File Rogue and StarDigio Case

October 1^st, 2012, copyright law amendment took place concerning criminal enforcement of illegal downloading.²⁹⁵ Illegal downloading is also infringing a private use with the limitation. The provision penalizes person who intentionally/knowingly download illegally uploaded movie, music or copyrighted files. If we knew the contents are sold or getting paid-delivery online, and we still distributed illegally by downloading or uploading such things, we are subject to punishment.

Uploading illegal content into Internet had been illegal from before, the punishment was maximum ten years in prison and/or a fine up to ten million yen.

Since January 2010, downloading illegal contents online was illegal without punishment. Moreover on October 2012, even for personal use, downloading illegal contents with consideration: 1) we knew the contents are sold or getting paid-delivery online, 2) we distributed illegally by downloading or uploading the contents, we are subject of criminal with two years limit in prison and/or a fine up to two million yen.²⁹⁶

copying, but the court resulted opposite decision. The StarDigio case showed guarantee freedom by the private copying exemption provision and File Rogue case demonstrated that the court followed legislative judgment that private copying in order to digital distribution should not be excused.²⁹⁷

StarDigio case started in 1998 and settled in 2000 by Tokyo District Court. Plaintiffs (Victor and eight famous labels in Japan) sued Daiichi Koushou, a provider of satellite digital radio programs (StarDigio 100) for alleged as a contributory infringement by letting audience made private copies from the radio stream. The Defendant provide a pay satellite radio program (StarDigio 100) which composed more than one hundred channels to broadcast variety of music in digital form. However, he collected the music by purchasing legally song sold in the market, re-recording the analog format into digital music format. He put the digital music compilation on the radio server for three months. By this arrangement, the digital music compilation was stream via a pay satellite broadcasting service named SkyperfecTV.²⁹⁸ Most of the SkyperfecTV’s audiences have receiver facility, which can plug in a mini disc (MD) recorder to reproduce the music compilation. StarDigio 100 provided some features to assist the audience made private copies: (1) the radio was providing the full length of album; from popular hits to old songs, (2) every week the radio repeated the same set of music, (3) the radio gave pause in every 60 minutes, (4) there was no the radio broadcaster like such as radio in common.²⁹⁹

297 Yuko Noguchi, supra note 87, at 85.

298 Id, at 86.

299 Id.

The fact from this case showed that recording company did not have exclusive right for broadcast. Phone records are subject of neighboring rights;

therefore, it does not include a right to manage the broadcast,³⁰⁰ because it is under compulsory licensing system.³⁰¹ Plaintiff claimed that the secondary use fee from the broadcasting companies was not enough as compensation at market loss.³⁰² The interesting point influenced the copyright law from this case was about the absence of secondary liability like in the U.S. and winny case.³⁰³ Hence, court found basic difficulty to formulate an injunction and damages against broadcasting companies based on authorization reproduction by the radio’s audience. Next, plaintiff also claims about permissible of private use. ³⁰⁴ Reproduction can be allowed if “such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the author”.³⁰⁵ Plaintiff thought by providing the feature, which is made the audience easy to reproduce music compilation into CD, it was substantially regarded as infringement of reproduction.³⁰⁶

Tokyo District Court stated held that private copying by public or audiences was regulated by article 30 about private copying exemption and denied

300 Id, at 87, see Art 96 (the neighboring rights for recording companies are the following;

reproduction right), Art 96bis (right to make the work transmittable), Art 97 (Record companies only have a right a receive a certain fees for broadcasting use “secondary use fees”, Art 97bis (right to transfer ownership of the copies for), Art 97ter (right of lending)

301 Id, at 88, see Art 95 Paragraph 5-13 and Art 97 Paragraph 4 (the process of secondary use fees decision), broadcasting companies do not need to ask permission or licenses to use phone records in their program. They just have to pay secondary use fees, whose amount is settled by agreement between broadcasting companies and recording companies or the settlement from the

Commissioner of the Agency for Cultural Affair.

302 Art 30, Paragraphs 2.

303 Kaneko was suspected as a conspirator who commits copyright violations based on Penal Code Art 62-63.

304 Art 30, Paragraph 1 Japanese Copyright Law.

305 Berne Convention, Art 9 Paragraph 2.

306 Yuko Noguchi, supra note 87, at 89.

the liability of Daiichi because it is legal and it just helped the legal reproduction of their users. Berne Convention article 2 give discretion to the members to how implemented the provision into their own legislation. The court concluded that private copying conducting by the audiences should not be influenced or changed by the manner of broadcasting of the music they were record.³⁰⁷

File Rogue case well known as Japanese Napster case. It started when the

service provider of file rogue belongs to MMO Japan Ltd gave features to the users for file sharing and distributed software, which can be used for share files through the index site. To use the service, users had to download and install the File Rouge software from the MMO’s website on the user’s computer. Then, a user name and a password registered without providing the actual description.

User was also needed to agree to MMO’s user agreement including the provisions that we would not illegally share copyrighted files. The user agreement provided that if another user claims infringement of a file, MMO’s notice and take down procedure provisions in the user agreement would apply. Despite JASRAC request to the owner for deleting the feature, the provider did not delete the linked listed files shared without authorization. JASRAC with 19 record companies, most of them are RIAJ's members sued copyright infringement against the Japan MMO Ltd. as a direct infringer and requested for an injunction order.³⁰⁸ In fact, more than seventy thousands of MP3 files have been shared via "File Rogue"

307 Id, at 90.

308 Takashi B. Yamamoto, Legal Liability for Indirect Infringement of Copyright in Japan, Comparative Law Year Book of International Business 35, 2013, at 13.

index server. Almost MP3 files in it were copyright-infringed ones, which have been copied from commercial music CDs etc. without authorization.³⁰⁹

The court held that users’ infringed the neighboring rights of the plaintiffs, namely reproduction rights and their rights to make works transmissible.³¹⁰ Moreover, Tokyo court determine the criteria for contributory infringement determine whether the defendant MMO’s conduct infringed plaintiff’s transmissibility rights; (1) the contents and nature of the MMO conduct, (2) the degree of MMO’s control/supervision over the users’ conduct to make works transmissible, and (3) MMO’s profits through its conduct had to be taken into consideration by assessing the overall situation. In the result, the Court held that MMO provided its service although it expected such infringements and it also had control over those conducts. The Court found that defendants were aware of the nature of the files shared based on the names and song titles, and that they had excursive control and supervision over their users’ because they were in a position to rollover the necessary steps to prevent copyright infringement, even impossible to detect all infringements. On that legal framework, the court held that the provider had contributory infringed the music right holders’ right.

309 See RIAJ news, available at http://www.riaj.or.jp/e/whatsnew/20020129.html, (last visited June 22, 2015)

310 Japanese Copyright Act 1970, Art 92bis (1)

Chapter IV

POTENTIAL PROBLEMS AND CHALLENGES OF IMPLEMENTING COPYRIGHT PROTECTION ON THE INTERCONNECTION

NETWORKING

4.1 Possibilities, Obstacles and Challenges of Implementing Copyright Law