RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and Others

Andrew Ang J:

[1] The plaintiff is the owner, operator and designer of an Internet based service at http://www.recordtv.com (“the Offending Website”), which allows members of the public to request that free-to-air broadcasts be recorded for viewing. Upon receipt of such a request, a copy of that broadcast is made by the plaintiff’s service and the member of the public is able to view the same at his convenience.

[2] The defendants are the copyright owners of various broadcasts and films, particularised as follows:

1.

2.

3.

4.

5.

6.

[3] On 24 July 2007 and 21 September 2007, the defendants issued cease and desist letters to the plaintiff for copyright infringement. In response, the plaintiff commenced an action for groundless threats of copyright infringement and conspiracy against the defendants. The plaintiff’s latter claim of conspiracy was subsequently dismissed.

[4] In their Defence and Counterclaim, the defendants alleged that there had indeed been copyright infringement with respect to both the MediaCorp Broadcasts and the MediaCorp Films.

[5] The Offending Website provides members of the public with the equivalent functionality of a brick-and-mortar Digital Video Recorder (“DVR”). The term DVR generically refers to an entertainment appliance that provides record and playback capabilities similar to an analog-style video cassette recorder (“VCR”), but utilising recent digital and computer-related technologies. With an Internet DVR (“iDVR”) like the one found on the Offending Website, the actual recording and storage hardware and software are located at the operator’s facility. In the case of the plaintiff, this is their company office premises.

[6] A member of the public desiring to use the services provided by the plaintiff must first sign up, for free, at the Offending Website. Any member of the public with access to a computer and the Internet may use the plaintiff’s services. The only limitation is that he be located in Singapore. Once signed up and logged in, the member of the public can request that a programme from Channel 5, Channel 8 or Channel NewsAsia be recorded. When the programme is broadcast, the plaintiff’s system is designed to capture and record the programme. Once the recording is made, the party requesting can log on to the Offending Website and view the recording, so long as the plaintiff’s system is in operation at the time. It is important to note at this juncture that broadcasts and films from the Central and Suria channels were only recordable under or by the RecordTV system on or around 24 July 2007. However, at the time the defendants’ counterclaim was brought, these channels were no longer recordable.

[7] The plaintiff obtains television scheduling information from the public websites of Channel 5, Channel 8 and Channel NewsAsia. The plaintiff then processes the scheduling information with its own proprietary program and stores this information in its internal database. This database is used to show members of the public what is available to be recorded at the Offending Website. Once a request has been put through by an end-user that a programme be recorded, the internal database is updated with that end-user’s request. On the plaintiff’s recording computers, located remotely from the end-user’s computer, a control program continuously reads the internal database to check if anyone has made a request.

[8] The defendants’ broadcast television signals are captured by the plaintiff’s roof-mounted antenna and routed to the plaintiff’s recording computers. If the system detects that a member of the public has made a request to record a programme about to be aired, the control software program will instruct the system to record the said programme. Once a recording is made, the plaintiff makes it available for viewing to the member of the public who requested the recording on the “My Playlist” portion of the Offending Website for a period of 15 days. The recorded films and broadcasts are stored on the plaintiff’s servers and deleted by the plaintiff 15 days after the date of recording.

[9] Since its inception, the RecordTV system has undergone three different phases of operation. When RecordTV launched in July 2007, only one recording was made despite multiple end-users’ requests for a programme to be recorded (the “First Phase”). This functionality was termed the Single Instance Storage Mode (“SIS Mode”) and it eliminated the duplication of copies by allowing multiple end-users to share from one copy of a recording. Sometime around August 2007 to January 2008 (the “Second Phase”), the RecordTV system operated in a hybrid mode whereby multiple copies of recordings would be created based on the number of end-users requesting for that recording. However, if system resources were insufficient, only one copy of a recording would be made (this was termed the “Mixed Mode”). Finally, sometime around August and September 2008 (the “Third Phase”), the RecordTV system was reconfigured to make individual copies for each and every requesting end-user (“Multiple Copy Mode”).

[10] It is important to note that the Third Phase, being the present iteration of the RecordTV system, is not the system that was in place at the time of the defendants’ cease and desist letters or even at the time the action was commenced by the plaintiff.

[11] It is not seriously disputed that in going from the First Phase to the Third Phase, the RecordTV system has embraced increasingly inefficient technology. Under the SIS Mode in the First Phase, only one recording had to be stored on the recording computers of the plaintiff. This placed very little strain on the overall storage capacity of the system. Additionally, the processing load on the recording computers was small, given that only one file was being encoded per programme requested.

[12] Under the Multiple Copy Mode in the Third Phase, however, greater strains are placed on the storage capacity of the RecordTV system. This is because multiple copies of the same recording have to be stored, each unique to the specific party requesting. Additionally, there is a much higher processing load on the recording computers, given that multiple files all have to be encoded at the same time during the airing of the requested programme.

[13] Mr Carlos Nicholas Fernandes (“Mr Fernandes”), the plaintiff’s director, attempted to explain in cross-examination that:

There are two concepts of efficiency at play here: efficiency for the service provider (ie, the plaintiff) and, separately, efficiency for the end-user (ie, the requesting member of the public). While the Multiple Copy Mode allows for faster access from the end-user’s point of view, it involves duplication and redundancy from the plaintiff’s perspective of resource utilisation. On balance, I am of the view that the SIS Mode is more efficient than the Multiple Copy Mode. Under the Multiple Copy Mode, it is only possible that multiple end-users might want to access a recording at the same time, whereas it is definite that multiple encodings have to be performed when the requested programme is airing. Little turns on this, however, since in any case Mr Fernandes himself saw the SIS Mode as a way of “increas[ing] the efficiency of the system” (affidavit of evidence-in-chief of Mr Fernandes at para 191), in contrast to the Multiple Copy Mode.

[14] The motivation for the apparent regression from the First Phase to the Third Phase was a desire on the part of the plaintiff to stay legally compliant (transcript dated 30 June 2009 at pp 101–102):

[15] For the purposes of this suit, only the system in place during the First and Second Phases is relevant. As noted above, the Third Phase was only implemented after the commencement of proceedings.

[16] The plaintiff’s claim is for groundless threats of copyright infringement pursuant to s 200(1) of the Copyright Act (Cap 63, 2006 Rev Ed) (“the Copyright Act”). The defendants had by way of their letters of 24 July 2007 and 21 September 2007 threatened the plaintiff with copyright infringement proceedings.

