The Best Legal Analysis You’ll Ever Read

It’s funny because it’s relevant

I recently took at a look at the Odex v. Pacnet decisions that the Singaporean bloggers have been raving about. Were they properly decided? Worth the hype? Moral victories with little practical effect? As always, I tackle these subjects in the most objective, unbiased manner possible. That means you won’t be getting any of the following one-sided crap:

  • If illegal downloading isn’t stopped, the anime industry will collapse
  • Suing your potential customers is a terrible business strategy

Remember, this is a legal analysis, not a policy analysis. I have no personal interest in the prosperity of Odex or Singaporeans, so I don’t care whether it’s a good idea for Odex to sue downloaders. My only concern is whether it’s legal.

Factual Background:

  1. Japanese anime studios license Odex to distribute anime in Singapore
  2. Singaporeans illegally download anime licensed to Odex
  3. Odex wants to sue downloaders
  4. Odex hires BayTSP to track downloaders
  5. BayTSP gives Odex a list of downloader IP addresses
  6. Odex demands that Starhub, Singnet, and Pacnet (Singaporean ISPs) identify the users of the IP addresses
  7. Singnet complies, gives Odex a scrotal massage
  8. Starhub puts up a half-assed resistance, loses in court
  9. Pacnet puts up a serious fight, wins at the District Court, loses at the High Court

Odex as a Sub-Licensee: The Easy Part

  1. For some shows, Odex was an exclusive licensee. For others, it was a sub-licensee.
  2. Singapore’s Copyright Act only allows copyright holders and exclusive licensees to sue for copyright infringement.
  3. Therefore, Odex could not sue downloaders of shows for which it was a sub-licensee rather than an exclusive licensee.

Singnet and Starhub’s legal teams should’ve been fired, disbarred, and exiled for not making this argument. I can’t imagine how the conversation went…

Odex: Hello, we’d like to sue your subscribers for copyright infringement.
Singnet: Are you the copyright holder?
Odex: No.
Singnet: That’s ok, you can sue them anyway.

If sub-licensees can’t sue infringers, what can they do to stop downloaders? They need to get the copyright holders to join the suit. I could go into the rationale for this (preventing double recovery, notice, responsibility, etc…), but if the statute says only a copyright owner or exclusive licensee can sue, that’s that. ((Singapore has a common law legal system, so there may have been some flexibility. The courts were willing to consider letting a sub-licensee go forward with a suit after obtaining a letter of authorization to sue from the copyright owner. However, the motivation to sue would have to come from copyright owner, not the sub-licensee. The courts found that Odex initiated this suit to protect its own interests, not the anime studios’, so the courts never had to fully address this issue. For now it’s just dicta.))

When Odex appealed the case, it convinced the anime studios to join the suit. Problem solved.

Odex’s Burden of Proof: The Tricky Part

Several problems arise if an ISP turns over the identity of an innocent subscriber, including:

  • Violation of the subscriber’s privacy
  • ISP’s breach of contract with the subscriber
  • Subjecting an innocent person to the trauma of defending himself against legal claims

To minimize the risk of misidentification, Odex needed to demonstrate that the method it used to track downloaders was reliable. How reliable? The District Court adopted the first prong of the Anton Pillar test, which required Odex to prove an extremely strong prima facie case of wrongdoing before obtaining user information.

The District Court held that Odex did not meet this exceptionally high standard. Rather than establishing the reliability of the BayTSP’s downloader-tracking service by describing how it worked, Odex merely established:

  1. It hired BayTSP to track downloaders
  2. BayTSP’s tracking service had been accepted in a similar US case

This indirect support of BayTSP’s tracking service was not enough to satisfy the court. On appeal, Odex got BayTSP to testify and submit documents supporting their tracking methodology. This was enough to tip the case in Odex’s favor.

Was the Anton Pillar test the right standard?

At the very least it seems like a right standard. ISPs and their subscribers couldn’t ask for a higher burden of proof without rendering copyright holders impotent to enforce their rights. What I find unsettling about the District Court’s decision to apply this standard is that it was higher than any standard that Pacnet advocated. A lower court creating its own law contrary to precedent and party pleadings may be considered an abuse of discretion. At least that’s how it’s viewed in the United States. The Singapore High Court didn’t seem to care. Maybe Singaporeans aren’t bothered by judicial activism the way Americans are.

Was the standard properly applied?

Probably. The District Court certainly had it right when it found Odex’s evidence insufficient to demonstrate the reliability of BayTSP’s tracking service. After all, how can you know it’s reliable if you’re not told how it works?

The High Court’s decision was probably correct. BayTSP’s testimony, reports, affidavits, etc… addressed the evidentiary deficiencies listed by the District Court. It also seems that Pacnet has a meaningful opportunity to challenge the new evidence. Not having seen the particulars of the evidence, I can’t say for sure whether it should’ve passed, but I’ll give the High Court the benefit of the doubt and assume they got it right (at least procedurally if not substantively).

