As of writing this, it's been exactly 23 days since Odex tried to drag PacificNet back to courts over the release of customer information regarding a thousand or so IP addresses that Odex claimed to have been downloading anime fansubs. For the benefit of those who've forgotten or are completely new to this (the latter of which I'll address once again later during the length of this entry), I'll explain some of the definitions and backstory to this.
Until early this year, Odex was a relatively unknown organisation, but it has not long ago been one of the few words hanging around everyone's lips when latest local issues came into discussions. Odex is one of the few distributors of Japanese animation in Singapore, and since early 2007, Odex had sparked off a legal campaign against anime fans downloading "fansubs".
What are fansubs? The word fansub essentially derives from "fan" and "subtitling", meaning anime that has been obtained by fans and subtitled according to their own translation, linguistic understanding, et cetera. But Odex has been claiming that these fansubs -- and the people who download them -- are in fact guilty of copyright infringement.
Odex's method of operation was simple: they hired an American company called BayTSP to hunt down IP addresses from BitTorrent, one of the more popular file-sharing applications currently available. They then went to the Internet Service Providers (ISPs) whom these addresses fell under, demanded customer information on all the IP addresses they harvested, and sent legal threats to the customers demanding that they settle, or be dragged to court for the crime of copyright infringement. Most of the recipients of these letters were pre-teens and slightly older adolescents.
Naturally, this sparked off a wave of anger and outrage at Odex; who were they to demand exorbitant fees of several thousand -- as Odex claimed it had the right to demand -- from children who didn't even have a job? It wasn't until Odex failed to get customer information from one ISP, PacificNet, that the onslaught pretty much stopped. The judge ruled that Odex was only the exclusive sublicensee of one anime title, and therefore had no prosecuting power. They also lacked enough concrete evidence to genuinely prove these kids guilty. Odex decided to appeal this decision, and brought in the CEO of BayTSP to explain his company's harvesting methods, as well as representatives of Japanese anime companies to back up their argument... which brings us where we are today.
Before we continue, I'd like to say right here, right now that I personally am no fan of anime (preferring the American brand of cartoon animation), but the whole copyright conundrum is something that I've been following for a good while now. Brushing aside the issues of Odex's actual dubbing quality, and the public relations backlash that Odex has had, let's take a REAL look at the truth behind all this legal warfare.
So claimed by the Anti-Video Piracy Association of Singapore (AVPAS), Odex has been authorised by AVPAS and the Japanese companies in question (including Toei and TV Tokyo) to legally demand settlement fees from people guilty of copyright infringement. Disregarding how old these "infringers" are, one must ask a question: Are these people even guilty of copyright infringement in the first place?
The whole gist of copyright law is to prevent people from taking ideas from other people and call it their own, or sell it as their own for commercial value, as stated under the World Trade Organisation TRIPS Agreement. This pretty much isn't what fansubbing, OR downloading fansubs is -- you don't see the fansubbing group Animesuki claim fees for their fansubs, do you? Neither do they toot their own horn and say that THEY did the animation. The same thing goes for the downloaders themselves; no money has been made out of fansubbing. No money is INTENDED to be made out of fansubbing.
Can it be called stealing, then? Singaporeans may be familiar with a recent campaign from the Intellectual Property Office of Singapore (IPOS), that "filesharing is not sharing, it's stealing". But the definition of stealing indicates that when you steal, you prevent someone from using the item which you're stealing. Which is, in fact, not the case -- both the provider and downloader have copies of the fansub which they downloaded.
You might think that still, the whole idea of "not paying" for something you want is wrong by principle. And that's perfectly reasonable, too. But there is a second side to the story that needs to be told before the parents start smacking their children's backsides for denting the industry.
Second side?
Yes, a second side.
AVPAS's site declares that "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." You might not notice it, but the truth is that there is a lot of untold fact that AVPAS forgot to mention.
As of now, the only companies that have taken legal action against downloaders in the US are record labels, all falling under the wing of the Recording Industry Association of America (RIAA) as well as a whole bunch of other similarly titled and purposed organisations worldwide -- CRIA (Canda), ARIA (Australia), IFPI (International, based in the UK) -- all fighting for the copyrights of the music artists they say they represent, and rightfully demanding "evil, hard-bitten criminal scum" (as put by "Weird Al" Yankovic's tune 'Don't Download This Song') to pay up or be legally dragged to court. Sounds like Odex, you might say, and you probably won't be far off the mark, considering that AVPAS mentioned US companies taking legal action against downloaders and the RIAA's the only company that's been doing just that. So what's wrong here, you might ask.