[17] The defendants, on the other hand, are counterclaiming that there had indeed been copyright infringement by the plaintiff, under various alternative heads. As such, both the main claim and the counterclaim may largely be resolved with the disposal of one and the same issue: whether, at the time the cease and desist letters were issued, there had been any copyright infringement by the plaintiff. This main issue may be broadly crystallised into three sub-issues as follows:

[18] There is, however, an additional issue of infringement involving unauthorised backup copies, made by the plaintiff “from a date unknown” (see Defence and Counterclaim (Amendment No 3) at para 25(7). This new cause of action was only pleaded by the defendants after the trial had started, via an amendment to its Defence and Counterclaim. For the purposes of structural clarity, however, I shall consider this new cause of action under the discussion pertaining to (a) above.

[19] I should also note at the outset that I did not make much of the defendants’ argument that the plaintiff was a joint tortfeasor in offering the Offending Website for use. This contention presupposed that end-users were liable to the defendants in tort, a claim that was neither pressed nor proven by the defendants.

Is the plaintiff liable for infringement of the defendants’ rights in making copies of the MediaCorp Broadcasts and Films?

[20] Copyright infringement is governed by s 103(1) of the Copyright Act which provides:

In respect of the MediaCorp Films, the acts “comprised in the copyright” are set out in s 83:

In respect of the MediaCorp Broadcasts, the acts “comprised in the copyright” are set out in s 84. The relevant portions state:

[21] The issue here, as acknowledged by counsel on both sides, is one of identity: exactly who is the maker of the copies of the MediaCorp Broadcasts and Films? The plaintiff relies on the American case of Cartoon Network LP v CSC Holdings Inc 536 F 3d 121 (2nd Cir 2008) (“Cartoon Network”) to contend that it is the end-user of the Offending Website who is the maker, and that accordingly the plaintiff should bear no liability for any allegedly infringing copies made.

[22] In Cartoon Network, a three-judge panel of the US Court of Appeals for the Second Circuit held that Cablevision’s proposed remote-storage digital video recording service (“RS-DVR”; this being the category under which the plaintiff’s iDVR is classified, as opposed to set-top storage (“STS-DVR”)) did not directly infringe the reproduction rights of those holding copyrights in the recorded materials. In overturning the decision of the district judge below, the Court of Appeals for the Second Circuit held that (at pp 131–132):

[23] In short, the court in Cartoon Network ([21] supra) found that:

(a) by analogy to the end-user of the ancient VCR, the end-user of an RS-DVR is the main volitional agent in requesting for certain programmes to be recorded;

(b) in relation to the end-user of an RS-DVR, who is able to choose specific programmes to record, Cablevision is only able to choose the channels of programming to be made available to a customer; and

(c) in determining who actually “makes” a copy, a significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.

From the point of view of the Second Circuit, the above three reasons indicated that the bulk of the volitional conduct, “an important element of direct liability” (Cartoon Network at p 131), lay with the end-user. Accordingly, the court ruled that the copies were “made” by Cablevision’s customers, and not Cablevision itself.

[24] In the same way that Cablevision has “no control over what programs are made available on individual channels or when those programs will air, if at all”, the RecordTV system also has arguably no control over the programmes that are aired (and therefore recordable) on the defendants’ respective channels. The defendants attempt to distinguish (b) above by stating that unlike the case for the Offending Website, which permits free registration and use, the customers of Cablevision paid a subscription fee to use Cablevision’s RS-DVR service. Cablevision’s customers were therefore entitled, as a matter of right, to contractually demand or require that the recording of their choosing be made. This showed that while the end-users in Cartoon Network ([21] supra) did indeed have volitional control over the “making” of copies, the end-users of the RecordTV system had no more than “a wish” for any show to be recorded. Logically, the defendants conclude, the element of volitional control still resides with the plaintiff.

[25] I do not see how a contractual right to demand the making of a copy actually grants control to the end-user to make that copy; however, it is easily appreciated that the existence of such a contractual right indicates a significantly greater degree of volition (viz, the old economic adage, “demand is a want backed by purchasing power”) on the part of the end-user.

[26] Despite its erstwhile attempts to distinguish the present facts from (b) above, with respect to (c), the defendants separately submit (in the alternative) that Cartoon Network should simply not be followed at all. The defendants cite the arguments of amicus curiae for the Copyright Alliance in support of the petition for a Writ of Certiorari to the Second Circuit in its brief on 5 November 2008:

[27] If Cartoon Network ([21] supra) stands for the proposition that the only conduct sufficient to trigger direct liability is “volitional conduct” by a “human employee”, it can be anticipated that absurd results will ensue. Commercial services involved in the business of content reproduction will be able to circumvent direct liability by replacing human employees with computers or robots. This cannot be correct.

[28] In Sony Music Entertainment (UK) Ltd v EasyInternetCafe Ltd [2003] FSR 48 (“Sony”), the defendant offered a CD burning service at its Internet cafés. Customers could download files during their sessions surfing the Internet via one of its café’s computers. In return for a payment of a £5 fee, staff at the café would save those files on a CD-R for the customer to take away. The evidence was that the defendant’s staff was not aware of the contents of the files downloaded because they were prohibited from looking at the contents of the files without the customer’s agreement.

[29] Peter Smith J found that, given the strict liability nature of copyright infringement, it was no defence that the defendant’s staff did not know that they were infringing copyright in burning the CD-Rs. In particular, it was significant that the defendant could have easily chosen to make it its business to know exactly what was being copied by its staff, but chose not to do so.

[30] Applying the purported logic of Cartoon Network to the facts of Sony, it appears that the defendant in Sony could have avoided liability by the simple expedient of automating his processes or using robots and sacking his employees. Again, this does not appear to be correct. Automation ought not to and does not change anything where, at bottom, the process of copying is initiated via voluntary human agency. Peter Smith J makes this distinction clear in Sony at [33]–[35]:

[31] Applying Sony ([28] supra) to the present facts, so far as (c) is concerned, it becomes clear that it will be difficult for the plaintiff to escape direct liability for permitting its automaton “employees” – its recording computers and other equipment, etc. – to make unauthorised copies of the MediaCorp Broadcasts and Films.

[32] Holding (1) of the Cartoon Network decision, however, is difficult to refute. To the extent that the defendants would have this court believe that there should be no distinction between an automated process and a human agent (for the purposes of determining ultimate volition under (c)), it is all the more contrived to distinguish between the VCR and the RS-DVR technologies which, in effect, achieve the same end result of time-shifting. If it does not matter for purposes of direct liability whether it is a human or computer carrying out a process, why should it matter that the process is carried out remotely and digitally, as opposed to locally via analog means?

