So you've received that dreaded Odex letter. What now? Xedo Senshi the founder of Xedodefense, an online community that provides support to Odexed anime fans and explores different avenues of handling the crisis, raised 8 pertinent questions on various legal issues in a comment on the Showdown post. I will attempt to address and answer these questions to the best of my abilities in this post because they are relevant and will assist you in your decision on how to proceed.
Before I begin though, the standard disclaimer. These answers are answered to the best of my knowledge after some legal research but are not meant as a substitute for professional paid legal advice. If one intends to pursue legal avenues to settle this issue after reading this article, please by all means consult a lawyer(s) and get their second opinion on these and other issues. After all, you will be paying them. With that I'll proceed to answer the questions.
1. Although the general impression is that Bit-Torrent requires uploading, it is not necessarily so. In view of this, is it considered an offence if the accused only downloaded for personal consumption and not for distribution?
- Alright, correct me if I'm wrong about the technical aspect of how Bit Torrent works. But from what I understand, when you start downloading a torrent file from Bit Torrent, you get connected to other peers and seeders online and your IP address is publicly visible. As you download the file, the data is obtained in parts from the various online peers and seeders. At the same time, parts of the file that you have already downloaded are uploaded to other peers who are on the same torrent. It is this aspect which in my opinion, is sufficient to satisfy the 'distribution' element under the Offences Section 136 of the Copyright Act.
- If it is really the case( and you can prove in a court of law) that there was no uploading when downloading the file on bit-torrent, Odex would have failed to prove the distribution element. This means they would not be able to haul the downloader to court for Copyright infringement under Section 136(1),(2),(3) or (6). It is still an offence under Section 136(3A) which is extremely broad and simply requires that the copyright infringement is
1. wilful (ie: deliberate downloading = wilful) and 2. that the extent of infringement is significant or that the person does the act to obtain a commercial advantage. Your strongest argument for an offence under S 136(3A) would be to dispute that the extent of infringement is significant. Of course if you downloaded say 7 or more episodes, you can be sure that the infringement would be regarded as significant. S 136(7) might be a helpful indicator of how many episodes would be regarded as significant. It basically provides that if a person is found to be in possession of more than 5 infringing copies of any work, shall be presumed unless otherwise proven to be in possession of the copies for purposes other than domestic or private use or for the purpose of sale.
- I won't go into the debate about what constitutes copies, etc. Suffice to say, the Court has explicitly stated there is no fixed formula, they will look at the circumstances of the case and determine. So basically, no, EVEN if you are simply downloading and not distributing, you can be guilty of an offence under Section 136(3A). Do note that the defence in Section 114 for recording TV shows DOES NOT apply to downloading anime, mp3s, etc.
- I get your point but you can't draw an analogy like that between the two. Odex is sending letters to the subscribers/account holders because that is the information obtained from the ISPs based on the list of IP addresses after obtaining the court order forcing the ISPs to release customer information. (Do note Odex has just very recently released a clarification on their webpage stating the court order was to release the customer information for 1000 IP addresses and not 1000 subscribers as reported. You can also check out this blogger's comments on it.)
- Should Odex bring the downloader to court, they will need to obtain hard physical evidence because it is clear that IP addresses alone is insufficient evidence to prove copyright infringement. This will almost certainly entail a private search warrant taken out to search the house of the downloader contesting the case to obtain physical evidence(computer, CDs, etc).
- When the case goes to court, the suit will be against the downloader and not the account holder/subscriber because the subscriber himself(if found to be so during the discovery of the evidence stage) did not infringe any copyrights by downloading anything. The most he is guilty of is perhaps negligence but the copyright infringement charges will be brought against the actual downloader unless there is evidence that shows the subscriber was aware or ought reasonably to have been aware of the copyright infringement but did nothing about it.
- So just like you go after the actual murderer, they(Odex) will need to go after the actual copyright infringer.
- I assume you're emphasising on the fact that IP addresses by itself might not be sufficient evidence to establish copyright infringement. If so, you are absolutely correct and as I mentioned earlier, Odex will need to obtain hard, physical evidence that is admissible to support their claim that the downloader has actually infringed the copyrights of the work by downloading anime illegally. And they will do that by obtaining a private search warrant and searching your house/premise.
- This question is a little academic though because should the case proceed to trial, Odex being the plaintiff will have to produce evidence to prove their case on a balance of probabilities and they will proceed to do so as mentioned above. Hence, if the person Odexed is really innocent (ie: never downloaded a single episode of anime at all), then Odex would fail to obtain the requisite evidence at the discovery stage. Otherwise, you can be sure that they will not be relying solely on IP addresses as evidence of your copyright infringement. They can't.
- So they've searched your house, dissected your comp and found no hard tangible evidence of any copyrighted works in your possession. I seriously doubt they'll be foolish enough to proceed to trial on such a basis. They'll probably attempt to settle, paying you a sum of money to mollify you.
- Assuming they do go to trial and they lose because of the lack of evidence, if it is a civil case as it would be unless they commence a private prosecution after obtaining approval from the Attorney General's Chambers, the court usually orders costs against the loser. This is of course at the court's discretion. The court may order full costs against the losing party or simply order partial costs. Where it clear the vindicated party is innocent, it is likely that the court will order full costs against the losing party ie: Odex.