The actuality is that the RIAA has, besides children, been suing -- are you ready for this? -- disabled people, single mothers, university students, and in really extreme cases, dead people and families without a computer to speak of. How did they do it? By harvesting IP addresses, of course, and sending legal letters to the families involved, using a company called MediaDefender to do the reaping work for them by taking screenshots in filesharing applications to show that files were flowing to or from a certain IP address. They then look for these families, and demand settlements of hundreds to thousands of dollars, with the threat of dragging them to court if they didn't settle. That sounds really bad, you might say, but surely these people wouldn't be sued in the first place if the RIAA didn't already have conclusive evidence against them!
The truth?
They don't have it. The RIAA has never been able to prove that those people ever did download music, or in their recent cases, made songs available for download, which they consider to be copyright infringement too.
Most of the people who got RIAAed have settled, but there have been a few who did contest the RIAA's demands, and in most -- if not all -- of these cases, the RIAA always claims with expert backing that they "detected an individual" from a unique IP address; therefore they proved that a unique individual downloaded/uploaded music files that they owned the copyright for. This is where the logic starts becoming fuzzy and odd. What the RIAA saying is that they proved that an individual was using the computer to download/upload files by IP address alone. That's like saying you can prove who's driving a wanted car with tinted windows simply by taking a snapshot of the car! And what if the car was stolen? Does the original owner of the car become liable, then? RIAA logic states that since they consider uploading files for download is copyright infringement, you can be held liable for that, too!
You might have a point, you'd say, but aren't IP addresses unique for each computer? Hardly. There are ways of IP spoofing -- masquerading as another IP address to conceal identity, and experienced hackers are fully capable of doing it without leaving so much as a trace behind. You might not consider that concrete reasoning -- and you wouldn't be alone; the RIAA themselves have attempted to shoot down arguments like the one above. They managed to successfully demand $220,000 in USD from Jammie Thomas, a single mother liking in Duluth, Minnesota, after her lawyer failed to convince the jury in the court that Ms. Thomas could have been a victim of hacking, IP spoofing and other secret activity even she wasn't aware of. The RIAA insisted that Ms. Thomas made songs available for download, even when US copyright law never actually mentions that making files available for download constitutes as copyright infringement.
Of course, that's what the RIAA believes, or rather, what they want you to believe.
The truth is, the RIAA themselves have been using IP spoofing in their campaign to disrupt peer-to-peer (p2p) filesharing, or rather, MediaDefender has.
On September 14, 2007, an employee from MediaDefender forwarded over six thousand emails to an unstable Gmail account, which was invaded by an anti-MediaDefender group, calling themselves the MediaDefender-Defenders (MDD). Some of the emails indicated that MediaDefender had been hired by the RIAA to upload fake and corrupted versions of the files they owned the copyrights to, in order to disrupt the activity on p2p communities. MDD went into MediaDefender's database, which revealed that MediaDefender in fact had uploaded over 13.6 million "decoy files" to filesharing networks. Some of the other emails indicated that to do this, MediaDefender also had to spoof five million IP addresses to prevent their decoy uploading campaign from being blocked. In fact, some emails also mentioned that IFPI complained that a good handful of their cease-and-desist settlement letters were sent to the IP addresses from MediaDefender uploading decoy files, and that it was causing a lot of IFPI's time and effort to be wasted.
What does it all mean, you might be asking?
It means that the RIAA can't tell between the files that MediaDefender uploaded as decoys and the files that the real uploaders are putting up. Neither could they identify that the IP addresses that they had sent letters to were actually IP addresses spoofed by MediaDefender to upload decoy files. An issue can immediately be brought up from here -- if even the RIAA can't tell the difference between a decoy and a pirated file, what chance do the judges, let alone we the public have? The RIAA could be demanding settlement for one of the decoys they themselves uploaded! And let's not forget that MediaDefender themselves have been making these decoys available for download -- which, as the RIAA has vehemently stated over and over again, is illegal. The RIAA has, in fact, been employing the very methods they have been trying to outlaw and disprove in court. What does this spell out? It spells out that the very company that AVPAS and Odex has cited in their justification for their campaign is -- and in fact, has -- been looking extremely suspicious to those further informed.
That's all very well, you might say at this point, but surely these companies wouldn't engage in sue-'em-all campaigns if the industry wasn't losing money to begin with!
