Odex had no Rights!

Let me quote the article on straits times first...

Odex 'failed tough standard of proof'
Judge explains decision not to allow anime distributor access to PacNet downloaders' names
By Chua Hian Hou
ANIME distributor Odex's failed bid to win a court order forcing Pacific Internet (PacNet) to disclose the names of alleged illegal downloaders may have set an important precedent in the area of Internet privacy.
District Judge Ernest Lau released his judgment to the media yesterday and outlined his reasoning.

He compared a request for an Internet service provider's subscriber information to what is known as an Anton Piller order in the law world.

An Anton Piller order allows the plaintiff to enter someone else's premises, halt all activities, make a search - for days if necessary - and then seize all incriminating evidence found.

Because of its 'draconian' nature, such orders are only granted when the plaintiff can prove it had an 'extremely strong prima facie case of a civil cause of action', wrote Judge Lau.

He said he required a similar standard of proof in the Odex case to protect 'public interest'.

Service providers like PacNet, he wrote, owe it to both their customers and regulators to protect subscriber information. Singapore has no privacy law as such.

Odex, said Judge Lau, failed on two counts.

Only copyright owners - that is, the studios that made the anime - or an 'exclusive licensee' for the anime being downloaded, can take legal action under the Singapore Copyright Act.

Odex is a sub-licensee and had letters from rights owners authorising it to take action on their behalf, but the firm was neither a copyright owner nor an 'exclusive licensee'. An exclusive licensee has the sole right to distribute a product in a certain market.

Judge Lau added that he was also not wholly satisfied with Odex's explanation of how it identified the downloaders.

Five lawyers told The Straits Times that the high standard Judge Lau set for the Odex court order was unprecedented.

Such orders for subscriber information are usually routine procedures. A plaintiff would use the information discovered by the court order to decide his next step. In Odex's case, it needs the names so it can send its letters demanding settlement.

One lawyer who declined to be named said it now 'sounds like the plaintiff must prove to the court at a very early stage that it will very probably win, which may not always be possible in Internet-related cases'.

Other district judges do not necessarily have to follow Judge Lau's ruling.

But if Odex appeals to the High Court - it is considering this - and Judge Lau's ruling is upheld, all future rulings will have to meet the sort of standard of proof required to get an Anton Piller order.

The ruling, said corporate counsel and Nominated MP Siew Kum Hong, could make it 'cumbersome and expensive, although not impossible', for rights owners, and 'especially those overseas', to take legal action against downloaders.

The lawyers also noted that the ruling could have an impact on other online identity-related areas, for instance, those involving defamation or fraud.

Odex is acting against people allegedly downloading anime, or Japanese cartoons, illegally. Earlier this year it successfully forced StarHub and SingNet to disclose the names of subscribers allegedly downloading such anime.

It has been sending letters to these downloaders since May demanding settlement of between $3,000 to $5,000.


Why PacNet succeeded
SOME light has been cast on how the anime distributor Odex was able to obtain court orders against SingNet and StarHub but not Pacific Internet (PacNet).
All three cases were heard 'in chambers' at the Subordinate Courts by different judges and these proceedings are rarely made public.

But District Judge Ernest Lau released a 14-page written judgment yesterday explaining the ruling he handed down on Thursday in Odex's case against PacNet.

Odex had demanded that the three Internet service providers supply the names of subscribers who had been downloading content illegally from Odex's anime site.

It won orders against SingNet in May and StarHub earlier this month, but Judge Lau turned down its request for an order against PacNet on Thursday. He noted that 'for the SingNet case, the orders were made by consent'.

A lawyer familiar with such proceedings said this means during the run-up to the hearing, SingNet had written to Odex to 'consent' to its request.

Odex's lawyers, Rajah & Tann, presented this note at the hearing. Judge Lau also noted that SingNet's lawyers did not attend the hearing.

A SingNet spokesman said that 'when Odex first approached us through their solicitors, we told them that we will not provide any customer information to them unless they produce a court order.

'Subsequently, Odex obtained the court order and served it on us. We then complied with (it).'

In StarHub's case, its lawyers, Drew & Napier, were present, but 'the issues raised here (by PacNet) were never fully argued before the court', Judge Lau wrote. A StarHub spokesman told The Straits Times that the firm had 'resisted Odex's application...as we take a serious view of our obligation to safeguard our customers' confidentiality'.

Erm.. Something out into the light... thanks to Judge Lau. Well, I do not know anything about the law so I won't comment much on the first part. Now lets move to why Pacnet Succeeded.

For Singnet case... they just consented to it huh.. and previous article they will telling public that they have strict policy on the customer privacy but have to give out information because of a court order. So in the end, this court order was presented to them without putting up a fight on their part.. Hats off to you...

As for Starhub... ok.. u fought but with no ammo on ur side? Wow... this is asking the judge to award a court order to 'some company'

Anyway, here's the Today article on this news. Most of it is covered on the article above so i will just paste the unmentioned part here.

Today Article by Lee Chee Kong
cheekong@mediacorp.com.sg

That was the rationale behind the court's surprise dismissal of Odex's bid to get Pacific Internet(PacNet) to disclose its customers' identities. The judge's 13-page grounds of decision was released to the media on Friday.


Noting that SingNet did not engage lawyers to resist Odex's application, Judge Lau raised serveral issues that he felt "were never fully argued before the court" in the hearing involving StarHub, which was handled by a different judge.

Out of the 13 letters that Odex produced to support its claims that it was authorised to go after the illegal downloaders, only three parties - all distributors themselves- had "directly appointed" Odex to act for them.

The other 10 letters had authorised the Anti-Video Piracy Association (Singapore) to do so, Judge Lau pointed out.



Odex appeared to be the exclusive licensee for just one title, Mobile Suit Gundam Seed, the judge added.

Even then, the Act only gives the exclusive licensee the right to take civil action against the infringer.

For criminal prosecution, the complaints must be brought about by the Attorney-Genereal's Chambers or "the person aggrieved by the offence"

Judge Lau said he "could not justify" compelling PacNet to release the data unless Odex had an "extremely strong prima facie case" against the wrongdoers.

In this regard, the evidence provided by Odex was found wanting, said the judge.

Last year, Odex engaged BayTSP- an Internet investigation firm in the United States- to provide an online tracking solution to track odwn and collect details for unauthorised uploading and downloading of anime via BitTorrent, a peer-to-peer online file sharing platform.

But the judge said Odex director Peter Go - who filed the affidavit - had "no proof" that his firm had engaged the services of BayTSP in this matter, and neither did BayTSP give evidence in favour of Odex.

Mr Go merely provided articles and FAQ information on BayTSP's website on the services it provides.

Adding that he was "uncomfortable" with the "expediency by which (Odex) approached this case", the judge said:"This is an application that will impact potentially thousands of persons. The alleged breach of copyright is inferred from how the BitTorrent protocol works. It is not sufficient for (Odex) to adduce website information before a court of law or for (Mr Peter Go) to explain the mechanics."

Even though Odex lost the case, Judge Lau said:"If a clear case of infringement is proven, copyright owners and their exclusive licensees can expect preaction assistance from the Court subject to the principles laid out (in the judgement)

When contacted, Mr Go said Odex would be appealing against the judgement.

Erm.. Basically this meant AVPAS = Odex? Once the distributor authorized AVPAS = Odex can act also? As for the engagement for BayTSP, they do not have any clear information that they can produce to support that they DID engage their services. This meant that the ip address information was collected by themselves instead? Wa... someone should just hired people to check their computers.. So for the next appealing, I wonder what kind of tricks will Odex pull out...