting Chance?

Unhappy with the current situation and unwilling to sit around idly while waiting to be Odexed, angry anime fans are seeking to pursue legal means as a means of fighting back against Odex. Some have even taken concrete action, forming a community and starting a campaign to finance a legal recourse against Odex, which as of today has amassed a total of $3200.

All this is very admirable and shows anime fans are willing to put their money where their convictions lie. However this still begs the question: Do fans have a fighting chance if they bring the dispute to court? The Straits Times has interviewed three lawyers and they are of the view that it is unlikely the anime fans would win if they have been uploading or downloading anime. That is the lingo behind 'little basis for legal action', which basically translates into: No reasonable chance of winning the case.

I'm personally also of the view that anime downloaders who bring the case to trial are unlikely to win, that it is not a viable option and stated a number of general reasons why. However I note that many remain unconvinced and adopt a "if you're never going to try, how do you know?" stance, which is a valid point. The problem is one has to recognise when there is a reasonable chance of succeeding and pushing to go to trial and when your case is legally shaky with few merits and an equally low chance of success. There is a reason why 95% of cases in Singapore never go to trial. The parties settle because it is faster, cheaper and better to do so.

Before I continue, let me state for the record if this is not already clear that I do not approve of Odex's actions AT ALL. They are legally entitled to do what they did( though the sum they are asking for is ridiculous) but what they are doing may hardly be called ethical. That said and done, instead of just parroting the lawyers' views and reiterating my earlier stand and being NATO (No Action All Talk), I'll address the legal elements like the Fair Dealing Defence and Section 136 of the Copyright Act (Offences) in greater detail.

Offences fall under Section 136 of the Copyright Act (Chapter 63) and the relevant provisions will be S 136(2)(b) which states:
(2) A person who at a time when copyright subsists in a work has in his possession or imports into Singapore any article which he knows, or ought reasonably to know, to be an infringing copy of the work for the purpose of —
(b) distributing the article for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work;

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or to imprisonment for a term not exceeding 5 years or to both

or possibly S 136(3)(b):
(3) Any person who, at a time when copyright subsists in a work, distributes
(b) for other purposes, but to such an extent as to affect prejudicially the owner of the copyright,

articles which he knows, or ought reasonably to know, to be infringing copies of the work, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 3 years or to both.

The important elements to note here are the distribution of the article(which includes videos, music files, etc) and that distribution is for some purpose other than for trade but which would prejudicially affect the owner of the copyright. This might also help explain why Odex is going after the BitTorrenters.

By downloading a file on Bit Torrent, you are at the same time uploading the various portions of the file the program has already downloaded to other downloaders on the torrent and this is probably sufficient to satisfy the element of distribution. As for the prejudicing the owner of the copyright law, this will likely be construed widely in favour of the copyright owner. There appears to be no local case law defining what would amount to prejudice per se but the general approach has been one of deterrence.

Chapter 27 of the Intellectual Property Offences Sentencing Practice (2nd Edition, 2003, Subordinate Courts) states that copyright infringement under S 136 is a serious offence and one of dishonesty for it steals from the true owner of the copyright. In all cases, deterrence is the central consideration. Punishment is meted out according to the number of infringing articles, the role of the offender and the sophistication of the infringing operation. The prospects do not appear promising.

Which brings us to the Defence of Fair Dealing which after the 2004 amendment of the Copyright Act was considerably widened and strengthened. Fair Dealing in relation to works is under Section 35 of our Copyright Act and was derived from S 107 of the US Copyright Act ( 17 USC 107) even though the rest of our copyright provisions were adapted from the Australian Copyright Act 1968. Fair Dealing is a complete defence and while similar to the US 'Fair Use' Defence, is not identical. The US Fair Use defence is broader and more robust. Our current Fair Dealing defence is a big improvement over the pre 2005 version but it is not Fair Use. There's no Fair Use defence in Singapore.