- This means that Odex will need to pay for all costs of the court proceedings, the cost of filing the various court documents and your party to party costs. This DOES NOT mean that the victor does not have to pay for anything. The victor will still need to pay the solicitor-clients cost ie: you will still need to pay the legal fees of your lawyer.
- If Odex is granted permission by the Attorney General's Chambers to commence a private prosecution on behalf of the Public Prosecutor, the trial will be a criminal suit and for criminal suits, all costs lie where they fall. That means no matter who wins or loses, you still have to pay for your share of the legal proceedings, party to party costs and solicitor-client costs. Everything is split except for the cost of your lawyer's fees which is paid by you personally.
- Yes they can and they should. They can proceed against Odex via a class action suit and the well known case is that of the Raffles Town Club case where club members joined together in a class action suit to sue RTC for breach of contract. See the initial case, Tan Chin Seng and Others vs Raffles Town Club Pte Ltd  3 SLR 345 (High Court) &  3 SLR 307 (Court of Appeal)
- Proceeding as a class action suit has various advantages, foremost amongst which is that it is considerably cheaper to do so rather than commencing separate individual cases and you have more resources pooled together to fund the suit. One thing to note about Class action suits in Singapore, ours is DIFFERENT from the American style of Class action suits. So don't read up on American class action suits, the procedure and consequence of a judgement in a class action suit is different from our system. I'll touch on this more in the next question.
- I'll answer this in two parts. First on the face value aspect of the question which says if one person obtains a judgement against Odex, can everyone else rely on this judgement? For obvious reasons, the answer is most definitely NO. Why? Because they are not a party to the suit and hence the judgement is not binding on Odex regarding the other downloaders/people and also because the circumstances of the case are different in each case. There may be no evidence that one guy illegally downloaded anime and infringed copyrights but that doesn't mean that there's no evidence that the other 1000+ (assuming) Odexed people didn't download anime and infring copyrights. This is with regards to the any ruling on evidence ie: lack of evidence that the person was in possession of alleged content.
- Of course if the ruling is with regards to a point of law, say for example that: IP addresses are never, on its own, good evidence of copyright infringement. That ruling on a point of law will affect similar cases until and unless it is overturned by a higher court, the highest court in Singapore being the Court of Appeal.
- Now assume a class action suit is brought against Odex. First things first, as mentioned earlier, the class action suit in Singapore is different than in the USA. Firstly, people who wish to join a class action suit must Opt-In by application to join the suit. In the USA, everyone in a similar class that is affected by the subject matter in question is automatically a member of the class action suit, you leave the suit by 'Opting-Out'. Secondly, the holding/judgement of the court in a class action suit only binds the parties to the suit. Which means that in our case(Singapore), if you failed to 'Opt-in' to the class action suit by actively applying to do so, you would not be able to enforce the judgement or rely on it. In the USA, all members of the class are automatically bound by the decision in the class action suit and can enjoy the benefits(depending on their perspective) unless they have Opted-Out of the class action suit.
a) such alleged activities did 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 lack of
is it possible to challenge the quantum or the case itself on these grounds?
- (a) if you can prove this (and you will need to go to court to show this) then they cannot win a case against you based on Section 136(1),(2),(3). And you can successfully challenge the case itself, let alone the quantum. Do note however that S 136(3A) has no requirement for prejudice, but simply that the infringement is significant.
- (b) this would be a factor possibly in the determination by the court as to whether the copyright owner was prejudicially affected. Which means the response would be exactly the same as for (a). You may attempt to rely on the defence of Fair Dealing in Section 35 as was mentioned in my earlier post and the court will then take into account the factors listed in S 35(2) but this list is NOT exhaustive, which means the court will look at other factors too.
- (c) this is not a ground for challenging the quantum or the case itself. The fact that the amount of losses has been aggravated by the Copyright owner's inaction( assuming that you can even show it in the first place) is irrelevant in the court's decision when determining copyright infringement. Like they say, two wrongs do not make a right. And any negligence on the part of the Copyright owner or the exclusive licensee would not detract from their rights to enforce their copyrights.
- Yes. Odex has been exclusively licensed by the copyright owners, the Japanese Animation companies. Section 123 of the Copyright Act states that the exclusive licensee shall have, except against the owner, the same rights as the owner possesses and be entitled to the same remedies the owner is entitled to as per Sections 119 -120A which detail the right of the Copyright Owner to enforce his rights by bringing an action and the remedies he is entitled to.
- The fact that Odex is a licensee is irrelevant, it has the same rights as that of the copyright owner. Section 124 of the Copyright Act further provides that the licensee or owner may proceed with an action without having the other party join as a plaintiff to the action unless the court orders otherwise. This means Odex can sue without having the Jap companies join in as a plaintiff. Lastly S 126 provides for the Assessment of damages for the exclusive licensee. When taking into account damages or statutory damages, the court will take into account any liabilities, royalties or otherwise, to which the licence is subject.
Update: A surprising twist in the Odex court order application against Pacnet. Pacnet Wins!