Copyright Date
Case

June 29, 2022

Court

2022 (Ne) 10005

Intellectual Property High
Court, Second Division

number- A case in which the court determined that acts of the Appellants to provide
advertisements on a website where bootleg manga were posted and pay advertising
fees fall under acts of aiding and abetting infringement of the Appellee's right totransmit to the public on said website and that the Appellants were at least negligent
concerning said acts, and the court determined damages based on Article 114,
paragraph (1) of the Copyright Act.
Case type: Claim for compensation
Result: Appeal dismissed
References: Article 719, paragraphs (1) and (2) of the Civil Code, Article 7 09 of the
Civil Code, and Article 114, paragraph (1) of the Copyright Act
Judgment in prior instance: Tokyo District Court, 2021 (Wa) 1333, rendered on
December 21, 2021
Summary of the Judgment
1. The Appellee (the first-instance Plaintiff) is a manga artist and both of the Appellants,
P and Q, (the first-instance Defendants) are stock companies including an advertising
agency to handle online advertisement for their business purposes.
In this case, concerning the fact that a manga (the manga of the first-instancePlaintiff (the Appellee); hereinafter referred to as the "Plaintiff's Manga"), for which
the Appellee has the copyright, was uploaded on a website under the name of "Mangamura" (hereinafter referred to as the "Website") and the Appellee's right to transmit to
the public was infringed, the Appellee alleged against the Appellants that a series ofacts of the Appellants (hereinafter referred to as the "Acts") to provide advertisementson the Website and pay advertising fees to the administrative operator of the Website
fall under accessoryship for the infringement. Based on this allegation, the Appellee
demanded that the Appellants jointly and severally pay compensation for damages of
11 million yen and delay damages accrued thereon based on the tort (Article 719,
paragraphs (1) and (2), and Article 709 of the Civil Code).
2. The judgment in prior instance granted all claims of the Appellee. Dissatisfied withthis judgment, the Appellants filed an appeal. Concerning said 11 million ye n, theAppellee alleged in prior instance that it was exclusively a total sum of decreases insales of 10 million yen and legal fees of one million yen. However, in the second
instance, the Appellee selectively added an allegation that said 10 million yen is part ofithe damages pursuant to Article 114, paragraph (1) of the Copyright Act of 211,258,200
yen (hereinafter referred to as the "Partial Claim").
3. In this judgment, in the same way as the judgment in prior instance, the court
determined that the Acts that are found to have been performed jointly by Appellants
fall under accessoryship for infringement of the right to transmit to the publicconcerning the Plaintiff's Manga on the Website and the Appellants were at least
negligent concerning the Acts. Based on the additional allegation of the Appellee, thecourt determined that the damage to the Appellee based on Article 114, paragraph (1)of the Copyright Act exceeded the amount of the Partial Claim and dismissed all appeals
by the Appellants. The outline of the judgment is as stated below.
(1) Whether the Acts fall under accessoryship
Based on the actual operation status of the Website where advertising revenue isalmost the only financial resource, acts to post advertisements on the Website and pay
advertising fees to the administrative operator side fall under acts to assist or facilitate
the act of the administrative operator of the Website to post manga on the Website
without obtaining approvals of the copyright holders generally by way of providing
almost the sole financial resource for operating the Website. There are no circumstances
to understand the Acts that are found to have been performed jointly by the Appellants
in a way different from the above.
(2) Negligence of the Appellants (The Appellee alleged that, as of May 2017 at thelatest, the Appellants had intent or negligence.)
When Appellant P intended to start to distribute advertisements on the Website using
an ad network that it operated, the Appellant P received a presentation of the Website's
title and URL, examined whether or not to make registration based on information
including the title and URL, approved to make registration, and manually configured
the settings for distribution of advertisements. However, there were the following
circumstances: up to 2017, it had become a big problem that advertising revenue was afinancial resource of illegal websites, etc.; concerning the Website, as of April 2017, it
was explained that viewers could read manga without registration and without charge
and it could be understood at a glance that a massive number of manga were posted;
there were multiple tweets pointing out its illegality; and as of May 10, 2017 at thelatest, it was easy for viewers to understand that Japanese works were posted on theassumption that their copyrights are not protected. Based on these circumstances, inMay 2017 at the latest, the Appellants could have easily assumed that many mangaposted on the Website were posted without obtaining approvals of the copyright holders,
and the advertising revenue was almost the only financial resource of the Website , andiitherefore, the acts of the Appellants to provide advertisements on the Website and pay
advertising fees were nothing but acts to support copyright infringement. Based on theabove, as of May 2017, the Appellants were under a duty of care to check with theadministrative operator of the Website in relation to the presence of consent agreementswith the copyright holders and to take appropriate measures or to refuse registration on
the ad network of the Website without the need to even implement said check (if said
registration had been completed, the duty of care to take actions such as canceling theagreement related thereto). The fact that the Appellants neglected the duty of care as ofsaid month and, subsequently, continued to perform the Acts without carefulconsideration, is supported by the subsequent behavior, etc. of the Appellants. The
Appellants' allegation that there was no foreseeability or possibility to avoid the results
and there was no violation of the duty of care, cannot be accepted.
(3) Damages defined in Article 114, paragraph (1) of the Copyright Act
In light of the viewing method of manga on the Website and the fact that page views(PV) per visitor were found to be 10.69, and in consideration of the fact that when aperson visits the Website, it is fully possible for the person to view multiple volumes
per visit, or on the other hand, the person may stop viewing after test reading in the
middle of one manga, and other circumstances comprehensively, it is reasonable to findthat the volume of "copies transmitted and received" per comic book on average is atleast approximately 50% of the visitors to the Website (approximately 5% of PV, one
book per two visits).
Based on the above, in light of the fact that it is reasonable to deem that thePlaintiff's Manga had approximately two times more visitors than average, in addition
to the number of visitors to the Website and the number of manga viewable on theWebsite during the period when the Plaintiff's Manga was posted, the amount ofdamages to the Appellee is calculated based on the number of volumes of the Plaintiff's
Manga that were posted and other factors, and it is found to exceed the amount of theAppellee's Partial Claim of 11 million yen, including the legal fees.

