Winny Incident – what the meaning of the defendant on the criminal case

I went to National Graduate Institute for Policy Studies because I found the interesting seminar hosted by SMIPS , study groups I sometimes participated and listened to the IP related seminars. The title this time is “Winny Case – what we should deliver to the tech persons ” and the speaker is Toshimitsu Dan Esq., the chief of Winny defense lawyers’ group= he managed members’ legal strategies. I greatly appreciated the organizer of SMIPS since more than 18 years passed and most of the people do not remember exactly about Winny case but he thought to pick up this case as the leading case of IT in Japan.

Winny is one of the Peer-to-Peer file-sharing programs, developed by Isamu Kaneko in 2002. This program enables to share the file on internet with unknown many persons- when someone upload the copyrighted works, other persons can use, watch, or listen to the contents of the works. If the copyrighted works owned by the third party and the person uploaded or/and utilized such works without obtaining the permission to owners, they infringe the copyrights. When it comes to P2P file sharing program, I rather clearly remember Napster, sued by record labels’ groups in 1999 claiming the copyright infringement as P2P file sharing soft. I entered into Benjamin N. Cardozo Law School at New York in 2000, so Napster was the hot topics for many classes at School. I did not speak English much until going to New York, so to discuss the matter in English was too tough for me at that time and regrettable — not to be in the discussion during the classmates whose main or second language was English at the Media Law Class when I took as one of the programs – even this is good memory now

Set aside my story, Winny developer Isamu Kaneko was charged as accomplice regarding the abetting and aiding for copyright infringement defendants and public prosecutor demanded him for one year imprisonment. However, he had no relationship with the infringers, nor known directly their infringement. I heard that Kyoto Police insisted his arrest was not the reason of the development of software but the conduct he intended to spread the copyright infringement by developing such software – how horrible and weird if we are arrested as accomplice towards the person, we never seen nor communicate, who commits some crime. The process of the charge and prosecution has lots of contradiction and deceive – the police declared to obtain his confession on the interrogation process but the reality is, the detective gave the document to him and said “write the same as this document” which was later used his representation statement although he just obliged detective’s order. More details, I will skip because you will see Wiki and Blog written by Dan Esq. Either way, this case is the big negative impact for the individuals and companies  hesitate to develop the new (and may have some infringement of the third party’s rights) technologies although they originally plan to do.

Before listening to Dan Esq.s’ comment, it made me aware that the treatment of suspect Isamu Kaneko by prosecutors was truly similar towards Carlos Ghosn and Dan Esq. mentioned in fact the attitude of prosecutors to the suspect does not change at all. He also said the criminal court in Japan is still the Medieval Ages – the life is the end once arrested = it implies despite he has not guilty, the society become cold and can’t live as before? Colin P.A. Jones, Professor of Doshisha University, wrote about this matter on Japan Times- please see the link. It is totally reasonable that the Japanese public prosecutor and criminal justice are criticized by foreign countries since right after he was arrested, he’s been confined at detention facility for a long time or/and he was kept under surveillance, could not meet his families immediately before he was gone despite the fact that the judgment was not made. Their treatments are not “In dubio pro reo – we are innocent until proven guilty” but “prosecutor can do everything until proven the person not guilty.”

Mr. Isamy Kaneko, he did experienced as such only because he developed Winny,  was died at forty two years old by coronary infarction one and half year after the court found his innocence. I doubt he was died at such young age since the fight through the eight years process from his arrest till the end made to his body huge stress.

Den Esq. also mentioned about Fair Use Doctrine (the US Courts use this doctrine to determine the copyright infringement by considering the four factors. On the other hand, the Japanese court judge the infringement whether the conduct applies the exception of the copyright infringement under Japanese Copyright Law) – In Japan, currently in dispute whether Japanese Copyright Law should include fair use doctrine. The determination of US Supreme Court regarding Napster Case was made based on the Fair Use Doctrine as well. I want to discuss Fair Use Doctrine on another occasion because the writing about Fair Use Doctrine from now would be too long.

In any event, this seminar made me the great time to consider the behind reason of Japanese IT technology and fear for the defendant of criminal case.