Friday, August 24, 2007

Pacnet's win over Odex: The Implications.

So Pacnet has pulled off a surprising upset in the ongoing Odex saga, what lies ahead next? Today's papers, notably The Straits Times, did not really elaborate on District Judge Earnest Lau's grounds of the decision but simply added on a short tag to last night's breaking news article, quoting the Judge as pronouncing that privacy was no defence to the offence of Copyright infringement. Which is obviously true.

What is a whole lot more interesting especially to those whom law is a part of their lives, if not to the average anime fan (which they should because it has an important bearing on the entire saga); is the Judge's ruling that Odex is not the correct party to bring the application to force PacNet to release its subscribers' information, even though it had authority from the copyright owners, the Japanese animation companies. This is important because if Odex is not the correct party to bring the action, it means that it has no locus standi or legal interest to commence action or demand settlement for copyright infringement; at least with respects to the titles it does not license.

This surprising ruling and turn of events had the usual gang from law school and I discussing the implications of the case as well as certain other legal aspects. If Odex does not have locus standi, who then is the correct party with the legal interest to commence an action for copyright infringement? The Japanese animation companies as copyright owners certainly have the rights and interest to do so. AVPAS which comprises of the copyright owners and Odex would likely have the requisite locus standi too.

But until the judgement is extracted, the exact grounds and basis for the decision will continue to remain unknown. Lawyers like NMP Siew Kum Hong (as seen in the Today newspaper, 24 August 2007) have generally been surprised by the decision because even though it isn't a case of stare decisis and the Singnet & Starhub decisions were made by the same court, not a higher court; the facts and situation surrounding the two cases are similar to Pacnet's case and we expected the outcomes to be the same too. However, the general consensus is that Odex would appeal and as I've stated earlier, Odex will need to appeal to establish that it is indeed the correct party to commence an action as the legitimacy of their operations thus far have been based on this very premise. That they are authorized and possess the necessary legal interest to enforce the copyright owner's rights on their behalf.

Before the appeal is lodged, the judgement will have to be extracted and we would be able to obtain a clearer picture then. While it is too late for Singnet and Starhub to file an appeal against the court order requiring them to release customers' information based on the IP addresses submitted, they can and should resist subsequent court applications by Odex seeking further releases of subscribers' information especially if this holding on the Pacnet case is not overturned on appeal.

This is yet another reason why Odex will in all likelihood appeal, they have no choice but to do so. Admitting defeat and getting either AVPAS or the Jap animation companies to send out the letters and commence an action would not help their cause because it raises further thorny issues. The most pressing of which would be the money paid by those who have settled so far and any legal recourse they might have against Odex. If Odex does not have the locus standi to commence an action, they would not have the necessary legal interest to send out those letters threatening legal action. Accordingly, it would mean Odex had no right to request/collect settlement from the downloaders.

Can this defect be corrected simply by passing the buck to the Japanese animation companies? These are real issues that will be raised and would need to be settled if Odex either fails to appeal or fails on appeal. Some other interesting pieces of information on the ongoing Odex saga, booest, an admin of the VR-zone forums, had a meeting with Stephen Sing on the 21st of August 2007 and shared the information he obtained from the man himself regarding the ongoing furore at this thread. Here's what's new (text in italics - my comments):

  1. The operation monitoring illegal downloads is not a one off operation but rather an ongoing one. This much is not really new, most netizens have already suspected this for sometime.
  2. They couldn't place a fixed figure for settlement fees at the time of action and hence came up with the sum of $3000- $5000 to reflect their costs though they are unable to give a breakdown of the costs. This is a major gripe amongst the community, no transparency as to costs, no indication as to any formula or otherwise to work out the settlement sum for different cases. The sum of $3k-$5k was really just decided upon.
  3. Odex is currently holding on to all letters, even those that are ready and waiting to be sent out until a better solution( nicer letter or smaller sum?) can be implemented. After realising how unpopular the letters were and the violent reactions accompanying them, Odex appears to be rethinking its moves. Do note that the letters can be sent out at any time.
  4. Again Odex reiterated the line that the court orders were to force ISPs to reveal the subscribers' information based on 1000 IP addresses and not for 1000 subscribers per se. It's interesting to note that while Odex has maintained the orders were for 1000 IP addresses, the newspapers have continued to report the court orders as applications to release the names of 1000 subscribers for illegally downloading anime. Makes one wonder what the truth really is.
The ball is now in Odex's court. And I don't think it'll be long before we see some response. At any rate, whatever their move, you can be sure it'll have a substantial impact on the whole saga. Perhaps even beyond that.