iii

Judgment rendered on June 29, 2022
2022 (Ne) 10005, Case of appeal for seeking compensation for damages(Court of prior instance: Tokyo District Court, 2021 (Wa) 1333)
Date of conclusion of oral argument: May 16, 2022
Judgment
Appellant: mmlabo co., ltd.
(hereinafter referred to as "Appellant mmlabo")Appellant: Global Net Corp.
(Hereinafter referred to as "Appellant Global Net")

Appellee: Y

Main text
1. All of the Appeals shall be dismissed.
2. The Appellants shall bear the cost of the appeal.
Facts and reasons
The abbreviation of terms and the meanings of the abbreviations are subject to the
judgment in prior instance except for those altered in this judgment. In addition, theterm "Attachment" in the cited part in the judgment in prior instance is altered to"Attachment to the judgment in prior instance".
No. 1 Object of the appeal
1. The judgment in prior instance shall be rescinded.
2. All the Appellee's claims shall be dismissed.
3. The Appellee shall bear the court costs for both the first instance and second instance.
No. 2 Outline of the case
1. Outline of the case(1) The Appellee (the first-instance Plaintiff) is a manga artist and the copyright holder
of manga (the Plaintiff's Manga) as stated in the Attachment to the judgment in priorinstance "List of the Plaintiff's Works."
The Appellants (the first-instance Defendants) are stock companies whose businesspurposes include the advertising agency business to handle internet advertisements.
(2) In this case, the Appellee alleged that at least part of the Plaintiff's Manga was
uploaded on the website called "Manga-mura [Manga Village]" (hereinafter referred to1

