Japanese Government Seeks To Circumvent Its Own Constitution To Censor 'Pirate' Sites

from the that's-not-how-constitutions-work dept

Fri, Apr 6th 2018 1:33pm — Timothy Geigner

With site-blocking regimes now fully in vogue, far too many governments are getting in on this censorious party. In the cases of most governments, there is leeway in the overall legal structure to do this sort of thing, even if it is wholly unadvised and typically comes with disastrous results. But when Japan announced recently that it is considering site-blocking of so-called "pirate sites" in order to help its anime and manga industries, many familiar with Japanese federal law raised an eyebrow.

The country has no specific legislation that allows for site-blocking of any kind, let alone on copyright infringement grounds. In fact, the constitution expressly supports freedom of speech and expressly forbids censorship.

“Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed,” Article 21 reads. “No censorship shall be maintained, nor shall the secrecy of any means of communication be violated,” the constitution adds.

If you wanted a federal constitutional provision that almost perfectly inoculated against censorious site-blocking over something as relatively mundane as copyright infringement, this would appear to be it. The writers of the Japanese constitution clearly were concerned about government censorship and specifically prohibited it.

This has not stopped the government from trying to dip its toes in these waters, chiefly by pretending that copyright infringement is something that it isn't.

Mainichi reports that the government will argue there are grounds for “averting present danger”, a phrase that’s detailed in Article 37 of Japan’s Penal Code.

“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted,” the Article (pdf)begins.

It’s fairly clear that this branch of Japanese law was never designed for use against pirate sites. Furthermore, there is also a clause noting that where an act (in this case blocking) causes excessive harm it may lead “to the punishment being reduced or may exculpate the offender in light of the circumstances.”

If Japan indeed goes down this route, it will be a complete mess at best and result in the eroding of its own constitution at worst. To combat copyright infringement. The very notion of this is insane. Creaking open the door for this kind of full site-blocking censorship, a door that will surely be burst through by every major and minor content producer in Japan and abroad, and subverting the nation's constitution in order to support one specific industry within the country that isn't hurting for money, make zero sense. The manga industry in Japan alone is a multi-billion dollar industry and it's growing. Whatever challenges it faces from copyright infringement, it's not existential in nature.

As of now, the government looks to be softening its approach to make this kinda-sorta voluntary by ISPs.

It appears that rather than forcing Internet providers into compliance, the government will ask for their “understanding” on the basis that damage is being done to the anime and manga industries. ISPs reportedly already cooperate to censor child abuse sites so it’s hoped a similar agreement can be reached on piracy.

Initially, the blocking requests will relate to just three as-yet-unnamed platforms, one local and two based outside the country. Of course, this is just the tip of the iceberg and if ISPs agree to block this trio, more demands are sure to follow.

This has been true in virtually every case where site-blocking has been introduced. It starts off as the mere exception before being strong-armed into the rule.

Don't do this, Japan. Don't torch your own constitution over a non-problem.

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Filed Under: censorship, constitution, file sharing, free speech, infringement, japan, manga

21 Comments

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Anonymous Coward, 6 Apr 2018 @ 1:40pm

Who is pushing for this site blocking? Is it the people who actually create the content, or is it the people who publish it, and who make most of the profit? I suspect it is the latter, and their concern is controlling the market to maximise their profit.
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ECA (profile), 6 Apr 2018 @ 2:35pm

Re:
Something to know..
Is that the MPAA/RIAA is getting their hands on EVERYTHING..
You can not listen to a copied tape from INDIA, in the USA..they can STILL take you to court..
EVEN tho the USA and other countries have laws against This type of thing.

In the recent past a few Anime came up short..they had 1-2 seasons, then STOPPED..it was the WHOLE internet, that ASKED FOR MORE.. not just 1 country that it belonged to..
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Anonymous Coward, 6 Apr 2018 @ 3:24pm

"Who is pushing for this"? -- I bet is PEOPLE NOT GETTING PAID!
Why does "who is for this" get asked here so often. It's bleedin' obvious. Yet pirates are always bewildered that creators actually have to eat and expect that consumers will toss them a yen or two. Sheesh.

> so-called "pirate sites"

Are called so because are pirate sites.

> in order to help its anime and manga industries

Because industries don't run on your interest and enjoyment alone; it's not coin of the realm.

Anyhoo, if Japan legislators can't figure out that blocking thieves stealing content is not same as censorship, then it'll be an interesting experiment in watching industries die.
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Anonymous Coward, 6 Apr 2018 @ 3:28pm

Re: "Who is pushing for this"? -- I bet is PEOPLE NOT GETTING PAID!
There ya go, Timmy: a 3rd and now 4th comment out of charity.

