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Winny developer found guilty

Pretty big news on the file-sharing front today: Isamu Kaneko, the developer of P2P software Winny (earlier entries), was found guilty of “assisting copyright violations.” MSN-Mainichi comments:

[I]t is rare for the developer and provider of high-tech software in the IT field, which the government is promoting, to be punished for users’ abuse of the program. It appears likely that the ruling will affect future technology development.

This Japanese Mainichi article has more details about the ruling. Apparently, the court didn’t like the fact that Kaneko developed his software while being aware that it was (going to be) used for exchanging copyrighted files. The court further found that Winny “physically and psychologically facilitated copyright infringement” and that “most of the files exchanged on the network were copyrighted.”

Kaneko is expected to appeal against the ruling.

Some recent Winny tidbits

The Yomiuri “don’t-link-to-us” Online reported a couple of weeks ago that, according to a study conducted by networking security company Net Agent Co., Winny is currently running on more than 500,000 PCs—an increase of almost 200% since Winny developer Kaneko was arrested (and stopped working on the application) two years ago. I am not completely sure about the methodology behind these numbers though. If I’m correct, you can also connect to the Winny network with the more recent Share P2P client (pronounced 「シャレ」): are Share users represented in Net Agent Co.’s data set? Or did they just look at the nodes connected to the Winny network, and concluded that every such node equals one Winny installation? Update: Anonymous points out that the Share and Winny networks aren’t compatible. My bad.

Another Yomiuri article tells us that “[a] Japanese software engineer based in California has developed software that can detect personal computers containing files illegally obtained with Winny file-sharing software.” The article simplistically continues: “To find a computer storing an illegal file named “A,” the user only has to enter “A” in the software. The software will then locate the e-mail address of the user of the PC in which the illegal file is stored.”

How can you “detect personal computers” and even “locate the e-mail address of the user of the PC” containing “files illegally obtained with Winny”? I seriously doubt this is possible at all—for example, how to recognize “files illegally obtained with Winny” if they’re copies of the original? The software is probably just capable of locating the IP address of the computers offering a file with filename X (possibly without the owner being aware of it). That’s definitely compromising, but there’s no way they can find out your email address that easy.

Also worth noting: Japanese ISP Plala, who was already constraining WinMX and Winny traffic on its network, has announced it will start blocking all Winny traffic from July 17 on. Dedicated Winny fans however can get around this default setting and turn off Plala’s Winny filter for their own account. Non-blocked Winny traffic on the Plala network will remain constrained though.

Study: Winny does not hurt CD sales

The Mobile Society Research Institute (which is sponsored by NTT DoCoMo) recently presented a study stating that Winny doesn’t seem to hurt CD sales.

In a summary of the study, Prof. Tatsuo Tanaka explains that while there is a correlation between an album’s sales and its downloads on the Winny network, P2P downloads don’t seem to directly increase or decrease album sales, thereby debunking the often heard statement that Winny has a negative impact on Japan’s music industry.

More coverage (+ slides) at MSN-Mainichi (Winnyで売り上げ下がらず?) and ケータイWATCH (ドコモ内部の研究機関「モバイル社会研究所」がシンポジウム開催).

(Via dottocomu)

Update: more in-depth coverage in this recent ITmedia article: WinnyはCD売上を減らさず~慶應助教授の研究に迫る.

The year of Winny

When browsing through the international version of the Google 2004 Zeitgeist, I was surprised to find out that “Winny” turned out to be the second most popular Google Japan query in 2004. The Winny case, on which I reported before and which is similar to the still ongoing Grokster case, was extensively reported about on a number of websites (e.g. ITmedia’s Winny coverage), but I didn’t expect it to be a more popular search term than, say, Yuko Ogura ;-).

The final ruling in the Winny case is scheduled for the beginning of 2005; in December 2004, a Kyoto inhabitant was already convicted for sharing copyrighted material by means of the Winny P2P software.

Natsui on the Winny case

Sorry for the light blogging and furling recently – computer woes are among the reasons for this temporary slowdown. I’m also working on a new version of chosaq, so a fresh layout and extra functionality are on their way.