as the "Website") and the Appellee's right to transmit to the public was infringed andthat the series of acts of the Appellants (hereinafter referred to as the "Acts" in somecases) that the Appellants provided advertisements to the Website and paid advertising
fees (advertising costs) to the administrative operator of the Website fall underaccessoryship for the aforementioned infringement. Based on these allegations, theAppellee made the claims to demand that the Appellants jointly and severally pay
compensation for damages of 11 million yen and delay damages accrued thereon at therate of 5% per annum as prescribed by the Civil Code before amendment by Act No. 44
of 2017 for the period from November 18, 2017, which is the last day when the
aforementioned upload was implemented, until the completion of the payment, basedon the tort (Article 719, paragraphs (1) and (2), and Article 709 of the Civil Code).
(3) The judgment in prior instance granted all claims of the Appellee. Dissatisfied withthis judgment, the Appellants filed an appeal.
(4) Concerning the compensation for damages of 11 million yen as defined in (2) above,
the Appellee alleged in the prior instance that it was exclusively the sum total of
decreases in sales of 10 million yen and legal fees of one million yen. However, in thisinstance, the Appellee selectively added an allegation that 10 million yen out of theaforementioned amount was part of the damages of 211,258,200 yen pursuant to Article
114, paragraph (1) of the Copyright Act (partial claim).
2. Basic facts
The basic facts are altered as follows. The remaining part is as stated in 1. in "No.
2 Outline of the case" in the "Facts and reasons" section of the judgment in priorinstance and therefore they are cited (in cases of indicating evidence through thisjudgment, it includes branch numbers unless otherwise mentioned.).
(1) The phrase "であり、被告エムエムラボの親会社[and the parent company of
Defendant mmlabo]" in line 23, page 2 of the judgment in prior instance is deleted; andthe phrase from "本店事務所の[of the head office]" in line 25 through the end of line
26, page 2 is altered to "登記簿上の本店所在地は、控訴人エムエムラボの登記簿上の支店所在地と同一である（なお、控訴人らは、株主を共通にするという限度で、控訴人らが一定の関連性を有することを認めている。）。[the location of thehead office on the register … is identical to the location of the branch office on theregister of Appellant mmlabo (the Appellants admitted that they have a relationship tothe extent that they have common shareholders.).]".
(2) The term "漫画サイト[Manga website]" in line 4, page 3 of the judgment in priorinstance is altered to "マンガサイト[Manga website]"; the phrase "DL 不要！[No DL
required!]" in said line is altered to "ＤL 不要！！[No DL required!!]; the part from2the phrase "本件ウェブサイトが[the Website]" in lines 5 and 6 on said page through"試算もされている。[is also estimated.]" in line 8 on said page is altered to "ＮＨＫ「クローズアップ現代」のウェブサイトにおける平成３０年４月１８日付けの紹介記事では、本件ウェブサイトが有する蔵書数は５万冊以上で、同年３月の本件ウェブサイトへの月間訪問者数は延べ１億７０００万人を突破したとされ、また、令和元年９月２４日付けの朝日新聞デジタルの報道では、一般社団法人
コンテンツ海外流通促進機構（以下「ＣＯＤＡ」という。）の集計によると平成２９年９月から平成３０年２月までの間に延べ約６億２０００万人が本件ウェブサイトを閲覧したとされている。[According to an article on the website of NHK'Close Up Gendai' dated April 18, 2018, the number of books that the Website stocks ismore than 50,000 and it is reported that the number of visitors per month to the Website
exceeded 170 million in total in March 2018. According to the reporting on Asahi
Shimbun Digital dated September 24, 2019, based on the tally by the Content Overseas
Distribution Association (hereinafter referred to as 'CODA'), approximately 620 million
visitors in total browsed the Website for the period from September 2017 throughFebruary 2018.]", respectively.
(3) The phrase "５月６日[May 6]" in line 13, page 3 of the judgment in prior instanceis altered to "６月２４日[June 24]"; and after the phrase "原告漫画１のうち[fromamong Plaintiff's Manga 1]" in line 14 on said page, the phrase "少なくとも[at least]"
is inserted.
(4) The following are added as new lines after the end of line 17, page 3 of the judgmentin prior instance.
"The aforementioned posts were made without obtaining the approval of theAppellee and infringed the Appellee's right to transmit to the public.
(4) Provision, etc. of advertisements to the Website by the Appellants
A. Concerning the Website, Kabushiki Kaisha Eeru (hereinafter referred to as 'Eeru')
was a contact window for handling advertisements (media representatives) to serve as
an intermediate with sponsors.
B. Appellant mmlabo concluded an agreement with Eeru concerning the provision ofadvertisements on the Website in April 2017 at the latest, and started to pay
advertisement posting fees related to the Website, from among the advertising fees
obtained by soliciting sponsors, to Eeru in May 2017 and after at the latest. (Exhibit
Otsu 1)
C. (A) Appellant mmlabo operated a pay-per-click ad network 'MEDIAD II' (it is also
called 'MEDIAD 2' or 'メディアドⅡ'; an ad network refers to an advertisement delivery
network that is created by an advertising agency by collecting advertising media (media,
3such as a website, etc.) and that is used to deliver and display advertisements withvarious kinds of advertisement media (see Exhibits Ko 6 and 7 and Exhibit Otsu 13).)at least from 2017 to 2018. In order to use the ad network, an administrative operator(hereinafter it may be simply referred to as an 'operator') of a website who solicits
posting advertisements on its website, is required to apply for 'MEDIAD II,' to beregistered as a member, and then to receive compensation for posting advertisementson the website from Appellant mmlabo. (Exhibits Ko 3, 13, and 14 and Exhibits Otsu
1, 3, and 4)(B) In 'MEDIAD II,' the following procedures are implemented: [i] the name of thewebsite, URL, etc. to post advertisements are input and advertisement media (media)
are registered (media registration); [ii] the name, image size, and other information
related to an ad post of the registered media are input and the ad post is registered; [iii]after review by the operation team of 'MEDIAD II' of Appellant mmlabo, theconfiguration of advertisement delivery (meaning to determine which advertisements
to post on the registered ad post) is completed manually; and [iv] an advertisement
posting tag is obtained (meaning to obtain a program (JavaScript) to display
advertisements on the ad post of the media and to extract it in a CSV file). (Exhibit Ko
22)(C) 'MEDIAD II' was used to provide advertisements to the Website. Upon media
registration ((B) [i] above) of the Website, the title and URL of the Website were
presented to Appellant mmlabo."
3. Issues and allegations of the parties on the issues
The issues and allegations of the parties on the issues are altered as follows, andsupplementary allegations and additional allegations of the parties in this instance areadded as stated in 4. below. The remaining parts are as stated in 2. and 3. in "No. 2
Outline of the case" in the "Facts and reasons" section of the judgment in prior instanceand therefore they are cited.
(1) The part from the beginning to the end of line 20, page 3 of the judgment in priorinstance is altered to "ア 本件行為の幇助行為該当性等（争点１－１）[A. Whether
the Acts fall under accessoryship (Issue 1-1)]"; and the phrase "損害との因果関係[acausal relationship between … and the damages]" in line 21 on said page is altered to "損害との間の一般的な因果関係[a general causal relationship between … and thedamages]", respectively.
(2) The part from the beginning to the end of line 25, page 3 of the judgment in priorinstance is altered to "(1) 争点１－１（本件行為の幇助行為該当性等）[(1) Issue 11 (Whether the Acts fall under accessoryship)]"; the part from " 被 告 ら [the4Defendants]" in line 1, page 4 to "については[concerning]" in line 2 on said page isaltered to "控訴人らは、控訴人グローバルネットが親会社、控訴人エムエムラボ
が子会社という関係にあり、また、仮に親子会社の関係にはなかったとしても、一体的に経営を行っていたところ（以下、被控訴人の主張において、控訴人らの関係について親会社、子会社などと主張する箇所も同様の趣旨をいうものであ る 。）、 控 訴 人 ら の 本 件 行 為 は [the Appellants are in the relationship where
Appellant Global Net is the parent company and Appellant mmlabo is its subsidiary,and even if there is no relationship of a parent company and a subsidiary company, they
engaged in management integrally (hereinafter the part in the Appellee's allegationreferring to a parent company and a subsidiary company, etc. with regard to therelationship between the Appellants also has the same import). The Acts of theAppellants]"; the phrase "掲載行為に関し、幇助による共同不法行為が成立する[concerning the act of posting …, a joint tort by an accessoryship is established]" inlines 2 and 3 on said page is altered to "掲載行為の幇助行為に当たる[fall underaccessoryship to the act of posting …]"; the term "A" in line 5 on said page is altered
to "A'"; the phrase "株式会社エール（以下「エール」という。）[Kabushiki Kaisha
Eeru (hereinafter referred to as 'Eeru')]" in lines 16 and 17 on said page is altered to "エール[Eeru]"; and the term "管理者[administrator]" in line 22 on said page is altered
to "運営者[operator]", respectively.
(3) The part from "被告らが[the Defendants]" in line 7, page 5 of the judgment in priorinstance to "ウェブサイトの[of the Website]" in line 9 on said page is altered to "本件ウェブサイトに広告を提供して本件ウェブサイトの運営者に広告料（広告費）を支払うとの控訴人らの一連の行為（本件行為）が、本件ウェブサイトにおける[the series of the Appellants' acts (the Acts) to provide advertisements to the Website
and to pay advertising fees (advertising costs) to the Website's operator ... on theWebsite]"; and the phrase "原告漫画が[the Plaintiff's Manga]" in line 12 on said pageis altered to "原告漫画の一部については、[regarding part of the Plaintiff's Manga,]",respectively.
(4) The phrase "損害との因果関係[a causal relationship with the damages]" in line 16,
page 6 of the judgment in prior instance is altered to "損害との間の一般的な因果関係[a general causal relationship with the damages]".
(5) The term "管 理 者 [administrator]" in line 23, page 7 of the judgment in priorinstance is altered to "運営者[operator]"; the term "本件ウェブサイト管理者[theWebsite's administrator]" in line 14, page 8 is altered to "本件ウェブサイトの運営者[the Website's operator]"; the term "第三者[a third party]" in line 22 on said page isaltered to "政府[the government]"; and the term "管理者[administrator]" in line 8, page5

