The Chronicles of Odex: the ISPs, the Downloaders and the Customers' Privacy

I have been following the Odex case against the ISPs and downloaders with interest. The matter was brought to public attention came from the Hardwarezone team who identified an online user to be Stephen Sing, the director for enforcement in the company. A post exemplifying his arrogance and gloating over “suing people for illegal downloads” had infuriated many anime fans and members of the blogosphere [1]. A knee jerk reaction happened in the midst of the court cases that forced two dominant ISPs (SingNet and Starhub) to reveal the names of the customers who are engaged in illegal downloading. While the anime fans fought back with a boycott Odex petition and soliciting donations to take on the company, an interesting event happened two days back when District Judge Earnest Lau made a surprise ruling that may set a precedent for online privacy in Singapore [2]. The judge’s 13-pages report [3] also revealed some interesting details about the responses of Singnet and Starhub on the case, as he has made a ruling contrary to the earlier cases for PacNet. I will like to outline some details about this case, and cast some points that can be facilitated for further discussion.

This landmark case in Singapore has also attracted interest from the international community, particularly the US [4], as it may set precedent for content providers and distributors to force the ISPs on the disclosure of users engaged in illegal downloading. A few interesting themes have emerged from the case: namely (i) who should be prosecuting the downloaders, (ii) the rights of the consumers against Odex and (iii) protection of privacy for users by the ISPs. The first two themes are covered extensively by Thomas Koshy [5]. The intention of this article is not to discuss whether people should engage in illegal downloading (since the law has stated that it is illegal), but to examine the implications of the case pertaining to online privacy (with regards to the ISPs) and rights of customers on this matter.

The story from the Odex perspective

Before we dwell further in the subject, we recap the background behind this case. We review it from the perspective of Odex, given that it is an official institution. Odex is a Singaporean-based company that licenses and releases Japanese anime for the southeast asia region. In 2006, Odex claimed that they sought a US company, BayTSP inc for a software solution that could track and record instances of unauthorised downloading of anime titles over the internet. Following on their claim, the company conducted searches over a 6-month period from November 2006 to April 2007 on 50 anime titles only using BayTSP’s tracking solution. They found over 400K instances of illegal downloading happening in Singapore. According to Odex [6], they consulted members of the Anti-Video Piracy Association Singapore (AVPAS) and the Japanese content owners and decided to engage in enforcement action against downloaders in Singapore.

Since March to May 2007, Odex filed applications to court to require the three Internet Service Providers (ISPs) in Singapore to release information identifying the subscribers, whose accounts are utilized to download the unauthorised anime videos over the internet (via bittorent most likely). Odex is represented by the law firm Rajah & Tann for all three cases with the ISPs. As a result, the applications against Singnet and Starhub have been successful. With the information of the illegal downloaders, Odex went on and sent out batches of letters [7] threatening legal action on the individuals together with the list of anime they download. Anyone who has received the letter by a registered mail can contact the company for an out-of-court settlement within a week, which ranges from S$3K to S$9K per legal contract for Odex not proceeding to sue. In addition, the downloader who settle the case, is also made to sign a non-disclosure agreement that he or she will destroy all copies of the downloaded anime and not continue any further downloading.

Since Singnet and Starhub faces the same ruling, everyone believes that the result would be the same for PacNet. A surprise court ruling last Thursday decided that Pacific Internet (PacNet) is not required to give up the names of its subscribers who may have been engaged in downloading anime. So what happened?

Our first instinct is to ask why the judge has made such a different ruling from the past. It turns out that his report have brought some interesting points that are not known to the public about the case:

1. The engagement of BayTSP to track down the illegal downloaders: The lawyers representing ODEX cited the tracking solution to collect details of unauthorized uploading and downloading of content via the internet using the BitTorrent protocol. They cited the acceptance of the solution using a precedent from the case “Paramount Pictures Corp. v John Davis” [US District Court for the Eastern District of Pennsylvania, Civil Action No. 05-0316, 26 July 2006]. What turns out interesting is that the judge pointed out that case itself does not demonstrate the tracking solution but rather the judgement of the expert witness, Mark Ishikawa, an experienced hacker, was accepted. The gist of the matter, according to the judge, is that it is not clear whether ODEX did hire the services of BayTSP on the matter. In order for ODEX to make a strong case, according to the judge, they need to show how the methodology of the tracking solution and its success in tracking down illegal downloaders.
2. Why the ruling appears so different : The immediate response from the layman is to question why there is a contradiction between the first two rulings and the current one. It turns out that the story is more than meets the eye. From the judge’s report, we quote the follow passage (section 44):
   

44. I have not addressed all the other submissions raised by the Defence counsel as they are not necessary for this oral decision. I would also like to explain why my decision differs from the Plaintiff’s application against the other 2 ISPs, namely Singnet (in Originating Summonses 95/2007 and 158/2007) and Starhub (in Originating Summons 157/2007).