In the meantime, I’d like to point to a presentation about the Winny case by Natsui Takato, my advising professor:

If Mr. Kaneko [= the developer of Winny] were to be found guilty, it would be the first case in Japan to find that the crime of aiding and abetting can be formed independently with regard to conduct that aids and abets an unidentified infringer.

So, more soon. (have I said that before?)

Not guilty plea in Winny case

Mainichi Interactive reports on today’s opening of the trial against Isamu Kaneko, the maker of the Winny filesharing software.

Isamu Kaneko, 34, a Tokyo University graduate school lecturer, entered a not guilty plea to charges of aiding in the violation of the Copyright Law by developing Winny, a software program that allows users to exhange files.

The article is also interesting in the sense that it mentions what happened with the two alleged Winny users that were arrested in the end of 2003:

In November last year, Yoshihiro Inoue, of Takasaki, Gunma Prefecture, and a 19-year-old youth from Matsuyama, who cannot be named for legal reasons, were arrested for using Winny to download software and make it available to unlimited numbers of computer users, an alleged infringement of the Copyright Law.

The youth has since been convicted, while Inoue told the Kyoto District Court on Monday that he was not guilty of aiding copyright law violations because the fault for his alleged wrongdoings lay entirely in the hands of Winny. Prosecutors asked the court to jail Inoue for 1 year.

For more coverage, see Joi Ito’s web and the Japan Today article he’s refering to.

Winny case roundup

There’s a lot to do about the recent arrestment of the creator of Winny. Some interesting articles, blog entries covering the event:

Lenz Blog – Winny arrest:

[…] FTP has been around since 1971. Of course, users can violate copyrights by FTP. What exactly makes Winny different?

If there is no clear answer to this question, this kind of arrest is extremely dangerous. It might lead to a big setback for the development of the information society in Japan.

Asahi – Arrest suits record industry, irks fans of Internet freedom:

Jun Murai, who teaches information network technology at Keio University, is cautious.

“Winny is based on an important technology. I don’t know the developer’s intent, but in general, developing software is considered to be separate from its illegal use.”

Joi Ito – Developer of Japanese P2P system arrested:

[…] Japan is yet again leading the world in stupid Internet policing.

Winny developer arrested

As has been reported on Mainichi Interactive and Slashdot, the developer of Winny has been arrested.

As a. Winny allows for a number of non-infringing filesharing activities and b. unlike Napster, there’s no central server, I don’t see how the developer – (probably) Isamu Kaneko, an assistant professor at Tokyo University – can be charged for breaking copyright laws.

However, the fact (?) that he has argued for new business models through copyright law violations on 2ちゃんねる, might give the case an interesting twist. To be continued.

Thanks for the pointer, Bram.

ACCS about recent Winny fuzz

Last week’s ZDNet Japan features an interview with an ACCS responsible about the recent crackdown on the Winny filesharing software. Especially the following quote is noteworthy:

Winnyに参加しただけで摘発も?

[…]

坂田氏は、「ファイル交換ネットワークに参加すること自体、摘発につながるということは言えるのではないか」と話す。

That is, the ACCS responsible, Mr. Sakada, states that logging in to a filesharing network in se could be considered as illegal already. Well, eh, that’s new.

For this and more copyright madness, check out the two page interview over at ZDNet Japan’s.

Winny crackdown

According to an article in Mainichi Interactive, two people have been arrested on charges of sharing copyrighted movies and computer games with the popular Winny filesharing software. In an apparently related move, law enforcers also searched the home of the developer of Winny and shut down the website with downloads of the software. Especially the latter event is frightening – not only does it show the Japanese government’s commitment to ‘crack down’ on the filesharing phenomenon, but it also proves that filesharing software an sich is considered as being illegal.

A discussion about legal uses or possible benefits of filesharing? Well, it looks like the Japanese government doesn’t really mind participating. Curious how this will turn out.

Update: the article apparently moved to the archives.

Update 2: and the article has moved again.

Update 3: maybe this will work better: Japanese police make first file-sharing arrests.

Indirect liability concept to be introduced in the Japanese copyright law?

