Date of
Judgment: December 19, 2011
Issuing
Authority: Supreme Court
Level of
the Issuing Authority: Final Instance
Type of
Procedure:
Judicial (Criminan( �b>
Subject
Matter:
Patent
(Inventions)
Main
text of the judgment (decision):
The final
appeal is dismissed.
Reasons:
Among the
reasons for final appeal argued by the public prosecutor, the reason alleging
violation of judicial precedent is irrelevant in this case because the cited
judicial precedent addresses a different type of facts, and the rest are
assertions of errors in fact finding or unappealable violation of laws and
regulations, and none of these reasons can be regarded as a reason for final
appeal permissible under Article 405 of the Code of Criminal Procedure.
Having examined the arguments, however, we make
a determination by this court’s own authority with regard to whether or not the
act of the accused to release the file-sharing software program in question and
to provide it to many and unspecified persons constitutes accessoryship to the
crime of violation of the Copyright Act. Although the judgment in prior
instance erred in construing the laws and regulations relating to the
constituent elements of accessoryship, we can affirm it as justifiable in terms
of its conclusion that the act of the accused does not constitute accessoryship
to the crime of violation of the Copyright Act. The reasons for our conclusion
are as follows.
1. The accused developed a file-sharing software
program called Winny, and released on the Internet its upgraded versions
successively and provided them to many and unspecified persons via the
Internet. Two persons were prosecuted as the principals for committing
violation of the Copyright Act by using this software program and making the
data of videogame software programs, etc., which are categorized as copyrighted
works, automatically transmittable to the public or Internet users, thereby
infringing the authors' right to effect public transmission of their works
(Article 23, paragraph (1) of the Copyright Act), and accordingly, the accused
was prosecuted on the grounds that what he had done prior to the principals'
commission of the crime, that is, releasing and providing the latest versions
of Winny, constitutes accessoryship to the crime of violation of the Copyright
Act committed by the principals. According to the findings by the judgment in
prior instance as well as the case records, the following facts can be found.
(1) Winny is a file-sharing software program
that functions to send and receive data with the applied use of peer-to-peer
(P2P) technology by which a network of computers is formed in a manner that
individual computers act equally, with no central server involved. It is equipped
with the function to secure anonymity of the sender (anonymity function), as
well as with various functions for searching for files and for sending and
receiving file data efficiently, such as the clustering function, multiple
downloading function, and automatic downloading function. It can be applied in
various fields as it makes it possible to perform the exchange of a variety of
data efficiently while maintaining secrecy of communications. However, it can
also be used in a manner that infringes copyrights, as it was done by the
principals of this case.
(2) With the goal of technically verifying
whether a new file-sharing software program, which ensures both anonymity and
efficiency, would be actually operable, the accused launched the development of
Winny on April 1, 2002, and released the first trial version of Winny on May 6,
2002, on the website that he had established. The accused subsequently released
the upgraded versions of Winny successively, and on December 30, 2002, he
released Winny 1.00, the official version of Winny, and then Winny 1.14 on
April 5, 2003, at which point he put an end to the development of Winny as a
file-sharing software program (Winny 1). After that, with the goal this time of
implementing a large-scale bulletin board system (BBS) using P2P technology, on
April 9, 2003, the accused launched the development of Winny 2 as a software
program designed for this goal. On May 5, 2003, he released the first trial
version of Winny 2, and in September 2003, he released other versions of Winny
successively, Winny 2.0β6.47 and Winny 2.0β6.6, which were used by the two
principals of this case (hereinafter collectively referred to as the
"Alleged Versions of Winny"). Although Winny 2 was developed with the
goal of implementing a large-scale BBS as mentioned above, it also had almost
the same functions as Winny 1 as a file-sharing software program (hereinafter
Winny 1 and Winny 2 shall collectively be referred to as "Winny").
Upon releasing Winny, the accused posted a cautionary message on his website,
stating "Do not exchange illegal files with the use of these software
programs."
(3) B, one of the principals of this case,
around September 3, 2003, downloaded and acquired Winny 2.0β6.47 that had been
released by the accused, and although B was not eligible for any statutory
exceptions, nor did he obtain authorization from the authors, from September 11
to 12, at his residence, using a computer connected to the hard disk that
stored the data of 25 titles of video game software programs, which are
categorized as computer program works, and maintaining the computer connected
to the Internet, B started up said version of Winny on which said data were
contained in a specific folder and ready to be uploaded, and made the data
automatically transmittable to many and unspecified Internet users who would
access said computer, thereby infringing the authors' right to effect public
transmission of their works in violation of the Copyright Act. C, another
principal of this case, around September 13, 2003, downloaded and acquired
Winny 2.0β6.6 that had been released by the accused, and although C was not
eligible for any statutory exceptions, nor did he obtain authorization from the
authors, from September 24 to 25, at his residence, using a computer connected
to the hard disk that stored the data of two titles of cinematographic works,
and maintaining the computer connected to the Internet, C started up said
version of Winny on which said data were contained in a specific folder and
ready to be uploaded, and made the data automatically transmittable to many and
unspecified Internet users who would access said computer, thereby infringing
the authors' right to effect public transmission of their works in violation of
the Copyright Act.
