Cyberlaw Japan (vol.1 no.1 Revised version 1 29/Jan/2008)

A suspected computer virus creator was arrested
29 January 2008
Author: Takato NATSUI
Meiji University, Tokyo, Japan[Short comment]

A Japanese graduate school student was arrested on a copyright infringement charge on 24 January
2008. He was suspected of creating a computer virus named 'Harada Virus'.

His suspected behavior was deemed to be as an attempt or preparation of obstruction of other’s
computer system. However why was he arrested due to the Copyright Act?

The current Penal Code has some provisions on the obstruction of business, but no provision on any
attempt and preparation of obstruction. Article 233, 234 and 234-2 of the Penal Code of Japan
provides:Article 233. (Damage to Credit; Obstruction of Business)
A person who damages the credit or obstructs the business of another by spreading false rumors
or by the use of fraudulent means shall be punished by imprisonment with work for not morethan 3 years or a fine of not more than 500,000 yen.

Article 234. (Forcible Obstruction of Business)
A person who obstructs the business of another by force shall be dealt with in the same manneras proscribed under the preceding Article.

Article 234-2. (Obstruction of Business by Damaging a Computer)
A person who obstructs the business of another by interfering with the operation of a computerutilized for the business of the other or by causing such computer to operate counter to thepurpose of such utilization by damaging such computer or any electromagnetic record used bysuch computer, by inputting false data or giving unauthorized commands or by any other means,shall be punished by imprisonment with work for not more than 5 years or a fine of not morethan 1,000,000 yen.

1Copyright © 2008 Takato NATSUI, all rights reserved.

Cyberlaw Japan (vol.1 no.1 Revised version 1 29/Jan/2008)

Japan had signed the European Council Cybercrimes Convention (Convention on Cybercrime(CETS No.185)) and the Japanese Diet (Parliament) had agreed with the Convention and ratified it
already. Article 6 and Article 11 of the Convention provides:

Article 6 – Misuse of devices
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally and without right:a the production, sale, procurement for use, import, distribution or otherwise making availableof:i a device, including a computer program, designed or adapted primarily for the purpose ofcommitting any of the offences established in accordance with Articles 2 through 5;ii a computer password, access code, or similar data by which the whole or any part of acomputer system is capable of being accessed,with intent that it be used for the purpose of committing any of the offences established in
Articles 2 through 5; andb the possession of an item referred to in paragraphs a.i or ii above, with intent that it be used
for the purpose of committing any of the offences established in Articles 2 through 5. A Party
may require by law that a number of such items be possessed before criminal liability attaches.
2 This article shall not be interpreted as imposing criminal liability where the production, sale,procurement for use, import, distribution or otherwise making available or possession referred toin paragraph 1 of this article is not for the purpose of committing an offence established inaccordance with Articles 2 through 5 of this Convention, such as for the authorised testing orprotection of a computer system.
3 Each Party may reserve the right not to apply paragraph 1 of this article, provided that thereservation does not concern the sale, distribution or otherwise making available of the items
referred to in paragraph 1 a.ii of this article.

Article 11 – Attempt and aiding or abetting
1 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, aiding or abetting thecommission of any of the offences established in accordance with Articles 2 through 10 of thepresent Convention with intent that such offence be committed.
2 Each Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law, when committed intentionally, an attempt to commit anyof the offences established in accordance with Articles 3 through 5, 7, 8, and 9.1.a and c. of this
2Copyright © 2008 Takato NATSUI, all rights reserved.

Cyberlaw Japan (vol.1 no.1 Revised version 1 29/Jan/2008)

Convention.
3 Each Party may reserve the right not to apply, in whole or in part, paragraph 2 of this article.

However, any amendment of the Penal Code has never done yet, because the Democratic Party has
not agreed with the Penal Code amendment bill which was proposed by the Japanese government.

Due to this, he is not guilty under the Penal Code.

On the other hand, his computer virus had been delivered widely which was deployed in other's
digital contents (digital photos, graphics or paintings). This might be regarded as an infringement ofother's copyright of such content. Thus, the Japanese police arrested him on the copyright
infringement. Article 119 of the copyright act of Japan provides:

Article 119. (Penalty)
A person with respect to whom either of the following items applies shall be punishable byimprisonment with work for a term not more than five years or by a fine of not more than fivemillion Yen, or by both:(i) a person who infringes on the moral rights of author, copyright, right of publication,
moral rights of performer or neighboring rights (excluding, however, a person whoreproduces by himself a work or performance, etc. for private use purposes as provided forin Article 30, paragraph (1) (including cases where applied mutatis mutandis pursuant toprovisions of Article 102, paragraph (1)); a person who, pursuant to the provisions ofArticle 113, paragraph (3), commits an act deemed to constitute an act of infringement on
the moral rights of author, copyright, moral rights of performer or neighboring rights(including rights deemed to constitute neighboring rights pursuant to the provisions ofArticle 113, paragraph (4) ; the same shall apply in Article 120-2, item (iii)); and a person
who commits an act deemed to constitute an act of infringement on a copyright orneighboring rights pursuant to the provisions of Article 113,paragraph (5);(ii) a person who, for profit-making purposes, causes the automatic reproducing machine
provided for in Article 30, paragraph (1), item (i) to be used to reproduce works or
performance, etc., when such act of reproduction constitutes an infringement on acopyright, right of publication or neighboring rights.

I believe that this case is a rare case. If he created pure computer virus which was not deployed in3
Copyright © 2008 Takato NATSUI, all rights reserved.

Cyberlaw Japan (vol.1 no.1 Revised version 1 29/Jan/2008)

other's digital content, then he may be not guilty under the Copyright Act as well.

[Reference]

Translations of Laws and Regulations (in compliance with Standard Bilingual Dictionary)
http://www.cas.go.jp/jp/seisaku/hourei/data2.html

Council of Europe: Convention on Cybercrime
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=185&CL=ENG

Suspected creator of computer virus held(Japan Times: January/25/2008)
http://search.japantimes.co.jp/cgi-bin/nn20080125a5.html

EDITORIAL: Computer virus arrest(Asahi.com: January/28/2008)
http://www.asahi.com/english/Herald-asahi/TKY200801280050.html

Japanese police arrest computer virus maker on copyright charges(THE Associated press: January/25/2008)
http://www.metronews.ca/storyCP.aspx?pg=./z012501A.xml

4
Copyright © 2008 Takato NATSUI, all rights reserved.