Monday, 4 May 2015

Dallas Buyers Club: Threatening subscribers won't stop piracy

By Harish Pillay And Ang Peng Hwa, Published The Straits Times, 1 May 2015

THE current case of Internet users being hounded for allegedly downloading the Dallas Buyers Club movie is an example of a shotgun approach to legal tactics that can only backfire.

We, at the Internet Society, believe that the current case presents a good chance to reflect on some developments for future improvements in the protection of intellectual property rights in a world of sharing, streaming and downloading, where innocent Internet users can continue to use the Internet without fear.

To be clear, we agree that illegal downloading of copyrighted material cannot be condoned. Such infringement deprives creators of their just rewards for their creative works.

If creators are not suitably incentivised to create content for the rest of us, we would soon be left watching only videos of cute kittens and baby antics.

The Dallas Buyers Club case, however, raises alarm about the threatened penalties for infringement. We advise that these tactics will not be effective for three reasons.
WHENEVER such letters demand details from multiple subscribers, the court should play a supervisory role. In Australia, a court allowed disclosure of subscriber details, but required letters to be issued under supervision of the court.

In Singapore, we have a similar court process for the disclosure of subscriber details known as preaction discovery. In a 2004 case, Justice Belinda Ang ruled "the court had a duty to ensure that any application for pre-action discovery was not frivolous or speculative and that the applicant was not on a fishing expedition".

The courts already require a supervising solicitor to be present when injunctions or search orders are issued - to ensure that orders are properly carried out.

In a wide action such as this, involving the details of a substantial number of individuals, the courts and other regulatory bodies such as the Law Society can take an active role in ensuring that this information does not fall into the wrong hands and is not wrongly exposed. This will especially protect the personal details and privacy of innocent Internet users.

Some commentators have queried whether three days given in the letters was sufficient time for a lay person to respond, and whether lawyers were permitted to allege the commission of criminal offences or to threaten criminal proceedings. The letters viewed by members of the Internet Society had hinted at the possibility of criminal sanction as a result of sections 136(3) and 136(3A) of the Copyright Act. We hope that the Law Society will advise whether it is appropriate to do so when the letters do not present facts that show these alleged criminal offences.
FROM reading a sample of letters sent to subscribers, we note that the copyright owners have been unable to ascertain whether the subscriber is the person committing the acts of infringement, or whether the acts complained of were of downloading, sharing or both.

The distinction is crucial. Where the acts complained of include sharing, then the prevailing view is that Section 136(3) might come into play. However, when the act is merely downloading, the position is less clear, even though it might constitute infringement.

Even more critical is the difference between a subscriber and an infringer. A subscriber of an Internet service may not be an infringer; it could be his friend who was allowed to use his network on the understanding that no illegal activities were to be carried out, or someone unknown who obtained access through an unsecured Wi-Fi network.

There is no legal precedent to suggest subscribers are liable merely for acts committed on their Internet accounts. In fact, it flies against the exceptions in the Electronic Transactions Act and the Copyright Act, which give exemption from civil and criminal liability to network service providers who merely provide technical means to access Internet content to persons they do not have control over.

The liability of intermediaries is an important concept of the Internet in properly allocating liability and it is crucial to clearly demarcate that subscribers who are not infringers should not be automatically liable for infringing acts of others.
ACCESS to good content is one area where copyright owners need to do better. Singapore is a tiny and troublesome market for content owners because of our censorship system. But with the Internet reducing the costs of distribution and customisation, there is no good reason for content owners to restrict distribution of contents to Singapore. If Singaporeans have easy and cheap access to premium content streamed at HD quality, few would want to consume a low-quality copy. And with the Asean Economic Community becoming a reality by the end of the year, might it not make sense to look at distributing content to all 10 markets based on the censorship standards of Singapore? Already, movie studios based in Singapore have found a welcoming market in China because the Chinese feel our censorship standards are comparable to theirs.