2. The court in first instance stated that the
technology involved in Winny is itself value-neutral and it is inappropriate to
stretch the scope of accessoryship with no limit, to the extent that any act of
providing such value-neutral technology would be criminalized, and held that
whether or not it is unlawful to provide such technology to others, in the end,
depends on the actual situation of the use of the technology in society and the
provider's perception of such situation, and also on the provider's subjective
views upon provision. Based on this reasoning, the court of first instance
determined that in the circumstances where most of the files exchanged on the
Internet using Winny and other file-sharing software programs were eligible for
copyright protection, such file-sharing software programs including Winny were
used in a manner that infringes copyrights, and among them, Winny was
recognized in society as a software program that kept users safe from the risk
of being captured for copyright infringement and was widely used due to its
efficiency and convenient functions. The court then found that the accused,
while knowing the actual situation of the use of file-sharing software
programs, and Winny in particular, and expecting a new business model to be
created with the use of Winny and accepting such way of using it, released the
Alleged Versions of Winny on the website that he had established so as to make
them available to many and unspecified persons, and this led the principals to
commit the charged crime. In conclusion, the court of first instance determined
that the act of the accused can be regarded as constituting accessoryship and
found the accused guilty of accessoryship to the crime of violation of the
Copyright Act, and rendered a judgment sentencing the accused to a fine of 1.5
million yen.
3. Against the judgment in first instance, the
public prosecutor appealed by reason of inappropriate sentencing, and the
accused also appealed by reason of violation of procedural laws and
regulations, errors in fact finding, and errors in the application of laws and
regulations. With regard to the allegation of errors in the application of laws
and regulations concerning the establishment of accessoryship, the court of
prior instance held that accessoryship to be established by means of the act of
providing a software program on the Internet is a new type of accessoryship
that has never been seen before, so it is necessary to carefully deliberate on
whether or not to impose criminal penalty on this type of accessoryship, from the
perspective of the principle of legality. The court then stated as follows:
"In order to prove that the act of providing a value-neutral software
program on the Internet has made it easy for the principal to commit the
criminal act, it is not sufficient that the provider of the software program
perceives and accepts the possibility or probability that someone among many
and unspecified persons would engage in an unlawful activity with the use of
the software program, but accessoryship should be deemed to be established only
in the case where the provider has gone further to provide the software program
while recommending others to use it exclusively or mainly for the purpose of
engaging in an unlawful activity." Based on this reasoning, the court of
prior instance found that when the accused released and provided the Alleged
Versions of Winny on the Internet, he perceived and accepted the possibility or
probability that someone would infringe copyright with the use of them, but the
court did not find that he went further to provide the Alleged Versions of
Winny while recommending others to use them exclusively or mainly for the
purpose of infringing copyright. Accordingly, the court of prior instance
concluded that the accused cannot be found guilty of accessoryship, and
rendered a judgment quashing the judgment in first instance and pronouncing the
accused not guilty.
4. The defense counsels argue that accessoryship
provided in Article 62, paragraph (1) of the Penal Code consists of "act
of aiding," "intent of aiding," and "causality," and
the judgment in prior instance erred in construing the provisions of Article 62
of the Penal Code in that it required "act of recommending the unlawful
use" as an additional element that constitutes accessoryship. Therefore,
we examine this point, according to the findings by the judgment in prior
instance and the case records.
(1) An "accessory" set forth in
Article 62, paragraph (1) of the Penal Code refers to a person who, with the
intent of contributing to another person's commission of a crime, gives
tangible or intangible aid so as to make it easy for such other person to
commit a crime (see 1949 (Re) No. 1506, judgment of the Second Petty Bench of
the Supreme Court of October 1, 1949, Keishu Vol. 3, No. 10, at 1629). In other
words, a person shall be judged to be an accessory when he/she performs an act
that will make it easy for another person to commit a crime, while perceiving
and accepting such nature of his/her act, and the principal has actually
committed a criminal act. The court in prior instance focused on the peculiar
nature of the alleged act of providing the value-neutral software program on
the Internet to many and unspecified persons, and considered that accessoryship
is established only in the case "where the provider has gone further to
provide the software program while recommending others to use it exclusively or
mainly for the purpose of engaging in an unlawful activity." However, we
cannot find that there is sufficient ground for acknowledging the establishment
of accessoryship only in the case where the alleged person has provided the
software program to others while recommending the unlawful use, irrespective of
the nature of the software program (the likelihood of its being used for an
unlawful activity) or the objective situation of the use of the software, so we
must say that the court of prior instance erred in construing the provisions of
Article 62 of the Penal Code.
