Odex only has the right to initiate a civil action against downloaders for losses suffered as a result of the downloaders action.
Actions for infringement
119. —(1) Subject to the provisions of this Act, the owner of a copyright may bring an action for an infringement of the copyright.
(2) Subject to the provisions of this Act, in an action for an infringement of copyright, the types of relief that the court may grant include the following:
(a) an injunction (subject to such terms, if any, as the court thinks fit);
(c) an account of profits;
(d) where the plaintiff has elected for an award of statutory damages in lieu of damages or an account of profits, statutory damages of —
(i) not more than $10,000 for each work or subject-matter in respect of which the copyright has been infringed; but
(ii) not more than $200,000 in the aggregate, unless the plaintiff proves that his actual loss from such infringement exceeds $200,000.
I did not look at the letter of undertaking, but I suppose if it is worded correctly and signed by the person addressed, it would amount to an admission of infringement by the addressee and the losses suffered by Odex as a result of the infringement. By doing this, Odex avoids having to go to court to prove the items and having the relief granted by the court.
Whether a downloader has done anything "wrong" (by which I mean committed an offence) is a question of fact. Just because the downloader was not charged does not mean the act constituting an offence was not committed.
Last edited by yoshi27; 18th August 2007 at 12:52 PM.
ad said before its obvious they're counting on people to not consult with a lawyer.
I think it is not uncommon for people to issue letters of demand to claim for damages before proceeding with an action in court. Who wouldn't want to avoid the time and expenses associate with a legal action in court - especially when the outcome cannot be guaranteed?
That said, there are various things that Odex need to prove to make a successful claim in court, for instance:
(i) Prove that there is a infringement and that the infringement is done by the person that is being sued. Not familiar with technology here, so I'm not sure if it is actually possible to identify the party behind the alleged infringing act.
(ii) Prove that Odex suffered damages, and that the damages was caused by the infringing act - i.e., Odex would not have suffered the loss claimed but for the infringing act?
One factor to consider is whether the downloader would buy Odex products if he did not download the copyright material (i.e., if not for the infringing act, the downloader will buy Odex products). If not, there would appear to be no causal link between the damage suffered and the infringing act.
(iii) Someone also raised this earlier - Odex cannot profit from the action, but can only claim for actual damages suffered. Therefore, what is the actual damages suffered as a result of the infringement? I'm not to sure how they arrived at the range of S$3k -S$5k but to make a successful claim in court, it must show that whatever sum claimed is the actual loss suffered by Odex.
Section 119 does allow Odex to claim for an account for profits. However, I doubt any downloader downloaded the materials and sold it for profit. Therefore, that remedy is unlikely to be granted.
Ultimately, there are many factors to consider and without knowing what evidence Odex possess to support its claim, we cannot assume it does not have a strong case.
Last edited by yoshi27; 18th August 2007 at 01:28 PM.
Under Singapore's law, copying is permitted for educational and news reporting purposes (as well as other specified ones). But only an unimaginative reading of the law would conclude anime downloading is clearly illegal.
A 2004 amendment to the copyright law here introduced a new, open-ended exception to make it possible for copying - in whole or part - to be construed as fair use depending on five factors.
First, is the work copied creative in nature or not (like a phone directory)? Secondly, how much is copied? Thirdly, is the copying for profit?
Clearly, anime is creative work and fans copy the whole work, but they don't do it for profit. Even Article 38 of Japan's own copyright law allows parties to 'distribute by wire a work already broadcast for non-profit purposes'.
Fourthly, can the work be obtained within a reasonable time at an ordinary commercial price? The most popular anime titles take about six to eight months to be released here on VCDs or DVDs but they are now competitively priced when they do appear here.
The fifth and final consideration is the effect of copying upon the work's potential market here. That is, the anime firm must show that future harm is very likely, not that actual harm has occurred. Local fans say they do go online to buy anime DVDs from foreign distributors. US experience suggests that this is not all empty talk.
I personally think this is a case of Anime getting popular and fans realising that damn... our local Odex versions are so bad in quality that it is not worth paying the price for it. So they rather download or they buy online from overseas sites.
Odex instead of finding out why their products are not sellable decide to take the easy way out and invite parents for a cup of coffee and tell them, pay me 3000 and I let you off.
I am an anime fan and seriously our anime quality is really horrible.... as compared to when I was in Australia and renting anime from video shops. Ours look like they are shot using dv cams off a tv screen......
peer-to-peer (P2P) networking, he or she is simultaneously distributing that file and it is this aspect that constitutes infringement in most cases.
Well, they had shot themselves with this extremely bad PR move (I wonder if they had even thought out of the ripple-consequences).
If they wanna hold the legal high ground going on the lines of, "It may be ethically/morally wrong but who cares? Its legal!"
Den I guess the whole world will be watching out if anyone of those chaps had broken the traffic laws to environment laws.
cheesecake ah cheesecake...
i wan coffeecake lah..
too bad cannot count post here.. HAHHAHA....