ENFORCEMENT OF MEDIA PIRACY: AMERICA'S HARDLINE APPROACH VERSUS JAPAN'S LACKADAISICAL APPROACH AND THE FUTURE OF ENFORCEMENT IN JAPAN UNDER THE TRANS-PACIFIC PARTNERSHIP INTRODUCTION.

• Published date: 22 September 2017
• Author: Cannon, Richard Michael
• Date: 22 September 2017

INTRODUCTION

Copyright enforcement has dramatically changed in the last decade, be it within the United States or abroad. This enforcement has been elevated to the forefront of the minds of legislative bodies, and the laws are constantly changing. The United States stands as the figurehead of copyright enforcement, the "big brother," in a world of rapidly advancing Internet infrastructure. Acting as the big brother, its views and techniques have begun to weasel their way into the infrastructures of nations worldwide. Japan is the "little brother," a country affected heavily by America's big brother attitude towards infringement. The two countries stand on different sides of a wide spectrum, with America on the strict side of enforcement, while Japan has been historically laxer with its enforcement techniques.

America practices a hardline approach, one that looks to punish all those who infringe on the copyright of others, whereas Japan possesses a relatively lackluster enforcement history, despite the criminalization of infringement and the promise of stricter enforcement. Notwithstanding these promises, Japan has been lackadaisical in its enforcement, but that may change soon. With the passing of the Trans-Pacific Partnership (TPP), the future of Japan's copyright enforcement may soon mimic that of the United States.

Part I of this Note will provide the common definitions in relation to piracy. Part II will trace the history of piracy and file-sharing amongst both countries. Part III will discuss the current legal status of file-sharing in Japan and its enforcement techniques. Part IV will discuss the current legal status in the United States and the enforcement techniques employed. Part V will introduce the Trans-Pacific Partnership. Part VI will highlight common criticisms of the agreement within both countries. Part VII will illustrate the copyright requirements to which Japan must adhere to under the new agreement. Finally, Part VIII will explore the future of file-sharing enforcement in Japan. Overall this Note will examine the future of copyright enforcement in Japan under the looming Trans Pacific Partnership Agreement.

I. Definitions

This section will cover the basic definitions of common terms in the realm of copyright infringement. As later sections cover, Japan's requirements and duties under the TPP will come directly from the Agreement's text.

Initially, a basic understanding of the treaties and declarations that have contributed a large part in the formulation of the Trans-Pacific Partnership and the backbones that both Japan and America have based their own copyright enforcement policies on is necessary. The Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention") (1) is an 1886 agreement that recognized (2) the importance of protecting authors and their works, justifying its application using three basic principles. (3)

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (4) provides for "minimum standards of protection provided to each member nation," (5) "domestic procedures and remedies for the enforcement of intellectual property rights," (6) and for "dispute settlement... between WTO members." (7) The agreement also includes provisions regarding enforcement of intellectual property rights (8) and dispute settlement. (9) It also "lays down certain general principles applicable to all IPR ("Intellectual Property Right") enforcement procedures" that each member must adhere to in its domestic enforcement procedures and remedies. (10)

The World Intellectual Property Organization (WIPO) Copyright Treaty (11) is a special agreement under the terms of the Berne Convention which deals with the protection of works and the rights of their authors in the digital environment. The treaty mentions two specific subject matters which must be protected and includes three additional rights granted to authors (12) not addressed in the Berne Convention.

In addition to the various treaties and agreements that are the essential building blocks of the TPP, some basic terminology is necessary to understand copyright infringement. Intellectual property "refers to the creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce." (13) There are five common types of intellectual property. (14)

The five common types are copyright, patent, trademark, industrial design, and geographical indications. Copyright is the "legal term used to describe the rights that creators have over their literary and artistic works." (15) A patent (16) "is an exclusive right granted for an invention." A trademark (17) "is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises." (18) An industrial design (19) "constitutes the ornamental or aesthetic aspect of an article." Geographical indications (20) "are signs used on goods that have a specific geographical origin and possess qualities, a reputation, or characteristics that are essentially attributable to that place of origin." (21)