Internet users, especially the younger ones, are used to the idea of FREE. Free games, free chats, free contents. More effort needs to be expended to educate Internet users that content is not cheap to produce. And good-quality content is even more expensive to produce. If they want to continue to enjoy access to great content, they must play their part to sustain the ecosystem that produces the content they want.

Education is also key not only in reducing copyright infringement, but also in empowering Internet users to know their rights. Three days is insufficient to seek the necessary legal and other advice to respond. Cases like this are rare and more knowledge of legal rights could level the playing field.

Challenge to IP owners

FINALLY, the Internet Society would like to restate our stand that we fully respect and support protection of intellectual property (IP) rights. It is arguable that the Internet would not have come into being and flourish without a strong system protecting intellectual property.

But the Internet is also a very powerful and fast disruptor of existing business, production and distribution models. Incumbents who are seeing their market share and profits eroded because of the Internet should not seek to hold on by using shotgun approaches. Instead, they will benefit the most if they embrace the innovation and disruption by taking on the competition head-on.

So, the Internet Society's challenge to all intellectual property owners out there is this: Stop spending your shareholders' precious investment on legal actions which will not actually advance your interests, but merely stifle the widespread Internet use that could build your future business.

Instead, build a more solid business by using the money on more research and development to better understand your customers' needs and figure out a way to delight them using the technologies of today and the future.

Harish Pillay is the president and Professor Ang Peng Hwa is the vice-president of the Internet Society Singapore Chapter -

Access and education key to IP protection
By Bryan Ghows, Published The Straits Times, 1 May 2015

THE recent furore over Dallas Buyers Club is not new. In 2007, there was an uproar over similar actions taken out by Odex against members of the public for downloading anime. In the 1990s, there was similar outrage.

Looking back on the last 20 years of enforcing intellectual property (IP) rights, six key themes are apparent:
- It's hard to beat free;
- Convenience and speed trump all;
- Technology wins;
- There is a lack of education on the value of IP;
- IP rights holders tend to be heavy handed in enforcement; and
- IP rights holders have better ways to improve profits and reduce piracy than resorting to legal action.
1 It's hard to beat free

There will always be some who will never pay for digital content, even if it is practically free. However, the financial success of numerous digital content providers shows that many are prepared to pay a reasonable fee for content, provided that it is easy to purchase, available on demand and on the device of their choosing, and accessible 24/7.

2 Convenience and speed trump all

Legitimate platforms like Netflix, Apple TV and Hulu have been developed to deliver content on-demand across most devices. Their pricing is affordable and reasonable for a large consumer base who would prefer to do the right thing and pay rather than risk the consequences of piracy. There are many who would prefer paying for a legitimate copy of Dallas Buyers Club - US$14.99 (S$19.80) on iTunes - than risk legal action by downloading a copy.

Yet, Singapore consumers find many obstacles in jumping on this bandwagon. This is due to sophisticated licensing networks limiting local distribution. Anyone over the age of 20 will remember how popular TV shows were shown when they ended their run overseas. Likewise, many movies were released weeks, sometimes months, after their US premiere.

But as Singapore consumers became increasingly unwilling to be patient, piracy came in to fill the gap. To their credit, movie distributors now release major movies on the same weekend as their global premieres. Likewise, StarHub and Singtel release certain TV episodes within 24 hours of the US.

Despite these small victories, in a culture where information is available on-demand, there is a conspicuous void here. In the US, you can watch almost any movie on-demand on Netflix or Hulu. Why are we denied this service? Presumably because rights holders have placed restrictions on Hulu's distribution. I can set up a VPN to spoof a US IP address, but why should I go through the trouble and expense? Shouldn't rights holders take proactive steps to broaden their licences when there are consumers willing to pay?

3 Technology wins

The digitisation of music destroyed the music distribution structure I knew as a teenager. Titans like Tower Records and HMV succumbed to the digital onslaught. However, digitisation also opened up an infinite range of music previously unobtainable in Singapore. Steve Jobs had the market force to change music distribution with iTunes. Spotify changed the game further with its "freemium" music streaming service.