I had a look at Japan’s Intellectual Property Strategy HeadquartersIntellectual Property Strategic Program 2006 document and discovered an interesting tidbit in the following section:

  • Chapter 4 Efforts to Create Culture with the Use of Content
    • I. Make Japan a World-Class Content Superpower
      • 2. Making Japan a Content-Creator Superpower
        • (4) Securing Appropriate Protection having regard to the Balance between Protection and Exploitation
          • 1) Developing domestic systems

—that’s p141 or p142/207 ;-). A quote:

i) The GOJ will consider, based on a comprehensive study, the idea of introducing the provision on indirect infringement under the Copyright Law, as in the case of the Patent Law, so that the act of providing an article that is used exclusively to commit copyright infringement shall also be deemed to be an infringement, or introducing a stricter provision, and will draw a conclusion by the end of FY2007.

(Ministry of Education, Culture, Sports, Science and Technology)

I may be wrong, but the paragraph above sounds a lot like it’s an attempt to regulate P2P software (e.g. Winny). Important of course here is the reach of the word “exclusively.” Curious how this is going to evolve…

It’s worth noting that a similar idea was introduced on p126/209 of the 2005 Program, although the original phrasing was very different. The document cited the importance of “achieving consistency with other intellectual property laws” as one of the reasons for a possible amendment. This argument can of course also be used against the copyright-maximalists, so that’s probably why it was left out in the 2006 version.

What Google Trends says about P2P in Japan

Earlier this week, Google released a new Labs app, Google Trends, allowing you to “see what the world is searching for”—this is what it says about P2P in Japan (numbers added for clarity):

P2P in Japan

Apparently, Winny is still a big hit when it comes to search queries—don’t know if this high volume of requests is an adequate reflection of its market share though. I also added the Japanese variant, ウィニー, to the set: “Winny” is clearly the preferred spelling, but ウィニー had a small boost recently (under influence of the mass media’s coverage maybe?). WinMX is also surprisingly well represented, although interest is clearly declining. And then, the surprise: Bittorrent/ビットトレント is merely a blip on the radar. This seems to confirm my personal experience here in Tokyo though: the number of people who has heard of Bittorrent (copyright specialists included) is very small. Even on the Copyright Subcommittee’s 2nd session about file-sharing I attended last year, there was absolutely no mention of Bittorrent. Some explanation about the sudden jumps in the graphs:

1. On May 10, 2004, Winny developer Isamu Kaneko is arrested for suspected conspiracy to commit copyright violation.

2. Around September 21, 2005, the WinMX network ends its operations. The Winny spike might be related to the WinMX shutdown (people searching for other P2P software), but there is probably also another explanation: on September 20, the release date of Isamu Kaneko’s book, 『Winnyの技術』 (The Technology behind Winny), is announced.

3. From February until April 2006 then, there is a number of serious leaks of sensitive information through (infected) Winny installations, causing another spike in the Winny trend line.

Now, just to get a (relative, not absolute) idea of how many people have been searching for the keywords listed above: let’s plot the Winny graph against, say, iTunes.

Winny vs iTunes

Interesting result, isn’t it? About that one spike mid-2005:

4. In August, Apple launches the Japanese variant of its iTunes Music Store, an event that draws a lot of media attention and explains why there are briefly more queries for “iTunes” than for “Winny”.

Additional notes, in no particular order:

  • “Winny” is not only P2P software, it’s also the name of a Japanese sausage—I doubt it distorts the trend line though.
  • Just as a lot of Japanese say “pops” instead of “pop” (when talking about pop music), they also say “iTune” instead of “iTunes”. It’s probably fair to add up both graphs, and do the same with “Winny” and 「ウィニー」. However, even with these minor adjustments, the general picture stays the same.
  • What is the relationship between queries and usage? Once you have iTunes or Winny installed, there is no need anymore for searching the application in question… Also: as the official Winny software has been taken down, it’s a bit hard to find—this might be one explanation for the high volume of “Winny” requests; people simply have to look harder to find a download site.
  • Winny is slowly being replaced by Share, a new, closed-source P2P client that hooks in on the Winny network is similar to Winny. I haven’t included it here though, as “Share” is a rather generic name, resulting in a noisy trend line.
  • And of course, Google’s own disclaimer: “[Google Trends] is based upon just a portion of our searches, and several approximations are used when computing your results.”