(2) It is true that Winny can be used both for
legitimate purposes and for the unlawful purpose of infringing copyrights?for
this reason, the judgment of first instance and the judgment in prior instance
described it as a value-neutral software?, and it is basically left to each
user to decide whether he/she will use Winny for the purpose of infringing
copyrights or for other purposes. In addition, the method of software
development chosen by the accused, i.e. releasing a software program under
development and providing it to many and unspecified persons on the Internet
free of charge, and proceeding with the development while hearing opinions of
users, is not an unusual approach for software development but it is rather
accepted as a rational approach. A new software program to be developed will be
given a wide range of evaluation in society, and at the same time, the
development process needs to be carried out swiftly. Therefore, in order to
avoid causing an excessive chilling effect to activities for developing such
software programs, providing a software program should not be regarded as
constituting an act of aiding copyright infringement only because there is a
general possibility that the software program would be used for the purpose of
infringing copyright, the provider has released and provided the software
program while perceiving and accepting such possibility, and copyright
infringement has actually been committed with the use of said software. In
order for such act of providing a software program to constitute accessoryship,
there must be not only said general possibility but further the specific
circumstances where the software program is used in a manner that infringes
copyright, and it is also required that the provider perceives and accepts such
circumstances. More specifically, it is appropriate to construe that the provider's
act of releasing and providing the software program should be regarded as
constituting an act of aiding copyright infringement only in the case (i) where
a person has released and provided a software program while perceiving and
accepting a specific and immediate risk of copyright infringement to be
committed with the use of the software program, and such copyright infringement
has actually been committed and (ii) where in light of the nature of the
software program, the objective situation of use of the software program, and
the method of providing it, it is highly probable that among those who acquire
the software program, a wide range of persons will use the software program for
the purpose of infringing copyright, to a level where their use cannot be
tolerated as exceptional, the provider has released and provided the software
while perceiving and accepting such high probability, and the principal has
actually committed copyright infringement with the use of the software program.
(3) Looking at this case from the abovementioned
standpoint, first of all, it is obvious that the accused did not release and
provide the Alleged Versions of Winny while perceiving or accepting a specific
and immediate risk of copyright infringement to be committed with the use of
them.
Secondly, we examine whether or not it was
highly probable that among those who would acquire the Alleged Versions of
Winny, a wide range of persons would use the Alleged Versions of Winny for the
purpose of infringing copyright, to a level where their use cannot be tolerated
as exceptional, and the accused released and provided the Alleged Versions of
Winny while perceiving and accepting such high probability. Winny is itself a
software program which makes it possible to perform the exchange of a variety
of data efficiently while maintaining secrecy of communications, and at the
same time, it is a software program which is very convenient to use when one
intends to use it in a manner that infringes copyright, as it was done by the
principals of this case, because the commission of copyright infringement is
difficult to be detected. Then, looking at the objective situation of use at
the time of the incident, as pointed out in the judgment in prior instance,
there is a wide disparity with respect to the cases of copyright infringement
committed with the use of file-sharing software applications, depending on the
choice of time or statistical data, so there is no evidence that accurately
shows the objective situation of the use of Winny at the time of the incident.
However, from the relevant evidence cited in the judgment in prior instance, it
is at least presumed that some 40% of the files that were flowing on the Winny
network were copyrighted works and they were exchanged among users without authorization
from the authors. Looking at how the accused provided the Alleged Versions of
Winny, he took measures such as posting a cautionary message to prevent users
from exchanging illegal files with the use of this software program, but he
basically took the approach of releasing the Alleged Versions of Winny on his
website, free of charge and on an ongoing basis, without setting any particular
limit to the scope of persons who would be able to download them. In view of
these circumstances, we cannot deny that the accused released and provided the
Alleged Versions of Winny in the situation where it was highly probable, when
viewed objectively, that a wide range of persons would use the Alleged Versions
of Winny for the purpose of infringing copyright to a level where their use
cannot be tolerated as exceptional.
