Odex Clarification Article

Singapore, 20 August 2007 - Singapore anime distributor Odex has commenced action to deal with and contain the state of rampant downloading of unauthorised anime video files on the internet.

To date, Japanese content owners have not made any anime titles legally available for download in Singapore. There are websites offering “free” anime downloads, such as Animesuki, but none of these websites are authorised by the Japanese content owners.

Odex is authorised by the Anti-Video Piracy Association (Singapore) (AVPAS), a non-profit organisation whose members consist primarily of Japanese companies involved in the anime industry, including major companies such as Sunrise Inc., TV Tokyo Medianet Co., Ltd, Gonzo Digimation Holding K.K., Kadokawa Pictures, Inc. and Aniplex Inc., to take all steps necessary to protect and enforce the copyrights subsisting in more than 400 anime titles.

These 400 over authorised titles do not consist only of anime titles that are licensed to Odex. Whether or not and to whom an anime title is licensed for sale in Singapore does not change the fact that they all enjoy copyright protection under Singapore law. Odex was appointed to conduct the present enforcement drive because it is the largest distributor of anime in the region, and it has conducted successful enforcement actions in the past in relation to the sale of pirated anime VCDs and DVDs.

In 2006, Odex engaged a US-based sentry company, BayTSP Inc, to provide Odex with a software solution that would track and record instances of unauthorised downloading of anime titles over the internet. BayTSP has provided similar solutions for companies such as Paramount Pictures and Viacom in its ongoing suit against Google.

Based on searches conducted over a 6-month period from November 2006 to April 2007 on 50 anime titles only using BayTSP's tracking solution, Odex found that there were more than 400,000 instances of downloading in Singapore. Singapore was found to have the highest level of anime downloading in the world by population.

Upon consultation with the members of AVPAS as well as other affected Japanese content owners, Odex was tasked to organise a major enforcement effort, and represent all the content owners in enforcement action against downloaders in Singapore, under the auspices of AVPAS.

The objective of this enforcement drive is to carry out sustained action that will serve as a wake-up call to anime fans and other internet users in Singapore that downloading is illegal. Many internet users in Singapore download copyright material which is owned by major foreign companies, such as film production studios and television networks in the US and Japan. These companies have so far not taken action in Singapore, not because downloading is legal, but because Singapore has not been a priority for enforcement. This will now change, at least where anime is concerned, in view of the alarming statistics gathered from BayTSP's data.

From March to May 2007, Odex made applications to court to require the three ISPs (Internet Service Providers) in Singapore to release information identifying subscribers whose accounts had been used to download unauthorised anime videos over the internet. The applications against SingNet and Starhub were granted by the courts, while the application against Pacific Internet is still pending. Such applications are nothing new – ISPs here have routinely been required by court orders to produce information containing subscriber details in order to facilitate the identification of potential defendants in lawsuits involving claims such as defamation and infringement of intellectual property.

At present, there are more than 3,000 IP addresses that are the subject of court orders already issued, or of pending applications in court. Some reports have referred to Odex obtaining information relating to 1,000 IP addresses from each ISP. This is inaccurate. None of the ISPs assigns unique IP addresses to their subscribers, and it is highly unlikely that 1,000 IP addresses would in fact translate to the identification of 1,000 different subscribers – i.e. the figure would be much less.

Once the subscribers were identified, Odex wrote to all of them, to offer them a chance to settle the copyright owners' claims against them out of court, before legal action was commenced against them. Many of those who received Odex's letter have since come forward to admit that they had engaged in downloading, and have settled the matter.

The average amount of compensation paid by those who have settled is about $3,000 to $5,000. At present, no damages have been claimed, and the copyright owners are only seeking reimbursement for the expenses that Odex has incurred on their behalf in pursuing these enforcement matters, as part of an early settlement before claims are filed in court.

Settlements before action are very common in practice. Far from amounting to extortion, they represent a sensible way of redressing wrongs and grievances, and allowing the parties a way out of unnecessary litigation. Should the copyright owners' attempts (through Odex) to amicably resolve matters be rejected by any downloader, then the copyright owners are free to commence legal proceedings against the downloaders to claim all remedies that they are entitled to claim under Singapore law, including damages, an injunction, and legal costs.

Some reports have stated that Odex may earn up to $15 million through compensation payments received from downloaders, on the basis that Odex receives $5,000 from each of 3,000 subscribers. This is again not true. 3,000 IP addresses do not equate to 3,000 different subscribers. Further, Odex does not require all downloaders to pay $5,000 in compensation.

The main factor in deciding the compensation amount for early settlement purposes is the level of downloading carried out by each individual. Bearing in mind that the enforcement drive is still at an initial stage, conscious efforts have been made to keep the amount claimed to a minimum. The amount paid to Odex so far has not covered even 20% of Odex's enforcement costs incurred to date. Additionally, downloaders who face genuine financial difficulties have been allowed to pay significantly reduced compensation amounts, or to pay in instalments.

There have been reports stating that Odex has charged 10% on compensation sums where the downloader was allowed to pay in instalments. This is not true – Odex has not asked anyone to pay interest on the compensation sums paid.

In the US, companies that have taken legal action against downloaders have typically been awarded hundreds or thousands of dollars in statutory damages for each infringing work downloaded, in addition to recovery of their legal costs and expenses from these downloaders. The Singapore Copyright Act also allows copyright owners to elect for an award of up to $10,000 in statutory damages for each infringing work.

The publicity generated from the enforcement campaign has caused some anime fans to react adversely and irrationally, some going to the extent of publishing profanity-laden postings on the internet, and issuing death threats against an Odex director. Some fans have also gone online to speculate on various aspects of the enforcement drive, or to accuse Odex of improper motives, causing the proliferation of untrue information on popular internet forums. For example, some anime fans had speculated that Odex had “done a deal” with the ISPs to obtain their subscriber details. This was later clarified in the press by the ISPs and by Odex, when they told the press that the information had been obtained as a result of court orders.

On the other hand, many other anime fans have responded by coming forward to admit that they have downloaded, and to ask for a settlement of any claims against them, even before receiving any letter from Odex. All downloaders who voluntarily settle in this way will be free from any legal action by Odex or the copyright owners represented by Odex for downloading, unless they subsequently breach their settlement terms by, for example, continuing to download anime illegally.

A list of the members of AVPAS and its authorised titles can be found at AVPAS's website, www.avpas.com.sg. For any enquiries, please contact Odex at 6223 3126 / 6226 2128 or at [email protected]

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