Supreme Court Rules in P2P Copyright Case

INTERNATIONAL BRIEFINGS

JAPAN internet users, thereby infringing the au - there must be not only the general possi - thors’ right to effect public transmission bility but further the specific circum - Supreme Court rules in of their works (Article 23(1) of the stances where the software program is P2P copyright case Copyright Act). Accordingly, Kaneko used in a manner that infringes copy - ABE & Partners was prosecuted on the grounds that re - right, and it is also required that the Osaka leasing and providing Winny constituted provider perceives and accepts such cir - being an accessory to the crime of Copy - cumstances. More specifically, it is appro - right Act violation committed by the priate to construe that the provider’s act principals. of releasing and providing the software program should be regarded as constitut - Takanori Abe and Michiko Kinoshita The Kyoto District Court found Kaneko ing an act of aiding copyright infringe - guilty of being an accessory to the crime ment only in the case: of Copyright Act violation, and rendered 1) where a person has released and pro - a judgment sentencing Kaneko to a fine vided a software program while per - of ¥1.5 million ($12,500). The Osaka ceiving and accepting a specific and High Court overturned the judgment immediate risk of copyright infringe - and acquitted him. The Supreme Court ment to be committed with the use of dismissed the final appeal and the acquit - the software program, and such copy - P2P network tal became final and binding. right infringement has actually been Source : http://en.wikipedia.org/wiki/Peer-to-peer committed; and 2) where in light of the nature of the soft - Peer-to-peer (P2P) software programs Supreme Court ware program, the objective situation such as Napster and Grokster make it of use of the software program, and possible to exchange data efficiently. Although the Supreme Court dismissed the method of providing it, it is highly However, these software programs are the final appeal in its decision of Decem - probable that among those who ac - constantly used in a manner that in - ber 19 2011, it stated the detailed reason quire the software program, a wide fringes copyright and lawsuits against the by the court’s own authority with regard range of persons will use the software developers and distributors of P2P file- to why the act of the accused does not program for the purpose of infringing sharing software have been filed under constitute being an accessory to the copyright, to a level where their use copyright laws all over the world. Napster crime. Its reasoning is as below. cannot be tolerated as exceptional, was granted a preliminary injunction and the provider has released and pro - shut down its service, and thereafter de - Winny is a value-neutral software which vided the software while perceiving clared bankruptcy. Grokster faced a law - can be used both for legitimate purposes and accepting such high probability, suit as well and reached a compromise by and the unlawful purpose of infringing and the principal has actually com - shutting down its service. copyright, and it is basically left to each mitted copyright infringement with user to decide whether he/she will use the use of the software program. Winny is a P2P file sharing software pro - Winny for the purpose of infringing gram developed in Japan. It had also been copyright or for other purposes. In addi - In this case, we cannot deny that the ac - used in a manner that infringes copyright tion, the method of software develop - cused released and provided Winny in by some users as in other P2P software ment chosen by the accused (releasing a the situation where it was highly proba - programs. We discuss a case where the software program under development ble, when viewed objectively, that a wide developer of Winny was prosecuted on and providing it to many and unspecified range of persons would use Winny for the grounds of constituting accessory - persons on the internet free of charge, the purpose of infringing copyright to a ship to the crime of Copyright Act viola - and proceeding with the development level where their use cannot be tolerated tion. Our firm was a member of the while hearing opinions of users) is not an as exceptional because it is at least pre - defence counsel of the accused, the de - unusual approach for software develop - sumed that some 40% of the files that veloper of Winny. ment but it is rather accepted as a rational were flowing on the Winny network approach. Therefore, in order to avoid were copyrighted works and they were causing an excessive chilling effect to ac - exchanged among users without autho - Summary of the case tivities for developing such software pro - risation from the authors. grams, providing a software program Dr Isamu Kaneko developed Winny, re - should not be regarded as constituting an However, upon releasing and providing leased it on the internet and provided it act of aiding copyright infringement only Winny, the accused posted a cautionary to many and unspecified persons via the because there is a general possibility that message on his website to request users internet. Two persons were prosecuted the software program would be used for not to exchange illegal files with the use as the principals for committing violation the purpose of infringing copyright and of this software program and also posted of the Copyright Act by using Winny and the provider perceives and accepts that the same comment on the development making the data of videogame software possibility. thread, thus he always warned users not programs or movie programs, etc, which to use Winny for the purpose of infring - are categorised as copyrighted works, au - For the act of providing a software pro - ing copyright. In view of these circum - tomatically transmittable to the public or gram to constitute being an accessory, stances, we find it difficult to go so far as

MANAGINGIP.COM SEPTEMBER 2015 1 INTERNATIONAL BRIEFINGS

to find that the accused perceived or ac - 913 (2005)). cepted a high probability that if he re - leased and provided Winny, a wide range The structure of Winny is similar to that of persons would use them for the pur - of Grokster. According to the judgment pose of infringing copyright, to a level in the Grokster case, the developer of where their use cannot be tolerated as ex - Winny should not even subject to civil li - ceptional. ability unless he has the object of pro - moting a device’s use to infringe For the reasons stated above, we should copyright. Nevertheless if the court im - say that the accused lacked the intent poses a criminal liability on him rather necessary to be an accessory to the crime than a civil liability like the Kyoto District of Copyright Act violation. Court, there is an excessive chilling effect on developing software programs and Japan would lag behind the rest of the Comparison with similar world. From this viewpoint, it is reason - cases overseas able as to be consistent with the global standard that the Japanese Supreme Lawsuits against the developers and dis - Court requires not only the general pos - tributors of P2P file sharing software sibility but also the specific circum - under the Copyright Act are usually filed stances where the software program is as a civil action in western countries and used in a manner that infringes copy - a criminal action like this case is rarely right, and the provider’s perception and filed. acceptance of such circumstances, be - coming concerned about chilling effect In the Netherlands, the Supreme Court on activities for developing software pro - rendered a judgment in December 2003 grams. Further, the judgment has been holding that distributing P2P file sharing seen to have prevented the weakening of software KaZaA to the public was lawful. the international competitiveness of soft - ware developers in Japan. In the United States, although it is not a case of P2P, prior to the Napster and Grokster cases, there was a case where it was argued whether distribution of Sony Betamax video tape recorder (VTR) constituted contributory infringement to infringements by recording television broadcastings by Betamax users ( Sony Corp of Am v Universal City Studios, Inc , 464 US 417 (1984)). The US Supreme Court ruled that contributory infringe - ment liability will not reach the manufac - turer of a device so long as the device is “capable of substantial non-infringing uses”.

Although in the Napster case ( A&M Records, Inc v Napster, Inc , 239 F3d 1004 (9th Cir 2001)) Napster was judged to be held liable as a contributory infringer, it was mostly because the P2P system in Napster was a central control system which gave it the ability to control the in - fringing activity of its users. On the other hand, with regard to Grokster, which did not have a centralised server and allowed users to trade files directly between each other, the Supreme Court announced that it was necessary that the object of promoting a device’s use to infringe copyright was shown ( Metro-Goldwyn- Mayer Studios Inc v Grokster, Ltd , 545 US

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