9 is altered to "運営者[operator]", respectively; and after the term "広告配信サービ
ス[advertisement delivery service]" in line 11 on said page, "(MEDIAD II)" is added.
(omitted)
No. 3 Judgment of this court
1. This court determines that all the claims of the Appellee should be granted. The
grounds are as stated below.
2. Issue 1 (Whether the Appellants are responsible for the joint tort)(1) Facts found in this case
The facts found in this case are altered as follows. The remaining part is as statedin 1. (1) in "No. 3 Judgment of this court" in the "Facts and reasons" section o f thejudgment in prior instance (hereinafter simply referred to as "No. 3 of the judgment inprior instance") and therefore they are cited.
A. The phrase "５万冊以上の[more than 50,000]" in lines 8 and 9, page 12 of thejudgment in prior instance is altered to "大量の[a large amount of]"; the phrase "開設
当時の[at the time of establishment]" in lines 9 and 10 on said page is altered to "平成２８年２月２９日当時の[as of February 29, 2016]"; the term "無料コミック漫画－[Free manga -]" in said line is altered to "漫画村－無料コミック漫画－[Manga-mura- Free manga -]"; the phrase "スクロールするだけで[only by scrolling]" in lines 11
and 12 on said page is altered to "スクロールだけで[only by scrolling]"; the phrase "マンガを[manga]" in said line is altered to "マンガ[manga]"; and the term "下さい。
[please ... .]" in line 13 on said page is altered to "下さい[please]"; the phrase "甲４[Exhibit Ko 4]" in line 16 on said page is altered to "甲４、８[Exhibits Ko 4 and 8]";the term "ビューサイト[view site]" in lines 20 and 21 on said page is altered to "ビュ
ワーサイト[viewers' site]", respectively; and the following are added as new lines after
the end of line 25 on said page.
"In this regard, at least as of May 10, 2017, the Website posted the statements: [i]under the title, 'About Manga-mura,' that 'Manga-mura is a web-type clone site thatcollects and stores images uploaded on the internet. They cannot be viewed if thestorage site becomes undisclosed. The site can be used at no charge.'; and [ii] under thetitle, 'Isn't Manga-mura illegal?,' that 'Manga-mura is a Vietnamese company andVietnam is not a signatory to the Universal Copyright Convention and therefore,
Japanese works are not protected.' (Exhibit Ko 38)
In addition, as of April 2017, there were multiple tweets pointing out the illegalityof the Website on Twitter, including the following: 'Is Manga-mura dangerous? Is
6