Grokster and StreamCast lose

Yes, it’s true. Read that again: Grokster and StreamCast lose. Tune in to SCOTUSblog and Picker MobBlog for more details.

I’m pretty sure this decision will inform influence the outcome of the still ongoing Winny case.

Update: Lawrence Solum analyzes what the court says about Sony: in short, “they leave Sony as it was.”

Update 2: some more interesting bits.

Eric Goldman says: “[w]ith the exception of Grokster and StreamCast as corporate entities (and their employees), I think this case will affect almost no one’s behavior.” And also: “the opinion is relatively narrow and does not put technology providers automatically on the hook for how their technology is used.”

Doug Lightman on the other hand is less optimistic about the Court’s “inducement” or “intent” talk (which allowed it to rule against Grokster/StreamCast, while leaving Sony intact) and points out it will create uncertainty: “[…] legitimate firms are in trouble because honest advertising can easily be construed as inducement.”

The “inducement” bit in the Court’s ruling also has another (rather positive) side: Eric Goldman explains:

Congress will not attempt to disturb this ruling. I think the Supreme Court successfully struck a middle ground that will keep Congress from getting involved. The copyright owners won the case, so Congress won’t be that sympathetic to their requests. Further, the copyright owners got a Supreme Court pronouncement on “inducement,” so that will substantially relax any pressure they could put on Congress to give them an inducement doctrine.”

Update 3: Ed Felten is not so enthusiast about the Court’s design second-guessing:

Legitimate technologists will still worry that a well-funded plaintiff can cook up a stew of product design second-guessing, business model second-guessing, and occasional failures of copyright compliance by low-level employees, into an active inducement case. This risk existed before, and the Court today hasn’t done much to reduce it.

Update 4: for those who want a good overview of the ruling (and its possible effects), read Siva Vaidhyanathan’s excellent Salon.com article. Also worth a look: “BitTorrent: The Next Main Event” by Ed Felten.

Tokyo High Court upholds Filerogue ruling

Via CoCo: the Tokyo High Court has upheld a December 2003 lower court ruling (related article) that MMO Japan violated the copyright law with its Napster-like P2P file-sharing service called Filerogue. The company is ordered to pay 66,890,000 Yen in damages to JASRAC and 19 members of the RIAJ.

An interesting snippet from Internet Watch:

東京高裁知的財産第3部の佐藤久夫裁判長は、まず「ファイルローグにおいて流通する情報を逐一捕捉することは技術的にも容易ではないことから、サービスを提供しているからといって、日本MMOが著作権侵害の主体だとするのは適切ではない」とした。その上で、「しかし、ファイルローグの利用方法としては、主に違法な著作権侵害行為が想定されるもので、日本MMOが著作権侵害行為を予想しつつ提供し、侵害行為を誘発していた。また、日本MMOによる管理も可能であり、管理による経済的利益を得る余地があると見られる事実があるときは、サービス提供者側の責任が問われるのも当然で、侵害の主体と認めることができる」と指摘[…]

Quick’n dirty English translation [+ added emphasis and numbers]:

Supreme Court Judge Satō Hisao: “As tracking in detail the information shared via the Filerogue network is a technically hardly feasible task, it is not appropriate to say that MMO Japan is infringing on copyright by just providing the (Filerogue) service. However, one could expect that Filerogue would be mainly used for copyright infringing activities [1]; MMO Japan knew this and offered its service, thereby inducing infringement [2]. Furthermore, as MMO Japan can administer (the Filerogue service) and make money with it, it can be held liable as a service provider and thus can be considered as an infringer.”

