ODEX Stretching the Copyright Act for Commercial Interests
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I am simply not convinced by ODEX's clarifications that they are merely "recovering costs" by asking for $5000 compensation.
They are practically anticipating a $15 million windfall by sueing 3000 pple. Spend 20% on legal charges? why the hell not? $3 million investments to make $12 million easy money. As if they can sell $12 million dollars worth of anime in Singapore...
Now how's that? Sell badly dubbed anime with crappy subtitles that can't even compete in quality with downloaded fan-subs and then sue pple for downloading fan-subs cos your products sux and won't sell?
The company is simply trying to bend to law to scare anime fans into paying up.
The following article on Today totally sums up the "thin-red line" that ODEX is threading on.
To all netizens, don't be cowed by such bully tactics! its wrong to download, but its even more wrong to use the law to scare ignorant students into big cash settlements.
I believe there is a dictionary definition for such acts: Its called EXTORTION! -
Are anime providers stretching the law?
Todayonline.com / Singapore News / Tuesday, August 21, 2007
Thomas Koshy
ODEX has created quite a stir by threatening legal action against anime enthusiasts who had allegedly illegally downloaded copies of video recordings licensed to Odex.
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It was reported that Odex is likely to seek compensation of up to $5,000 from each of the alleged offenders. Having obtained 1,000-odd names of such anime enthusiasts from the Internet Service Provider (ISP) StarHub, more names are now being sought from ISP Pacific Internet. If all this rakes in the millions that Odex seems to expect, it would not be surprising if more claims follow.
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Lawyers have been quoted as saying that Odex is acting within its legal rights in making such claims. But is the case really quite so simple?
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To start with, unlike typical copyright infringement claims which are made against commercial users such as retailers, Odex's claim is against consumers who downloaded the items for their own personal use.
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Making copies for personal consumption can no doubt amount to copyright infringement. But whether such infringement entitles Odex to compensation of "up to $5,000" is an entirely different matter. If 3,000 claims are pursued by Odex, the total sum comes up to $15 million. Did Odex actually suffer losses on that scale?
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Many of the consumers have commented that they downloaded the online copies because those were perceived as better than what was available from Odex. In such circumstances, it may very well be that if the online copies were not available these persons would not have even considered purchasing the Odex versions. No purchase means no profit for Odex. It would follow that Odex suffered no loss arising from the downloading.
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Even if Odex did suffer a loss, there is the question of how Odex calculated the quantum of damages. For example during a trial offer, Odex bundled three DVDs for $9.90. Just how much downloading does it take to warrant claims that add up to $15 million or thereabouts?
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One wonders, though, whether the brouhaha over Odex's civil claims may amount to little more than a storm in a teacup — at least in respect of the claims against students. After all, if no settlement is reached, is Odex going to throw good money after bad by spending thousands of dollars on legal action against children with no assets to their name? Or is the threat of civil litigation by Odex no more than a toothless tiger that may safely be ignored?
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And what about the threat of criminal prosecution?
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It has been about two years since the Copyright Act was amended to introduce the new section 136(3A), under which the making of copies even for personal consumption may not only lead to civil claims for compensation but may also constitute a crime if "the extent of the infringement is significant". But to date, not a single prosecution under section 136(3A) has been reported.
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At the time this crime was introduced, the Director-General of the Intellectual Property Office of Singapore was quoted as saying: "Our idea is not to target the man in the street." But it appears that Odex has made the target the boy in the street instead.
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A copy of one of the letters purportedly sent by Odex was posted on the Internet. It makes a reference to "criminal proceedings" and states that "infringement of copyright may constitute a criminal offense which are (sic) punishable upon conviction by fines of up to $10,000 per infringing article and/or imprisonment of 5 years" — thinly veiled threats which precede the invitation to enter discussions to "resolve the matter".
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To start with, the power to prosecute crimes rests with the Attorney-General and not with Odex. The Attorney-General may delegate that power by issue of a fiat, and does so routinely where cases of copyright infringement are involved. But had Odex obtained such a fiat? This is a particularly pertinent question because section 136(3A) is only meant to be invoked in limited circumstances; and many of those whom Odex is pursuing are children.
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Presumably, they would normally be let off with a warning at most. For example, in February last year, two Internet users were jailed for illegally distributing hundreds of MP3 files online but a 16-year-old student was let off with a warning because of his age. Odex's complaint is not even of distribution but merely of downloading.
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Secondly, in the letter, Odex seems to have merged the issue of criminal prosecution with its civil claim for compensation. Surely it is not proper for Odex to tie in its demand for compensation with a threat of criminal prosecution.
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Thirdly, although the Odex letter complains of "illegal downloading activity", the punishment quoted by Odex in the letter is for the offence of distributing copyright infringing materials and not simple downloading, for which the punishment would be a fine of up to $20,000 or a jail term of not more than six months or both — and that too, only if there was "substantial" infringement. Was Odex's citation of the heavier punishment an instance of improper scaremongering to induce capitulation?
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The law affords much protection to copyright owners. But what has been disclosed of the Odex case gives cause for concern about whether the spirit of the law is being corrupted in practice. While private settlements between copyright owners and infringers may not normally be of general concern, the large number of people involved in the Odex case and the wide publicity generated sets it apart.
