Japanese Supreme Court Says Developer Of File Sharing Software Not Guilty Of Infringement Done By Users

from the that-took-years dept

Wed, Dec 28th 2011 3:32am — Mike Masnick

More than five years ago, we wrote about a Japanese court finding the developer of the popular (in Japan) Winny file sharing program guilty of infringement done with the software. We noted how absurd this seemed, and thankfully three years later a higher court overturned the lower court's ruling. Fast forward another two years and (finally!), the country's Supreme Court has upheld the acquittal and noted that the software's designer shouldn't be liable for the software, which has non-infringing uses. It does appear that the court left open the possibility of an "inducement"-like standard, whereby he could have been guilty if he designed the software for the purpose of infringing copyrights, but it appears that wasn't the intention at all.

Either way, that's many years of this guy's life tied up in the judicial system. Already, editorials in Japan are calling the situation "absurd," and noting:

The police and public prosecutors should realize the negative psychological effect that their actions must have had on people trying to develop new computer technology.

Indeed. If you're dragging the developers of new technologies to court for more than five years just because some users of the software may break the law, you're creating a massive chilling effect on developers. Who's going to develop anything that might be used to infringe -- even if it has mainly productive non-infringing uses -- if it may lead to such a horrible and drawn out process?

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Filed Under: file sharing, japan, liability, secondary liability, winny

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anonymous, 28 Dec 2011 @ 3:51am

i assume it was the entertainment industries that first brought the filing against the guy to court? it sounds like their sort of thing. anyway, even though the case is supposedly finished, what consequences has the guy suffered? it obviously cost a load of money to go to court. has it ruined his life? has it stopped him and others from producing new software of a similar nature? if so, then those that started this battle have still won because of the amount of money they have and the fact that they could just keep going back to court. an ordinary person hasn't a hope in hell of winning, simply because of the costs involved. hope he is getting a shit load back now in legal fees and compensation!
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John Doe, 28 Dec 2011 @ 4:08am

All common sense goes out the window with IP
I don't understand the current situation with IP laws. We don't hold car or liquor manufacturers liable for drunk drivers, we don't hold gun manufacturers liable for murders but we do try to hold 3rd parties liable for IP infringement. Why, of the 3, IP infringement doesn't cause any physical harm and it is debatable if it causes any financial harm either.

Note, I am not for holding the other 2 liable either as I am totally against 3rd party liability for anything.
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ethorad (profile), 28 Dec 2011 @ 4:09am

illegal uses?
Definitely good to avoid liability on creators for what users choose to do. With scope creep almost anything can be used for illegal purposes. Starting with the household brick, used in smash and grabs, through getaway cars and on up to turing machines.

Fancy shutting down a competitor who is doing something different to you? Find a crime which used one of their products and accuse them of aiding.
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Paul Clark, 28 Dec 2011 @ 4:10am

What About Violent Movies?
So .... a developer created a digital product and was accused of being liable for inducing criminal behaviour.

So if a label produces a digital product that glories rape, and some deranged person listens to the music and commits the crime, why would we not hold the label selling the product to the same standard? Their own standard is to consider the producer of the digital product liable for the inducement
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Anonymous Coward, 28 Dec 2011 @ 4:27am

Japan's justice system is very harsh, I hear. Judges are under pressure to find defendants guilty; a not guilty verdict is considered dishonorable.
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Manabi (profile), 28 Dec 2011 @ 4:27am

Who's going to develop anything that might be used to infringe -- even if it has mainly productive non-infringing uses -- if it may lead to such a horrible and drawn out process?
I'm sure that's the whole point. All that new technology interferes with existing business models, and the entertainment companies don't want to change. If you can't adapt, you try to stop the world changing.
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John Doe, 28 Dec 2011 @ 4:49am

Re:
It isn't that they can't adapt it is they refuse to adapt. They eventually adapted to the player piano, the phonograph, the blank cassette, VHS, DVD, MP3, etc. But they had to be dragged kicking and screaming into the future. This time is different though, they are fighting even harder to maintain the status quo. Maybe they are tired of adapting or maybe they are afraid that they can't adapt this time. Or just maybe they finally have enough politicians in their pocket that they feel like they can leverage them.
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abc gum, 28 Dec 2011 @ 4:50am

And in related news - creator of the "Hello World" program is not held accountable for infringement done by its users.
Film at eleven.
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AJBarnes, 28 Dec 2011 @ 5:26am

Comment
If Ford didn't make cars, thieves would not be enticed to steal them. So, just shut Ford and GM down. Makes sense to me... what? legitimate uses for cars other than stealing them?
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Anonymous Coward, 28 Dec 2011 @ 5:28am

Re: [Hello, world!]
... creator of the "Hello World" program is not held accountable...