[33] To put it another way: the end product we are concerned with here is a time-shifted recording. If the end-user is the maker of this time-shifted recording for the purposes of the VCR, it must remain that the end-user is the maker of the recording in the context of the DVR, remote or local. In this regard I am comforted by the words of Justice John M Walker in Cartoon Network ([21] supra) at p 132:

While the UK and Singapore do not countenance the doctrine of contributory infringement as a distinct concept, in practical terms claims of authorising infringement might well fall under this umbrella. Indeed, as David Bainbridge notes in Intellectual Property (Longman, 7th Ed, 2009) at p 159, liability for the authorisation of infringement in the UK might even have a larger scope than liability for contributory infringement in America. In the UK, authorisation can be inferred even where a person is indifferent as to whether infringing material is involved, whereas contributory infringement in America requires actual knowledge.

[34] Accordingly, I do not find the plaintiff liable for direct infringement of the copyrights subsisting in the MediaCorp Broadcasts and Films. I turn now to consider the issue of contributory infringement and, in particular, whether the plaintiff had authorised the making of copies of the MediaCorp Broadcasts and Films.

[35] The defendants argue that the finding in Cartoon Network ([21] supra) appears to ignore the reality that human agents are actively engaged in the “volitional conduct” of designing, setting up and operating services that exist only to produce unauthorised copies of broadcasts and films (as is the case with the plaintiff here). However, this point should not be overstated. Cartoon Network was a case specifically not concerned with issues of contributory infringement. In his judgment at pp 132–133, Justice Walker set out the following:

And further at pp 139–140:

[36] Despite Cartoon Network’s asceticism with respect to issues of contributory infringement, I am emboldened here by Justice Walker’s confidence that “the doctrine of contributory liability stands ready to provide adequate protection to copyrighted works”.

[37] The defendants are here alleging that the plaintiff authorised the infringement of the defendants’ copyrights in the MediaCorp Broadcasts and Films. What, exactly, amounts to the “authorisation” of an infringement? The meaning of this term was considered in Ong Seow Pheng v Lotus Development Corp [1997] 3 SLR 137 (“Ong Seow Pheng”). The defendant’s business was in making pirated copies of software manuals and selling them to retailers, one of which was Lur, a software pirate. It was found that the appellants had dealt with 6,720 infringing copies of software manuals, inter alia. There was also evidence that the defendant had handed one pirated copy of software to Lur, telling him to make as many copies as he would require. The plaintiff, the copyright owner of the software, sought damages from the defendant for both 6,720 pirated copies of manuals and 6,720 copies of pirated software which it argued Lur must have made pursuant to the defendant’s instructions.

[38] The Court of Appeal held that the defendant had not authorised Lur’s reproductions of the 6,720 pirated copies of the software. The defendant had indeed supplied one pirated copy to Lur, and suggested to Lur to make as many copies as Lur required. In so doing, the defendant might well have “facilitated” and even “incited” Lur’s infringements. However, facilitation and incitement were not the same things as “authorisation”. The defendant had no control over what Lur would do. In coming to this conclusion, the court observed that Lur was a software pirate himself who clearly knew that the defendant was in no position to grant the right to make infringing copies.

[39] In CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] 1 AC 1013 (“Amstrad”), the following formulation for “authorisation” was put forward at 1054:

The formulation in Amstrad was echoed in Ong Seow Pheng ([37] supra) at [33]–[34]:

[40] There is, however, a caveat. According to Ng-Loy Wee Loon in Law of Intellectual Property of Singapore (Sweet & Maxwell Asia, 2009) (“Ng-Loy”) at paras 10.2.7 and 10.2.8:

She continues at para 10.2.11:

[41] In other words, the author is giving due credit to the sophistication of today’s end-user community. Thus, in the present case, if these end-users knew for a fact that the plaintiff had no authority, apparent or otherwise, to grant them the right to make copies of the MediaCorp Broadcasts and Films, there can be no contributory liability and/or authorisation of infringement attributable to the plaintiff.

[42] On the facts of the present case, however, there is a key distinguishing factor. In the “Frequently Asked Questions” section of the Offending Website, it is stated openly that:

By proclaiming to have such approval, the plaintiff effectively represented that it had the actual authority to provide its service to end-users. To that end, it had purported to authorise the copies of the MediaCorp Broadcasts and Films that were subsequently made at the behest of its customers. Incidentally, I would think that the “Frequently Asked Questions” section of a website as popular as the plaintiff’s would certainly have been, for want of a better word, frequented. As such, I do not doubt that the statement above would have been viewed by many prospective and eventual end-users.

[43] I respectfully agree with Justice Walker when he states (see [35] above) that:

Indeed, these precise factors are at play here with respect to the RecordTV system, and go a long way towards establishing the plaintiff’s liability for authorising the making of copies by its end-users.

[44] To begin with, the Offending Website requires registration and login details, thereby establishing a “continuing relationship” with its end-users. As Mr Fernandes himself conceded, “if [the plaintiff] were not in the picture, the user would not be able to use the system” (transcript dated 1 July 2009 at p 14). Next, while the plaintiff could not control the exact programmes being shown on the various channels it could record, it did choose to provide recording functionality to channels that were all subsumed under the defendants’ various copyrights. Finally, and most importantly, the “instrumentality” of the plaintiff’s iDVR consists solely of recording the defendants’ copyrighted films and broadcasts. By this token, the plaintiff’s device appears to fail, quite dismally, the inquiry for “commercially significant non-infringing uses”, viz, the test applied by the court in Sony ([28] supra) to decide whether imposing contributory liability is just.

[45] In any event, however, the concept of authorising infringement is premised on there being an existing act of primary infringement. While we have already accepted that the end-user is the maker of the copies in question, this does not necessarily mean that the end-user is guilty of infringement. Section 114 of the Copyright Act provides in this regard:

It is pertinent to note that there was no evidence led by the plaintiff to show that the end-users, without exception, were all entitled to rely upon s 114.

[46] Section 7 of the Copyright Act defines “broadcast” to mean broadcasting by wireless telegraphy. This necessarily excludes the Offending Website as a possible node of re-broadcasting under s 114(3)(b), since the Offending Website exists on the Internet, a network ultimately grounded by cables and wires even if at the extreme end-user side wireless standards may be used to facilitate mobile local area networking. More troublesome for our present purposes, however, is the concept of a “cable programme” as espoused by s 114(3)(b). The Copyright Act defines this to mean any programme included in a “cable programme service”. A “cable programme service”, in turn, is defined under s 7 as:

[47] The teething issue that emerges is one that has vexed academics and judges alike. Does a website on the Internet, or more broadly even the Internet itself, qualify as a “cable programme service”? In the Scottish decision of Shetland Times Limited v Dr Jonathan Wills [1997] FSR 604 (“Shetland Times”), it was held that a website on which the operator posted news items was a “cable programme service” as defined by the UK Copyright, Designs and Patents Act 1988 (“the UK Act”). The definitions in the UK Act were at the material time substantially similar to the definitions in our local Copyright Act:

[48] The Shetland Times case, however, has received a mixed reception from academic circles. In his book The Laws of the Internet (Butterworths, 2nd Ed, 2003), Clive Gringras (“Gringras”) points out that a cable programme service is defined as “sending visual images, sounds or other information by means of a telecommunication system otherwise than by wireless telegraphy”, but few websites are “sending” information to visitors. It is more technically correct, he submits, to speak of information being retrieved from the website by the visitor.