Andy Ho raised a number of pertinent points in his article that revolved around the fair dealing defence in Section 35 that centered around the five factors listed in S 35(2). (Fair Dealing for the purpose of criticism or review(S 36) and Fair Dealing for the purpose of reporting current events (S 37) will not be discussed because it is not relevant here.) The effect of the dealing(of infringing articles) in ss 32(2)(d) is as Andy pointed out, that upon the potential market. I'm not too convinced by the actual harm part. If the company can actually show actual harm has been caused to the market, they would already have shown that such dealings have affected them prejudicially as per Section 136.

It must be pointed out and has also been noted by legal academics and the Court alike that the list of factors in Section 32 are inclusive and hence not exhaustive.(See Daniel Seng, Reverse Engineering the New Reverse Engineering Provisions in the Copyright (Amendment) Act 2004, [2005] SJLS 234 at 240 & Aztech Systems Pte Ltd v Creative Technology [1996] 1 SLR 683 at 702.) What this means is that the factors in Section 32 are not ALL the factors the court need to and will look at when considering whether the defence of Fair Dealing is made out.

In doing so, the court attempts to balance the interests of the copyright owner and that of the public (common law defence of public interest). But where it is clear that there has been infringement and the copyright owner has suffered losses as a result of that infringement, the courts are heavily inclined to punish and penalise the offender as deterrence is and continues to be the main consideration.

So that's the main gist of the law part. It's certainly about the most detailed you'll get for unpaid work. Direct http links unfortunately cannot be provided as the mini research was done on Lawnet which is not a free public service. The soft copy is with me though and may be provided if you request... nicely.

That said and done, if inspite of advice and evidence to the contrary one feels that pursuing legal options culminating in a courtroom showdown with Odex is viable, please do go ahead. After all, you really won't know till you've tried it would you? And if the campaign drive continues to do well, as it appears to be, money may just be less of a problem. You decide.

Update: A witty video parody of the Odex saga by NCHproductions. The angst, the anger, the Drama.

21 comments:

Anonymous said...

Hi , I have read the article on this odex case and i'm 100% behind u. I think Odex is trying to make some easy money here by suing those subscribers.

True enough those who have have been uploading or downloading anime should be punish by law . But i don't think the subscribers should be assume for the ones who downloading the anime and being sued.
Take for example let's say Mcdonald subscribe an internet service and provide the service for it's customers to use and some customers uses it to download illegal things. Does that mean Mcdonald are downloading the illegal file and break the law?

It's those who download the illegal stuff will face the music but the one who subscribes the internet service and provide the internet service to third party uses out of good will SHALL NOT be punish.

If all the subscribers are deem guilty then same goes to singnet, pacnet and starhub who sell the internet service to the public. So to all those people out there who receive the letter from odex's lawyer ,please be mindful that it could be someone else who uses your pc in your home and abuse it.E.g guest, rental tenant , friends etc..... It doesn't mean that you break the law . So let's be united ,stay calm and fight it out all the way with odex!!!!!!!!

Cheers
Legalbandit.

Anonymous said...

PS : Wonder if we can counter sue odex for slandering those subscribers as the guilty ones?

Aelgtoer said...

Hi,

@Legalbandit: I agree. So far, I've always proceeded on the basis that those receiving the letters (ie: the subscribers) have been illegally downloading anime, or a family member with full access to the network has been doing so.

If it's a case where the subscriber is really innocent, then they should by all means seek legal recourse. While an unsecured network might not be a full/complete defence in court, the subscriber would simply be guilty of negligence for failing to secure the network and not copyright infringement.

For the case of public networks like you raised, that's certainly a valid point. Most networks however are proxied which means you can't bit torrent off them. Failing which, they require you yo register with your personal information like wireless@sg.

Downloading via such networks would make it very easy to trace it back to you. In the event that no such measures are in place, I think they should still seek legal recourse where they will be at most be guilty of negligence and not copyright infringement.

@ Anonymous: You can sue for libel/defamation but it is probably unlikely to succeed. There is even a chance that your suit might be struck out at the initial stage Order 18 Rule 19 Rules of the Supreme Court for being 'frivolous' which means total lack of merits.

Why? They can either show it is justified or rely on the defence of fair comment. It is likely they will be able to satisfy the elements of the defence.

Cheers.

