Winny Case [CILS Conference 2004 at Sunshine Coast, Australia]

Winny CaseA P2P Software Copyright Case in Japan–Impact on the Information Society and Legal Analysis
Takato NATSUIProfessor at Meiji University Law Faculty, Tokyo Japan
Lawyer at Asuka-Kyowa Law Firm, Tokyo, Japan
1. Introduction
1.1 Overview of Winny CaseOn May 31, 2004, various news was reported on the Web including the following item.1
Popular software creator indicted for copyright piracy
Monday, May 31, 2004 at 14:00 JST
TOKYO—The creator of the popular Internet file-sharing software program "Winny" wasindicted Monday on a charge of assisting copyright violations, in the first such indictment inJapan.
Isamu Kaneko, 33, an assistant at a graduate school at the University of Tokyo, created thepeer-to-peer file-sharing program which is available on the Internet free of charge. He wasindicted for facilitating two computer users to illegally upload copyrighted materials,
including movies and video games, on the Internet last September so that other users could
download them for free. (Kyodo News)
This is a newspaper article concerning the indictment of Isamu Kaneko, the developer of thefile-sharing software known as “Winny.”2The news that Mr. Kaneko was arrested on May 10, 2004 and indicated on May 30 was
reported widely in Japan in various media including television, newspapers, and magazines. These
reports caused considerable shock and alarm among software developers and legal scholars as Mr.
Kaneko, a software engineering researcher at a prominent university, had developed and madeavailable software that used peer-to-peer (P2P) technology, but he had not engaged in any unlawful
file sharing of MP3 formatted music or other files whatsoever.
Other software engineering researchers sand software engineers felt great apprehension that if
the development of software such as Winny could be unlawful and subject to criminal sanction, it
would not be possible to continue with development of software that applied the latest Internet
technologies. Consequently, they supported Mr. Kaneko.3

1

http://www.japantoday.com/e/?content=news&cat=2&id=300463
See also conversation between Laurence Lessig and Nobuo Ikeda
http://www003.upp.so-net.ne.jp/ikeda/Lessig-Ikeda.html
3
Japan Times editorial, Copyright ethics for the digital age, 3 June 2004
http://202.221.217.59/print/opinion/ed2004/ed20040603a1.htm
21

Winny Case [CILS Conference 2004 at Sunshine Coast, Australia]

In an extremely short period, a support organization was formed and substantial sums of money
were donated to the organization to support Mr. Kaneko.4 In addition, a large team of defense
lawyers was formed, something not often seen in Japan in similar cases.
The first public hearing in this matter was held on September 1, 2004. Mr. Kaneko, pled notguilty. Details of the hearing were also reported on the Web.5
Creator of file-sharing software pleads not guilty to piracy
Wednesday, September 1, 2004 at 12:57 JST
KYOTO—The creator of a program for anonymous file-sharing over the Internet pleaded not
guilty on Wednesday at the Kyoto District Court to the charge that he developed the software
knowing it would facilitate Internet piracy.
Isamu Kaneko, 34, who developed the Winny peer-to-peer file-sharing program, is the first
person in Japan to stand trial for creating software that can be used for the unauthorized
reproduction of movies and video games over the Internet. Winny allows users to swap files
without revealing their IP addresses which identify the locations of their computers on theInternet. (Kyodo News)
1.2 Applicable laws
Mr. Kaneko was accused of aiding and abetting the infringement of copyrights by other person.
Applicable provisions in the Penal Code and Copyright Law of Japan are as follows:
Penal Code of Japan
Article 62. (Assistance)
1 A person who assists a principal shall be an accessory.
2 A person who instigates an accessory shall be punished as a accessory to the crime.
Article 63. (Commutation to accessory)
Penalty for an accessory shall be less severe than the penalty for a principal.
Copyright Law6
Article 23. (Rights of public transmission etc.)(1)The author shall have the exclusive right to make the public transmission of his work
(including the making transmittable of his work in the case of the interactivetransmission).
(2)The author shall have the exclusive right to communicate publicly, by means of areceiving apparatus, his work of which the public transmission has been made.
Article 120bis. (Penal Provision)
4