Manga-mura illegal?'; 'Manga-mura may be illegal, but I think they can be viewed at
Manga-mura.'; 'Manga-mura is an illegal website.'; 'Manga-mura is an illegal site, but
it is excellent.'; 'A website that is called Manga-mura is completely in violation.';'Lawless bookshelves, Manga-mura'; 'The administrator of Manga-mura will be arrested
soon.'; 'Manga-mura is an illegal site where manga are uploaded for free. As a manga
lover, I cannot accept it, but I viewed all volumes... Please forgive me.' (Exhibit Ko
39)"
B. The part from "平成３０年[in 2018]" to "ウェブサイトでは[on the website]" inline 26, page 12 of the judgment in prior instance is altered to "ＮＨＫ「クローズアップ現代」のウェブサイトにおける平成３０年４月１８日付けの紹介記事では、
本件ウェブサイトについて、新作を含め５万冊以上の作品が無料で読めること[According to an article on the website of NHK 'Close Up Gendai' dated April 18, 2018,
more than 50,000 books, including new releases, can be browsed on the Website]"; thepart from "月間閲覧数が[the number of viewers per month]" in line 2, page 13 to theend of line 5 on said page is altered to "月間訪問者数が延べ１億７０００万人を突破したこと、本件ウェブサイトの運営者は莫大な広告収入を稼いできたとみられることなどが報道された。また、令和元年９月２４日付けの朝日新聞デジタルの報道では、本件ウェブサイトの運営者とみられる容疑者が逮捕されたとの記事において、平成２９年５月には出版社が福岡など複数の県警に著作権法違反の疑いにより容疑者不詳で刑事告訴していたこと、本件ウェブサイトは人気コミックや漫画雑誌などを無断で掲載し、その総数は５万～７万点とみられる
こと、ＣＯＤＡの集計によると平成２９年９月から平成３０年２月までの間に延べ約６億２０００万人が本件ウェブサイトを閲覧し、うち日本国内からの接続が９割以上を占めていたこと、被害額は約３２００億円に上ると試算されていることなどが報道された。
（甲５、８）[It was reported that the number of visitors
per month ... exceeded 170 million in total and the operator of the Website seemed tohave earned an enormous amount of advertising revenue. In addition, according to thenews on Asahi Shimbun Digital dated September 24, 2019, in an article stating that asuspect who seems to be the operator of the Website was arrested, the following werereported: in May 2017, a publisher filed criminal complaints against an unknown
suspect due to a suspected violation of the Copyright Act at multiple prefectural police
offices, including Fukuoka; the Website posted popular comics and manga magazines
without approval and the total number of those comics and magazines seems to beapproximately 50 to 70 thousand; based on the tally by CODA, approximately 620
million visitors in total browsed the Website for the period from September 2017
through February 2018 and access from Japan accounted for more than 90 percent; and7

