Anime in court: 2 ISPs, 2 different outcomes!!

Judge's ruling in favour of Pacnet against Odex only throws up more qns..


It was a case of third time unlucky for Odex in its application to court for a discovery order to find out the names of subscribers who had allegedly downloaded copyright infringing anime off the Internet..

After successfully obtaining such orders against Singnet and Starhub.. Its similar application against Pacnet failed last week..

Since similar information was sought in presumably similar circumstances against all three ISPs.. The natural qns that arises is why Pacnet succeeded where Singnet and Starhub had failed.. More imptly the decision throws up more qns abt the alreadi controversial saga..

District Judge Ernest Lau.. Who decided the Pacnet case.. Explained that the issues raised in Pacnet case were nvr fully argued in the Starhub case.. What he said abt the Singnet case was however more troubling: "For the Singnet case.. The orders were made by consent."

This means that Singnet did not even argue against Odex's application for subscriber info.. The ISP did not even instruct its lawyers to attend the court hearing of Odex's application..

The Telecommunications Competition Code (TCC) prohibits unauthorised release of subscriber info by ISPs.. Although TCC provision may be tramped by a court order.. Should Singnet not have argued against Odex's application rather than consent to it?

If ISP does not argue for its subscribers' rights to privacy.. Who will?

Without a voice in court.. The prohibition in the TCC becums effectively an empty promise.. One also wonders whether Singnet has acted in breach of the spirit of the TCC provision and if so.. Whether punitive measures are warranted..

So what were the arguments that Pacnet raised which the other ISPs had not?

Essentially.. Pacnet challenged both Odex's right to make the copyright infringement claims and the reliability of Odex's tracing of copyright infringers..

The challenge to Odex's claim was largely successfully becuz Odex was not the copyright owner or exclusive licensee of all but one anime video titled Mobile Suit Gundam Seed.. For all the rest.. It was a mere sub-licensee and therefore not entitled to pursue claims for copyright infringement - only copyright owners or exclusive licensees may do so..

Accordingly.. The court held that Odex had "no civil right of action under the Copyright Act against the persons whom the identities were sought"..

Copyright infringers should however bear in mind that even though Odex may not have the right to pursue such claims.. The actual copyright owners or exclusive licensees would have such a right..

It was reported that Odex might appeal against the Pacnet decision.. But what abt the enforcement action that Odex has alreadi taken? Should it desist from further pursuing any claims unless it manages to get the Pacnet decision reversed?

What abt the funds that Odex has collected in settlement of its supposed claims? Is Odex obliged to return those funds if the Pacnet decision is not overturned on appeal?

This brings to the fore another aspect of the Odex case - that the Odex letters of demand to subsribers were apparently not sent by lawyers but by Odex itself..

Letters of demand sent by lawyers are subject to rules on legal conduct.. For example.. A lawyer may not "demand anything other than that recoverable by due process of law"..

Should such provisions be made broader so as to embrace letters of demand sent by persons such as Odex as well?

Otherwise.. A client sending out letter of demand himself - even after procuring legal advice - may easily circumvent them..

Another interesting snippet from the decision of District Judge Lau concerns the costs incurred by Odex in tracing the copyright infringers.. Odex engaged an American company BayTSP to track the copyright infringers.. Odex's Peter Go had quoted an article in his affidavit.. Which highlighted the low cost of BayTSP's services - tracing up to 100 files for only $12 per mth.. With setup fee of $25 for 100 images..

In a notice that has been put up on its website.. Odex stated that "many of those who received Odex's letter have settled the matter.. The average amount of compensation paid by those who have settled is abt $3k to $5k.. And yet in a letter issued to the media last week.. Odex had said the total amount it has recovered so far "has not covered even 20 per cent of Odex's enforcement costs"..

The revelation of BayTSP's low costs heightens the mystery surrounding Odex's "enforcement costs" and revives the qns of whether the quantum of the sums demanded by Odex to settle its claims against copyright infringers is excessive..

In the fog of all the negative perceptions generated by Odex's pursuit of copyright infringers.. It should not be forgotten that copyright infringement is illegal and offenders run the risk of civil and criminal penalties..

But the Odex case has highlighed that all parties involved must pay more than lip service to the due process if the law..

I know I can't touch ur heart now..
So it doesn't matter which kind of luv if I can stay with ya..
Cuz I knw the separated ones go beyond time & space & get together..
Becuz of ya, I will keep waiting becuz of ya..
This is the tot that fills my heart now..
I will always like & luv ya..

*I feel so xing fu with her*

*MerQu|s3*^^ aka *yeKai*^^