http://www.straitstimes.com/Free/Story/STIStory_153986.htmlThe legal battle over Japanese animation movies called anime is turning out to be quite an animated tale itself.
Odex, a local anime distributor, had tracked down the Internet addresses of fans whom it said had downloaded its anime from the Internet illegally. In June, it got a court order to compel SingNet to divulge their identities. Odex then threatened them with legal action, so some settled for $3,000-5,000 per person.
Because these were mostly students, the youngest aged just nine, people were outraged. Riled netizens began to flame about Odex, especially after they unearthed an Internet posting by its director, Stephen Sing, that was laden with disparaging remarks about anime fans. Online death threats were even made against Mr Sing and his family, and he filed a police report.
In the meantime, Odex got a court order to compel StarHub to divulge its subscribers' identities as well. At this point, The Straits Times pointed out in a Review column that downloading anime could well come under an open-ended exception in the law that allows copying under circumstances other than education or news reporting.
The various exceptions under the Copyright Act serve to protect consumers from 'groundless threats' of legal action for copyright infringement. Though some lawyers felt that fans faced an uphill task in court, energised netizens decided to organise a defence fund to fight Odex.
Unflustered, Odex went after PacNet, the smallest ISP here. In a twist however district court judge Earnest Lau threw out its request.
Twist in the taleFOR one thing, Odex is not the sole distributor of anime here. Other licensed distributors include Poh Kim and Blue Max, while some titles aren't even licensed at all.
In fact, Odex is only a sub-licensee of various Japanese distributors which are licensed by anime creators who actually hold the copyright. As a sub-licensee, Odex had no legal standing to act against alleged illegal downloaders. Only the copyright owner and its exclusive licensee have that right.
For another thing, Odex appears to be the exclusive distributor (for one year from April 9 this year) for just one anime movie called Mobile Suit Gundam Seed, having been authorised to act for Sunrise Inc 'who claims to be a copyright owner of (that) film', the judge said. Thus Odex had standing only to ask PacNet to divulge who owned the Internet addresses of those it said had downloaded Mobile Suit Gundam Seed illegally.
Should its request be granted? ISPs are required to protect subscriber identities under their service contract. Also, the Telecommunications Competition Code prohibits them from revealing subscriber information without a court order. Since this informational privacy is a public good, should it be overridden by Odex's very narrow private interests?
It is an established legal requirement that if you want the court to help you identify someone who may have wronged you, you must show you can clearly win the case even though you can't identify him yet. Then and only then will the court help you identify the wrongdoer.
In this respect, Odex fell far short. To track down the offending Internet addresses (sans real identities) which it then used to obtain its court orders against the ISPs, Odex said it hired an Internet detective agency called BayTSP. According to Mr Peter Go, Odex's managing director, BayTSP had helped several US clients win high profile copyright cases.
Mr Go claimed that BayTSP had licensed Odex to use its tracking solution, which he suggested was a computer software that he ran from Jan 29 to May 6 this year to track downloaders. After that, he supposedly sorted out the data and compiled the information.
Adjourning the first hearing to investigate this, the judge discovered that there was no such software to be licensed. Rather, if engaged, BayTSP would itself do the tracking, compile the statistics, and generate the reports. Mr Go submitted various news articles about BayTSP but neither reports nor receipts from it to prove he had engaged its services.
'Apart from a bare allegation,' the judge surmised, there was no proof Odex had engaged BayTSP at all. Thus its case against alleged downloaders of Mobile Suit Gundam Seed looked shaky. Accordingly, its request was thrown out. Odex had acted with too much 'expediency', the judge opined.
Another twistWHILE still reeling from this setback, Odex's name was further sullied. A fan - purportedly a woman named Akizuki Hikoto - e-mailed several journalists various details culled from the Accounting and Corporate Regulatory Authority database that showed Mr Go had been a shareholder in a firm called Games Mart that sold video games and game consoles. Both Odex and Games Mart shared the same corporate address, had the same company secretary, Joni Wong, while Mr Sing had been a director in Games Mart as well.
In 1999, Games Mart was raided by the police for peddling pirated consoles. It went out of business in 2000. The following year, Mr Go and Mr Sing took Odex, incorporated in 1987, into anime distribution. Games Mart was struck off in 2004. Fans now wondered if the pot was calling the kettle black.
On Friday, Mr Go wrote to the Forum page of The Straits Times to say that neither he nor Mr Sing were implicated in the police investigation.
At this point, Odex said it would appeal. This week, the representatives of two anime studios and two Japanese distributors held a press conference to say that they had indeed authorised Odex to act on their behalf. However, the judge had noted at the time that these were 'distributors appointed by undisclosed copyright owners' while the two studios had authorised not Odex but the Anti Video Piracy Association (Singapore) which, the judge noted, was not a party to the suit.
Odex now has about a week left to appeal. Meanwhile, the case has piqued interest in some policy issues.
Four issues FIRST, SingNet came under fire once it was known that its lawyers had not appeared in court to fight the Odex claim. StarHub's lawyers did, but failed to raise the substantive issues PacNet did. Users now wonder how far ISPs should go in defending the informational privacy of subscribers. Perhaps market forces will settle this.
Second, Odex's seeming ability to track down the Internet addresses of some downloaders despite no evidence it ever employed BayTSP suggests that there are now private, extra-judicial monitoring and enforcement systems out there which can detect and impact consumer behaviour. How will the authorities oversee such private mechanisms of surveillance?
Third, if intellectual property rights (IPRs) used to act merely as armour that protects IP from acts of theft, the Odex saga suggests that they may have become offensive weapons on the Internet that private owners can deploy to enforce certain standards of use and expression or speech.
Anime fans add English subtitles to help others understand the Japanese dialogue for example, but copyright owners can curtail such expression. Yet expressive freedoms are important in a democracy. So there is a need to examine carefully if expanding IPRs impacts on democracy.
Finally, shouldn't privacy be respected more robustly? Though the judge said 'the right to privacy is no defence' against such applications, he added that 'the courts also do not interfere with the privacy of persons without solid reasons'. Note that the individual whose privacy is to be set aside - the alleged infringer - is not represented in court at all. Instead, his rights are relegated to a process that will cost him time and money, a process that can only proceed after disclosure and harm have already occurred.
The law here recognises only a right for the protection of confidences, not privacy per se. However, that 'right of confidence' exists only where there is an obligation to keep information confidential that someone has consented to reveal to you. PacNet shows that privacy is invaded precisely when the victim does not consent to having private information about himself divulged to a third party. In fact, he may not even be aware that his information is being taken.
All this seems to make it look like the appropriate juncture for Parliament to consider creating privacy rights by statute. Officially.
[email protected]