Odex's actions against file-sharing

Odex's head office at International Plaza, where the out-of-court settlements to the company by alleged downloaders were made

Odex's actions against file-sharing took place between early 2007 and January 2008 when Odex, a Singaporean company that licenses and releases anime for local and regional consumption, tracked IP addresses believed to be downloading anime, identified the Internet users associated with the IP addresses and threatened legal action against them. Odex alleged that these users infringed on its copyrights by downloading its licensed anime via the BitTorrent network. Between May and August 2007, two of three subpoenas on Internet Service Providers (ISPs) to reveal the personal identities of subscribers were ruled in Odex's favour. This led to pre-litigation letters being issued from the company to numerous downloaders, the youngest being nine years old. More than a third settled out of court for at least S$3,000 (US$2,000) per person.

These legal actions attracted international attention for the similarity to legal actions taken by the Recording Industry Association of America in the United States. They were considered controversial by the Singaporean anime community as fans perceived the legal actions to be sudden and heavy-handed, leading to significant online reactions and criticisms of the company. Subsequently, Odex revised some of its legal actions and instead started sending cease and desist emails to downloaders in Singapore, which in November 2007 unintentionally reached several Internet users worldwide. On 23 August 2007, Odex lost its suit against Internet Service Provider Pacific Internet (now known as Pacnet) to reveal the identities of 1,000 subscribers. District Judge Earnest Lau ruled that Odex's evidence failed to meet a number of requirements for the release of such information, especially as the company was the exclusive licensee for only one anime title. In Odex's appeal to the High Court Justice Woo Bih Li ruled on 29 January 2008 that Pacific Internet must release the information directly to Japanese anime studios and the copyright owners. District Judge Lau's previous ruling, which denied Odex this information, was upheld.

Methodology

Odex's method of tracking Internet users was similar to the method adopted by the Recording Industry Association of America (RIAA). Both companies hired the American company BayTSP to source out IP addresses, identify those originating their country and track them for several months. After sufficient activity was recorded, Odex sent a letter to the downloader, requesting a sum of money in compensation for the downloads of its copyrighted material. BayTSP singled out the website AnimeSuki as a major source of downloads and tracked many of its torrent users. This data was then used to acquire subpoenas from the courts to require that the ISPs reveal the personal information associated with the given IP addresses. In May 2007, Odex obtained personal information of 17 downloaders from the ISP SingNet, and on 13 August 2007 won its lawsuit against StarHub, forcing them to release the identities of about 1,000 IP addresses. SingNet gave explicit written consent to release the personal information even before its hearing. Odex was represented by law firm Rajah & Tann in all cases against major ISPs, including its third suit against Pacific Internet.

Once evidence was gathered and finalised, Odex sent a demand letter to each downloader, demanding a "compensation fee". The recipient had to contact Odex and pay the compensation fee settlement within the week, which ranged from S$3,000 to S$5,000. Failure to pay resulted in Odex taking legal action against the alleged downloader. The person would then have to sign a non-disclosure agreement promising to destroy all copies of the downloaded anime and cease any further downloading of the copyrighted material.

Odex said that it intended to begin legal suits and obtain warrants to raid homes for illegal anime, if need be. The company initially believed that, unlike other countries, a mere warning letter would not stop anime downloads in general. Letters were mainly sent to downloaders of more popular series, such as Bleach, Fullmetal Alchemist, Inuyasha and D.Gray-man. The company had been speculated to collect approximately S$15 million from 3,000 individuals from out-of-court settlements, but Odex responded that it did not require all downloaders to pay S$5,000. It clarified that the main factor in deciding the compensation amount was the level of downloading carried out by each individual, and conscious efforts to keep the amount levied to a minimum at the initial stage of the enforcement drive. Odex confirmed that there were more than 3,000 IP addresses revealed by the court orders already issued, and estimated that the amount collected would cover less than 20% of the enforcement costs. Later, the company's director Peter Go revealed that most of the compensation fees went to paying ISPs and BayTSP. He justified Odex's actions by stating that, according to BayTSP's statistics, Singapore had one of the highest rates of illegal downloads of anime in the world, and that Odex wanted to lower that rate by 85%.