These did not happen without massive resistance from the music industry, but technology placed in the hands of consumers always wins. It's better to get some money through legitimate licensing than no money because of piracy.

4 Lack of education on IP

Content creators need to make a living and piracy has the potential to deprive some of a livelihood. One movie download may not significantly impact a studio's revenue, but when replicated multiple times, it severely damages the industry ecosystem.

5 IP rights holders still tend to be heavy handed in enforcement

Having had the experience of suing many infringers, I firmly believe legal enforcement should be limited to the minority who consistently do not respect the right of creators to earn a living.

Making examples of individuals who are not hardcore infringers tends to undermine and distract from the argument that IP should be respected. In recognition of this impact, a "three strikes" law has been implemented in some countries and reflects the "proportionality of punishment".

Threatening a fine "not exceeding $50,000 or to imprisonment for a term not exceeding three years or both" is sub-optimal if the educational groundwork has not been laid and is not targeted at persistent "offenders".

6 There are better ways

Rights holders of digital content need to re-think their business models. IP blocking and legal enforcement are little more than a finger in the dyke when technology is constantly evolving to bypass these efforts.

In short, I advocate for a more nuanced and graduated approach in protecting IP rights in Singapore and request rights holders to make available more digital content at a reasonable fee.

The writer is a lawyer in private practice focusing on intellectual property and technology matters.

Dallas Buyers Club suit a legal minefield
By Irene Tham, Technology Correspondent, The Straits Times, 18 May 2015

ALL eyes are on Hollywood studio Voltage Pictures for its first lawsuit against Internet users in Singapore for illegally sharing its film Dallas Buyers Club.

The last time users' hearts skipped a beat over a similar issue was in 2007, when local anime distributor Odex went after hundreds of illegal downloaders and took a few individuals to court.

But because all the Odex cases were eventually settled out of court, there is no legal precedent to answer the question of whether broadband subscribers in Singapore are liable for acts committed on their Internet accounts.

"This is all fairly new ground, like the Internet," said lawyer Bryan Tan, a technology partner at Pinsent Masons MPillay.

But Voltage's case against Singapore's illegal downloaders has already generated heated discussion on social media.

There are many unanswered questions and there are also concerns that the lawyers acting on behalf of Voltage may have overstepped their ethical boundaries.
- Is there a need to establish a link between an impugned Internet account and the actual downloader?
Early last month, Voltage's Singapore representative, Samuel Seow Law Corporation, sent 77 M1 subscribers letters demanding a written offer of damages, failing which they ran the risk of being sued. More letters are expected to be sent to Singtel and StarHub subscribers.

The studio identified more than 500 Singapore Internet protocol (IP) addresses - of Singtel, StarHub and M1 subscribers - at which the movie was allegedly downloaded.

It filed "pre-action discovery" applications against the three Internet service providers (ISPs) in the High Court late last year, and succeeded in compelling the ISPs to release their customers' details.

The issue here is that the demand letter is addressed to the Internet subscriber, who may not be the one who allegedly infringed on the copyright.

This has sparked a heated discussion online over whether the ISPs' lawyers or the courts should have demanded more proof to link the person who infringed copyright to the impugned Internet account.

Subscribers who were wrongfully threatened with a demand letter could mount a lawsuit against Voltage for making groundless threats, but how many can afford to do so?
- Are lawyers allowed to threaten downloaders with the possibility of criminal proceedings to further civil claims?
Demand letters sent out by Samuel Seow Law Corp hinted at the possibility of criminal sanction under sections 136(3) and 136(3A) of the Copyright Act.

The letters, seen by The Straits Times, spelt out a maximum fine of $50,000 or imprisonment not exceeding three years, or both, under Section 136(3) of the Act. It also specified a maximum fine of $20,000 or a maximum jail term of six months, or both, under Section 136(3A) of the Act.

