Tuesday, August 14, 2007

Odex...Again: The Inquisition Continues.

Odex seems to be hogging the news lately and with the recent hoo-hah over the New Paper report and today's (14 August 2007) article in The Straits Times, it appears that this whole Odex saga is not going to rest anytime soon. So it's OFFICIAL now. The title and the rest of the article is pretty much self-explanatory.

Odex obtained a court order in a closed chamber session in the Subordinate Court against Starhub, forcing them to disclose the identity of Starhub subscribers who have been illegally downloading anime. Which means that Starhub anime downloaders can expect to be Odexed very very soon. Pacific Internet subscribers who downloaded anime are not exempt either, with Odex going for a court order to force PacNet to release subscriber information later this week.
Which in short simply means that no one is safe, regardless of their ISP. SingNet anime downloaders simply happened to be the the first in line for the firing squad. When a court order is issued, it's permanent unless it is successfully appealed against and in cases like these it is extremely unlikely that it will be either successful or appealed against in the first place.
What is interesting to note is that the court order forced StarHub to release the identity of about 1000 of its subscribers and Odex will be seeking a similar court order against PacNet to reveal the identities of 1000 of its subscribers. Most people believe (and it is certainly a forgone conclusion) that the number of illegal anime downloaders from StarHub is way more than 1000, given the sheer number of StarHub subscribers especially when compared to PacNet.
So what does this mean? That a court order is obtained to force the ISPs to release the identities of 1000 of their respective subscribers one at a time, with more court orders in the future? (Like a batch system) Or does it mean that this is all they're catching? Personally, I doubt it'd be the latter, just because you happen to be safe now doesn't mean you will continue to be in the future, especially if you continue downloading via BitTorrent like a bloody idiot. To put it bluntly, it's good money for Odex.
Let's see. Assuming the court order obtained for Singnet was for 1000 users too (as it probably was), 3000 people who receive the dreaded odex letter and on average pay the settlement sum of $3,500. That would give Odex a cool 3000 x 3500 =S$10,500,000. Aka Ten Million and Five Hundred Thousand Singapore Dollars. That's a nice tidy sum and all without selling a single product. And you wonder why some people call it a new business model.
Having studied Law for four years and currently a peon in the establishment, it never fails to amaze me when surfing the numerous Odex threads on Hardwarezone how the average layman
puts so much faith in lawyers. Like having a lawyer will miraculously allow you to avoid having to pay the $3k plus (usual amount) for settlement and that 'fighting the case/Odex' is a very viable option (which in this case it is NOT).
I have friends who studied law too and are in the same position as the average anime downloader, dreading that Odex letter but as they say in edmw(Hardwarezone) lingo, "lan lan and wait to up lorry". Why? Because they know very well what the law is, what the legal position is and the sheer stupidity of attempting to contest something like this if you're guilty.
So what do you do if you get Odexed? When you receive that dreaded registered letter from Odex asking you to settle or else..., regardless of whether you are a SingNet, Starhub or PacNet subscriber. The very first question to ask yourself is: Have I been downloading any anime since the start of this year? If the answer is Yes (as it would be 99.9% of the time), then as a soon-to-be-called-to-the Bar lawyer and someone with an interest in this whole saga, I would advise you to "Lan Lan and Pay Up lo."
No one likes to admit defeat and certainly no one likes to part with a considerable sum of money just like that. But what choice do you have? After weighing the pros and cons of the different alternatives, settling is the best alternative and here's why:
  1. Settling and paying up $3k plus might be painful. Attempting to litigate the matter in court (disputing the claim and fighting Odex) would be even more expensive and be suicidal to you if you have already been illegally downloading anime.
  2. Going to court means having to pay your lawyer, the court fees for filing documents, the time spent in court, etc. Just the whole bringing the matter to court procedure can easily cost $3000 and that's excluding the cost of the trial itself which for the Subordinate Court can come up to $1000 A DAY.
  3. You've been downloading anime illegally. To prove their case against you, Odex will probably obtain a Search Warrant to seize as evidence anything found in your house. On top of being downright inconvenient, any additional material found may and probably will be used against you. Let's not forget all that porn and other pirated stuff you might have.
  4. You lose your case (as you probably will if you've been illegally downloading anime previously). Now you are not only saddled with the costs of paying your lawyer and other disbursements, the court will in all likelihood order costs against you which means that you will need to pay for Odex's legal proceedings costs. So instead of paying $3k plus, you've wasted your time, had your home raided, probably pissed off your family members and got saddled with a debt easily in excess of $10,000. Stupid choice.
  5. And you can forget about legal aid. Firstly, the conditions required to be satisfied for legal aid are EXTREMELY stringent, for one, your monthly nett income for single applicants must be no more than $1000 nett. Secondly, Criminal Legal Aid Scheme would not cover an offence under the Copyright Act; the Legal Aid Bureau which does not cover criminal matters requires a monthly income of no more than S$ 833 AND your case must have merits. You can be sure the average anime downloader's case has no merits. So no, legal aid is not an option.

It's depressing. No one's disputing that. It's like getting caught between a rock and a hard place. But after a balancing of the various alternatives, it becomes pretty clear that the only viable option is to 'suck thumb' and pay up. You can bitch about it, you can most certainly boycott Odex products as a sizable majority of the anime community is doing.

But at the end of the day if you 'kenna Odexed', all you can do other than grumbling is 'Lan Lan Up Lorry' and Pay Up lo. Better start saving up.

Update: Stephen Sing responds to the hoo-hah over his comments.


Anonymous said...

Hi, thank you for posting your view on this matter, its important for readers to see the sensible, legal side of things during this difficult time for them.

I guess most pple would just pay up and forget about it if the monetary charge is fair and acceptable, however the the ridiculous price in demand really turns pple off, not to mention that attitude...

Also, I think there is also the issue of indemnity against future lawsuits by the police if the government decides to pursue this matter themselves. I don't think Odex can guarantee that do they?


Aelgtoer said...


I totally agree with you that the settlement sum is disproportionate to the amount of infringing articles Odex is charging for.

Firstly, the penalty for infringing articles tends to be about $200-$500 per article based on case law. Settlement sums in excess of $3000 appear to be excessive even after considering the lawyers' fees and the cost of paying the tracking company.

Secondly, there are no clear guidelines as to how the settlement sum is determined. People who downloaded 14 or 4 episodes are made to pay a similar settlement sum, which certainly seems unfair.

As for the issue of indemnity, i'm not clear on this but i remember reading in the forums that those who signed and settled were basically saddled with a clause that states there is no indemnity against future suits by other anime copyright holders, etc.

At any rate, Odex certainly cannot indemnify the downloaders who settle that other third parties other than Odex will not sue/prosecute the downloader. They have no locus standi to do so and such a clause would be totally unenforceable.