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March 2020
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Japan Approves New Law To Make Manga Piracy A Criminal Offense

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Roughly a year and a half ago, we discussed a proposed amendment to Japanese copyright law that would seek to criminalize copyright infringement. The general consensus is that the chief impetus for this new addition to Japanese copyright law centered on the manga industry, which is a multi-billion dollar industry, despite that particular media being pirated alongside all other media. Whereas Japan's copyright laws were generally in line with American laws, specifically in that copyright infringement is treated as a civil matter, this new law changed that up to make it a criminal offense. The problem with that, as many people pointed out, is that Japan's constitution is quite clear that anything akin to censorship cannot be done except for the following circumstance:

“An act unavoidably performed to avert a present danger to the life, body, liberty or property of oneself or any other person is not punishable only when the harmc produced by such act does not exceed the harm to be averted."
For years and year, copyright infringement didn't meet that threshold. Now, suddenly, the Japanese government says it does. The idea of Japan eroding its own constitution as a favor to the manga industry is almost too insane to believe, except that it happened.There were other complaints about the proposed law, including the proposed draconian punishments that would have been handed out. The Japanese government claims to have addressed those concerns in a now approved draft of the legislation.
The draft legislation criminalizes the downloading of unlicensed manga, magazines and academic publications from the Internet. The penalties will be brought into line for those already in place for music and movies with a maximum two-year prison sentence and/or a fine of two million yen (US$19,118). The most severe penalties will be reserved for egregious and repeat offenders.In a step back from earlier proposals, Internet users will be allowed to download some image-based and academic content for limited private use in order not to stifle the flow of information and education, provided that activity does not impact copyright holders. Where the precise boundaries lie is currently unclear, however.
As we stated in our initial post, this is going to be a complete mess. For starters, criminal codes that represent massive culture-shifts to an entire country that can be described as "unclear" seem to be almost perfectly constructed to produce chaos. One can expect the courts to be suddenly full of such cases, with defendants that will have no idea why they are in court, why they were arrested, and why they might face jail time. And that's if this law isn't immediately challenged in Japanese courts on constitutional grounds, since the changes made to the drafted law still don't address the prohibition on censorship.On top of that, some of the targets of this legislation aren't actually direct infringers.
One aspect that is perfectly clear is the outlawing of so-called “leech” sites. These platforms, known in the West as linking or indexing sites, do not carry any copyrighted content themselves but provide hyperlinks to infringing material hosted elsewhere.Operating such a service in Japan will become punishable by up to five years in prison and/or a fine of five million yen (US$47,780). The latest estimates suggest that there may be up 200 of these “leech” sites in the country, a figure the government is hoping to reduce.
It seems fairly insane to punish sites that merely link to other content with five figure fines and five year prison sentences.But then it seems that insanity is all that's on the menu for this change in the law. Vaguely-worded, manga-protecting criminalization of copyright infringement that violates the constitution is a series of words I never thought I'd write, but c'est la vie.

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Fighting For Better Anti-SLAPP Laws: I'm Joining The Board Of The Public Participation Project

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Anyone who's read Techdirt for any length of time knows that I've spent years fighting for better anti-SLAPP laws at both the state and federal level. You may remember my public talk about the importance of anti-SLAPP's using the lawsuit against myself as an example, though my fighting for better anti-SLAPP laws dates back way before that event. Or, if you want a more humorous take on SLAPP lawsuits and the need for anti-SLAPP laws, you can check out John Oliver's clever take on the issue:

In short, SLAPP lawsuits are "Strategic Lawsuits Against Public Participation." These are lawsuits -- generally defamation lawsuits -- that target someone's speech, not because the lawsuits have any chance of succeeding, but just because the filer knows that the lawsuit itself is a huge hassle, in terms of time, money, and attention, for those on the receiving end. What a good anti-SLAPP law does is threefold:
  1. It shifts the burden quickly to the plaintiff to prove they have a viable case. This is important. Legitimate cases are not stopped by anti-SLAPP laws.
  2. It makes it easier for the court to then dismiss frivolous SLAPP suits quickly, hopefully reducing the hassle aspect of such lawsuits.
  3. It awards attorneys' fees to the defendant, hopefully reducing the cost of facing such a lawsuits, and providing stronger incentives against potential filers of SLAPP suits.
Unfortunately, only a little more than half of all states have an anti-SLAPP law, and there is no federal anti-SLAPP law. Also, multiple circuits have decided that state anti-SLAPP laws should not be used in federal court (multiple circuits have gone the other way as well). Even among states that do have anti-SLAPP laws, they can vary widely from state to state in terms of what they cover, how they work, and how effective they are.To sum it up: the state of anti-SLAPP laws is a mess, and it's allowing powerful people to create real chilling effects and tie up critics and commentators with bogus, expensive, lawsuits.For years, now, the non-profit Public Participation Project has been fighting to get better state anti-SLAPP laws passed and to get a federal anti-SLAPP law in place. They also keep track of the details of what states have anti-SLAPP laws, what they cover, and how various litigation around anti-SLAPP laws has turned out.I've admired and relied on its work for years, and that's why I was delighted this week to agree to join the board of the Public Participation Project, and help the organization fight for better anti-SLAPP laws to protect everyone's right to free speech, and against abusive, censorious, litigation that makes a mockery of the 1st Amendment and freedom of expression.

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