Anonymous said...

while concurrently attempting to sue odex, why dont we try to band with anime groups abroad through their forum, esp those countries where odex distributes its anime.

if we could somehow get them to be aware of our situation, stop buying and watching anime( they can still watch online) or protest against odex inferior subs, tt might actually make odex suffer financially.

which might think twice about ying xiao si da ( because of small issue, suffer big-big)

Aelgtoer said...

Yep, I think this whole Odex saga has already attained worldwide infamity. We have many non-singaporean readers surfing about Odex and it has also been reported on various international sites like torrentfreak which discussed the recent situation regarding Odex and the crackdown in a recent post

As for the banding together part, I think a lot of anime fans are alread doing that, the boycott against Odex certainly seems to be widespread.

Anonymous said...

One issue which has not yet been addressed is the difference between civil and criminal liability. All the materials you have cited so far refer to criminal offences and it should be left to the state to prosecute alleged offenders.

As such, all that Odex can do by itself is simply bring a civil claim for compensation, and if I'm not wrong they will need to prove that their loss of revenue was caused by the illegal downloading, etc. However as it stands, it seems that the $3000-$5000 settlement demands are ludicrous. Civil claims are meant to compensate the injured party. They should never be used as a means of profit.

Therefore there is definitely some valid basis for anime fans taking this case to court. The QUANTUM of damages sought is a valid issue.

Granted, as owner of the copyright, Odex can always threaten to make police reports and expose these anime fans to criminal liability unless they are paid these outrageous sums, leaving aside the civil claim. Should the anime fans then cave in to blackmail?

I have not completely researched on this issue so I could be wrong in many regards. Please correct me if I am.

Anonymous said...

Anyone of u guys kena the letter from odex? I myself abit scared.

Anonymous said...

That was a fairly enlightening post, good job mate.

Vis said...

Thank you very much for providing some alternative points, and doing the research to help us!

xedodefense.org is trying to help those who have been odexed, as it stands, in terms of monetary and moral support along with some advice.

Again, thank you for blogging with your thoughts on this issue. :D

Aelgtoer said...

Hi peeps,

thanks for all the feedbacks. To the first anonymous commenter, you are certainly correct in that the emphasis on this entry has been on the criminal or penal aspect of Copyright infringement.

The element of Copyright infringement is in itself a criminal offence subject to statutory penalties. This is unlike a civil case where damages or an injunction are the only remedies.

Section 119 of the Copyright Act allows the Owner of the copyright to commence action against the copyright infringer and the court may order amongst other things, damages, injunction and an account of profits.

Alternatively, if the owner chooses to be awarded Statutory Damages instead of the usual damages and account of profits, he will be subject to the guidelines given in ss 119(2)(d).

The base line is that for copyright infringement, it is not necessary for the government via the Attorney General's Chambers to initiate an action in order to be awarded the statutory penalties. A copyright owner is empowered and has every right to commence an action as per S 119 of the Copyright Act.

I do agree with you that Odex's actions are hardly ethical and as you mentioned the quantum is indeed a valid sticking issue. The only problem I foresee in going to court to litigate this matter is the fact that if the court rules that the downloader has indeed infringed the copyrights by downloading, the penalty imposed may be lower than the settlement sum per se but the added combined cost of paying for the entire legal process and solicitor's fees will be considerably more than the settlement sum.

Of course, if you could do further research on this issue, that would be beneficial but this is just my substantiated viewpoint. :)

To Vis: I think it's great a group of dedicated anime fans have banded together to find an alternative to the situation.

Unfortunately, the legal avenues do not look promising for anime fans who have really been downloading but the entire monetary and moral support concept Xedodefense is helping to champion certainly helps.

At the very least, it is clear that Odex's actions are hardly ethical and anything we can do to bring greater international exposure to the current unsatisfactory situation is welcome and helpful.

Stay strong!

Cheers. :)

Anonymous said...

Maybe Odex should soften their way to do this. Instead of forcing lawyer letter down the thoats of youngers with $5k tag.Odex should make them buy the series instead. There is no need to use law against youngster as they are still learning. This may improve the 'PR' abit. Just think that the world is round and you may end up on the other side

Anonymous said...