FreeKaneko.com -- Free Isamu Kaneko
http://www.freekaneko.com/en/index.html
5
http://www.japantoday.com/e/?content=news&cat=2&id=310710
6http://www.cric.or.jp/cric_e/clj/clj.html

2Winny Case [CILS Conference 2004 at Sunshine Coast, Australia]

The following shall be punishable by imprisonment for a term not exceeding one year ora fine not exceeding one million Yen;(i) any person who transfers to the public the ownership of, or lends to the public,
manufactures, imports or possesses for transfer of ownership or lending to the public,
or offers for the use by the public, a device having a principal function for thecircumvention of technological protection measures (such a device includes such a setof parts of a device as can be easily assembled) or copies of a program having a
principal function for circumvention of technological protection measures, ortransmits publicly or makes transmittable such program;(ii) any person who, as a business, circumvents technological protection measures inresponse to a request from the public;(iii) any person who, for profit-making purposes, does an act considered to constitutean infringement on moral rights of authors, copyright, moral rights of performers orneighboring rights under the provisions of Article 113, paragraph (3).
1.3 Aims of this paper
In this paper, I would like to explain some of the legal issues raised by the Winny Case, presenta short analysis on the basis of Japanese law, and discuss my opinion on how to consider P2P filesharing software.
2. Legal Issues
The Winny Case raises a number of legal issues, which I have summarized as follows.
(a) Japan’s Criminal Code contains provisions that impose penalties on persons who aid and abetanother in the performance of criminal conduct. Mr. Kaneko, however, did not develop Winny toassist another person in the performance of criminal conduct.
(b) When Mr. Kaneko developed Winny, it was not possible that he presumed the existence of any
specific offender.
(c) Winny is general-purpose file sharing software that uses P2P technology and is not intended to
be used for the purpose of violating the copyrights of others.
2.1 Issue (a): Intent to InfringeWith respect to the first point (a), the prosecutors made the following assertion: “It is clear thatthe defendant developed Winny with the intent of assisting individuals who violate copyrights. The
basis for this is the statement by the defendant on Japan BBS service channel 2 that he will designand create anonymous P2P file sharing software in order to bring down the current system ofcopyrights.”
2.2 Issue (b): Independent Aiding and Abetting
The second point (b) raises the following additional issues.

3Winny Case [CILS Conference 2004 at Sunshine Coast, Australia](i) According to generally-accepted criminal law theory in Japan, for aiding and abetting toconstitute a crime, there must be a specific offender who is aided and abetted.
(ii) There are no cases in Japan in which the crime of aiding and abetting was found to exist anda criminal sanction imposed with respect to conduct that aided and abetted a person who could
not be specifically identified.
(iii) When Mr. Kaneko developed Winny, he was not able to know who would use Winny andhow it would be used. Even after Winny was distributed on the Internet, Mr. Kaneko could notknow who the specific users are as Winny included powerful anonymity and encoding
functions.
If Mr. Kaneko were to be found guilty, it would be the first case in Japan to find that the crimeof aiding and abetting can be formed independently with regard to conduct that aids and abets anunidentified offender.
2.3 Issue (c): Misuse of a Device or Computer Software
I believe that that significance of the third point (c) is clear—if the creation of general purpose
tools can constitute the crime of aiding and abetting, the manufacture of most articles will becriminal conduct. For example, a cooking knife has the potential to be used to commit murder, andin fact there are many homicides in which a cooking knife is used as a weapon. No one believes,
however, that simply because a knife can be used to commit homicide that the manufacturer of acooking knife is guilty of aiding and abetting murderers.
3. Analysis and My Opinion
3.1 Issue (a): Intent to Infringe
The first issue is primarily one of proof.
3.2 Issue (b): Independent Aiding and Abetting
The second issue is one of legal theory. If the traditional theory of criminal law I discussed
earlier is correct, then Mr. Kaneko must be not guilty.
There also exists, however, the opinion that it is sufficient if there is a general awareness of thecriminal conduct as aiding and abetting, without identification of a specific offender. If the court
adopts this theory, then it is possible that Mr. Kaneko will be found guilty.
3.3 Issue (c): Misuse of a Device or Computer Software
The theory that leads to the conclusion that the manufacturer of an ordinary cooking knife canbe found guilty of aiding and abetting homicide; it is an extremely odd theory and is incorrect. It ispossible, however, that a person who manufactures knives solely for the purpose of killing people
can be guilty of aiding and abetting homicide. Accordingly, in the case of P2P file sharing software,4