On the other hand, looking at the subjective
view of the accused on this point, we can find that when the accused released
and provided the Alleged Versions of Winny, he perceived that some of the users
would use the Alleged Versions of Winny for the purpose of infringing copyright
or an increasing number of people had come to use them for such purpose, but
there is not sufficient evidence to go so far as to find that the accused
perceived and accepted that the number of people who would use Winny for the
purpose of infringing copyright had increased to a level where their use cannot
be tolerated as exceptional, and that it would be highly probable that if he
released and provided the Alleged Versions of Winny, a wide range of persons
would use them for the purpose of infringing copyright, to a level where their
use cannot be tolerated as exceptional.
In this respect, we can find the following
facts: (i) On the thread where the accused announced the development of Winny
(hereinafter referred to as the "development thread"), a number of
comments were posted by people who were expected with high probability to
attempt to use Winny for the purpose of infringing copyright, and the accused
made the announcement of the development of Winny and posted comments regarding
the development process, while perceiving that his announcement and comments
would reach such people. (ii) At the time of the incident, many stories were
circulating via the Internet and magazines, etc. to the effect that Winny kept
users safe from the risk of being detected and arrested for criminal charges,
and the accused himself read these magazines. (iii) The accused himself
downloaded a large amount of files flowing on the Winny network which are
presumed to be copyrighted works. In view of these facts, it is evident that at
the time of the incident, the accused perceived that if he released and
provided the Alleged Versions of Winny, some of those who acquired the Alleged
Versions of Winny would use them for the purpose of infringing copyright, and
it is also found that the accused perceived that the number of such people was
increasing.
However, with regard to the fact mentioned in
(i), the announcement of the development and other comments that the accused
posted on the development thread somewhat indicate his desire to draw the
attention of others, and what is more, this thread was not entirely filled with
comments posted by people who were expected with high probability to attempt to
use Winny for the purpose of infringing copyright, but there were also comments
from those who were against the unlawful use of Winny, and the accused himself
posted messages on said thread to request users not to use Winny for the
purpose of infringing copyright, such as stating "Needless to say, at
present, it is illegal to distribute works of others without their
authorization. I would like to ask beta testers not to overstep this rule when
participating in the beta test. Please remember that this is an experiment to
verify whether Freenet P2P can be put into practical application." In view
of these aspects, we cannot say that the accused released and provided Winny,
targeting such people who were expected with high probability to attempt to use
Winny for the purpose of infringing copyright. It is also found that at the
time of the incident, the accused himself posted comments on his website which
suggested as if he expected that the spread of the use of file-sharing software
would lead to create a new business model that is different from any existing
business models. However, as such new business model that the accused mentioned
is imagined on the presupposition that the interest of authors would be
properly protected, we cannot find, only because of such comments, that the
accused developed or provided Winny for the purpose of spreading illegal copies
of works on the Internet and destroying the existing copyright system, nor can
we find that he perceived or accepted that Winny would be used mainly for infringing
copyright. As for the fact mentioned in (ii), the stories that were circulating
via the Internet and magazines, etc. cannot be deemed to accurately convey the
objective situation of use at the time of the incident. It is found that at
that time, based on such stories, the accused perceived the fact that an
increasing number of people were using Winny for the purpose of infringing
copyright. However, considering that Winny is not designed to be user-friendly
only for the purpose of infringing copyright, we cannot go so far as to find
that the accused perceived or accepted the fact that the proportion of people
who used Winny for the purpose of infringing copyright had reached some 40%, to
a level where their use cannot be tolerated as exceptional, as indicated in the
aforementioned relevant evidence. Also with regard to the fact mentioned in
(iii) that the accused himself downloaded a large amount of files flowing on
the Winny network which are presumed to be copyrighted works, this is only a
superficial ground to show that the accused understood the overall situation of
the use of Winny at that time. Rather, given the fact that the accused launched
the development of Winny with the goal of verifying P2P technology, and he
worked on developing various versions of Winny 2, including the Alleged
Versions of Winny, with the goal of implementing a large-scale bulletin board
system (BBS) using P2P technology, rather than developing a file-sharing
software program, we see that the major object of his interest was a technical
aspect of the development process, i.e. to find out whether a new file-sharing
software program or large-scale BBS with the use of P2P technology would be
actually operable. In fact, Winny 2 is designed with a structure wherein the IP
addresses of those who opened threads on a BBS can be easily identified, which
means that the development efforts were not made while putting emphasis only on
the anonymity function. As mentioned above, upon releasing and providing
various versions of Winny 2, including the Alleged Versions of Winny, the
accused posted a cautionary message on his website to request users not to
exchange illegal files with the use of this software program and also posted
the same comment on the development thread, thus he always warned users not to
use Winny for the purpose of infringing copyright.