On 3 September 2007, Odex director Stephen Sing announced on his company forum that Odex would no longer send demand letters to Internet users who stopped downloading since the beginning of the enforcement drive. Two weeks later Odex added an online warning system, developed by BayTSP, that sent cease and desist emails to alleged downloaders. The company did not obtain the subscribers' information directly from the ISPs, but relied on the latter to pass on the emails to its subscribers. Sing vowed that the anti-piracy drive would continue, with weekly reports from BayTSP, and that they would return to legal actions if downloaders or ISPs did not respond to the online system.

Following the ruling of Odex's appeal on 29 January 2008 for Pacific Internet to release the names of the alleged downloaders to the Japanese anime studios instead of the company, Odex director Peter Go said that its role has shifted to more of consultancy from active enforcement, assisting the studios in their next possible course of action.

Reaction

The company's actions attracted national media attention and were harshly criticised by the Singaporean anime community as being sudden and severe. Several anime fans were outraged by children as young as nine years old being subjected to the same legal threats, as they believed children would not be able to differentiate between legal and illegal downloading. Calls to boycott Odex's products became widespread in online blogs and forums. Odex blamed the fall in VCD and DVD sales (of as much as 70%) in 2006 and 2007 on illegal downloading. Several anime fans responded that the fall in sales was due to inferior products and later release dates than the online versions. Odex then promised to make improvements to future anime releases, but blamed its inaccuracy in subtitling on fansubbers that it had hired and censorship laws for disallowing mature themes such as yaoi. The Board of Film Censors responded that it did not ask for subtitles to be changed, that it merely classified content, and that the onus is on the distributor to ensure accurate subtitles. In addition to problems of quality and scheduling, criticisms were directed at Odex's business model for using a litigious strategy and poor public relations. Odex acquired support from the Anti Video Piracy Association of Singapore (AVPAS) in carrying out its demands for compensation.

Stephen Sing was mocked and criticised after posting comments that were considered to be gloating to an online forum. Messages posted by Sing, under the nickname of 'xysing', were "Me too busy sueing people~" and "Hahahahah! I double-6-ed so many downloaders~ serve them right!". In response, Sing was labeled the "most hated man in Singapore's anime community" by members of the blogosphere, a wanted poster with his face circulated online, and he was taunted openly in his office. Sing asserted that threats of arson, assault and even death were made against him. He filed a police report, and expressed regret over the remarks he made because they were a "PR disaster", "very wrong" and written while feeling frustrated, but did not apologise. He dismissed his 'double-6-ed' remark, expressing joy at the threats of lawsuits, as being made "two months ago" but they were revealed be made only three weeks prior. A Sunday Times article condemned these online responses as "lynch mobs" and "propaganda", noting that some netizens have uncovered history and home addresses of its employees. Odex published a quarter-page article in The Straits Times on 22 August 2007, to clarify their actions.

There was an allegation that Odex was passing off fansubs as its own work. Sing has admitted that this was partially true as Odex had hired some anime fans to do subtitling in 2004, who "took the easy way out and copied word for word the subtitles on fansubs they downloaded". Sing explained that at the time of release the company did not realize what the anime fans had done, and have been "paying for this mistake ever since". It was reported at the same time that all of Odex's subtitling and translation was now being done "in house". However, Odex's release of The Melancholy of Haruhi Suzumiya in September 2007 was found to contain translations strongly resembling an earlier unauthorised fansub release. Emails were also sent to the media about Sing and Peter Go being director and shareholder respectively of a defunct company, Games Mart, that shared the same corporate address as Odex and was raided by the police for sale of pirated consoles in 1999. This information was confirmed by the press, and Go wrote a letter to the media with the explanation that the company was not affiliated with Odex in any way.

Parents paying out-of-court settlements to Odex for their children's downloading, as depicted in the parody animation "Xedo Holocaust" circulating on the Internet.

