Changes to Japan's ISP liability limitation law have empowered courts to compel disclosure of user information in cases of alleged copyright infringement, particularly related to BitTorrent usage. While aimed at protecting rights infringement, the amended law has raised concerns about potential risks for casual users facing lawsuits because the Intellectual Property High Court has taken a broad view of what constitutes infringement in rulings favoring rights holders over privacy considerations.
Recent amendments to Internet service provider rules in Japan have empowered courts to compel ISPs and online platforms to disclose user information in rights infringement cases — including copyright infringements allegedly facilitated by BitTorrent. While this legal framework aims to curtail online rights abuse, it has raised concerns about heightened risks for even casual BitTorrent users facing damage lawsuits.BitTorrent is a peer-to-peer file sharing protocol that enables users to download and upload large files simultaneously from multiple sources. By breaking down a file into smaller pieces and distributing them across a network of users, it allows each user to download and upload different parts of the file concurrently, making BitTorrent an efficient way to share large files — as more users participate, download speeds become faster.
While BitTorrent itself is a legal technology, its use for downloading unauthorized copyrighted material can be considered to be copyright infringement. Users who engage in such activities may face legal consequences, including fines, lawsuits — and have even been the subject of criminal arrests as Japanese authorities intensify their crackdown on malicious piracy uploads.
And due to BitTorrent's decentralized and participatory file sharing nature, casual users may be found liable for copyright infringement more readily than on other Internet platforms.
In the years following its release in the early 2000s, BitTorrent was believed to account for a third of Internet traffic, but with iCloud, FaceTime, Google and YouTube competing in the same space, the P2P app now accounts for just 4 percent of global upstream volume, according to the broadband company Sandvine. For downstream apps, it doesn’t even make the top 10, beat out by streaming platforms and social media apps.
Despite the decline in total traffic, in recent years in Japan there has been a steady stream of court filings for disclosure of illegal BitTorrent user information by copyright holders — mostly adult entertainment video production companies — with the Intellectual Property High Court siding with rights holders in its interpretation of the ISP amendment.
— Limiting liability, but specifying accountability —
In April 2021, Japan amended its ISP liability limitation law — a legal framework that in parts is not unlike United States' Section 230 — after the cyberbullying of a celebrity and her subsequent suicide led to a public outcry and calls to rein in harmful online content (see here).
The amendment codified the necessary requirements for a new form of non-contentious court proceedings regarding an order to disclose sender information, including outlining the criteria for establishing the clarity of rights infringement. The objective was to facilitate the process for victims to file court orders that would compel ISPs to disclose user information. Armed with the users' identities, victims can pursue legal action, seeking injunctions and damages.
Having gone into effect in October 2022, the IP court this year has overruled three lower court judgements that denied BitTorrent disclosure orders, all cases brought by adult content producer Prestige against the telecom company SoftBank.
— Seeing the forest for the trees —
Prestige contended that unidentified infringers violated its “exclusive right to transmit to the public” protected under Copyright Act Article 23, by making available for transmission copies of its videos through BitTorrent. The law prohibits a fairly wide range of acts that make copyrighted works available for transmission via automatic public transmission.
The Tokyo District Court in the three verdicts dismissed Prestige’s claim. Based on the amended ISP liability limitation law, it argued that BitTorrent communication such as “handshakes”— initial communication between peers to establish connection and exchange information about files being shared — and “unchoke”— confirming to other peers the capability of uploading file pieces — do not by themselves constitute an infringement as stipulated in the revised ISP liability limitation law.
Because Prestige was seeking disclosure of unidentified users who were discovered by P2P surveillance software that communicated with the users on these levels, determination of an infringement at these points were necessary for the court to issue disclosure orders.
While the lower court saw information transmitted in the various stages of BitTorrent filesharing that didn’t include the actual copyrighted file pieces as falling short of infringement, the IP court took a more holistic approach.
“Focusing solely on individual pieces that were subject to public transmission and requiring that each piece itself be playable and directly convey the essential features of the expression in order to find copyright infringement (public transmission rights) is a ‘can't see the forest for the trees’ approach that inevitably undermines the protection of public transmission rights,” the IP court said.
Such a narrow reading of infringement means copyright holders “would be burdened with the significant task of having to continuously monitor the network in order to exercise their rights in accordance with the actual infringement situation,” the IP court said, which goes against the spirit of the amended ISP law, which aims to enable user identification so victims can seek appropriate remedies for their rights.
— User risk —
The IP court’s decision to weigh rights infringement over privacy and confidentiality in issuing filesharing user disclosure isn’t likely to impact damages per se.
In an April 2022 ruling on a similar adult content BitTorrent infringement case, the IP court put damages at around 20,000 yen ($133) to 60,000 yen per individual. The calculation was roughly derived by multiplying the download price charged by the content provider and the number of times it was downloaded.
While the court’s determination of individual financial cost may not amount to much, it also didn’t let off the hook users who claimed that they didn’t understand that downloading entailed taking part in a network of uploading those files.
Reasoning that downloaders were at least “aware or could have easily recognized” that they were simultaneously enabling the transmission, the court said they were “at least negligent in enabling the transmission of the files in question.”
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