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March 11, 2008
Odex 'less than careful' in bid to get names of alleged infringers
By Chua Hian Hou
LULLED into "complacency" by its earlier victories and confused by the "minefield of copyright law", anime distributor Odex did not realise it lacked the legal right to ask the courts for the names of alleged infringers from their Internet service provider, said the judge who dismissed its appeal in his written judgement released on Tuesday.

However, Justice Woo Bih Li said the proof of alleged infringement provided by Odex, which had earlier been brought into question, was sufficient to show wrongdoing.

And since the Japanese studios making the anime - which should had been the ones asking for such information to begin with - had subsequently joined Odex's appeal, he ordered PacNet to cough up the names of the alleged downloaders in the "interest of justice".

Last May, Odex, which distributes the animated Japanese cartoons, incurred the wrath of the Singapore online community when it began sending letters to anime downloaders demanding payment of between $3,000 and $5,000.

The sums, it said, was to settle their alleged infringing activities in lieu of further action. Several hundred have done so.

Odex successfully sought court orders to obtain the names of alleged downloaders from SingNet and StarHub, but its attempt to get the identities of PacNet downloaders was dismissed by District Judge Ernest Lau, who said Odex was the wrong party to ask for such information and that it did not have good enough proof.

On appeal, Justice Woo ruled in January that PacNet would give the names to the Japanese rights owners, but not Odex.

In his 18-page judgement published on the Supreme Court website, Justice Woo said that while rights owners could appoint an agent to track down infringers, "when it comes to civil court proceedings, they (the Japanese principals) have to use their own names", he said.

Odex, he said, had either missed an earlier Court ruling that had already set this precedent, or had been "less than careful" when it began applying for court orders to get the names of alleged infringers.

"I have taken the trouble to mention this because I am of the view that applicants who seek such discovery, especially in the minefield of copyright law, should tread more carefully lest they confuse or distract themselves, the Internet service providers and the court."

Justice Woo also wrote that while Judge Lau was "not wrong to consider whether there was evidence of wrongdoing in the first place", he had "erred" in requiring such a high level of proof.

While an ISPs duty of confidentiality to its customers is "another factor" to consider, it "should not, in and of itself, give rise to a higher standard of proof."

Ultimately, the guide should be the interest of justice, and this was why he granted the order, since Odex had given "evidence of wrongful downloading", and this "seemed to me to be a prima facie case of copyright infringement".

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