Does the new standard make a significant difference?

Probably not to legitimately interested parties. A higher evidentiary burden naturally means higher costs of going to court, and closer judicial scrutiny means it’ll be tougher to go forward with fraudulent or frivolous claims. However, judging by Odex’s success on appeal, a legitimately interested party should not find it unduly burdensome to prove an extremely strong prima facie case of wrongdoing, despite how tough that standard sounds in theory. As long as they keep their paperwork in line and have experts testify in court, they’ll probably succeed.

Still awake?

27 people love sucking up to me

  1. tl;dr, super serial, and reused shiznat pics. worst. post. evar.

    I hung on every word you wrote. Your super serial organization allowed the post to flow in a logically coherent manner. The only thing more impressive than your legal research is your ShizNat research, for I have never seen these pictures anywhere on your website. Best. Post. Ever.

  2. OMG LAWYER ANIME BLOGGER. Whether it’s best or not I don’t know, but it’s certainly the easiest to understand for laymen.

    OK I accept your challenging the anime blogosphere to show our true powers. Maybe Zaitcev will show his blueprints for some space rocket.

  3. tj han: You didn’t know this before? I want to see Baka-Raptor and omo do a debate covering opposite sides. It would be interesting anime blogger lawyer magic.

  4. How does singaporean law treat ip numbers? An ip address is not a personal ID so nobody can tell who actually sat behind the keyboard (or *which* keyboard even), but does the law hold the owner of the internet subscription responsible for anything that goes through that node (because that’s what an ip address is, a node through which any number of computers can access the internet)? That would essentially make open wifi illegal… Otherwise the defense should be easy enough if the courts actually stick to the old “innocent until proven guilty”.

  5. I thought it was interesting, although you said “I may be posting something really gaaaaaaaaay in the near future…” in a comment on my blog, so I was a little disappointed that there was no homo in this. But I did read the entire thing, unlike some losers around here. Digiboy actually is just being a tsundere about it, he really thinks it was an awesome post and has only increased his attraction to you, but he’s Kyou with pants so he can’t admit that.

    @ Calaveth – If I’m not mistaken, since Singapore utilizes the common law system, people are guilty until proven innocent/not guilty.

  6. Well… I guess anyone that distribute anime without the owner of the copyrights knowing about it, is in some case or another infriging his rights and will, not to mentioning acting illegal and criminally. But Who Cares ? Unless you don’t get caught, is up to you to take the risk.

    It is not only the anime industry that is suffering this loss, the gaming industry too… as i was reading a few days ago about how activision was pissed off because their on-line game was a success… how could they be pissed off if the success was more than expected ? Because the great majority of their on-line players, were playing with piracy copies of the their game…

    Internet is great, but with great powers came great evil.

    If the government of any country wanted to stop illegal anime download, i guess that the first choice of them would be cutting the roots of the “evil”, closing and arresting fansub clubs and members.

    It is more like a choice of moral and idealism.

    If you are well educated, you know by default that driving above the top speed in a local street can kill childreen , throwing trash in the middle of the streets is like thrashing your own house, and buying illegal (free-downloaded) anime and games are not contributing to theirs authors in anyway.

    But how many times we did this just for once ?

    Did you never was so late you drove like crazy in the streets and *almost* hit some ladies ?
    Did you never was so tired of looking for a trash can in miles that you let the trash out beeing impatient ?
    Did you never downloaded LICENSED anime or games simply because you were not willing to pay or because it was easier ?

    I hate justice, before judge others why they do not judge themselfs ?

    It is really dificult to separate those who had passed the point of no return from those who pass their limits sporadically.

    No one is perfect, everyone needs a chance to change.

    It should be open for the ONES to choose whenever they want to buy or if they want to download…

    This is real democracy, this is real freedom, not doing something because you just didn’t wanted to, but you could easily do if you wanted to.

    And Geezzz…. i bet all those illegal downloads that the singaporeans were downloading was from naruto anime…

    Geezz.. Let them be…

  7. @Omisyth I agree; I don’t understand the complexity of this post. Epic fail for me.

    More or less the main point I got from this post was that Odex will own my ass if I was in Singapore. That really sucks. As if it weren’t strict enough there.

  8. @digitalboy:

    @tj han: I can’t wait to see how many programmers there are. Over/Under at 50.

    @TheBigN-3: I’m not a lawyer just yet. Give me another year.

    @Omisyth: Then I have failed. I tried to make it readable to non-lawyers but got lazy toward the end and eventually threw in the towel.

    @Shin: Let me guess, he was cosplaying as L.

    @Calaveth: I’m assuming there would need to be proof that the person committed the infringement, not merely that it happened at his IP address (unless he knew about it and encouraged the infringement or financially profited from the infringement and had the ability to control the infringer). As for how that’s proven, I’m not really sure. It’s easy enough if the user never deleted the infringing files or any incidental data on the computer, but if the user knows how to cover his tracks, I’m not sure he could be held liable based on his IP alone. Also keep in mind that proving guilt beyond a reasonable doubt only applies to criminal cases. For civil cases, you may only have to prove the chance of the defendant committing the act was over 50%.