Your comment prompted me to pull out my copy of K&R I �(�1978 by Bell Telephone Laboratories). But then I thought about the history a little bit, and resorted to Wikipedia:

History

.�.�. the seminal book The C Programming Language.�.�.�. � .�.�.inherited from a 1974 Bell Laboratories internal memorandum by Brian Kernighan.�.�.�.

The first known instance of the usage of the words "hello" and "world" together in computer literature occurred earlier, in Kernighan's 1972 Tutorial Introduction to the Language B,[1] with the following code:

main( ) { ��extrn a, b, c; ��putchar(a); putchar(b); putchar(c); putchar('!*n'); } a 'hell'; b 'o, w'; c 'orld';

Anyhow, I think we are going to hold Professor Kernighan responsible.
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Mike C. (profile), 28 Dec 2011 @ 5:36am

Re: Re:
If you think about it, it's actually pretty easy to understand.

The major media companies are in thrall to their shareholders. Since they are terrified of shareholder lawsuits and downward price pressure, they do absolutely everything in their power to provide guaranteed results. They had a system where they could somewhat reliably predict profit and loss.

With the Internet turning most of that stuff on it's head, the predictions have gone out the window. All the attempts to "go back to the way it was" is merely efforts to return to a point where they can guarantee results and guarantee their shareholders a return on their investment.

At least, that's my current take on the driving force behind all of this. They don't really care about the IP itself - they just care about being able to guarantee the income and in turn, profit and loss.
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abc gum, 28 Dec 2011 @ 5:39am

Re: Comment
Cars enable the robbing of banks.
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Anonymous Coward, 28 Dec 2011 @ 5:43am

Something to note about Japanese copyright laws.

The cost of litigation is a burden, but rewards are low, they don't have 6 figures awards there, you get at best the value of the supposed infringement and you must show it to the court in a convincing way or you get nothing.

http://norisugi.com/forms/ci.html#8
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techinabox (profile), 28 Dec 2011 @ 5:51am

Re: Comment
Trucks are used to move counterfeit goods and bootleg DVDs. Clearly we must sue truck manufacturers.
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Anonymous Coward, 28 Dec 2011 @ 5:54am

Re: Re: Comment
Without electronics they wouldn't be able to make counterfeits, the industry must sue Intel, Samsung, Sony and others.
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Michael, 28 Dec 2011 @ 6:26am

Insane...
Why not hold all parties responsible for running the internet responsible as well? Seems only logical. They should also go after all those pesky PC and laptop manufacturers, as well as corporations which provide computer operating systems. Apparently they're enablers, aiding and abetting pirates by putting the technology in their hands, right? And why stop there? Next, they should go after the electric companies for providing the power to run the computers.

There is no end to this IP lunacy.
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Anonymous Coward, 28 Dec 2011 @ 6:42am

Re:
I'd really like to see a citation for this.
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The Devil's Coachman (profile), 28 Dec 2011 @ 7:35am

Where are the shills?
The lack of IP maximalist shilling here is simply stunning. Are they asleep? Did they all die? I sure hope so.
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The eejit (profile), 28 Dec 2011 @ 7:51am

Re: Where are the shills?
Nah, they went back to Hell until the end of the week.
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Mike42 (profile), 28 Dec 2011 @ 8:22am

Re: Re: Re:
...Which is why stockholder lawsuits should be illegal.
You are an investor. You should be investing disposable income/funds. By buying stock, you are accepting risk, and that risk includes the management doing something extremely stupid. You don't like it? Sell the stock.
The market should be correcting itself at this level, not the government.
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ervserver (profile), 28 Dec 2011 @ 8:24am

re
Thank you Japan for showing some common sense, now if you end whaling I could fully love you again.
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MrWilson, 28 Dec 2011 @ 8:36am

Re: All common sense goes out the window with IP
It's pretty simple to explain: Despite record-setting profits and growth, the entertainment industry is greedy for more and more profits, preferably with less effort. 3rd party liability means that no one will likely develop anything that can be used to circumvent giving the entrenched companies money for any possible use of IP, even if it were fair, private, legal, and/or non-commercial use.

Rather than using technology to create greater opportunities for serving their customers, they want to use it to increase profits. Despite having virtually no reproduction costs, ebooks are sometimes more expensive than their paper counterparts and it took effort to allow for some ebooks to be lendable despite the paper versions having that capability right off the shelf.