However, the Law Society's Practice Directions and Rulings 1989 states: "It is improper for a solicitor to communicate in writing or otherwise a threat of criminal proceedings in order to achieve a stated objective in any circumstance."

The directions are a set of ethical guidelines for lawyers.

Mr Harish Pillay, president of the Internet Society (Singapore), said criminal threats should not be used to further civil claims.

"While there was some cagey wording to suggest that criminal sanction 'may' apply, there is a lot of text detailing and emphasising it," he said.

"The majority of people reading the letters are your 'man in the street'. They would not know any better and would think that the threats are legitimate."

When contacted, the Law Society said it has not received any complaints against Samuel Seow Law Corp but urged the Internet Society to report any complaints against any lawyers.

"No one should use the threat of criminal proceedings in order to settle a civil dispute... Complaints will be thoroughly investigated, in accordance with statutory procedure," a Law Society spokesman told The Straits Times.
- Why didn't the courts supervise the drafting and issuing of demand letters?
Since so many Internet users are involved, some have asked why the Singapore courts did not supervise the drafting and issuing of demand letters.

They drew comparisons with Australia, where Voltage is also going after Internet users for illegally downloading the Dallas Buyers Club movie. There, demand letters have to be issued to Internet users under Australian court supervision. This is to ensure that exorbitant settlement fees would not be sought.

Court supervision here could also protect end-users in similar ways.

Mr Pillay said the Singapore courts are entitled to impose conditions such as supervising demand letters. "But lawyers for the ISPs need to ask for it... We think this could have been asked for," he said.

When contacted, Singtel, StarHub and M1 declined to comment on whether they had asked for court supervision to protect their subscribers.
- How much of a fight did the ISPs put up to protect customer details?
The three ISPs, when asked, did not explain in detail how they resisted Samuel Seow Law Corp's demands in court. Court documents are also not available for public inspection.

Consumers Association of Singapore executive director Seah Seng Choon said consumers should be informed of what was done to protect their interests.

"Consumers in a highly competitive broadband market may want to exercise their choice of ISPs based on how much the service providers are willing to do to protect them," he said.

In a document seen by The Straits Times, one of the ISPs' lawyers had asked for "security for costs" - a potential deterrent.

Security for costs, which companies like Voltage might have to pay for if defence lawyers ask for it, is usually provided through a banker's guarantee.

Lawyers usually request it when the firm filing the lawsuit is not based in Singapore, and the defendants want to ensure their legal costs are covered if the plaintiff loses the suit.
- Did Voltage intend to sue Internet users at all?
When The Straits Times last checked with the courts early this month, no individual had been served a writ of summons.

It may still be early days but it would be an uphill task to sue so many individuals. One of the major hurdles is security for costs.

If Internet users were sued in Singapore, their lawyers could ask for security for costs as Voltage is a foreign company.

"The security for costs sought could potentially run into the millions if a substantial number of defendants decide to pursue such applications," said Holborn Law's disputes lawyer and director Lakshanthi Fernando.

Also, very few copyright holders go after end-users for fear of the public relations nightmare that might ensue.

For instance, Odex director Stephen Sing was flamed online and threatened soon after

the firm targeted downloaders. Anti-Odex online campaigns followed.

An association of content owners, which declined to be named, said suing end-users was akin to activating nuclear weapons.

It said: "We have nuclear weapons in modern-day warfare, just like there are many options to counter online piracy, but we don't use them."

* Australia's Dallas Buyers Club case
By Irene Tham, Senior Tech Correspondent, The Straits Times, 20 Apr 2017

In December 2015, the Australian Federal Court threw out the Dallas Buyers Club rights holders' case against Australians who had allegedly watched the movie illegally.

The landmark judgment effectively killed "speculative invoicing", where people receive demands for large payments with the threat of being sued - a common practice in the United States and Britain.

Voltage Pictures, the Hollywood studio behind the movie in question, had sought identification, contact information and damages from more than 4,700 individuals who had allegedly pirated the 2013 film starring Matthew McConaughey.