In view of these circumstances, we find it
difficult to go so far as to find that the accused perceived or accepted a high
probability that if he released and provided the Alleged Versions of Winny, a
wide range of persons would use them for the purpose of infringing copyright,
to a level where their use cannot be tolerated as exceptional.
(4) For the reasons stated above, we should say
that the accused lacked the intent of accessoryship to the crime of violation
of the Copyright Act, so the judgment in prior instance is justifiable in that
it found the accused not guilty of accessoryship to the crime of violation of
the Copyright Act.
5. Therefore, according to Article 414 and
Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the
decision has been rendered in the form of the main text by the unanimous
consent of the Justices, with the exception that there is a dissenting opinion
by Justice OTANI Takehiko.
The dissenting opinion by Justice OTANI Takehiko
is as follows.
I disagree with the conclusion of the majority
opinion and consider that the accused of this case is guilty of accessoryship
to the crime of infringement of the right of public transmission, which is a
type of copyright. Therefore, I hereby express my dissenting opinion.
1. The facts of the case are indicated in detail
in Section 1 of the majority opinion. The characteristic aspect of the act of
providing a file-sharing software program called Winny, due to which the
accused is charged for aiding the principals' commission of copyright
infringement, is that the software program itself is technically useful in that
it makes it possible to perform the exchange of a variety of data efficiently
while maintaining secrecy of communications, and at the same time, because of
its efficiency and its anonymity function in particular, it is also likely to
infringe copyrights, which is a legal interest, depending on how it is used
(these features are two sides of the same coin), and that the software program
is provided to many and unspecified persons, with no limit to the scope of
persons to whom it is provided.
A question arises as to whether or not the act
of providing this kind of software program is punishable as an act of aiding by
facilitating or encouraging the principal's act of infringing copyright (right
of public transmission) by unlawfully uploading files through infringing use of
the software program. In order to punish the act of providing as accessoryship,
it is not sufficient that the act of providing entails a general or abstract
possibility of copyright infringement, but punishability as accessoryship may
be acknowledged only if the act of providing is performed in the situation
where there is a specific and higher level of probability that the principal
will use the software program in an infringing manner. On this point, my view
and understanding are basically the same as those of the majority opinion.
2. More specifically, the act of providing Winny
does not itself involve any risk of infringement of legal interest as long as
it is used for a legal purpose, but if the usefulness of Winny is abused and it
is used in an infringing manner, the act of providing it takes on the realistic
risk of infringement of legal interest and becomes illegal (in this sense, this
act can be deemed to be a value-neutral act). Whether or not the act of
providing a software program involves any risk of infringement of legal
interest depends on the specific purpose of use or manner of use, that is, for
what purpose and for what subject users will use the software program. A mere
possibility of infringing use cannot be recognized as such risk, and only in
the case where there is a specific and higher level of probability that users
will use the software program not legally but in an infringing manner, the act
of providing itself takes on the realistic risk of infringement of legal
interest and it is deemed to be illegal and punishable.
And whether or not it is probable that users
will use the software program in an infringing manner needs to be examined both
from the aspect of the possibility that each user will use the software program
in an infringing manner, and in light of the fact that the software program is
provided to many and unspecified persons, from the aspect of the possibility
that any one or more of those persons will use it in an infringing manner. When
estimating the former possibility, the major points to be considered would be
whether or not the provided software program, in view of its nature and
features or the manner of providing it, can be easily used for infringing
copyright (right of public transmission) and is likely to induce infringement,
and whether or not there is any means to check the infringing use. As for the
latter possibility, if a software program which entails the possibility of
infringing use is made available to more people who intend to use it in an
infringing manner, the higher the realistic risk of infringement of legal
interest becomes (both in terms of quantity and probability), and in this
respect, matters such as the manner of providing the software program and the
scope of persons to whom it is to be provided should be taken into
consideration. Furthermore, in the objective situation where infringing use
actually has taken place quite often, the continued provision of a software
program that is likely to be used in an infringing manner will increase the
risk of infringement of legal interest, so the objective situation of use would
be an important point to be considered in the course of examining the
aforementioned high probability.
3. Thus, in order to acknowledge punishability
of the act of providing performed by the accused, which has the characteristics
as described in 1 above, it is required that the software program is provided
in the situation where a specific and higher level of probability of the
infringing use can be objectively recognized. This is an illegality element and
may also be a constituent element, both of which constitute punishability of an
act of aiding. Hence, as a subjective element required for constituting
accessoryship (intent of aiding), the alleged accessory must have perceived and
accepted such high probability (as for the identity of the principal, it is sufficient
if the alleged accessory perceived and accepted said high probability at a
level of what is called general intent).
