Thursday, December 14, 2006

P2P Bust in Japan

An author of a P2P software has been convicted in Japan. The charges revolve around copyright infringement.

However, the accused was not found guilty of "copyright infringement", but rather "enabling copyright infringement".

I think that decision is problematic. There should be a large and well-defined distinction between doing something and building something that might conceivably allow someone to do something. Isamu Kaneko did not force the users of his software to use it illegaly. It is quite conceivable that those users could have chosen to use Isamu's software legally. This sort of court decision is exactly what is needed to stifle innovation and punish those who produce popular (and free) software. Isamu's product had half a million users.

Here are some things to consider:

1. The software itself is not an infringement nor is it illegal.
2. The software does nothing that many other similar packages couldn't do.
3. There is no feasible way for such a general purpose file sharing program to reasonably detect what is copyrighted and what isn't. It just handles chunks of data.
4. The software does nothing to enable infringement that is fundamentally different than what your typical FTP or Web Client/Server does.

If it can be proven that the software does not in and of itself break any laws, I believe it is illegitimate to attempt to charge the author of it. While it may not correspond exactly, the basic principles involved are somewhat akin to MP3 player producers being sued because some of their users use illegally downloaded MP3s on the devices. It is patently silly. In almost in any context, this sort of charge would be so silly that the judge would laugh. However, somehow when it comes to coprights on the internet, many convictions for this sort of things seem to be able to happen.

The sort of logic employed here is very twisted, sort of akin to the Guilt By Association Fallacy. It goes something like "Joe broke the law with X. Fred made X. Therefore Fred broke the law". If X, in and of itself, is not an infrigement of the law, there should be no case against Fred. It is not totally unlike saying: "Joe murdered someone in MondoShoes. MondoShoes are produced by George. Therefore George is guilty of murder." This sort of reasoning would be ridiculous even in regard to murder, which is obviously of more gravity than copyright infringement. The software in question was really just a "transport" (hence the analogy of shoes) that the person used to commit the copryright infringement. The P2P software is really expendible in this matter, so there is no sane reason to blame the person who wrote that softawre. The people who are hosting and downloading the copyrighted products are the real "movers" in the act of violating copyright law.

Thankfully saner decisions have prevailed in these sort of cases in U.S. and Canada courts.

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