The entertainment companies have an ownership complex with culture. They think they can own culture and exact a rental fee for every use. They just haven't figured out how to charge you for getting a song stuck in your head.
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Jay (profile), 28 Dec 2011 @ 8:37am

Re: Re:
It's true. Japanese law works in reverse of US civil law. You are literally guilty until proven innocent. Prosecutors have abnormally high prosecution rates and have a lot of power in cases.

Japan has no Jury system, opting for panels of lay judges and one professional judge in most cases.

Pay very close attention to the conviction rate:

In the matter relating to Japanese prosecutors being extremely cautious, the paper found ample evidence for it. In Japan, 99.7% of all the cases brought to court resulted in conviction, while in the U.S. the figure is 88%. According to a cited research, in the U.S. the accused contest guilt in 22% of federal cases and 11% of state cases, while in Japan, the ratio is modestly less. The paper attributes this difference to greater predictability of the outcome in Japanese cases. This is due to two reasons. One is that it is the judge rather than the jury who determines the verdict. As judges "have seen it all before" and the lawyers on both sides "have seen them seeing it", as they can read the judge's previous ruling (which includes written reasoning for the previous verdict), the way that the judge thinks and argues is very predictable.
Secondly, Japanese trials before the institution of the current lay judge system, were discontinuous. The defense and the prosecutor would first gather in front of the judges and present the issue. Then, the court would enter recess and both sides would go back to prepare their case. As they reconvened on different dates, they would then present each case which the judges examined, the court would be put in recess again and each side would go back to gather further evidence. Some complex trials took years or even a decade to conclude which is impossible under jury system. During the questioning of evidence, judges were explicit about their opinions by the way they questioned the evidence, which gave greater predictability about the final verdict.
For this reason, the prosecutor is far more likely to bring in the case where conviction is assured and the accused is far more likely to settle.

Best way to learn the Judicial game of Japan? Phoenix Wright answers the questions best. It's a parody of the judicial system and how it criminalizes people in the worst way. Phoenix Wright is a fun game, no doubt. But understand what it shows as the problems of finding justice in the system. Wealthy prosecutors, judges who don't care, and an impossible turn around. Hell, another problem is how a defense attorney is unable to effectively cross examine the police. Whatever the police say is a gospel truth. Does that sound familiar?

The other problems are that Japan still hasn't come to terms with sexual crimes, which are heavily biased against women:

Furthermore, in the context of the division of women into sexualised and non-sexualised groups, a victim of sexual assault must be from the group of non-sexualised women to be perceived as a true victim; rape of sexualised women is commonly trivialised (Burns, 2005: 31). Paradoxically, however, by admitting to the rape, women are admitting to sexual contact and therefore placing themselves within the devalued group of sexualised women (Burns, 2005: 19). If a woman has been the target for a sexual assault, she is assumed to be part of the group sacrificed for the protection of more deserving women, and therefore less deserving of protection.

So there are a lot of problems in Japan and its judicial system. The fact is, it's a joke. It's not about justice when you have such a high bar to prove your innocence.
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MrWilson, 28 Dec 2011 @ 8:40am

Re: Re: Re: Re:
If we're going to institute third party liability for things like IP infringement, why not third party liability for shareholders of companies? If the company price-fixes or is anti-competitive, it comes out of the pockets of the shareholders who failed to rein in the company's practices. God forbid someone be incentivized to be ethical in their business and investment practices.
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Anonymous Coward, 28 Dec 2011 @ 9:14am

Re: All common sense goes out the window with IP
We are a country of consumers, not innovators. All of the good ideas are already taken. As long as we keep spending, there will be little problem.
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Anonymous Coward, 28 Dec 2011 @ 9:44am

Re:
It is also worth noting though that the police regularly investigate and prosecute non commercial infringers, convicting them and putting them in jail
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Anonymous Coward, 28 Dec 2011 @ 11:31am

Re: Re: Re:You Almost got it right
If you think that these companies care about Joe the plumber and his 2000 shares,you're dead wrong.
The real shareholders are the executives.They hold millions of shares!
The real issue here is the distribution channel monopoly.
They cannot control the internet and its taking over.
politicians fear the internet for the same reason.
Soon the internet will completely dominate the election process...no more business as usual...unless they
can get all those laws passed so they can control it.
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Jeffrey Nonken (profile), 28 Dec 2011 @ 1:05pm

Re: Re: All common sense goes out the window with IP
Exactly what the entertainment industry wants you to think.
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Jeffrey Nonken (profile), 28 Dec 2011 @ 1:10pm

Re: Comment
I guess nobody wants to steal Chrysler products!
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ethorad (profile), 29 Dec 2011 @ 1:43am

Re:
Besides six figures in yen is around $20 ...
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