Mr. Siew Kum Hong, a Nominated Member of Parliament, posted the important parts of the written judgement by District Judge Earnest Lau, along with some of his own opinions on the matter. He was formerly a lawyer at Rajah & Tann, the laws firm which is representing Odex. Pretty interesting read. IANAL, but it seems to me that the main basis for which the judge made his decisions were as follow:
- Odex failed to prove itself to be the exclusive licensee for the list of works in question.
Under the Copyright Act, only the copyright holder or the exclusive licensee can initiate civil proceedings against infringers. They manage to do so only for one title, Gundam SEED. Only the authorization letter from Sunrise was accepted because it was addressed to Odex and Sunrise is a right holder. The other letters were either addressed to AVPAS or were not issued by a right holder but by another distributor. So essentially the judge was only wiling to hear the case out over one title.
- The laws in question apply only to civil proceedings.
Apparently the laws invoked by Odex to call for pre-action disclosure of information are only used to aid civil proceedings. Since Odex cannot prove that they, being neither the copyright holder nor the exclusive licensee, have the right to launch civil proceedings against the list of infringers, they cannot request for pre-action discovery. Neither can they, using the same set of laws, apply for pre-action discovery in aid of a criminal suit because the laws in question deal only with civil actions. Furthermore, the court will only hear out a criminal suit if the case is brought to it by the Attorney General, and not Odex.
- Odex failed to produce evidence of BayTSP‘s involvement.
While the judge recognized the proven ability of BayTSP as an internet forensic investigator based on previous cases in the US courts, Odex provided no proof that BayTSP was responsible for the data presented. The judge was also of the opinion that the US court rulings were based on the testimony of BayTSP’s owner and not on the tracking data itself. And if Odex did conduct its own tracking operation, the judge was sceptical as to whether it has the technical expertise to do so properly such that the results are reliable enough to be used in court.
- ISPs are obligated by law to protect their users.
As Odex presented insufficient evidence to prove its claims, the judge is unwilling to force PacNet to go against its contractual and regulatory duty.
That is to say, either Odex has been treading on dangerous waters all this while, or they simply suck at preparing their paperwork. I find it hard to believe that they had a need to lie about BayTSP’s involvement, but why then did they fail to prove that relationship in court? At the very least, shouldn’t they be able to produce some kind of receipt after supposedly paying BayTSP so much money? This is either incompetence of the highest degree, or I am forced to conclude that Odex actually did the tracking themselves by studying BayTSP’s method, and they plan to pocket the so-called tracking fees they are collecting from parents.
Also, the most interesting part of the entire written opinion:
(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.
Starhub may have lost, but at least they put up a fight. PacNet’s case probably benefited from it. But Singnet settled by “consent”? Hey, do you still remember a certain The New Paper interview with Mr. Peter Go at the start of this whole mess?
Odex had to pay unnamed ISP. Since Starhub lost the case, there’s absolutely no reason why Odex would need to pay Starhub for what they had already won in court unless they were feeling particularly charitable. But Singnet settled by consent. It doesn’t take a genius to figure out where the money went.