the amount of damages is estimated to be approximately more than 320 billion yen.
(Exhibits Ko 5 and 8)]", respectively.
C. The phrase "情 報 提 供 サ イ ト （ 同 年 ４ 月 １ ５ 日 付 け の 記 事 ） [informational
website (an article dated April 15, 2018)]" in line 9, page 13 of the judgment in priorinstance is altered to "ニュースサイト（「ねとらぼ」）の記事（平成３０年４月１５日付け）[an article on the news site ('Netorabo') (dated April 15, 2018)]"; and thephrase "みられること、同月１４日付けの記事で[it seems that ... in an article dated
April 14, 2018]" in lines 10 and 11 on said page is altered to "みられることが記載され、また、本件ウェブサイトに関与する広告代理店の元従業員に対する取材をしたとする同サイトの記事（同月１７日付け）においては [it is stated that it
seems ... and in an article on said website stating that it interviewed a former employeeof an advertising agency engaged in the Website (dated April 17, 2018)]", respectively;
and after the phrase including "仕組みとなっていること[there is a structure ...]" inline 16 on said page, the phrase "、当該元従業員が働いていた会社（Ａ社）のグループにはいくつもの関連会社や子会社があり、日によって「Ａ社の田中です」、「Ｂ社の鈴木です」、「Ｃ社の山中です」などと偽名を名乗ることになっていた
こと、Ａ社、Ｂ社及びＣ社の間にはバーチャルオフィスに登記された幾つものペーパーカンパニーが挟まれていて、金の流れや会社の実態が表面化しにくい
ような構造が巧妙に作られていたこと[; in the group of the company (Company A)
where said former employee used to work, there were many affiliated companies andsubsidiary companies and their employees were required to use false names from dayto-day, such as "I am Tanaka of Company A," "I am Suzuki of Company B," "I am
Yamanaka of Company C," etc.; there were many paper companies that were registeredon a virtual office between Company A, Company B, and Company C, and a structure
to prevent the money flow and actual conditions of companies from being revealed wasestablished in a skillful manner]" is added.
D. The part from the beginning of line 18, page 13 of the judgment in prio r instance tothe end of line 2, page 14 is altered as follows.
"B. Activities, etc. of the government and groups related to the advertisementbusiness against websites for bootleg manga(A) Circumstances up to 2017a. In a news article in Yahoo! Japan dated April 7, 2014, it was pointed out thatadvertisements of general companies posted on illegal websites on the internet, such as
those collecting child pornography images, had become an income source of the website
administrator. The news article also introduced the following: many advertisement
delivery companies prohibit the posting of advertisements on illegal websites in their8internal rules; those companies search whether any illegal information is posted on
websites where they posted advertisements by using terms often used on illegal
websites; however, according to a person in charge from the Japan Internet Advertising
Association, administrators often hide illegal information in a skillful manner and there
are cases where illegal sites cannot be identified. (Exhibit Otsu 12)
b. In a document titled 'Activities for the Manga-Anime Guardians Project by the
Ministry of Economy, Trade and Industry,' which was created by the Media Content
Industry Division, Commerce and Information Policy Bureau, Ministry of Economy,
Trade and Industry in April 2015 (Exhibit Ko 48), as measures by the 'Manga -Anime
Guardians (MAG) PROJECT' (which is a project to consistently and strategicallyengage in three issues: to 'eliminate' bootleg manga effectively, to establish a structure
to 'lead' manga fans from bootleg manga sites to regular manga sites at the same time,
and to conduct 'dissemination and awareness-raising activities' targeting viewers, etc.
in and outside Japan, and which is promoted by the Manga-Anime Guardians ProjectCouncil and the Ministry of Economy, Trade and Industry (secretariat: CODA)
together), it is stated that, in fiscal 2014, a massive elimination of bootleg manga (thenumber of target websites: 356; the number of bootleg manga eliminated: 711,69 7;
elimination percentage: 68%) was conducted and that, also in fiscal 2015, the Council
would continue to implement a massive elimination of bootleg manga, etc. while
expanding participant companies, and the government would intensively make efforts,
focusing on surrounding measures, such as restrictions on posting of advertisements, inparticular, through CODA.
c. In an internet article dated March 1, 2016, concerning a case where works of popularmanga were published on a bootleg website before their official release, it was reported
that the Defendant, who was accused of violation of the Copyright Act, was convicted.
(Exhibit Ko 49)
d. In a document titled 'Explanatory Materials for the Survey on Online Copyright
Infringement Measures Abroad' dated December 15, 2016, which was created by
Mitsubishi Research Institute, Inc. as commissioned by the Agency for Cultural Affairs(Exhibit Ko 50), it was pointed out that, as the objective of the survey, bootlegs of music,
animations, movies, manga, games, etc. are distributed worldwide on the internet anddamages from online copyright infringement became more and more serious. As one of
the methods surveyed through interviews in seven countries, U.S.A., Canada, Australia,
U.K, France, Germany, and Sweden, 'funding source measures,' including 'suspensionof posting and delivering of advertisements,' were pointed out.
(B) Circumstances in 20179