    @omo: Singaporean procedure seems rather lax by US standards. I’m not sure what they’d have to do to challenge a ruling based on evidence introduced on appeal.

    @Day: The really gaaaaaaaaaay post is on hold until I get a wig. I played around with bleach, hair color, and hair spray this past weekend. Apparently that stuff doesn’t work with intended results on black hair. This is all I’ve got so far.

    @TheBigN-9: Monster

    @Laguna: I didn’t want to get into the moral side of things because I’m no good with that stuff. But you leave me no choice. In my view, Odex’s mistake wasn’t that it sued downloaders. Rather, its mistake was that it sued them without warning. They should’ve at least announced that they’d crack down on downloading or send a letter to first-time infringers. I’ve heard some crybaby pussies bitching about receiving letters asking them to stop downloading. Big deal, you got a letter. No harm done. If you can’t download shows licensed by Company X, either buy them or watch something else. It’s not the end of the world.

    @Blowfish: ShizNat has a way of making everything clear.

    @Aizen: Oh no, can’t go to Singapore. What a loss.

  9. @ Baka-Raptor – I’m trying to decide if its a really bad sign that my first reaction to that picture was one of delight and me wondering if it is appropriate or not to hit on fellow bloggers…

    On a somewhat unrelated note, in regards to your comment on my Anime Boston post – you wouldn’t really need driving around in Boston… actually, its kind of insane to drive around in Boston, period, and I would strongly recommend against it. As for the room and hair, I could help with the hair, but I’ll have to check around about places to sleep…

  10. Why the hell are you dissecting the law of a country that has a caning sentence for littering?
    You should know from the instant you were (hypothetically) born in Singapore, your ass wasn’t safe.

  11. Also, I am of the firm belief that being willing to cross-play AND DO A GOOD JOB OF IT means you’re a real man (warning: does not apply to man-Rei). Its kind of like how real men wear pink.

  12. Wow, this is the most law-related material ive seen since Blawg-a-raptor. The only thing that could possibly make your blog complete at this point is The Best Medical Analysis You’ll Ever Read… feel free to hire guest authors…

  13. Oh yeah, and your dinosaur comic is dated 5/8/09. What, do you take us to believe that you are some magical, time-travelling dinosaur?? Pssh, I sure hope someone gets fired for that one!

  14. I liked your choice to analyze this from a legal standpoint. Honestly If I knew the case a tad better and Singaporean law better I could form a much more educated decision about the case.

    Also Evangelion is complicated enough as it is without bringing bureaucratic appropriations into it. But you do make a valid point.

  15. If I didn’t check the time stamp, I could have sworn this was written almost 2 years ago at the height of the saga.

    Yeah, we got sued and the Japanese distributors stepped in for a while. But the last time I checked (5 mins ago), my torrents are still well seeded.

  16. Let me know when you’re going to do a post on Stephen Conroy’s planned, failed censoring of the Australian internet.

    For one thing I’m tired of Singaporeans not caring when even worse Big Brother happens in my country.

  17. Interesting stuff and a good conclusion – as you point out, a determined party (with enough money) can win a legal argument.

    As for judicial activism; I figure it is a big concern in the States because of the structure of the political system (separation of powers, etc.). Popular opinion on it is somewhat more mixed around the world due to different political systems. Canada is a little more tolerant of it since we have a parliamentary system (where powers are concentrated), and well, Singapore is virtually a dictatorship after all so public opinion is not as huge a factor.

  18. Sweet analysis Baka. Didn’t know you were in law. Singaporian law is somewhat different than the American system though. I assume they are based on British Common Law, and as such what is allowed and what is not could change. No idea what the Anton Pillar test is though, sounds like some weapon from Evangelion :p

    @TheBigN – I did a medical post eons ago (April 19, 2005):

  19. @LJ: I expected Singaporeans to receive caning sentences for merely thinking about copyright infringement. Instead we have a judge going overboard to protect due process. That’s a major reason I was interested in the case. If it came out in France, I wouldn’t have cared.

    @Day: Men don’t wear pink.

    @The Sojourner & hayase: Is ShizNat ever NOT the best part of a post?

    @Praz: That comic is incontrovertible proof of my long-time assertion that I can time travel.

    @Jancz: It’s a long story.

    @MrMayat: All’s well that ends well.

    @Asperger’s: Well, maybe if you were as good at bitching and crying as the Singaporean bloggers, you’d get worthless moral support for you causes too.

    @vendredi: Money can win without determination. In many countries it’s easy enough to bribe a judge.

    @Epi: Lawyers scream the name of the attack when they use it.

    @Denver: No, it just means there’s a slightly better chance you’ll get away with it.

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