The judgment in prior instance took one more
step forward and further stated that in order to prove that such a
value-neutral act as the one disputed in this case constitutes accessoryship,
the alleged accessory must have "recommended" the infringing use.
However, as pointed out in Section 4(1) of the majority opinion, it is
impossible to accept a view that this type of accessoryship which could
constitute a crime even when the principal crime is not committed is
established only in the case where the alleged accessory has performed such a
positive action.
Similarly, as a subjective element of
accessoryship, it is sufficient if the alleged accessory is found to have
perceived and accepted said high probability, and it is not further required
that he/she had the positive intention or aim of encouraging the principal to
commit a criminal act.
4. Now, I will examine this case from the viewpoints
explained above. (i) Winny, developed by the accused, was not the only software
program that is categorized as a file-sharing software program, but Win-MX and
other software programs in this category were also available, so Winny was not
necessarily indispensable to infringe copyright, the right of public
transmission, on the Internet. However, through the research efforts of the
accused, Winny has become more efficient (with the multiple downloading
function, the automatic downloading function, and the mechanism wherein
unauthorized downloading of files of copyrighted works for private use
purposes, which was not illegal at the time of the incident, would immediately
lead to uploading those files, which now constitutes an illegal form of public
transmission), and the anonymity function has also been attached to it (e.g. a
mechanism wherein after a file is relayed, it becomes difficult to track the
position information (key information) of the point from which the file was
sent). As a result, Winny is so easy to use in an infringing manner despite the
warning message posted for checking such use and also so tempting toward using
it in an infringing manner, that users would be encouraged to engage in
infringing use. (ii) Looking at the manner of providing Winny, it is provided
to many and unspecified persons widely and with no limit, and anyone can access
Winny at any time without submitting an application or obtaining consent for
use, without any restriction on use. (iii) The objective situation of use is as
mentioned in Section 4(3) of the majority opinion: there is no evidence that
accurately shows the situation of the use of Winny at the time of the incident
(2003), but from the relevant evidence cited in the judgment in prior instance,
it is at least presumed that some 40% of the files that were flowing on the
Winny network were copyrighted works and they were exchanged among users
without authorization from the authors.
Given all of these circumstances, at least with
regard to the act of releasing and providing the Alleged Versions of Winny that
was performed in September 2003, it is sufficiently possible to recognize the
"high probability" of infringing use objectively, in light of the
easiness of the infringing use of the software program provided, the nature and
features of the software program that are likely to encourage such use, and the
manner of providing the software program with no limit to the scope of persons
to whom it was provided, as well as the abovementioned objective situation of
use.
I would additionally mention that said
proportion of the files which are presumed to have been involved in the
infringing use, some 40%, is estimated partly based on the survey on copyright
infringement, targeting the 1.2 million sample of file information (keys) that
were circulating on Winny at a certain point in time, which showed that some
40% of these files were pure copies of commercially available copyrighted works
such as music files and DVDs. This means that, even on the sampling basis, as
many as some 400,000 pure copies of commercially available copyrighted works
were circulating. This cannot be regarded as an exceptional situation of the
infringing use of Winny. In addition, according to another survey conducted by
a certain association with regard to about 20,000 items of file information
(keys), which was examined by the court of prior instance, about 50% of them
were copyrighted works of video, music, and game software, and about 90% of
these works are presumed to have been used without authorization (judgment in
prior instance, page 20). Although an accurate number of Winny users cannot be
ascertained, there is also a survey that indicates that about 3% of all
Internet users (presumed to be slightly more than 30 million at the time of the
incident) used file-sharing software programs (judgment in first instance, page
15), and about one-third of them used Winny most frequently. If the rate of use
is substituted for the volume (number) of users, one can presume that Winny was
used in an infringing manner by a great number of people to a level where their
use cannot at all be considered to be exceptional, even while taking into
consideration the defective aspects of these surveys as argued by the defense
counsels. As these surveys include a survey conducted in 2006, two and a half
years after the incident, in consideration of the increase in the number of
users of file-sharing software programs during this period, one must
necessarily revise the estimate downward to a certain degree in order to presume
the situation at the time of the incident based on these data. Nevertheless,
the presumption explained above basically seems valid.