Is it? The truth is that no one is actually sure. Odex did mention that they had been suffering critical losses, and in the case of Ms. Thomas, a representative from SONY BMG (a record company under the RIAA) admitted that the lawsuits and settlement demands were in fact losing money for the RIAA, not raking it in.
But how dead is the industry, really? In the case of Odex, reports indicated that the Japanese animation industry had seen three consecutive years of growth, even though Odex claimed that the industry was bleeding to death as a result of fansubs. The RIAA themselves have never actually released any official statements about how much actual money they were losing as a result of downloads and filesharing; in fact studies have been done on the subject of how much filesharing has affected the music industry -- which has been found to be "virtually nil". And still the RIAA has yet to show any actual evidence that they have been losing money TO filesharing -- other studies show that satellite radios and video games may have also contributed to drawing the CD-buying crowd away from the stores.
How does all of this relate back to Odex? Let's take a look back at their statement in their clarification article: "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 truth is that there was only ONE case in which successful legal action was taken, and that was Ms. Thomas's case. Everything else was nothing but settlement letters, save for a brave few who tried to get the RIAA to push off, and a few DID manage to get them to push off, as well as start to sue them back for abusing copyright law amongst other charges. There never was any "awarding" of hundreds and thousands of dollars. It was nothing but private settlement after the RIAA managed to successfully intimidate families into paying them -- families with no legal experience or knowhow, families with no technological experience or knowhow -- families with no money to pay for the lawyers that could defend them and help their cases in court even if they didn't want to settle.
So what have we learned so far about the RIAA, besides what Odex has informed us about companies in the US? Let's review:
- The RIAA, like Odex, has a history of demanding settlement fees from families.
- The RIAA has been trying, like Odex, to criminalise download of files, and in the specific case of the RIAA, trying to criminalise the uploading of files too.
- The RIAA has been unable to prove that their IP harvesting methods are reliable.
- The RIAA has been unable to concretely prove all the disabled, single, computer-less, dead people they have sued were guilty of what they deemed as infringement.
- The RIAA in fact has been using IP spoofing and file uploading in conjunction with their campaigns to curb p2p filesharing.
- The RIAA has been unable to prove that the industry is dying as a whole due to p2p filesharing.
Without even mentioning the true piece of the pie that the artists represented by the RIAA actually get from all these record sales and lawsuits actually get, things are not looking very credible for the RIAA, the very company Odex seems to have used in their justification that what they have been doing is right. And as far as we have heard so far, nothing has come to light of the mechanics behind Odex's IP harvesting methods, or how much money they're officially losing. Ever since the judge had adjourned the first court session for Odex's appeal on October 3rd to allow for Odex to find more affidavits to support its case, nothing has been heard. Nothing has been heard of when the next hearing date is going to be.
For that matter, nothing has been heard from IPOS, the very local organisation in charge of protecting intellectual property holders, who alleges that "filesharing is not sharing -- it's, stealing", with regards the the entirety of the Odex saga. Neither has their "it's stealing" advertisement been seen on television these days.
What do we make of this? Honestly, to be on the safe side, you and I can make absolutely anything out of this so long as it remains within private, non-defamatory boundaries. Myself, so far I have only but taken Odex's own quotation, that they have a right to enjoy copyright protection like companies in the US, and declare legal consequences on people whom they find to have infringed those rights. I have only taken their word for it and taken a closer look at the companies that had been doing so, and discovered for myself that there is genuinely more to the lawsuits and settlement letters that meet the eye. I have collected this information with the aim of telling the truth to everyone who might hear it, hopefully to those who have yet to fully understand the Odex saga; that there is another side to this downloading argument besides ignorant children who have no idea what they are doing. We have to know all sides of this story before we can all make a unified, fair judgement.
And If Odex and the Japanese companies still insist that they do have a right to demand settlements from infringers and bring these infringers to court if the case need be? I'd like to bring to light a quote from Edgar Bronfman Jr, the chairman of the world's fourth largest music company, who was asked once on whether any of his seven kids 'stole' music, as the case was.
"I'm fairly certain that they have, and I'm fairly certain they've suffered the consequences," was the reply. "I explained to them what I believe is right, that the principle is that stealing music is stealing music. Frankly, right is right and wrong is wrong, particularly when a parent is talking to a child. A bright line around moral responsibility is very important. I can assure you they no longer do that."
Did his explanation involve settlement letters for pocket money, or bringing his own kids to court, or some legal punishment of any kind?
