The case initiated by Singapore anime distributor- Odex, against Internet service provider- Pacific Internet in August 2007, has been concluded As a recap, Odex brought several lawsuits against Singapore-based Internet service providers so as to obtain details of the identities of online copyright infringers who had illegally downloaded anime movies. In the District Court, Judge Ernest Lau denied Odex’s request for the identities of those individuals because Odex did not have the proper legal standing to demand such information. Moreover, the judge was of the view that the evidence presented by Odex was insufficient to establish an extremely strong prima facie case to warrant the handing over of confidential information.
Outcome of the Appeal
In light of this, Odex lodged an appeal in the High Court against Judge Lau’s decision and at the same time requested for six Japanese anime studios to be entered as co-plaintiffs in the suit. While allowing the request, Judge Woo Bih Li dismissed Odex’s appeal to gain access to the identities of the online copyright infringers. Instead, the Judge ordered Pacific Internet to hand over its subscriber records to the Japanese anime studios; them being the rightful parties claiming copyright infringement.
Copyright Prevails at the Risk of Mistaken Identity
The effect of the High Court’s decision maintains and strengthens the precedent established by Judge Lau at the outset of the case i.e. online users illegally downloading copyrighted materials can no longer advocate the right of privacy as their defence against copyright infringement.
For several years, private copyright owners have taken significant measures to track online copyright infringement. For instance, some owners employ “web bots”, which are software programmes that scan online user hard drives for illegally downloaded material. Once detected, the user’s IP address is matched to its Internet service provider (ISP) and a copyright infringement notice forwarded to the ISP thereafter. This tracking system is similar to the American-based service employed by Odex to track the online copyright infringers using Pacific Internet.
Like Odex, copyright owners require personal information of illegal downloaders so they can proceed with legal action for copyright infringement; details of which are solely available to the ISP concerned e.g. contact details, IP addresses and logs detailing Internet history. Whilst it is recognised that copyright owners have a legitimate right to such information in order to be able to enforce their claim, the process by which IP addresses of illegal downloaders are tracked is by no means devoid of error and thus risks exposing innocent Internet users to the severe consequences of copyright infringement.
As there are more Internet users than IP addresses available, a different IP address is often temporarily assigned to a user each time the individual logs on to the Internet. Therefore, an IP address may be tracked to several users in a day. Also, an IP address merely identifies the account holder and not the actual user of the computer, thus clouding the clarity of the individual responsible for the illegal download. Further complications arise where the IP address is linked to a router for a Local Area Network (LAN), thereby raising doubts as to the actual computer used for the illegal downloads.
With these risks in mind, it is questionable whether the IP addresses provided by Pacific Internet will assist in identifying the correct individuals liable for the illegal anime downloads. There lies the risk of innocent Internet users being stripped of their rights to privacy and held liable for acts, which cannot be proved without doubt.
Accordingly, to reduce the risk of mistaken identity, it is important that cogent evidence of the infringing acts be presented before an ISP is ordered to hand over details of its allegedly infringing subscribers. Whilst this is no guarantee against an innocent user being held liable, it does assist in creating some form of equilibrium between the rights of privacy and the enforcement of copyright.
The Role of the Intermediary
The recent Odex decision also serves as a reminder to ISPs that they have an essential role in the enforcement of virtual IP rights, acting as a bridge between copyright owners and Internet users carrying out infringing activities online.
However, in recent times, many copyright owners have taken it a step further by attempting to hold ISPs directly liable for the infringing acts of their subscribers, a move which has led to much resistance by ISPs worldwide. The argument is that ISPs should not be forced to operate as “judge and jury” through monitoring of the illegal activities of its subscribers. If that is the case, it is likely that prices of ISP services would increase due to the substantial cost required to carry out such surveillance, thus limiting affordable public access to the Internet. In addition, rights of privacy would be affected as individuals would no longer use the Internet with the confidence that their online activities, though legal and non-infringing, remain private.
In light of the above, it could be argued that Judge Woo’s decision in the Odex case is fair as Pacific Internet was only required to provide details of those known for carrying out infringing acts online and was not held liable for copyright infringement per se.
Aside from assisting in the detection of copyright infringement, ISPs have an equally vital part to play in its prevention. Education of its subscribers on illegal downloads and virtual copyright is a basic requirement and does not entail significant resources or expense from an ISP. Interestingly enough, some ISPs have also initiated technical solutions such as content filtering and protocol blocking, which are inexpensive tools used to block unlicensed or infringing files in traffic. As these are automated appliances implemented across an ISP’s entire network, subscribers continue to have the freedom to engage in private online activities and at the same time, virtual copyright remains protected to a reasonable extent.
It is accepted that an individual’s right to privacy and the rights of a copyright owner are equally important in the eyes of the law. One should have the freedom to engage in online activities without the fear of being watched, so long as one’s acts do not take unfair advantage of another’s legitimate right. Internet users who illegally download copyright material cannot expect to escape accountability for their actions under the pretence of a right to privacy. Clearly, this would be a harsh blow to copyright owners and belittle the significance of intellectual property.