5. As mentioned in 3 above, as a subjective
element required for accessoryship, the accessory must have the intent of aiding,
in the form of perceiving and accepting such high probability as objectively
recognized. The majority opinion, in its conclusion, does not find the intent
of aiding on the part of the accused, explaining that it is difficult to go so
far as to find that the accused perceived or accepted a high probability that a
wide range of persons would use the software program in question for the
purpose of infringing copyrights, to a level where their use cannot be
tolerated as exceptional. In my view, the accused of this case can be found to
have perceived and accepted the high probability of the infringing use, and
this is the essential reason why I dissent from the majority opinion.
(1) As for the probability of infringing use,
the accused, as the developer of the software program, must have perceived that
the software program was easily used in an infringing manner and was likely to
encourage such infringing use because of its usefulness, and that the software
program was provided to a wide and unlimited scope of persons. With regard to
the objective situation of use, the accused may not have perceived the actual
situation of use on a statistical basis, that is, about 40% of the use of the
software program was conducted in an infringing manner, because no accurate
survey of use was available at the time of the incident. However, in light of
the factors pointed out in Section 4(3) of the majority opinion, namely, (i)
the comments posted by users on the thread where the accused announced the
development of the software program, which imply their attempt of infringing
use, (ii) his access to magazine articles and other information concerning the
infringing use of Winny, which were available at the time of the incident, and
(iii) the records of his downloading of files of copyrighted works, I should
say that the accused perceived that Winny was being used in an infringing
manner and its use was spreading to a considerably wide range of users (to a
level where their use cannot be tolerated as exceptional).
The circumstances pertaining to the perception
and acceptance of the accused in respect of the situation of the infringing
use, as pointed out by the majority opinion, may be worthy of careful
consideration as the factors leading to denying that the accused perceived the
probability of the infringing use. However, even taking into consideration
these circumstances as well as the characteristics of the personality of the
accused, i.e. his orientation as a researcher and developer, that is, his
inclination and devotion to achieving usefulness, the positive side of research
and development, and on the other hand, his lack of attention and carelessness
to the negative side, the infringing use which could occur as a side effect, I
would say that all of these are not enough to deny that the accused perceived
the high probability of infringing use. If the accused continued to provide the
software program while perceiving such objective situation concerning the high
probability of the infringing use, he should basically be found to have also
accepted the high probability of the infringing use.
(2) As mentioned above, in the process of
determining whether or not there is the intent of aiding in the case where such
act of providing technology as the one disputed in this case is both
technically useful and likely to cause infringement of legal interest, and
where the technology is provided to many and unspecified persons, if it is
construed that the intent of aiding is found only where the alleged accessory
has a positive intention or aim of infringing legal interest in addition to an
intent of aiding in general, such construction has no sufficient ground and I
cannot help but hesitate to agree with it.
In agreement with the majority opinion, I do not
find such a positive intent of infringement in the accused as alleged by the
public prosecutor, for instance, wishing for the spread of illegal copies of
works with the use of Winny or developing and providing Winny mainly for the
purpose of making it available for infringing use. I am willing to acknowledge
that the accused engaged in developing and providing the software program
mainly for the purpose of making it possible to perform the exchange of a
variety of data efficiently while maintaining secrecy of communications.
As the factors for judging that the accused
lacked the intent of aiding, the majority opinion point out the circumstances
such as that the accused posted comments on the development thread to express
his intention of developing and providing the software program, he expected a
new business model to be created with the use of the software program on the
presupposition that the interest of authors would be properly protected, and he
posted a message to warn users not to use the software program in an infringing
manner. All of these circumstances may be understandable as the grounds for
finding that the accused lacked a positive intention of infringing legal
interest, but they are not necessarily inconsistent with or contradictory to
the view that he perceived and accepted the risk of infringement of legal
interest. Rather, one would infer that because he perceived the risk that his
act of providing the software program would lead to infringement of legal
interest, he posted a warning message to express that such infringing use was
not what he intended or aimed and was contrary to his true intention. While
issuing such message, the accused still engaged in the act of providing without
taking any measures to check the infringing use, so in this respect, he should
inevitably be found to have perceived and accepted the high probability of the
infringing use.
6. For the reasons stated above, I consider it
possible to find that the act of the accused meets the constituent requirements
for accessoryship and he had the intent of aiding. Meanwhile, since the defense
counsels seemingly also argue that his act should be substantially exempt from
legal liability, I would like to give some comments on this point as well.
As explained above, it is found that the accused
developed and provided Winny mainly for the purpose of pursuing technical
usefulness, that is, improving the efficiency and anonymity of P2P-based
file-sharing software programs and making it possible to perform exchanges of a
variety of data efficiently while maintaining secrecy of communications. The
method of software development chosen by the accused, i.e. proceeding with
development while providing a software program to many and unspecified persons
and hearing users' opinions, does not seem to be particularly unreasonable.