Some remarks:

  1. I have some problems with the court’s predictability claim here: how to know beforehand that a new technology will be mainly used for copyright infringing activities?
  2. Also problematic is the “inducing infringement” (侵害行為を誘発, shingai kōi wo yūhatsu) part, which is reminiscent of the wording of the INDUCE Act. Note this is different from section 4 of the related article linked to above. According to the article “the court found that the defendant MMO Japan Ltd. committed infringement against the plaintiff’s copyright on the ground that the defendant’s acts per se constituted copyright infringement, not on the grounds that the defendant instigated users to commit such an act or aided and abetted such an act.” Very different thus from the High Court’s “inducement” talk…

On a note aside, I’m curious to see if these statements will have an effect on the outcome of the Winny case

Conversation between Ikeda Nobuo and Lawrence Lessig

Strange this fine e-mail conversation between Ikeda Nobuo and Lawrence Lessig, quoting Richard Perlman and Richard Stallman, has almost no refering links. Ikeda and Lessig tackle the recent Winny crackdown and the rise of CCCDs. A quote (Ikeda):

Moreover, since the Internet is essentially a P2P network in which a
“host” is connected directly to another host, such charges can be
applied to web servers and FTP servers. The police alleges that Kaneko
has the “clear intention” to violate the law because he confessed that
he had wished to change the current regime of copyright. Thus, in Japan,
any P2P developer can be arrested if he criticizes the copyright.

In the US, the developer of the P2P software and the code breaker of
copy protection were judged as not guilty. So Japan might be becoming
the most aggressive “copyright extremist” in the world.

Certainly worth a read.

Ian Condry’s paper on music piracy in Japan and the U.S.

I just read Ian Condry’s forthcoming publication Cultures of Music Piracy: An Ethnographic Comparison of the US and Japan (pre-publication draft). A quote to illustrate the article’s (familiar) ring:

Finding some balance in copyright enforcement is extremely important, but we need to balance more than simply ‘property loss’ and ‘penalties.’ Digital rights management imposes costs that are too seldom acknowledged. Even if the lawsuits ‘succeed’ in reducing sharing, they are likely to fail in the larger goal of leading us to a healthy music future because the social dynamics that drive our interest in music depend on word-of-mouth discussions, friend-to-friend sharing, and convenience in accessing music.

As its title suggests, the paper also makes some interesting points about Japan (with which I do not always agree):

  • P.14: What is striking, however, is that as of the fall of 2003, no one in Japan was blaming the Internet for the loss in sales: this Japan Times article shows that the Japanese record industry asserted already in 2002 (if not earlier) that there is a link between online file swapping and the industry’s sales fallback.
  • P.15: Japan’s copyright law is largely harmonized with the US, yet no consumers have been sued in Japan for using p2p networks.: the arrest of two Japanese Winny users in November 2003 and the recent arrest of the developer of Winny show that recently there are legal actions against people involved with p2p networks. Also, the article RIAA(J) spams Japanese file sharers indicates that there is some legal threatening of Japanese p2p users going on.
  • P.15: Instead, the Japanese are far more likely to access the Internet via cell phone, and connection fees make the time spent downloading a song prohibitively expensive. Instead, unauthorized copying, especially with CD burners, is blamed for the drop in sales: based on an interesting paper by the RIAJ. It is worth noting however that the RIAJ also issued statements (e.g. this one) in 2002 about how the then popular filesharing software Filerogue was having a negative effect on record sales.
  • P.15: Japan’s record companies are experimenting with copycontrol
    CDs.
    [end of paragraph]: in my opinion, the Japanese record companies are already far beyond the stage of experimenting with CCCDs. Akio Nakamata even suggests that there is a link between the rise of such CCCDs and the recent move to a right of import for recordings.
  • P.27: Initially, I assumed that a cross-cultural study of music piracy would reveal
    differences between the U.S. and Japan in the treatment of ideas of copyright,
    creativity, and music. Instead, what I found was a convergence of attitudes
    among fans in the U.S. and Japan, but a divergence in corporate and legal
    responses to declining record sales.
    : that divergence might be not so big, considering my other remarks. Also, when looking at e.g. the developing ringtone market, we see a completely different picture. DRM encumbered formats are the starting point (not the remedy) and reveal that the music industry is determined to prevent their customers from sharing tunes.

