ODEX v Pacific Internet
The NMP’s blog has excerpts of the judgment. The main grounds of the judge’s decision can basically be summarized as
1) No Locus Standi, because it is only a sub licensee and therefore is not the proper plaintiff.
2) In the one instance where it is the exclusive licensee, it needs to establish a strong prima facie case, and the standard required of it is pegged to an Anton Piller order.
3) Failed to establish that they did hire BayTSP to track the IP address
4) Failure to adduce sufficient information on how Bit Torrent works.
I think the judgment is a good one, and is very well written. However, i also think that parts of the judgment are wrong and will likely be reversed on appeal. The most shaky ground which the judgment stands on is pegging the burden of proof in such cases to an Anton Piller. The judge rightly points out that the Anton Piller, being a draconian measure, is rarely given and requires a high standard of proof before it will be allowed. However, the request for IP address is nowhere as invasive as an Anton Piller, and the analogy between them is strained and unlikely survive the appeal.
I think judge’s ruling on locus standi isn’t of consequence in this case. This is because Odex can simply join AVPAS in the proceedings as a 3rd party, and the defect in locus standi is merely a procedural one. However, i think the locus standi ruling is sound and probably won’t be disturbed on appeal.
Point 3 is again a procedural point. Odex can simply ask BayTSP to furnish an affidavit.
Point 4 is the strongest plank of the judgment. Odex will need much more than website printouts to prove its case. Probably it will need expert witnesses, which will almost certainly inflate its legal bills. This is also the weakest link in Odex’s case.
In short, i think the Anton Piller analogy will very likely be overturned on appeal, but i think the rest of the judgment has a fairly good chance of being affirmed. In any case, i hope Odex loses.