Techdirt is on verge of collapse. You'd better branch out and start your own site before sucked into the Masnickstrom when the bottom falls out. It'll happen suddenly, and you surely can't deny the signs are here: struggling all this week to get into double-digits of comments, ha, ha!
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Anonymous Coward, 6 Apr 2018 @ 3:35pm

Censorship
"No censorship shall be maintained"? From the country famous for its mandatory but hilariously ineffective censorship of pornography?
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Anonymous Coward, 6 Apr 2018 @ 3:38pm

Re: "Who is pushing for this"? -- I bet is PEOPLE NOT GETTING PAID!
The only industry that could come under threat, although there is little sign of that at the moment, is the publishing industry who do their best to keep the actual artists starving via creative accounting to reduce royalty payments as much as possible.

Meanwhile the number of artists who self publish there works for free and ask for patronage to make a living are increasing, and they gain patronage because they are not selling what they have already done, but rather their ability to produce new works.
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carlb, 6 Apr 2018 @ 3:38pm

Re: "Who is pushing for this"? -- I bet is PEOPLE NOT GETTING PAID!
This has nothing to do with whether "creators have to eat". How much does Sir Paul McCartney make from every Beatles record sold today? I'd suspect that'd be one big fat goose egg as Michael Jackass sold the copyright for those works to Sony. That, not the pirates, is the sort of activity which is robbing creators of ownership over their works.
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Anonymous Coward, 6 Apr 2018 @ 3:53pm

What's the point of having laws, constitutions, bills of rights ... when they do not mean anything?

Are they simply a facade?
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bshock, 6 Apr 2018 @ 3:54pm

Heh. Sure, Mr. Abe -- "help" your manga and anime industry by cutting off the primary way that it publicizes itself overseas. You don't need any of that filthy gaijin money anyway.
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Anonymous Coward, 6 Apr 2018 @ 4:40pm

Re: Censorship
Unfortunately obscenity has a long history of special pleading that was inherited from the US. It would have been nice if judges had said to the first prude to try enforce an obscenity law back in the 18th century 'look it says shall not be infringed - suck it up snowflake'.
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ECA (profile), 6 Apr 2018 @ 6:12pm

PLEASE REMEMBER THIS IS JAPAN
This is not the same as the USA..
Their culture is completely different.

And a few friends have shown how different..
STORE FULL of Manga and Anime..and it gets bought up..FOR COLLECTIONS.. Those that watch it, and not buy or collect it, are not part of this culture..

Consider the price of 1 collection in the USA could be from $30-200..In Japan, $5-50 ..
Companies get Their PAY, and artist Do suffer abit..but NOTHING LIKE THE USA..

How many of you are old enough to remember ALL the Game makers?? WE had 20+ makers in the USA..the Big ones BOUGHT OUT the little guys and are NOW distributors.. They tag everything with their name, but DIDNT MAKE IT..
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Anonymous Coward, 6 Apr 2018 @ 6:25pm

Re: Re:
Personally I'm still waiting for the music that John Lennon is going to produce from the money derived from the copyrights his corpse owns.

He's only got, what, 38 years until his corpse no longer holds the copyright?
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Anonymous Coward, 6 Apr 2018 @ 6:26pm

You're talking about site blocking in a country where they use encrypted protocols (Perfect Dark, Share...) for filesharing?

As if they didn't know how to circumvent site blocks already, that's if they aren't using VPNs.

Site blocking is the least of your troubles in a country where downloading might mean up to 10 years in jail.

And that hasn't stopped or curbed piracy, according to them.
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Anonymous Coward, 6 Apr 2018 @ 6:40pm

Re:
As in the West, there has been a gradual shift from peer-to-peer filesharing applications to streaming sites. Since it's politically untenable to jail people who visit such "pirate" sites, many of which resemble popular legal sites, then the predictable response for law enforcement is to leave the end-user alone and to go after everything related to the naughty site, including its hosting, domain and IP address.

As they always have, the Japanese people will find away around the police crackdown.
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Anonymous Coward, 6 Apr 2018 @ 8:24pm

Re: Re: Re:
Kind of like all those "new" releases of Nat 'King' Cole and Elvis Presley?

Maybe we should be glad that John Lennon didn't have a daughter.
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Anonymous Coward, 6 Apr 2018 @ 8:50pm

Japan has become a shithole.
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Anonymous Coward, 7 Apr 2018 @ 1:52am

Hmm... I wonder how much subtle emphasis is put on the "understanding" aspect of this "optional" law in the original Japanese. If it's one of those "read the air" kinds of things, it could very well imply that ISPs that are less than "understanding" could be punished by their business peers if they don't fall into line.

This is the way that Japan has traditionally behaved, "the nail that sticks up gets smacked down"; as in "don't rock the boat". There are real consequences to being the odd one out in the more socially conscious world of Japanese business; your choice of words can be read in more than one way.
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Anonymous Coward, 7 Apr 2018 @ 11:06am

Re:
No it has not.
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Anonymous Coward, 7 Apr 2018 @ 1:26pm

Re: Re:
Prove it.
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Mitch Stoltz (profile), 9 Apr 2018 @ 10:01am

The writers of the Japanese constitution
Worth noting that the primary authors of the Japanese constitution were two American lawyers.
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Anonymous Coward, 9 Apr 2018 @ 2:17pm

Re: The writers of the Japanese constitution
No wonder it reads like sandpaper.
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