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If indeed Odex has been overzealous in enforcing its rights, a check may be in order, lest the case becomes a benchmark for other copyright owners to emulate.
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The writer is a legal academic. These are his personal views.
Thomas Koshy -
Use the search function before you post.
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Chey... last topic not so active resurface again to chat cannot meh...
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just boycott odex lo~~!
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Hmm.........I wonder...........what would happen if ....., all the 5000 alleged downloaders decide not to pay up the $5000.00 that was demanded by Odex from each person?? Would Odex seriously bring these kids to court....get the court to impose a demand to pay the compensation in favour of Odex?
What if, after the verdict is out, and the court finds the alleged downloaders guilty and impose a demand to pay up or face jail term, if these people cannot pay or do not want to pay up.
Would the court haul up these 5,000 people to jail for not paying the demand??
What would be the impact of this particular case be towards SG, the courts, and Odex??
Any comments??
This will get more interesting if it turns out this way....!! -
CX!
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therefore, we should surf forum and dun watch anime forever!
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if bring charges against so many ppl
it dun really reflect very nicely on singapore also
leh if the news get across overseas
then Singapore will become a Fine Country -
Courts are not known to impose the maximum penalty for many offences... there are many considerations for a judge, such as the perceived severity of the offence, the policy considerations, the intent of the law, who is the offender (minor? company?), etc etc...Originally posted by FireAndHell:Hmm.........I wonder...........what would happen if ....., all the 5000 alleged downloaders decide not to pay up the $5000.00 that was demanded by Odex from each person?? Would Odex seriously bring these kids to court....get the court to impose a demand to pay the compensation in favour of Odex?
What if, after the verdict is out, and the court finds the alleged downloaders guilty and impose a demand to pay up or face jail term, if these people cannot pay or do not want to pay up.
Would the court haul up these 5,000 people to jail for not paying the demand??
What would be the impact of this particular case be towards SG, the courts, and Odex??
Any comments??
This will get more interesting if it turns out this way....!!
As the article rightly pointed out:
...the power to prosecute crimes rests with the Attorney-General and not with Odex. The Attorney-General may delegate that power by issue of a fiat, and does so routinely where cases of copyright infringement are involved. But had Odex obtained such a fiat? This is a particularly pertinent question because section 136(3A) is only meant to be invoked in limited circumstances; and many of those whom Odex is pursuing are children.
There are many unknowns... ODEX is banking on pple worrying and saying "oops, i'm sorry, i'll pay, please make it go away"...
That is to say, that ODEX may not even have the authority to proceed with a criminal prosecution, since the A-G will have to basically decide that he wants to authorise a greedy commercial entity to enforce Singapore's laws on his behalf in a manner that based on a rather dodgy and narrow reading of S136(3A) that is totally contrary to the intent of the Act. Thats not even mentioning the fact that the accused persons are all a bunch of school kids.
Whatever the case, My opinion is that the bad press will cost ODEX more than $5000... -
Copyright Act S136(3A) Quoted as per below:
(3A) Where, at any time when copyright subsists in a work —
So in a nutshell, I wonder how ODEX is going to substantiate its claim that (i) the extent of the infringement is significant and/or (ii) the person does the act to obtain a commercial advantage...
(a) a person does any act that constitutes an infringement of the copyright in a work other than an act referred to in subsection (1), (2), (3) or (6);
(b) the infringement of the copyright in the work by the person is wilful; and
(c) either or both of the following apply:
(i) the extent of the infringement is significant;
(ii) the person does the act to obtain a commercial advantage,
the person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 6 months or to both and, in the case of a second or subsequent offence, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 3 years or to both. -
Originally posted by CX:
i was wondering...
I am simply not convinced by ODEX's clarifications that they are merely "recovering costs" by asking for $5000 compensation.
They are practically anticipating a $15 million windfall by sueing 3000 pple. Spend 20% on legal charges? why the hell not? $3 million investments to make $12 million easy money. As if they can sell $12 million dollars worth of anime in Singapore...
Now how's that? Sell badly dubbed anime with crappy subtitles that can't even compete in quality with downloaded fan-subs and then sue pple for downloading fan-subs cos your products sux and won't sell?
The company is simply trying to bend to law to scare anime fans into paying up.
The following article on Today totally sums up the "thin-red line" that ODEX is threading on.
To all netizens, don't be cowed by such bully tactics! its wrong to download, but its even more wrong to use the law to scare ignorant students into big cash settlements.
I believe there is a dictionary definition for such acts: Its called [b]EXTORTION!
[/b]
r u 1 of the downloaders n got the letter???
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lol. good point. they shouldn't settle out of court. we children have no assets anyway what. if odex sue us are we supposed to give them our sweets and chocolates?Originally posted by CX:is Odex going to throw good money after bad by spending thousands of dollars on legal action against children with no assets to their name?
or can they sue parents o.0 -
how to sue children
lock them up in childcare centre
or what?
I think Children protection act is more stronger
then wat all this stupid copyright act
Children is the assets of a country
Simi is Odex
?
I also dun know till now