Temporal Paralysis

By now the whole of the Singapore blogosphere, especially those in the anime community, will already heard the news of the Odex vs. PacNet saga. For the uninformed, Odex had essentially “lost” the fight, instead paying Pacific Internet S$20,000 for the legal fees. As a trade-off, however, the Judge ordered Pacific Internet to instead hand over the names that are linked to the IPs, over to the Japanese companies. For your information, these Japanese companies — Sunrise, Kadokawa, G.D.H., TV Tokyo MediaNet, Yomiuri TV and Showgate — had previously been named as co-affidavits in Odex’s appeal against the PacNet case.

The local forums — HardwareZone, VR-Forums, SGCafe, even XedoDefense forums — are abuzz with the news. Some have perhaps foretold a conclusion to the saga, while others talked about the fear of reprisals from the Japanese companies — who, in the court, are the copyright owners of downloaded anime — coming down to sue the individual users. Others tell of a business-as-usual routine, whereby Odex, given the new situation, will continue to act as sheriff for the companies. Amidst the chaos and noise, I would like to give my 2 cents worth in regards to the situation at hand.

Perhaps the foregone conclusion to the saga is this: Odex clearly cannot initiate civil, let alone criminal, suit against the downloaders it claimed were taken from BayTSP as part of their monitoring activities. In fact, it cannot initiate these monitoring activities and have the list for themselves. The reason is, only exclusive licensees and copyright owners have the right to, in layman terms, “snoop, list and catch” downloaders via BayTSP. Odex has only exclusivity to Gundam SEED, therefore it cannot act on any other shows it was sub-licensed to. Hence, the court’s order not for Odex to gain access to these list.

So the ruling has effectively put Odex’s enforcement activities out of legal procedures. So what now for those that had been served the letters from Odex?

Their options are limited. For one, Odex did sent to alleged downloaders from Singnet and Starhub a letter, proclaiming that their names had been sent over to the Japanese companies, effectively putting responsibility away from them. So, those on the “waiting list” can only proceed to initiate a “libel suit” against Odex. The possibility is there, but given the high costs of initiating a suit, and less probability on actually winning a suit (as seen in the $20,000 fee Odex has to pick up for PacNet), it’s slim to see a high-level slinging, “David vs. Goliath” case.

Those that had already settled with Odex are in even more bad news. Effectively, their chances of recouping their “paid fees” from Odex is nil. The wording of the Letter of Undertaking made it that they signed their admission of guilt to Odex, and that Odex, now in what I believe is “in between a rock and a hard place,” would never hesitate to give their names over to the Japanese companies should push comes to shove.

I have only just started on the tip of the iceberg.

The repercussions of this news are less exaggerated than what most “end-of-world believers” would like to exalt. This ruling meant that the ball is now in the Japanese companies’ hands. They now must act on the list of names that are being handed over by PacNet (if PacNet agrees to handover the names — that’s a big if), and the ones Odex had ill-gotten demanded from SingNet and Starhub. But on hindsight, the Japanese companies will only acknowledge the existence of such list, and do little else.

The reason for the expected inaction would be this: it takes a lot of effort and money to come down to Singapore, engage in a competent attorney/lawyer to represent them (and because they are big companies, the lawyers are going to demand a hefty sum of money out of them), find out who the individual downloaders are (which, as shown by Odex, can be stupidly handled, as in the case of “OOPS!”), pay more money to initiate a suit, and then proceeding to court. By then, all that effort would’ve been better spent making effort in better effective distribution of their shows, and staying true to what they do all the time: making more shows!

Also, repercussions for the Japanese companies are endless: why are they targetting overseas downloaders, and not local uploaders of the very shows they owned? Why Singapore, not the United States? Why the double standards? Why not spent a better time making their distribution better? Are they employing tactics that invade other people’s privacy? What are the jurisdictions of invading other people’s privacy from other countries? etc. It simply brings too much responsibility on the companies to do so, when they could actually be hitting on a straw man?

This saga will echo the fiasco that is the IFPI, RIAA and the whole copyright issue, and the last thing Hollywood wants is more fodder for anti-copyright coalition.

Granted that since the proverbial ball is in the Japanese companies’ court, everything is up to them. Therefore, alleged downloaders are still at the mercy of them.

Unfortunately, the latest ruling doesn’t even state the legality of BayTSP’s monitoring activities, and whether they could even be used for court evidence. As such, it implies that Judge Woo Bih Li accepted the monitoring activities of BayTSP as tantamount to admission of guilt — which is entirely baseless and there are precedents that BayTSP’s activities do not hold water in most of the RIAA cases.

In the end, however, these alleged downloaders might heave a sigh of relief, now that Odex has been squashed of its supposedly “authority to act on illegal downloads.”

Other reads:

• Siew Kum Hong — Odex Redux
• Anime News Network — Singapore’s Pacnet Ordered to Name Anime Downloaders