[49] Daniel Seng (“Seng”), in his article Copyright Norms and the Internet: The Problem of Works Convergence, also expressed dissatisfaction with Shetland Times. He stated:

[50] However, in contrast to the technical objections from Gringras and Seng, other commentators, notably the authors of The Modern Law of Copyright and Designs, who include the leading intellectual property Judge, Sir Hugh Laddie (“Laddie”), have supported the Shetland Times decision. This support is at least partly based on the pragmatic consideration that if the Internet does not fall within the definition of “cable programme service”, there will be a gaping hole in the coverage of copyright law.

[51] In Sony ([28] supra), Peter Smith J concluded that the decision in the Shetland Times case ([47] supra) was correct, stating that he was “comforted by the fact that it is supported by Laddie, Prescott & Vitoria which I prefer to the criticisms of Gringras”. He further went on to state at [47]:

[52] On balance, it appears to me that the approach in Sony, endorsing Shetland Times, is the correct one. While I do not take issue with the technical clarifications raised by Gringras and Seng, it is difficult to see how their objections might help frame a coherent picture of copyright law in the age of the Internet. Indeed, in a separate article, Seng himself states that “the Internet as a platform does serve as a means of ‘broadcasting’”.

[53] On the other hand, Peter Smith J’s remarks in Sony about avoiding arbitrary results “in relation to new technology” are not entirely without problems. In our present case, construing the Copyright Act in accordance with Shetland Times ([47] supra) might arguably mean that the end-users of the RecordTV system fall outside the protection for private and domestic use afforded under s 114(1). This is by reason of the end-users (whom we have already identified as the makers of the copies in question) being credited with “including [the defendants’ television programmes] in a cable programme” (viz, the Offending Website on the Internet) and thereby falling within the exception in s 114(3)(b). In other words, the exception to the private and domestic use defence for copying might be said to have been triggered. This would be an unfortunate result, relegating end-users to seeking safe harbour under the broader fair dealing provisions countenanced by s 109.

[54] Can the above result really be said to be just? Deeper analysis of s 114 muddies waters further. For one, may it really be said that the end-user has, in viewing a personal copy of one of the defendants’ programmes, “included” the copy in a “cable programme”, ie, the Offending Website? Such a notion flies in the face of common sense and stretches the already elastic interpretation of s 114 pursuant to Shetland Times. First, “cable programme” is taken to mean “the Internet” to plug a loophole; and now, “including … in a cable programme” is to embrace “viewing a personal copy on a website”. In my view, the statute surely could not have been intended for the punishment of an end-user demographic that copyright owners themselves would have had no business or inclination pursuing.

[55] Indeed, if we examine the language of s 114(3) more closely, we see that ss 114(3)(a), (b) and (c) all are prohibitions against the communication of copyrighted material to someone. “The sale or letting for hire of the film”, “broadcasting” and “causing the film or recording to be seen or heard in public” – these all indicate, expressly or impliedly, communication to a recipient. I am of the view that the second leg of (b) – the provision we are considering now, that of “including [the copyrighted material] in a cable programme” – must be of the same tenor. In other words, s 114(3)(b) prohibits the making of a copy of a “cinematograph film … for the purpose of … including it in a cable programme” only where the cable programme is transmitted to viewers other than the end-user himself.

[56] With this interpretation, it becomes arguable that in “making” the relevant copy for his own consumption, the end-user has not actually “included” that same copy “in a cable programme”. All he has done has been to use that “cable programme” (the Internet or, alternatively, the Offending Website) as a means of accessing his personal copy of the copyrighted material.

[57] In sum, therefore, while the general approach espoused in Sony ([28] supra) is an admirable one – both in terms of the certainty occasioned for interested parties, as well as the non-technical and commonsensical grounds upon which it is based – we would do well to be aware that not every piece of copyrighted material on the Internet falls to be classified as having been “included in a cable programme”. Each unique fact situation should be considered afresh and the courts should not take for granted any presence of infringement, particularly given the convoluted mental gymnastics that are required to subsume the Internet under s 114(3)(b).

[58] Separately, it should be noted that websites, as collections of web pages, images, videos and other digital assets which are generally publicly accessible to end-users and visitors seem to be uncontroversially classified by the Singapore Broadcasting Authority and the Media Development Authority as “broadcasts”. As has already been noted, however, this appears to fly in the face of the definition espoused by s 7 of the Copyright Act (see [46] above). During the Second Reading for the Copyright (Amendment) Bill on 16 November 2004, the Deputy Prime Minister and Minister for Law, Professor S Jayakumar (“Prof Jayakumar”), stated the following in relation to the introduction of the new right of communication for copyrighted works:

It is clear from the extract above that the new communication right – now enshrined in ss 83(c) and 84(1)(d) of the Copyright Act – was meant to correspond to the transmission of works over the Internet in the same way that the “broadcasting” right was meant to cover free-to-air television broadcasts and the “cable programme” right, cable television transmissions. There is a clear trichotomy and it certainly cannot be gainsaid that for now “broadcasts” for the purposes of the Copyright Act should not be taken to include anything other than broadcasts by “wireless telegraphy”, as defined in s 7. However, to my mind it is clear that Parliament was and is aware that the law is playing catch-up with technology. While this trichotomy is sensible and should not have its individual components needlessly conflated, the motivations behind the existence of this trichotomy in the Copyright Act resonate with the reasoning in Sony ([28] supra) and Shetland Times ([47] supra). Yesterday, we had a dichotomy; and today, a trichotomy; as for tomorrow, who can say? Whichever way technology diverges and evolves, it must be that the overarching goal of Parliament – as evidenced by its regular amendments to the Copyright Act – is to ensure that loopholes in the copyright law are timeously plugged. In this connection, therefore, the conflict between the positions of Gringras ([48] supra) and Laddie ([50] supra) appears to be an illusory one – while one champions the minutiae and the other the spirit, both are equally relevant in shaping the ends of copyright policy in this modern era.