Voltage's subsidiary DBC LLC initiated court proceedings against Australian Internet service providers (ISPs) iiNet, Internode, Dodo, Amnet and Adam Internet in November 2014 to compel them to release their subscriber details.

In April 2015, the Australian Federal Court ordered DBC to show the demand letter to be sent to the downloaders.

After inspection, the court said it would order the ISPs to hand over subscriber details on the condition that DBC asks for only the cost of buying the film and a share in the court costs in getting the customer details.

DBC had wanted more, including extra damages and a licence fee for each person found to have also uploaded the film.

In December 2015, the Federal Court decided that DBC's demands in the letters it was intending to send to alleged pirates were "wholly unrealistic", and dismissed the proceedings.

* Singapore High Court throws out Hollywood movie piracy case
Studios wanted to compel telcos to give details of Net users who allegedly downloaded 2 films
By Irene Tham, Senior Tech Correspondent, The Straits Times, 20 Apr 2017

Internet users in Singapore have scored a landmark victory against tactics used by copyright holders fighting alleged piracy.

The Singapore High Court has thrown out applications from two Hollywood studios to compel local telcos to release the details of Internet subscribers who allegedly downloaded two movies: Fathers & Daughters and Queen Of The Desert.

The oral decision delivered at a closed-door hearing on Monday was on the grounds of "insufficient evidence", the Attorney-General's Chambers (AGC) told The Straits Times yesterday.

In a rare move, the AGC intervened in civil applications made in the High Court in July last year by Samuel Seow Law Corp (SSLC), the local law firm that represents the two studios.

Queen Of The Desert, which stars Nicole Kidman, is produced by QOTD Film Investment.

Fathers & Daughters, a 2015 movie starring Russell Crowe, is produced by Voltage Pictures - the same studio that went after Internet users here in 2015 for illegally downloading the movie Dallas Buyers Club.

SSLC represented Voltage at the time, and was able to get Singtel, StarHub and M1 to turn over the names, NRIC numbers and addresses of alleged illegal downloaders. Hundreds of letters were sent out with users told to pay $5,000. The Straits Times understands that a handful of Internet users settled for an undisclosed sum.

Last year, SSLC again served papers on Singtel, StarHub and M1 to get details of alleged pirates of Fathers & Daughters and Queen Of The Desert, with a list of over 500 offending Internet Protocol (IP) addresses.

The AGC and the Intellectual Property Office of Singapore (Ipos) said they highlighted to the court that SSLC did not submit "sufficient evidence" to show a link between the IP addresses and alleged illegal downloaders. It was on such grounds that the case was dismissed.

Intellectual property lawyer Cyril Chua of Robinson LLC said: "Many people may be sharing the same Wi-Fi connection. It doesn't mean that the registrant of the line is downloading."

On the other hand, Mr Lau Kok Keng, an IP lawyer at Rajah & Tann Singapore, said requiring the rights owner to link the IP address to the actual infringer is akin to "putting the cart before the horse" - copyright holders need to know who the account holder is to ascertain if he is the actual pirate.

"So it could mean that individuals who illegally download copyright content will be able to get off scot-free because their identities will never be known, short of being caught in the act," said Mr Lau.

Lawyers close to the case said the landmark decision signals a push for copyright holders to enforce their copyright via other means. For instance, the amended Copyright Act that took effect in December 2014 lets content owners seek a High Court order to get telcos to block piracy websites. Before the revised law, they could not compel telcos to block pirated content.

The AGC and Ipos said they had intervened to prevent "an abuse of the process of the court".

In 2015, complaints were made against two SSLC lawyers for breaching ethical guidelines by using threats of criminal litigation in demand letters over the alleged piracy of Dallas Buyers Club.

Mr Samuel Seow, managing director of SSLC, said: "Despite the difficulties, where instructed, we shall press on to find more concrete and substantial evidence which will satisfy the court because it is important to send out the message that the works of copyright holders should be properly protected and enforced accordingly."

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