Monday, February 4, 2013

Isamu Kaneko - Japanese Aaron Swartz?

The tragic suicide of Aaron Swartz invoked a controversy over many issues including the ambiguity of the CFAA.

In Japan, there was a possibly comparable case called
People v. Isamu Kaneko, or "Winny Case." Isamu Kaneko is a programmer who has a doctoral degree from Ibaraki University and was selected as a member of Exploratory IT Human Resources Project by the Information-technology Promotion Agency, Japan (IPA). As a programmer, he released a very innovative software in 2002 called Winny.

Winny is a P2P file sharing software which solved some of the problems the existing software had. (As the existing software was called win"MX", the software was called win"NY" using following letters of the alphabet.) The most innovative point is that Winny worked purely peer to peer. That means that Winny does not need any central server containing the information of the clients. Old P2P software had central servers and they often crashed, resulting in huge system failures. Without them, Winny network is very stable and reliable.

However, after Dr. Kaneko uploaded the software, it was welcomed by many Japanese Internet users who wanted to share video clips or music files with others. Of course, like Napster, most of such files are shared without authorization of rights holders. What happened is that the police found Dr. Kaneko as the symbol of the evil of copyright infringement and arrested him. In 2004, he was accused of the "assistance" of copyright infringement. Note that in Japan, although there is no general "conspiracy" crime, mental or physical "assistance" of an actual crime constitutes a crime.

The case continued for six years. After he was found guilty in the first instance court in Kyoto (December 13rd, 2006), he was found not guilty in Osaka High Court (October 8th, 2009). In Japan, the prosecutor may appeal to the judgment of an acquittal. The prosecutor appealed to the Supreme Court and on December 20th, 2011,
the court rendered a 4 to 1 split judgment whereby the majority opinion affirmed the Osaka High court's acquittal. (We have a double jeopardy principle, but it is understood that the principle works only after the final and binding judgment.)

The majority opinion found that what he did was objectively an assistance to copyright infringement. However, Japanese criminal law requests subjective intent of committing a crime of assistance. As Dr. Kaneko did not recognize that "not exceptional percentage of users" were using Winny for copyright infringement, he was barely acquitted.

There are some criticisms. One is that the threshold for the crime of providers of neutral tools should be higher. Some contend that Winny can be used for both lawful and unlawful purposes like a knife. In a crime-filled neighborhood, not an exceptional percentage of buyers of knifes would use them as tools for crimes. According to the Supreme Court's standard, the knife seller would be guilty of assistance crime in this hypothetical.
The opponents to the majority opinion contend that the threshold to find a tool provider to be guilty should be very high.

I am personally interested in another aspect of the case. From the arrest in 2004 and until acquittal in 2011, Dr. Kaneko needed to concentrate on defending the case, not on programming. That 5 years might have enabled him to develop other innovative software. This means that the prosecution itself might have deterred innovation.
Considering Dr. Kaneko's case and Aaron Swartz case it may be safe to say that the prosecution should be decided with utmost caution when it comes to the leading-edge conduct of innovative people, considering the potential long-running damage to the society.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

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