[59] By a letter dated 6 March 2008, the defendants requested for further discovery of certain documents from the plaintiff. These documents included:

as well as:

[60] The plaintiff refused to give discovery. After some interlocutory to-ing and fro-ing, the Honourable Justice Tay Yong Kwang granted a court order dated 26 May 2008 permitting the defendants access to, inter alia, the Operational and Current Copies. On 25 July 2008, the plaintiff filed a list of documents that listed copies of recordings from 15 May 2008 to 26 May 2008. The plaintiff stated that these recordings were disclosed pursuant to the court order in respect of only the Current Copies.

[61] With respect to the Operational Copies, the plaintiff explained, by a letter to the defendants dated 8 September 2008, that it had not itself created any copies of the television programmes in the defendants’ channels and films. As no copies had been recorded by the plaintiff, its argument went, no Operational Copies were disclosed.

[62] The plaintiff contended that the separate backup copies (the “Additional Copies”) made for the purposes of discovery, via certain software called “watchDirectory”, did not fall within the defendants’ request for Operational Copies. It argued that the Additional Copies were not recorded by the plaintiff, in the sense that they were not recorded using the plaintiff’s iDVR. It also argued that the Additional Copies were not recorded in the course of the operating of the Offending Website – the making of the Additional Copies was entirely separate from the operation of the plaintiff’s iDVR facility.

[63] Since the watchDirectory software did not form part of the iDVR facility offered to the plaintiff’s customers, and since it was not an essential component necessary for the operation of the RecordTV system, the plaintiff did not disclose either the watchDirectory software or the Additional Copies made by the watchDirectory software as “Operational Copies” pursuant to the 26 May 2008 court order. Also, the plaintiff considered the watchDirectory storage disks to be on a “separate computer” and “not part of [the RecordTV] system”. As such, the Additional Copies did not fall to be classified under “Current Copies” as well.

[64] The defendants argue that the fact that “the Plaintiff has adopted such a strained interpretation of the Order of Court of 26 May 2008 only shows that it had something to hide”. The defendants were of the opinion that the plaintiff had been amassing a library of infringing content for the eventual purpose of monetising its business.

[65] At bottom, it appears that there has been a definitional clash, rather than any calculated agenda on either side to mislead the court. From the point of view of the defendants, the Additional Copies had been the “archived records” referred to in the court order dated 26 May 2008; from the perspective of the plaintiff, the Additional Copies had never resided on the “Plaintiff’s storage system” and had never been utilised for the purposes of operating the Offending Website.

[66] The point, however, is arguably moot. Based on the documentary evidence before me, the Additional Copies had only begun to be made on 30 May 2008 and 1 November 2008, after the Order of Court dated 26 May 2008. There is no evidence to suggest, as the defendants allege, that the plaintiff’s backup system had been in place from the time the RecordTV system was set up in July 2007. There is also no evidence to show that the Additional Copies had been made for the purpose of being part of a library of recordings for the plaintiff’s prospective and evolving business. Instead, there are thousands of watchDirectory e-mail reports between August 2008 and June 2009 which show that the Additional Copies were made for the purposes of these judicial proceedings.

[67] The defendants have invited me to draw adverse inferences with respect to the plaintiff’s recalcitrance in this matter. I do not, however, see any basis for this course. Proper consideration of the Additional Copies shows that many additional copies of the same recording were preserved by the plaintiff, presumably for the assessment of damages. Further, a portion of the Additional Copies comprises recordings of out-of-date news programmes on Channel NewsAsia. Both of these examples, glaring in their inefficiency and lack of marketability, negate any theory that the plaintiff had been building up a library of recordings.

[68] In view of all of the above, I find the plaintiff not liable to the defendants for making infringing copies of the MediaCorp Broadcasts and Films. However, subject to my later consideration of available defences, I find the plaintiff liable for authorising the making of copies by its customers.

[69] Separately, based on all the documentary evidence before me, I do not find the plaintiff to be liable to the defendants for making backup copies of the MediaCorp Broadcasts and Films.

[70] In respect of the MediaCorp Films, the defendants’ right to communicate the work to the public is found in s 83(c) as follows:

In respect of the MediaCorp Broadcasts, the defendants’ right to communicate the work to the public is found in s 84(1)(d):

[71] The rationale for the broadly-phrased communication right, as expressed by Prof Jayakumar quoted at [58] above, is to encompass the right to control the dissemination of works on the Internet. The relevant extract bears repetition:

It is important to note that the right of communication to the public was introduced to implement an obligation owed by Singapore under the United States–Singapore Free Trade Agreement (see Art 16.4.2(a) therein). American case law in this regard, therefore, might prove instructive.

[72] The ambit of the communication right is illustrated neatly in Ng-Loy ([40] supra) at para 9.5.3:

These examples, in particular the first and last, are germane to the case at hand. They show that the defendants possess a public communication right that might have been co-opted by the plaintiff. The question that remains, therefore, is whether the RecordTV system may be properly analogised to the YouTube business model. To this end, three things have to be shown, pursuant to a careful reading of the statute:

(a) that the plaintiff’s acts amount to communication;

(b) that such communication was made “to the public”; and

(c) the plaintiff, and not the end-user, was the one who was responsible for the communication.

“Communication”

[73] “Communicate” is defined in s 7 of the Copyright Act as follows:

[74] With respect to the general definition and (a), it is not seriously disputed that the plaintiff’s RecordTV system transmits, by electronic means, the relevant television programme to the registered end-user who has asked to view it (transcript dated 1 July 2009 at pp 6 and 131). For (b), as has already been discussed earlier at [50]–[53] above, by facilitating the placement of recorded material on its website, the plaintiff had included the subject-matter of the MediaCorp Broadcasts and Films in a “cable programme”.

[75] In regard to (c), the plaintiff’s argument, taken out of context from Note 10.10 of the WIPO Basic Proposal on Art 10 of the WIPO Copyright Treaty, runs as follows:

The actual language of Note 10.10 provides that:

With this assertion, however, the plaintiff is in effect contending that the end-user has, by definition, provided his own access to the copies recorded. This, if not completely nonsensical, is a painfully convoluted interpretation of matters, and I am ill inclined to follow it.

“To the public”

[76] What is disputed is whether the communication made by the plaintiff during the operation of the RecordTV system is one “to the public”. In Copinger and Skone James on Copyright (Sweet & Maxwell, 15th Ed, 2005) (“Copinger”) at para 7–118, the learned authors consider the definition of “the public”:

[77] I am in agreement with the authors of Copinger. It should not matter that the plaintiff’s service is available only to registered end-users, when any member of the public with an Internet connection may register for free. By way of analogy, consider an esoteric book in a musty library with tedious membership requirements and strict loan policies. Such a book would, despite everything, still be a book available to “the public”.