In view of these points, there may be some room
in this case to discuss whether or not the act of the accused should be
substantially exempt from legal liability, if his act is deemed to be allowable
according to the generally accepted social standards while comprehensively
taking into account the relevant factors such as the purpose of the act, the
appropriateness of the means chosen, comparison as to infringement of legal
interest, and policy-based consideration, or allowable from the viewpoint of
the law system as a whole.
It is true that in this case, it is the persons
prosecuted as the principals who actually committed copyright infringement, and
the accused, by providing Winny, only provided the principals with one means
for their commission of the crime. Furthermore, Winny was not the only
file-sharing software program that was available as such means, and Win-MX was
used more frequently as P2P-based software. Thus, the act of the accused to
provide Winny had a weak effect in causing copyright infringement or
infringement of legal interest, so there may be a view that the accused cannot
be held liable in tort under civil law. In this sense, it may be possible to
find him guilty only of a minor crime.
However, although the software program may not
play a significant role in committing each act of infringement, in light of the
nature and the method of provision of the Alleged Versions of Winny, i.e. they
can be easily used in an infringing manner and they are provided to many and
specified persons with no limit, the Alleged Versions of Winny are likely to
provoke a large number of copyright infringement cases, and in reality, such
infringing use frequently took place as explained above. Thus, in terms of
infringement of legal interest, it may be possible to consider that the Alleged
Versions of Winny entail such level of risk that cannot be overlooked in
society. In this context, the legal interest that might be infringed should be
protected by imposing imprisonment with work (at the time of the incident, imprisonment
with work for not more than three years) against infringement.
On the other hand, the act of developing and
providing the software program performed by the accused has been evaluated as
being useful to a certain extent in the Internet society. However, in this
technical field, progress in technological development takes place rapidly, so
it is considerably difficult to obtain an objective evaluation based on
adequate verification in the relevant field.
Such features of the Alleged Versions of Winny,
i.e. usefulness and likelihood of infringement of legal interest, may not be
suitable for relative comparison of legal interest. As usefulness of the
Alleged Versions of Winny is already taken into consideration in the phase of
discussing the high probability of infringing use as the element to constitute
accessoryship, it seems to be inappropriate to take this point into
consideration again in the course of discussing the issue of substantial
exemption from liability.
(In connection with the aforementioned aspect of
policy-based consideration, it is found, as explained above, that Winny, the
software program developed and provided by the accused, is technically useful
for the distribution of information on the Internet, and the accused engaged in
developing and providing it mainly for the purpose of pursuing such usefulness.
When it comes to promotion and advancement of technical usefulness in the field
of information distribution, dealing with the risk of infringement of other
kinds of legal interest, which could occur as a side effect, by immediately
imposing criminal penalty, could result in excessive restriction on the
development of innovative technologies and impedance to technological
advancement, and could ultimately cause a chilling effect on technological
development in other fields. Viewing the situation and giving consideration
from this perspective, a careful and restrained attitude is required for
criminalizing the act of providing technology that has only served as a means
for the principal to commit infringement of legal interest and punishing it as
accessoryship. This consideration may lay behind the conclusion drawn by the
majority opinion that decided not to punish the accused. In this case, before
the accused received any complaint from authors or other right holders or any
official alarm was given to file-sharing software program providers in general
in society, the law execution authorities set about investigation and carried
out compulsory investigation in response to the accusation, and then prosecuted
the accused on the presupposition that he provided the software program for the
purpose of spreading copyright infringement. Seeing such developments of the
case, I would say that the authorities somewhat lacked consideration to this point
and acted too hastily. In addition, there are also circumstances in favor of
the accused, such as that he did not have any intent of making profit, and he
quickly closed the website where Winny was made available to the public, after
he was advised by the law execution authorities.
At the same time, if the activities of
developing and providing technology in a certain field put too much emphasis on
pursuing a benefit, this could, as a side effect of such benefit, cause
infringement of other kinds of legal interest. Hence, as long as the developer
of technology intends to provide the technology widely in society with no limit
to users, he/she should proceed with development while giving due consideration
to this aspect, as his/her responsibility in society as a developer. In my
view, for the reasons stated in 1 to 5 above, the accused is found guilty of
accessoryship, and the aforementioned circumstances in favor of him should be
sufficiently taken into account in determining his sentence for accessoryship,
including commutation.)
7. For the reasons stated above, I consider that
the judgment in prior instance should inevitably be quashed.
(This translation is
provisional and subject to revision.)