a. In an article of ITmedia NEWS dated May 3, 2017, it was reported that a website,'Free Books,' which was established in 2016, from which books that seemed to be
uploaded illegally without the approval of copyright holders could be downloaded at
no charge, and which had been pointed out to be highly illegal, was closed and that it
became a topic because the characteristics and illegality of said website had been
pointed out in a SNS, 'Hatena Tokumei Diary,' on May 1, 2017. (Exhibit Ko 40)
b. In the article of ITmedia Business Online dated October 31, 2017, the following werereported: the operator of a leech site, 'Haruka Yumenoato,' where links from which
illegally uploaded manga and magazines can be downloaded are compiled, was arrested
on said day; according to the Association of Copyright for Computer Software, said
website was one of the largest leech sites in Japan and was closed in July 2017 after
being investigated; however, based on the investigation by said association, theestimated amount of damages reached approximately 73.1 billion yen for one year until
June 2017. Said website was included in the customers of the Appellants. (Exhibits Ko
28 and 41)
c. JIAA had continued initiatives to eliminate illegal and unjust websites on the internet
from websites on which advertisements are posted in cooperation between the public
and private sectors. In 2017, JIAA established a special sub-committee to handle said
issues, including brand safety, and then published the JIAA Statement dated December
12, 2017. The JIAA Statement pointed out the fact that, in the current internet
advertisement market, 'brand safety' (safety of a sponsor's brand by securing the qualityof the websites on which its advertisements are posted) appeared as a new issue, as wellas the possibility that illegal or unjust websites might be included in websites on which
advertisements are posted. Additionally the following were stated: in order to protect
brands from said risks and to ensure safety, all companies involved in online
advertisements should consider what they can do from their standpoints and makeefforts: for example, companies providing ad spots, such as a media, etc., would needto establish a system to check whether content and pages are against public policy;
companies delivering advertisements, such as companies providing ad networks or SSP,
etc., would need to create a structure not to deliver advertisements to websites that may
damage brands, such as by eliminating unjust websites, etc.; and JIAA would carry out
activities for brand safety and then prevent advertising costs from being paid to illegal
websites posting advertisements, and thereby maintain the soundness of the online
advertisement market (SSP (Supply-Side Platform) refers to a tool supporting
advertising sales of media (see Exhibit Otsu 13)). (Exhibits Ko 26 and 42)(C) Circumstances in and after 201710