[78] In Cartoon Network ([21] supra), the issue of “the public” was dealt with at p 139:

[79] Accordingly, Cartoon Network may be distinguished on the facts. During the First and Second Phases of the RecordTV system, much of the playback to end-users took place in the form of non-unique copies borne of the SIS and Mixed Modes.

“By the Plaintiff”

[80] Turning now to the issue of who made the communication to the public, I find myself in familiar territory. Is there a strict analogy to the earlier question of who made the infringing copies? The plaintiff appears to think so. It claims that it is not the party that “communicates” the work to the public within the meaning of s 16(6) of the Copyright Act. Section 16(6) states:

Accordingly, since it is the end-user who has control over what programmes to record, it is also the end-user who has control over the “content of the communication at the time the communication is made”.

[81] According to this line of reasoning, the maker of unauthorised copies will always be the one to communicate the same to the public (depending of course on permitting facts). I am not convinced by this argument. To my mind, there is an important distinction between the “making” and “transmission” of copyrighted material. This distinction was noted by the US Solicitor General in her Amicus Curiae Brief for the Cartoon Network case ([21] supra) at p 20:

[82] The key question is this: where exactly do the end-user’s volition and control cease to operate? If we can say that the end-user has made the infringing copy and transmitted the infringing copy, there is little to prevent us from concluding that the end-user is, in fact, an RS-DVR in disguise. For where, in that analysis, would there be room for the implication of any properly culpable technology? If the RecordTV system neither copies nor transmits any material, how can it be said to have infringed any copyright?

[83] The line, therefore, has to be drawn somewhere, and I think it sensible that it be drawn once the end-user has properly exercised his volition in making a choice. In other words, while I accept and have accepted that the end-user is the one who has control over what programmes to record, the subsequent transmission of that content would be effected by a process governed entirely by the plaintiff.

[84] Accordingly, I would read the words of s 16(6) technically. The section is concerned, after all, with a technical process. At the time the relevant communication is made, the end-user has already communicated its preference to the plaintiff (this necessarily has to take place before any recording or transmission). The plaintiff therefore is the one responsible for determining the content of the communication upon playback. One can easily envisage a situation whereby, after the end-user makes his selection, playback is somehow garbled due to a technical fault. It would be a stretch of the imagination to say that the end-user was the one who “determined” the content of the unintelligent static that was recorded.

[85] In the light of the above, I find the plaintiff liable for infringing the defendants’ copyright in communicating the MediaCorp Broadcasts and Films to the public.

[86] To immunise itself against liability, the plaintiff argues that it is a network service provider within the meaning of s 193A of the Copyright Act and therefore entitled to rely on any or all of the defences available under Part IXA of the Copyright Act. In its opening statement, however, the plaintiff limited its defence to only s 193B.

[87] Section 193A provides the following definition for “network service provider”:

[88] In arguing that it is a “network service provider”, as the term is commonly understood, the plaintiff does some violence to the English language. In common parlance, a network service provider is a business or organisation that sells bandwidth or network access by providing direct access to the Internet. In other words, a network service provider provides the service of enabling a person to connect to a network.

[89] Couched in the vague language of s 193A, however, the term “network service provider” as defined gives the plaintiff some wriggle room. There is a sizeable gap for the plaintiff to argue that it “provides services relating to … the transmission … of data”, and therefore qualifies as a “network service provider”.

[90] The plaintiff’s strained position, however, is untenable when we look to Parliamentary intent. At the Second Reading of the Copyright (Amendment) Bill, Prof Jayakumar stated the following:

[91] It quickly becomes clear that the words of Prof Jayakumar would make no sense at all if one considers the plaintiff to be a network service provider. Indeed, the very nature of the plaintiff’s system is such that its purpose is diametrically opposed to the intent of the safe harbour provisions countenanced in Part IXA of the Copyright Act. The plaintiff is in the business of operating a website that makes copies of copyrighted material; the safe harbour provisions exist to protect bona fide network service providers from inadvertently being found liable for copying copyrighted material.

[92] In any event, s 193B of the Copyright Act offers the plaintiff no protection. The statute sets out the following:

[93] The operation of the Offending Website can hardly be said to be an “automatic technical process without any selection of the electronic copy of the material [by the plaintiff]”. It is not disputed that the plaintiff pre-selected the MediaCorp channels for the purposes of recording – indeed, the plaintiff was at pains to state that it specifically chose, for the purposes of the RecordTV system, free-to-air channels that would have the least likelihood of running afoul of any copyright laws. If the plaintiff wants to run the argument that it is the end-user who makes a selection as to “the electronic copy of the material” transmitted, it first has to explain why this selection is not a subsidiary choice within a pre-selected array long arrived at by the plaintiff.

[94] Further, the plaintiff also has to justify how the pre-selection by the plaintiff and the subsequent selection by the end-user are classifiable as being part of an “automatic technical process”. To my mind, the manner in which the relevant recordings were eventually chosen and transmitted in the course of the operation of the Offending Website was anything but “automatic”. Indeed, a great amount of volition must surely have gone into the very human choices of what and which programmes to record.

[95] Section 109 of the Copyright Act lays out the ambit of the fair dealing defence in Singapore:

While there is no specific reference to the recording of broadcasts by an individual for later consumption by that individual (viz, “time-shifting”), several American authorities are persuasive in this regard in permitting time-shifting as fair use: see, for example, Sony Corporation of America v Universal City Studios, Inc 464 US 417 (1984 Sup Ct) (“Betamax”).

[96] I do not doubt that the plaintiff’s customers probably used the RecordTV service for time-shifting. To see why this is so, a brief sojourn into the underlying technology is necessary.

[97] The plaintiff’s system uses streaming as the technique to disseminate the television programme data from the server. With streaming, data is transferred from the server to the end-user, but upon arrival the data is displayed as soon as possible. Once the data has been shown on the computer display, it is discarded. As a result of this, no local copy of the recorded programme is kept or created at the end-user’s computer and patrons of the Offending Website therefore have little or no ability to store, edit or manipulate the recorded television programmes. A similar end result is obtained in the Starhub Hubstation and the Singtel Mio TV DVRs via the incorporation of proprietary storage formats. These formats render recorded programmes inaccessible to – and therefore unmodifiable by – end-users.