Breaking News: Apparently District Judge Earnest Lau anticipated the ripples his ruling would cause and released his 14 page written judgement to the media today. This extremely rare legal move along with a few details has been reported in the latest news section of the online Straits Times and may be found at this article. More details will be available tomorrow.

One interesting point to note: a rather damning piece of information that Singnet consented to releasing subscribers' information without even contesting the Odex court application and also the fact that their lawyers didn't even turn up to contest the hearing shows just how much Singnet values its Customers' privacy. Which from the face of it really doesn't look like much at all. At least Starhub contested the application. You can expect a lot of enraged Singnet subscribers. I personally won't be renewing mine when my contract ends.

According to this article, the Pacnet ruling would have far reaching implications if it is not reversed on appeal. The District Judge compared the request for a subscriber's information to an Anton Piller request (basically an order which allows the applicant to enter someone's premises and search for incriminating evidence in a procedure that can take days). The criterion and threshold to be fulfilled are extremely stringent and would also require a strong prima facie case.

This holding over the point mentioned above is a substantive point of law and it would remain to be seen if the superior courts endorse or reject it. More information on this and Odex's lack of locus standi due to the reason that it is a sub-licensee(previous legal analysis based on the precept that Odex was the exclusive licensee for the titles it has licensed) will be examined in greater depth tomorrow. Stay tuned. [added on 24 August 2007 , 11:55 PM]

Update: District Judge Earnest Lau's written oral judgement. A closer look at the grounds and future implications.


Ed said...

To make it simple, we can draw a simple comparison with musical copyrights held by major record labels.

Corporations like Sony BMG and Universal has also taken action against illegal distributors while at the same time, being members of the recording association. In their cases, they need not use the association to commence legal actions, nor are they requested to throw the case back to original copyright holders which are the artistes themselves. Given so, most of the musical works are assigned to the record labels, inclusive of the rights of distribution.

Even for independent labels managed by the major labels, it is totally up to the managing label to commence legal actions as long as the authorisation is given to the managing label to handle such issues.

The other thing is... most Singaporeans are still not educated about Copyright Act. To some, they assumed that copyright equates to "the right to copy". However, that's totally out of context. The term "Copyright" alone goes far beyond just mere copying - uploading and downloading.

By standing against Odex, Pacnet is passing on a very wrong message that one customer can easily abuse their service, committing illegal offences but yet get away with it. Not to mention, downloading such stuffs from the internet is the equivalent of "in possession of stolen goods knowingly".

I am guessing this case will not only implicate the anime arena, but the Copyright Acts and recording industry as a whole. I don't believe that anime movies and musical works are ruled by two different sets of Copyright law. This is simply not possible.

That's what I feel.

Anonymous said...

"They couldn't place a fixed figure for settlement fees at the time of action and hence came up with the sum of $3000- $5000 to reflect their costs though they are unable to give a breakdown of the costs."

First, it was deemed for damages that they sustained due to loss of revenue. Then it was for expenses occured. Now, the amount was just an arbitrary sum. Excuse me while I roll my eyes.

So since Odex was the one who randomly decided such a sum, everything they did and said before seems ridiculous. Saying that they would need proof of financial difficulties in order to appeal against lowering the fine (which they themselves set in the first place) and all other claims in the article about the cost recovered was only 20%.

Pack of contradictions.
Give up the charade, stop trying to hoodwink everyone. And that includes the ridiculous anime utopia ideal shared by the odex diector recently(at least someone hired a good spindoctor).

The anime utopia sounds all nice when viewed through rose-tinted glasses, but when you take a reality check, it sounds like a attempt to blame fans for our lack of anime support here for not having an anime culture.

In any case, I agree with you. I can't believe Singtel lawyers "Did not even turn up" to contest the application. What a joke, respecting our privacy. Stinktel. You will not have my business ever.

Thanks for the good insightful post. Do keep your readers in the loop.

Anonymous said...

Hi there,

Is it possible to read the 14-page judgment that was issued? Is it publicly available? Also, is it possible to read the court transcript to see what transpired in court?


Aelgtoer said...

Yep, it's been made available on NMP Siew Kum Hong's blog, you can find the link on my latest entry on the Pacnet judgement and the potential impact as well as my reply to Ed's comment over here.


Anonymous said...

Well, probably it's just me..but what i thought was:

singnet's passive approach was in an attempt to "silent" Odex down, thus reducing the damage it receives.

Perhaps it knows that it is going to lose in the law suit, that is why it "sacrifice the minority to save the majority"

By giving a small figures of IPs as a "goodwill gift", it hopes Odex not to pursue the matter any longer.

Such example could be seems as:
Singnet 17 revealed
StarHub 1000 revealed

Just an opinion.
By the way, Im also a singnet subscriber..