"I think I'll keep that within the family," defended Mr. Bronfman.
Will we be allowed to do that within the family? Will the anime community here continue to be branded as industry-denting criminals -- with their sympathesisers sharing the same fate? Will they continue to run the risk of being sued by the copyright holders (and the Japanese companies as well), as approved by law?
As long as Odex -- and IPOS -- continues to keep quiet, it's anyone's guess.
Disclaimer: The above post was the sole opinion of a civilian in Singapore and does not have any legal weightage in court since he lacks the qualifications in the first place.
Links:
http://www.wikipedia.org -- for general information and stuff, but careful what you read in there.
http://recordingindsutryvspeople.blogspot.com -- the weblog of a lawyer who fights for defences against RIAA's suing campaign.
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2 comments:
a thief that steals an apple and a thief that robs a bank.
who is the true criminal here? the law ? the world for making them steal? or the thieves for giving in to temptation?
There are a handful of things that I'd like to present to you in return, but at the very first I honestly fail to see what you're trying to portray with your "apple thief and bank robber" analogy. Are you attempting to juxtapose which is the lesser crime? Or perhaps you're trying to establish that the bank robber steals not because of petty need like the apple thief and steals out of pure greed. I'm guessing the latter scenario is what you're trying to bring across so I'll present my opinion on that in return.
I am rather unsure that you've actually read my post properly in the first place. I have not attempted to paint Odex or the RIAA as thieves. I simply wished to show another side to the story, to bring to light that the issue here goes beyond children being "big-time industry-denting thieves". If you've read the papers and the more refined opinions of the people who wrote in on this issue you'll know that it involves legal concepts that could very well affect more than just a minority interest niche in this country. There are more crucial matters at stake here. Who knows? If more companies decide to follow the footsteps of Odex and the RIAA and we let them, it's going to be more than anime and music that become restricted access property. And it will be in ways you never imagined could be restricted -- how would you like to pay to be able to hear the music playing in the bar or clinic waiting room? Or pay for the copyrights of every second of televised footage you record on your VCR? Or would you also like to pay for the music and games you created extra backup copies of in case your hard drive gets fried? Or maybe you'd like to pay for each book you quote from in your research project?
It's not a joke. The RIAA -- along with its other similar organisations -- is actively campaigning against fair use rights like educational purposes, transferring songs from CDs to iPods and publicity broadcasts. The representative from Sony said in Ms. Thomas' case: "When a person makes a copy of a song, I guess we can say that they stole a song." This brings us back to the issue of anime subbing and downloading -- can we truly say someone is a thief when no profit is being made, when the purpose of subbing is to bring anime across to non-Japanese speaking fans seeking what they deem as a higher-quality alternative? Can we say that a person is a thief when he "steals" from an industry that does not seem to be suffering losses, or rather has been observing three years of consecutive growth?
The world is becoming so dependent on the Internet for information transfer and knowledge spreading that a campaign that the RIAA has on the laws of fair use would mean chaos for all businesses and communities dependent on the World Wide Web. How can information be shared for educational and publicity purposes if people live under the fear of being penalised for supposed "infringement"? This is already happening in schools in America -- teachers remark that their students are afraid to submit media productions that involve analysing popular culture or include even a small snippet of popular music in the background for fear of being sued for infringement. This is precisely the sort of dystopic future that comes from people taking public fair use rights, tearing them apart, and pointing a finger at children while screaming "THIEVES."
"If you told them (the students) not to use any copyrighted material (in their media projects), they wouldn't have anything to work with" -- A teacher in the USA on the limitations of the RIAA's copyright laws
If you've read and understood my article at all you clearly won't restrict your response and analysis to a mere insinuation of who's the "thief". It's a matter of law, of rights, of big companies trying to milk money out of the little guys. The RIAA's doing it -- and as far as anyone knows, Odex seems to think that it's perfectly alright, along with all the methods that they're using. Settlements before action are NOT a sensible way of redressing wrongs and grievances. Settlements before action are all but a nicer way of the RIAA banging on your door, demanding that you pay up or they'll drag you to court, because they're so sure that you're the industry-denting, evil hard-bitten criminal they think you are from the flimsy IP address they supplied. If you think that's alright -- along with the limitations on fair use that Odex and the RIAA are trying to uphold -- then you're either a trolling idiot, or an Odex representative.
...Though it seems that external social opinion has the general consensus that both alternatives go hand in hand together.
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