[98] The average lay person is, therefore, unable to extract recorded programmes from the Starhub, Singtel and RecordTV DVRs for further downstream transmission. Accordingly, I conclude that time-shifting is the primary use that end-users will get out of these deliberately restrictive technologies. In this respect, it might be useful to contrast the downloading of data such as mp3 or other music files by end-users. One academic commentator notes:

However, the above concerns necessarily do not apply in the case of the plaintiff’s technology, given that no permanent copies are actually “downloaded” to the end-user’s computer and that subsequent distribution of the recorded programmes is beyond the ken of all but the most determined and technically gifted.

[99] I also do not accept the defendants’ attempts to distinguish Betamax ([95] supra) on the basis that that decision did not involve a service where the service provider makes a copy upon the end-user’s request (but instead concerned a product where the purchaser made the copy of his own accord). To my mind, it should make no difference, without more, whether technology for time-shifting purposes exists as a service or as a product. If time-shifting is fair use, then it is fair use, period. In this regard there is some analogy to the discussion at [27]–[31] above.

[100] Indeed, the defendants in this action are not objecting to the plaintiff’s end-users’ use, but only the plaintiff’s use.

[101] It is, of course, not permissible for a service provider to rely on its customers’ fair dealing to exculpate its own culpable behaviour. In Princeton University Press v Michigan Document Services Inc 99 F 3d 1381 (6th Cir 1996), the majority of the Sixth Circuit Court of Appeal stated the following at p 6:

[102] The proposition that a party may not rely on another party’s fair dealing defence is a sound one. Were this not the case, an avaricious entrepreneur could make copies of copyrighted material for its customers with impunity for its own financial profit, as had been the case in Sony (see [28] supra).

[103] In the American case of MCA, Inc v Wilson 677 F 2d 180 (“MCA”), it was stated at pp 2–4 that:

It is certainly true that the plaintiff had still been operating as a non-profit outfit at the time the suit was brought. However, the defendants were able to show at trial that the plaintiff would allegedly “eventually monetise its service by levying subscription fees, implementing advertisements, and licensing the Plaintiff’s technology”. Indeed, Mr Fernandes himself testified that plans had been in the pipeline for the implementation and sale of advertising technologies derived for use on the Offending Website for the generation of “potential revenue streams”. The Offending Website was certainly not run as a charity. It was a preliminary foray into the market for advertisement-driven web-based programme recording.

[104] Under s 109(3)(a) of the Copyright Act, the balance between public benefit and private commercial gain constitutes the first of five factors in determining the existence of any fair dealing. In this regard, the “purpose and character” of the plaintiff’s business model, inchoate as it were, appears to come down much more heavily on the side of commercial exploitation than public service. Any person in Singapore with a VCR, a Singtel Mio TV STS-DVR or a Starhub Hubstation STS-DVR (the latter two devices are required for the viewing of the cable programmes transmitted by Singtel and Starhub respectively) would be able to record the defendants’ programmes; the recourse provided by the Offending Website appears, therefore, to be more of an interesting alternative than an instrumental primary means of time-shifting the defendants’ programmes. The contrast with Betamax ([95] supra) here is clear.

[105] The second factor – “the nature of the audio-visual item” – weighs in the plaintiff’s favour. The “audio-visual item” in question is a free-to-air broadcast from our national broadcaster, with VCRs, Singtel Mio TV STS-DVR s and the Starhub Hubstation STS-DVRs already providing time-shifting capabilities. In the same vein, the fourth factor – “the effect of the dealing upon the potential market for, or value of, the audio-visual item” – also falls in the plaintiff’s favour. There is no realistic market for “recently-screened MediaCorp broadcasts”. MediaCorp Online Broadband Television, or “MOBTV” is, by its own admission, only a video-on-demand service and not a time-shifting service. MOBTV does not screen every single item that is broadcast on the free-to-air channels; it only offers a limited selection of syndicated programmes.

[106] In MCA ([103] supra), it was held (at p 5) that in relation to the fourth factor:

This confirms that the appropriate balance to be struck here is one between the public and the copyright holder, instead of the service provider (the plaintiff here) and the copyright holder.

[107] The third factor – “the amount and substantiality of the part copied taken in relation to the whole audio-visual item” – clearly lies against the plaintiff here. Entire programmes, without qualifying alterations, are recordable via the Offending Website.

[108] The final factor – “the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price” – involves some curious analysis. Prima facie it must lie in favour of the plaintiff since MOBTV and DVDs of films that have been broadcast are poor substitutes to the plaintiff’s service, offering as it does time-shifting functionality for all programmes (including non-commercially available programmes) at all timings. However, one might also be able to immediately obtain the relevant audio-visual item virtually free of charge by programming one’s VCR, Singtel Mio TV STS-DVR or Starhub Hubstation STS-DVR accordingly. Given this, the concept of “ordinary commercial price” becomes unworkable, and the implied consent for copying enjoyed by the extant time-shifting technologies renders consideration of this fifth and final factor moot.

[109] In view of all of the above considerations, I find that the plaintiff fails to qualify for the fair dealing defence under s 109 of the Copyright Act. In arriving at this decision, I was greatly influenced by the fact that Mr Fernandes had unmistakeably conceded that his was a commercial project with the eventual goal of monetisation through advertisements and the licensing of advertising technology. While s 109 does countenance a balancing exercise between commercial gain and public benefit, rather than an absolute prohibition against commercial uses, I was of the opinion that the Offending Website was set up primarily for private profiteering. The social benefit wrought by the Offending Website had, to my mind, largely already been provided for by existing time-shifting technologies such as the VCR. This last point is significant, in that it also serves to distinguish the present case from the facts and result in Betamax ([95] supra): the balance between private gain and public benefit here simply is of a different order from what was countenanced in that seminal decision. Even then, it bears noting that the Supreme Court only arrived at its 5–4 majority opinion in favour of the Sony Corporation after Justice John Paul Stevens managed to persuade two of his brother judges away from a 6–3 result in favour of the content producer, Universal City Studios, Inc. Clearly, the VCR had only barely crossed an extremely high threshold, even given its obvious utility; I was doubtful that the Offending Website had been equal to that task here.

[110] The unavailability of the fair dealing defence to the plaintiff means that it is liable for authorising copies of the MediaCorp Broadcasts and Films to be made and for communicating the same to the public, as earlier found.

[111] It has long been noted that, with respect to the intersection between law and technology, a fascination with the technical is counter-productive. In Triad Systems Corporation v Southeastern Express Co 31 USPQ 2d 1239, 1243 (BNA) (ND Cal), the issue under consideration was how long a copy had to exist before it could be considered more than a “transitory” copy and, therefore, properly “fixed” in a medium such as computer storage. The district court reasoned as follows (at p 5):

The reasoning above marked a significant departure from the prevailing attitudes at the time, fostered in large part by the seminal case of MAI Systems Corporation v Peak Computer, Inc 991 F 2d 511 (9th Cir 1993), where it was held that copies of electronic material loaded into the RAM (random access memory) of a computer constituted bona fide copies under the US Copyright Act.