Copyright infringement "is the unauthorized or unlicensed copying of a work subject to copyright." (22) Piracy is the popular term used to describe the reproduction and distribution of copyright-protected material, yet "national copyright legislations generally do not include a legal definition." (23) An internationally agreed upon definition of "piracy" is non-existent, but the definition outlined in TRIPS may be the closest to an "agreed-upon" definition. (24)

"File-sharing is the public or private sharing of computer data or space in a network with various levels of access privilege." (25) Peer-to-peer is a common form of file-sharing and is a "type of computer network that uses diverse connectivity between participants (peers) in a network and the cumulative bandwidth of network participants rather than conventional centralized resources where a relatively low number of servers provide the core value to a service or application." (26)

One of the most popular peer-to-peer sharing services is BitTorrent. "BitTorrent is a peer-to-peer file sharing protocol designed to reduce the bandwidth (27) required to transfer files by distributing the transfers across multiple systems, which lessens the bandwidth used by each computer." (28) When using BitTorrent, users download a torrent, which is "a file sent via the BitTorrent protocol" (29) and is referred to as such because during the transmission of a file, it is incomplete. (30)

Lastly, an Internet Service Provider (ISP) is a company that provides individuals and companies access to the Internet and other related services, (31) and an Internet Protocol Address (IP or IP Address) is the unique address of a connected device to an IP network (TCP/IP network). (32)

II. History and Legal Status of File-Sharing

A. The United States

Digital file-sharing in the United States has a long history tracing to the birth of the worldwide web. Bulletin Board Systems ("BBS"), (33) Usenet, (34) Topsites (35) and IRCs (36) started the file-sharing movement, but Napster (37) was the medium that brought file-sharing into the limelight and to the masses. (38) Napster was a cultural revolution that for the first-time legitimately threatened the record industry and inspired the idea of free music in the minds of consumers. (39)

Napster, created in 1999 by Shawn Fanning, "enabled anyone... to share audio files in MP3 format." (40) Stored on a centralized server, users could easily download (41) files that were hosted by the company. The Recording Industry Association of America (RIAA) sued Napster for copyright infringement, (42) and they were forced to shut down. (43) This was the first time a federal court extended "traditional copyright protection to a medium in which creative works... can be traded widely with the click of a mouse." (44)

Following the failure of Napster for its centralized server based service, Kazaa, LimeWire, and eDonkey (45) came into existence. (46) Each of the programs and file-sharing protocols ended up failing because "they were rooted in commercial (and corporate) interest." (47) In addition to being popular avenues for adware/spyware, these types of programs were susceptible to RIAA lawsuits and injunctions. (48)

Finally, BitTorrent (49) revolutionized the approach to file-sharing. Initially invented for the encryption and storage of one file into multiple files, its use was quickly adapted for file-sharing purposes. (50) Unlike earlier file-sharing protocols, torrents enable the user to upload and download files from thousands of users at the same time. (51) analysis shows that it accounts for about 35% of all Internet activity. (52)

B. Japan

In 2001, File Rogue was released, which was similar to Napster, in the sense that it was a centralized peer-to-peer network, which was used to share music files. (53) In 2003, the JASRAC (54) and the RIAJ (55) filed a civil suit. (56) The Tokyo District Court found that File Rogue infringed on the right to transmission, and handed an injunction to its creator. (57) From this case, the Karaoke Doctrine (58) emerged: if a business enterprise has control over an infringing activity and profits by the activity, then the business is liable for direct infringement. (59) This civil suit eliminated the for-profit model of file sharing that courts were worried about. (60)

Unlike File Rouge, which lacked popularity, WinMX, the first real mass sharing client utilizing Japanese characters, was used by millions of Japanese users. (61) It possessed no anonymity, and because it used central serves to keep track of who was sharing what file, the police could easily track a user. (62)

In response to the lack of anonymity, a Japanese Graduate Student created WinNY. (63) In what constituted the first case of copyright infringement based on uploading, in November 2003, two users were arrested after posting what files...