(a) For the Singnet case, the orders were made by consent. In particular, counsel for the Plaintiff mentioned for Singnet in those 2 applications to record the consent order before the court.

(b) For the Starhub case, Starhub was represented by counsel. However, the issues raised here were never fully argued before the court.

All in all, in all three cases, the approach each ISP took was totally different and hence it led to the surprise verdict for PacNet which was counter-intuitive to the earlier cases.

After the surprise ruling, Odex has decided to appeal against the ruling and since gone on a PR offensive [9]. They immediately invited Mark Ishikawa to come to Singapore as an expert witness for the appeal and also the Japanese firms to close ranks with them on the case. In addition, to appease the public, they have promised that they will hire an independent auditor to ensure that they have not made money from the lawsuits. Of course, on the business front, they have also put up a new website and launch a new video for demand website.

Open Questions

• The difference in philosophy on online privacy among ISPs: After the release of the judge’s report, Singnet has suffered an immediate backlash from the subscribers. Immediately, they released a public statement [10] that they did not ‘consent’ to demands by Odex to hand over details about subscribers. They clarified that they would release such information only under a court order or if the law enforcement or regulatory agencies demand such information from them. On the other hand, Starhub and Pacific contested the case. I can offer two guesses to why this is the case. The first is that Singnet decided that they trusted the court for the judgement of the case and passed the information upon the court order. That comes at the expense of the customers who felt betrayed that the ISP did not put up a fight against Odex, while Starhub and PacNet saw the need that they have to. From a customer service point of view, Singnet did not foresee that a token response might not have triggered such reaction from her subscribers. Another possibility is that the Singnet management thinks that online privacy is secondary since illegal downloading is breaking the law while Starhub and Pacific believe otherwise. Either way, both possibilities open up a grey area. Should ISPs be held responsible for the privacy of her customers?
• Are Singaporeans so afraid of the courts that we do not contest rulings that have serious implications?: Here is another perspective which I have derived from this episode. Clearly, three different judges provided three different rulings to the same case. Singnet might have worked out that there is no point in contesting because the ruling will go in favour of Odex, after all, it is a issue of infringement of copyright which is clearly breaking the law. Starhub and Pacific saw it differently and clearly drew a different conclusion with respect to the ongoing court cases where the ISPs in United States are facing legal challenges from giant media companies such as Viacom. One can make guesses that Singaporeans are not ready to challenge a position which might have possible grey areas involved. Do I detect some form of “kiasi” culture there? I leave that for the reader to make up his or her own mind.

Is online privacy important in Singapore and should the ISPs protect our privacy? These are the important questions for me and I like to hear more from others who might have other perspectives to share on this issue.

Author’s Note: First and foremost, I am not legally trained and it would be good if any lawyers out there can offer their thoughts in the comments section of this post. I recommend Siew Kum Hong’s post [7]. Reference [8] does help to shed some light on what Dr Toh See Kiat, the president of AVPAS, views the actions taken by ODEX.

References:
[1] ODEX director bragging about suing people in online forums?, Tomorrow.SG for the reactions from the anime fans and the bloggers, and the link to the original HardWareZone post that led to the revelation of the Odex director bragging about his crackdown on the downloaders. A wikipedia entry has also been written on this matter .
[2] Anime case: Odex had ‘no right of civil action’, by Loh Chee Kong, Today Online, Odex case: PacNet need not reveal downloaders’ names to distributor by Ansley Ng, Channel NewsAsia, 23 August 2007 and Odex-PacNet ruling may set online privacy precedent, Straits Times, 24 August 2007.
[3] ODEX Pte Ltd v Pacific Internet Limited by Siew Kum Hong. An official copy can be downloaded here.
[4] RIAA-style lawsuits hit Singapore anime scene By Nate Anderson, Ars Technica
[5] Are anime providers stretching the law? by Thomas Koshy, Today, 21 August 2007.
[6] Anti-Video Piracy Association, Singapore (AVAPS) website, see the clarification article by ODEX there.
[7] Odex’s legal threat letter – “Illegal Online Downloads”, Stephen Sing, hosted by DarkMirage.
[8] Notes from a Conversation with Dr. Toh See Kiat
[9] Japanese anime firms close ranks with Odex and Odex to hire independent auditor to show sincerity, Loh Chee Kong, Today, 31 August 2007.
[10] SingNet: We did not ‘consent’ to Odex, The Straits Times, 28 August 2007.