Winny Case [CILS Conference 2004 at Sunshine Coast, Australia]

our inquiry should not be whether the software is used solely for the purpose of file sharing, butwhat type of software can be considered to be created primarily for unlawful purposes.
A comparison of other software with all or some functions that are similar to those of Winny is
as follows.

WinnyKaZaa

7Morpheus

8

Transfer function of MP3
files to another users

Retrieve function of MP3
files from other computersystems

Automatic indexing functionof MP3 files among current
computer network

Yes

Yes

permanently generated

Yes

Yes

permanently generated

Yes

Yes

permanently generated

9Yes

Yes

permanently generated

Napster 10

Yes

Yes

permanently generated

MS Messenger

Yesdepends on shared folders?

Skype

Yes?

?

Google search

Yes

Yes

temporarily generated

Yahoo search

Yes

Yes

temporarily generated

Amister

As can be seen from this comparison, Microsoft Messenger and Google Search also havesoftware or tools generally determined in cases around the world to be lawful that are similar to thefunctions of the P2P file sharing software that is claimed to be unlawful in this case.
All of these software applications or tools have one point in common: they do not havecomplete functions for automatically identifying unlawful and lawful files and for automaticallyremoving unlawful files based on search results.
A shared element of the software or tools that are claimed to be unlawful is the continuous andpermanent formation of indexes to create databases of the files that are the subject of searches.
It is believed that the current fundamental standard for determining if P2P software or tools are
unlawful can be obtained from this. It is to be found in the following four points.11(i) Does the software or tool have a function to automatically and permanently form indexes to7

BMG Canada Inc. v. John Doe (appealed)
http://www.canlii.org/ca/cas/fct/2004/2004fc488.html
LJN-nummer: AN7253 Zaaknr: C02/186HR
http://www.rechtspraak.nl/uitspraak/frameset.asp?ljn=AN7253
8
Metro-Goldwyn-Mayer Studios, Inc,, et al. v. Grokster, Ltd., et al. CV 01-08541-SVW (PJWx)
http://news.findlaw.com/hdocs/docs/mgm/mgmgrokster42503ord.pdf
9In re: AIMSTER COPYRIGHT LITIGATION, 334 F.3d 643
http://homepages.law.asu.edu/~dkarjala/cyberlaw/InReAimster(9C6-30-03).htm
10NAPSTER, INC., a corporation, v. A & M RECORDS, INC., a corporation, 239 F.3d 1004 (9th Cir.
2001)
http://news.findlaw.com/hdocs/docs/napster/napster/nsptrsuppm032601.pdf
11
See also, What Peer-to-Peer Developers Need to Know about Copyright Law by Fred vonLohmann, December 2003
http://www.eff.org/IP/P2P/p2p_copyright_wp.pdf

5Winny Case [CILS Conference 2004 at Sunshine Coast, Australia]

create databases of the files that are the subject of searches?
(ii) Does the software or tool have a function to search automatically pointers or links tounlawful files within the databases of files that are the subject of searches?
(iii) Does the software or tool have a function to delete automatically pointers or links tounlawful files when they are found in the database of files that are the subject of searches or toissue a warning to the user?
(iv) If there are technological reasons why the functions in (ii) or (iii) cannot be implemented, isa warning message provided to the user to the effect that the software or tools are not to be used
for unlawful purposes in an understandable format?
It is not clear at this time whether Winny can pass these two tests.
4. Conclusions
The Winny case is taking place in Japan, but it raises many legal issues that will be shared byother cases around the world that examine the legality of P2P file sharing software. Consequently, it
is possible that the Winny case will have an impact on the decisions of courts in other countries
deciding similar cases.
I believe that the method used to analyze the third issue will be generally applicable to othercases concerning the legality of P2P file sharing software.

6