Members of an online forum expressed their unhappiness by organizing a campaign to print "anti-Odex" T-shirts. Another netizen created a video parody of the incident, entitled "Xedo Holocaust", and uploaded it on a number of video-sharing websites, including Youtube. A website was set up giving details of an "Odex VCD recycling drive", where those who joined could exchange their Odex VCDs for a black awareness ribbon to wear. An action figurine protest took place on 25 August 2007 under police scrutiny, which was considered by Western observers to be a rarity in Singapore.

There were assertions that Odex charged 10% interest for settlements paid through an installment plan, but the company's press release denied any required interest payments. By September 2007, 105 out of the 300 SingNet subscribers who received the letters negotiated and paid Odex, though, in a news conference, Odex stated that it neither forced payment from, nor fined anyone. The company explained that it would not earn any profit from the enforcement process, intending to donating any excess amount to charity and release a financial audit of all the money collected after all the proceedings. On 31 August 2007, in an attempt to address criticisms of late releases Odex began offering video on demand (VOD) on its relaunched website. Users could legally download and unlock a DRM-protected anime episode at S$2 for seven days.

Odex's website was hacked and defaced on 21 November 2007, possibly in retaliation to the pre-litigation letters that were sent by the company.

In mid-November 2007, the cease and desist emails initiated by Odex and BayTSP reached several international users as far as Japan, France, and the United States, some in the form of DMCA notices from their ISPs. Although Odex and BayTSP announced shortly afterwards that the emails were sent out in error, Japanese commentators suggested that the enforcement action was "a step in a right direction" globally. On 21 November 2007 Odex's website was found to be hacked and defaced with the VOD service put out of action. It was believed that the attack may have been retaliation for the pre-litigation letters that were sent to several users and experts interviewed by the local media stated that the perpetrator likely originated from Singapore.

Odex v. Pacific Internet

Subordinate Courts decision

On 16 August 2007, Odex initiated legal action against a third Internet Service Provider, Pacific Internet, to disclose the personal information of about 1,000 subscribers. The closed-door hearing was held in the Subordinate Courts on 23 August 2007, and District Judge Earnest Lau ruled in the ISP's favor that Pacific Internet did not have to reveal its subscribers' personal information. Lau believed that Odex was not the correct party to make the application, despite having permission to prosecute on behalf of the Japanese anime studios. The decision came as a surprise to many, and Odex quickly announced its intent to appeal. Although Lau denied Odex the court order, he warned that the right to privacy was no defense for copyright infringement.

In light of the decision, the ISP StarHub, represented by Drew & Napier, said: "[we are] assessing our options, given the different decisions rendered by the court". Meanwhile, SingNet's two week appeal deadline passed, and it was revealed that SingNet gave consent to Odex's application and did not even instruct its lawyers to attend their hearing. SingNet's failure to contest Odex's application, perhaps even expediting it, incurred the wrath of its subscribers as the action (or lack thereof) was perceived as a voluntary breach of privacy. SingNet later declared that it neither 'gave consent' nor assisted Odex in its application for release of subscriber information, and that its customer subscriptions remain unaffected.

In a rare move, District Judge Earnest Lau released a 14 page judgment explaining the court's denial of Odex's request. In the written judgment, he compared Odex's demands to an Anton Piller order, which provides for the right to search premises and seize evidence without prior warning. Being seen as draconian, it is only used under extreme circumstances. He also wrote that only copyright holders themselves, or its exclusive licensee, can make such copyright claims, and that he is not satisfied that the evidence was harvested by BayTSP for the identification of downloaders. Out of all the anime licensed to Odex, only Mobile Suit Gundam SEED's license was granted exclusively to the company. Lau noted that, out of the thirteen authorization letters presented in court, ten of them authorized AVPAS, not Odex, to act for the copyright holders. Odex was ordered to pay Pacific Internet's legal costs of S$7,000.