Hisamichi Okamura questioning recent IP developments

An excellent interview with Prof. Hisamichi Okamura in last week’s ITmedia: 「著作権が技術の将来を決めていいのか?」 (“Is it a good idea to let copyright decide over the future of technology?”).

Okamura questions the recent arrestment of the maker of Winny and states that this might threaten the further development of P2P technology. He compares this evolution with the Betamax case and points out that, in case Sony’s video recorder had been declared illegal, the video equipment landscape would have looked different. No video recorders, possibly no DVD recorders, etc.

Also, the following quote of Okamura is worth mentioning:

「新しい技術は、先人の業績の上に乗って伸びるもの。著作権という小さな枠組みだけで技術を規制していいのだろうかと疑問だ」

A translation: [Okamura:] “New technology is something that is built on the work of others. I doubt that it is a good idea to regulate technology within the small framework of copyright.”

Japan needs more articles like this.

The INDUCE act and its relevance for Japan

Yesterday, I already furled (?) Ernest Miller’s Obsessively Annotated Introduction to the INDUCE Act, which is a must read on the topic. Today, the EFF joins in with a fake complaint against Apple over its iPod music player, thereby showing what the INDUCE act is capable of when accepted.

Technology companies will avoid being innovative, and investors will avoid supporting new technologies for fear of being sued out of existence based on the possible conduct of their customers. If this bill had been law in 1984, there would be no VCR. If this bill had been law in 1995, there would be no CD burners. If this bill had been law in 2000, there would be no iPod. If this bill becomes law in 2004, we may lose those devices and many more that we haven’t even begun to imagine.

So, what does all this have to do with Japan?

First of all, as Joi Ito points out, Japan always [often?] gets hand-me-downs of ugly US bills, so one might expect the Japanese copyright law to “catch up” with this bill (if ever passed) anytime soon.

Secondly, the thinking behind the INDUCE act is very similar to the arguments for the arrestment of Isamu Kaneko, the creator of Winny: The key point is intent, if the developer intended to help others violate copyright law (Hisashi Sonoda in Asahi.com). This boils down to the question whether just developing P2P software counts as sufficient intent, or else whether other actions (such as promoting copyright infringements with Winny on bulletin boards) are required to count as such. In case Japan had an INDUCE act there was no question about Winny’s status – it would be illegal. As for now, we don’t know (yet).

Plala vs. filesharing

Plala, a Japanese OSP has announced it will start constraining its subscribers’ use of Win-MX and Winny, two popular filesharing applications. Plala’s product page states:

「ぷらら」では、昨年12月の会員規約改訂により、平均トラフィックを大幅に超えるご利用のあった場合において事後的に個別対処をさせていただいてきたところですが、「Win-MX」や「Winny」などの違法著作物のネット流通に対する著作権保護対策が不充分であり、実態として違法著作物の流通が甚だしく行われている一部アプリケーションのご利用においては、11月より順次、上りトラフィックを中心に他の会員の通信において迷惑にならない程度にトラフィックを制御させていただくことにいたしました。

The reasoning behind Plala’s decision is noteworthy:

  1. The Plala network is said to experience slow downstream transfer rates due to the intensive upstream filesharing traffic of some of its users.
  2. The filesharing on these networks (in this case Win-MX and Winny) is said to mainly consist of the sharing of illegal files (違法著作物).
  3. So, in order to improve these slow transfer rates, Plala decided to constrain (still unclear how exactly) the use of Win-MX and Winny – of course with a “hey, it’s illegal anyway” ring to it.
  4. Bonus: they might even lower the price of their service or start offering new services, in case this policy manages to lower the network costs.

All this sounds a littlebit to much like a quick-and-dirty solution to me; a few unclear estimations and statements about the percentage of users that is using filesharing programs and the effect this has on the network + a rather drastic change in the Plala network architecture that absolutely doesn’t take into account the fact that one can also share ‘legal files’ through filesharing networks.

I’d better like to see some discussion concerning copyright issues on filesharing networks – not an immediate and untransparent technical solution. Maybe the Plala staff should have a chat about copyright on the net with the people of the Dutch OSP Xs4all…

Via 『ぷらら、「Winny」や「Win-MX」のトラフィック制御を11月より開始』.