[112] Online commentators have also noted the tendency of the courts to focus on the wrong end of matters in the digital age:

While the excerpt above critiqued the Cartoon Network case ([21] supra) (at the district court level, its observations are nonetheless enlightening. As an aside, it should be noted that litigation with respect to STS-DVRs in America was eventually settled without a judicial decision addressing whether they, like their VCR predecessors, are non-infringing time-shifting technologies. Parenthetically, it should also be noted that in Cartoon Network, Cablevision specifically agreed not to plead the fair use defence.

[113] The realities of copyright enforcement with respect to technological advance have long been noted. As Bainbridge observes in his textbook (see [33] above) at pp 214–215:

If a norm neither regulates nor is enforceable, it will surely only be a matter of time before it ceases to be a norm.

[114] It cannot be that copyright law would have thieves of us all. A construction of the copyright law in a manner that leads to widespread unenforceability would only serve to undermine the very regime upon which copyright relies. Given that there has already been open acknowledgment of enforceability issues with respect to the technological age, a precursor being the VCR, it seems sensible to me to construe the provisions of the Copyright Act in a manner that balances sanction with sense, and enforceability with efficacy.

[115] At this juncture, it might be useful to consider a hypothetical (or, given the current pace of technological advance, even nascent) product. Suppose there exists software that enables one’s home computer to, in effect, behave like a VCR. This “virtual VCR” software is entirely local. It performs all of the functions of a VCR, infringing or non-infringing, and has to be purchased at a price. Would there be any sense in distinguishing this software from the VCR? More importantly, would there be any sense in distinguishing this software from a profit-free, non-commercial RecordTV system, which would essentially be a networked equivalent and would not even have to be purchased at a price?

[116] If, as was suggested in the course of the trial, it is a question of TV licence money, I do not think it would be too difficult for the programmers of a commercially neutered version of the plaintiff’s system to require potential end-users to enter the requisite TV licence numbers before they are permitted to log on to the Offending Website. (The analogy here is with cable television subscription fees.) This is a minor threshold objection, in any case, and in my view little should turn on it in the event of such a test case ever arising.

[117] I do not think that manipulating outpaced legislation is the correct way forward for copyright lawyers, the courts and the copyright law. In general, fixation on the technical aspect of things seems to me a sure recipe for disaster. Technology changes, but simple legal principles do not. It is permissible to time-shift. It is not permissible to copy for profit. It is permissible to copy extracts for educational purposes. It is not permissible to authorise another to copy when one does not possess that authority. These are straightforward, immutable maxims that deal with practical results. To my mind, favouring traditional legal maxims in the digital age will give interested parties a good idea on how to conduct themselves. There is no need whatsoever to distinguish between the minutiae of whether a DVR operates locally or remotely, whether DVR technology is being implemented as a product or a service, or whether recording is done digitally or via analog means (although I am sure that the advent of “lossless” content reproduction is what has made content producers even more chary of the Betamax decision ([95] supra)).

[118] To be sure, the proper reformation of copyright law to reflect the wide array of societal interests in the digital revolution will prove a formidable challenge to legislators, content industries and the public for some time to come. Eventually, copyright laws might well evolve to become completely unrecognisable. With a considered approach that eschews needless deference to copyright paradigms of the past, I am confident that a just and efficient outcome may be secured for future generations.

[119] For the avoidance of doubt, I should state that this holding is a modest one. It finds only that any DVR or VCR product or service, operating for purposes of commercial gain, would be liable to content producers and providers for authorising end-user copying and unauthorised communication of the recorded programmes to the public. I leave open the possibility that such a DVR or VCR product or service, operating remotely or locally, digitally or via analog means, could amount to fair dealing under our Copyright Act when employed only for the non-commercial facilitation of end-users’ time-shifting. As we have seen earlier at [115] above, it is inconsistent that the VCR is permitted to be sold at a price (in stores) but the RS-DVR (through advertising revenue)is not, but until the occasion requires, I shall not make any pronouncements on this anomaly. As has already been explicitly noted at [113] above, practicalities inform the copyright law as much as legal principles do.

[120] In the result, I find that there is no defence of fair dealing available to the plaintiff, and that therefore the defendants succeed in their counterclaim for copyright infringement against the plaintiff for authorising the making of copies by end-users and communicating the MediaCorp Broadcasts and Films to the public. I therefore grant interlocutory judgment to the defendants with damages to be assessed by the registrar. I also grant the injunctions sought.

[121] It follows that the plaintiff’s claim against the defendants for groundless threats of copyright infringement must fail.

_________________

DBAC, Tab 7 at [130]. The Supreme Court denied the film industry’s petition for certiorari on 29 June 2009.

See generally Religious Technology Center v Netcom On-Line Communication Serivces Inc 907 F Supp 1361 (ND Cal, 1995).

Singapore Journal of International & Comparative Law 1998 at pp 105–106.

H Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs vol 1 (Butterworths, 3rd Ed, 2000), 418–419.

Daniel Seng, Regulation of the Interactive Digital Media Industry in Singapore (2008) at 70, included as Chapter 5 of the monograph “Copyright Law, Digital Content and the Internet in the Asia-Pacific” (Fitzgerald, Gao, O’Brien and Shi eds), Sydney University Press 2008.

Ibid.

Singapore Parliamentary Debates, Official Reports (16 November 2004), vol 78 at col 1043.

Singapore Parliamentary Debates, Official Reports (16 November 2004), vol 78 at col 1043.

Singapore Parliamentary Debates, Official Reports (16 November 2004), vol 78 at cols 1042 and 1050.

Justin Hughes, “Copyright Enforcement on the Internet – in Three Acts”, Working Paper for Fordham Conference at Cambridge 2009 at pp 21–22. Available online at http://www.fordhamipinstitute.com/ ip_conference/documents/JustinHughes_Copyright_Enforcement_on_the_Internet_in_Three_Acts.pdf (last accessed 30 September 2009, estimated to be published 2009–2010).

William Patry, “The Cablevision Decision” (26 March 2007), available online at http://williampatry.blogspot.com/2007/03/cablevision-decision.html, (last accessed 28 September 2009).

Final Judgment, Paramount Pictures Corporation v ReplayTV, Inc Case Number: CV 01-09358 FMC (Ex) (SDNY 25 Aug 2006) at para 1 (granting dismissal by stipulation of the parties).