High Court appeal

The appeal began on 3 October 2007 before Justice Woo Bih Li in the High Court, and the first session was adjourned to allow Odex to add more affidavits in support of its appeal. Odex flew Mark Ishikawa (CEO of BayTSP) and representatives of four Japanese studios, including TV Tokyo, Gonzo and Toei Animation, into Singapore to help the company prepare and testify. Although the Japanese companies initially announced their intention to file lawsuits themselves should Odex fail, they were added to the appeal on the side of Odex with the approval of the High Court.

On the morning of 3 January 2008, Justice Woo summoned the lawyers for Odex and Pacific Internet to his chambers. There, he brought up some additional points of law and requested that both parties submit their positions on these points in writing by the end of the following week.

Justice Woo ruled on 29 January 2008 that Pacific Internet was to release its subscribers' information to the six Japanese companies that were adduced to the case, but explicitly denied such access to Odex. He upheld District Judge Lau's decision that Odex was not a rightful party to ask for the release of subscriber data, and ordered the company to pay Pacific Internet legal fees of S$20,000. The ruling may have set a precedent for online privacy in Singapore by raising the bar for burden of proof on the copyright holder to take legal action against downloaders. Following the ruling, some of the downloaders who already settled with Odex planned a counter suit to recover the money they paid the company.

Legal opinions

Lawyers interviewed by the local newspaper The Straits Times stated that the fans did not have a strong case against Odex if there is proof of uploading or downloading. Thomas Koshy, a legal academic and writer for another local newspaper Today, questioned the legality of Odex threatening criminal prosecution (as stated in the legal letters to downloaders), as the power to prosecute rests only with the Attorney-General (or delegated by fiat). Only government institutions or bodies may prosecute people for criminal offenses; Odex and AVPAS, however, are commercial entities which could not enact legal action on the said law. The Intellectual Property Office of Singapore (IPOS) took an anti-piracy stance, but did not prosecuted people under criminal law on behalf of Odex. The author noted that, in addition to never having been used, the law cited by Odex in its letters was never intended by IPOS to target the man-on-the-street, but rather prosecute people pirating for monetary gain (i.e., reselling of pirated goods for profit). An NUS law associate professor, Burton Ong, suggested that an anime fan who downloaded a few episodes of anime may qualify in using fair dealing as a defence if he is able to prove that it subsequently boosts, rather than undermines the commercial viability of the anime industry, amongst other criteria.

Anime fans and sympathizers used the Internet to raise money and lodge a legal challenge to Odex's methods. An Internet user even created an invitation-only forum for those considering going to court against Odex over its allegations of illegal downloads. Fans solicited legal advice and put together a library of relevant material. A letter to The Straits Times argued that downloaders who decide to settle out-of-court with Odex affords no protection from lawsuits if initiated by another company within the anime industry.

Following District Judge Earnest Lau's ruling in the Odex v. Pacific Internet lawsuit, Koshy believed that SingNet may be in breach of the spirit of the Telecommunications Competition Code (TCC), which protects the confidentiality of subscribers' information and such forms of unauthorized release. Another lawyer interviewed by ZDNet, however, did not think that SingNet's actions were improper. A spokesman for the Infocomm Development Authority said that SingNet was found to be in compliance with the code. Another Straits Times editor, Andy Ho, wrote that intellectual property laws may be used invasively by private entities to have a chilling effect on free speech, and called for privacy laws to be enacted soon.

See also

• BMG Canada Inc. v. John Doe
• Legal issues with BitTorrent
• Trade group efforts against file sharing

Further reading

• Odex's legal threat letter - "Illegal Online Downloads", Stephen Sing (hosted by DarkMirage). Retrieved 16 August 2007
• Notes from a Conversation with Dr. Toh See Kiat, 5parrowhawk. Retrieved 16 August 2007
• Odex Letter of Undertaking, Monkey_D_Luffy (SGCafe). Retrieved 16 August 2007
• Grounds of decision, Odex Pte Ltd v. Pacific Internet Limited, District Judge Earnest Lau, The Subordinate Courts of Singapore. Retrieved 4 September 2007