I agree with anonymous that this is ODEX PR disaster...but come to think of it...IF ODEX successfully sue all the young (below 21) and young adults for 5,000 each and he sues 1000 users or more Mr Sing can sing his way to USA with more than 5 Million wow....good way to profit...

Anyway all the people been sued, please stand together and go to a minister to appeal your case. I believed the highly paid ministers will have a brilliant idea to settle this out of court. It will be a win win for govt pr and odex pr.

i wonder why the Intellectual Property Office of Singapore so quiet on this matter.

Anonymous said...

Hi,

I am just curious if u happen to change a new harddisk BEFORE receiving the odex letter as ur hard disk had crashed n u dispose off the old hard disk oreadi. Can odex still sue u based on ur IP address?

Aelgtoer said...

That would be a question of evidence and whether they can find any trace of copyright infringement either via illegal downloads or hard copies you might have burnt.

But if Odex brings you to court, it is very clear that IP addresses alone is insufficient evidence to prove the offence of copyright infringement.

BloodColumn said...

Maybe this link can aspire everyone =]

Found this link from hardwarezone. Smth for a joke =D

http://forums.playpark.net/showpost.php?p=1533422&postcount=562

Xedo Defense said...

Hi, I'm the admin of XedoDefense.org and would appreciate it if you could clarify certain issues for us.

If you feel it's inconvenient to do so in public, please feel free to do so via some anonymous email. Your privacy will be kept absolutely confidential.

1. Although the general impression is that Bit-Torrent requires uploading, it is not necessarily so. In view of this, is it considered an offense if the accused only downloaded for personal consumption and not for distribution?

2. Given that a single IP address can be the exit point for several computers, i.e. the father, the mother, the sons, the daughters, the maids etc. Is it actually legal to simply sue the father because the account is under his name? Would that not imply that the owner of a residence can be charged for murder if the evidence only points to the murderer being one of the six in a house?

3. If it can be proven that the IP addresses collected by Odex is not conclusive about the nature of the connection, i.e. no evidence the connection was uploading or downloading, is there still any basis for the charge?

4. If challenged in court, and no evidence of alleged content can be found on the accused's computer, where would the legal costs fall?

5. Can the accuseds act as a group in any legal proceeding, i.e. class action suit or must they take on Odex one by one?

6. If one person takes the fight against Odex to court and proves that Odex did not have a case, whether due to a lack of concrete correlation of IP to person, or lack of evidence that the person was in possession of alleged content, does it mean all who are involved in this situation can rely on this judgement?

7. As you mentioned, the quantum of compensation is a sticking point. If it can be shown that
a) such alleged activities does not prejudiced the copyright owner's interest and/or
b) copyright owner did not suffer any significant loss in revenue (imagined or actual) and/or
c) the amount of losses was aggravated due to the the copyright owner's action or lackof
is it possible to challenge the quantum or the case itself on these grounds?

8. If it can be proven that only Odex is prejudiced by the alleged actions and not the copyrights owners, does Odex still have a case of copyright infringement against the users?

Sorry for the multitude of questions and thank you in advance for any responses.

Aelgtoer said...

Hi,

I assume you're Xedo Senshi? No worries, you've certainly raised very valid questions that should be addressed. Give me a day to do a little research and I'll respond to the questions in a new post which you can then link back to from the Xedodefense forum.

Cheers
Aelgtoer

Xedo Defense said...

Yes, I'm XedoSenshi and thanks again for taking the effort to answer the questions :)

Aelgtoer said...

Alright, I've responded to the questions you raise on the latest post over here
Hope it helps.

Cheers

Anonymous said...

There is a big twist!.. odex got jammed by pacnet.. Let see what si the outcome. As for SN and SH.. one didnt even contest and the other just try abit....sad...

elle said...

I wonder why Odex does not try sueing the people who buy bootleg DVDs instead of sueing the kids. I mean, if you want to do a job, get it done CLEANLY, and that means sueing the bootleg DVD pirates as well. The way he does it, and one is inclined to think that he is for easy money.