a. Due to the appearance of bootleg websites (including the Website) for whichadministrative operators were difficult to identify and even making a request to delete
infringing content would be impossible, the rights of copyright holders, etc. came to bedamaged significantly. Facing such fact, the Ministerial Meeting Concerning Measures
Against Crime, Intellectual Property Strategy Headquarters, announced, on April 13,
2018, a policy to implement blocking against particularly malicious bootleg websites,
including the Website, as temporary and urgent measures until the legal system would
be developed. In response to the announcement of the policy, in the article of Newsweek
Japan on the same date, it was reported that based on the rapid expansion of websites
for bootleg manga and animation, the Abe administration (at that time) would deliberate
on a system to enable the private sectors to voluntarily block particu larly malicious
websites for the period until the legal system would be developed, as emergency
measures by the government. (Exhibit Ko 34 and Exhibit Otsu 18)
b. The document titled 'JIAA's Responses to Posting of Advertisements on Bootleg
Websites' dated June 8, 2018, which was issued by the Chairperson of JIAA, states asfollows: JIAA had considered it necessary to promptly enhance measures against thesituation where bootleg websites, which were broadly recognized as social problems,
were being operated with advertising revenue from online advertisements as theirfinancial resource, and it had been further promoting the enhancement of activities;
after the announcement of the JIAA Statement ((B) c. above) stating countermeasures
to be taken by online advertisement companies who were JIAA members, JIAA had
been surveying the involvement of member companies in illegal acts, their awarenessof the issues, progress of countermeasures, etc. concerning posting of advertisements
on bootleg websites; based on the actual status confirmed through the survey, JIAA
would examine the necessity of improvements, problems, effective countermeasures,etc.; and if any fact against the behavioral charter and advertisement ethics guidelinesthat were specified by JIAA was detected with regard to member companies, responses
would be made against the relevant companies fairly based on the internal rules.
(Exhibit Ko 25)
In addition, in the document titled 'Enhancement of Measures against Bootleg
Websites,' which was issued on the same date by the Japan Advertisers Association,
Japan Advertising Agencies Association, and JIAA, it is stated that illegal websites that
infringe copyrights were posting advertisements and the advertising revenue had
become a financial resource of their operation; and, concerning measures againstbootleg websites, CODA started to provide a list of malicious copyright infringing
websites, etc. in February 2018, and it was determined to use the list and establish new
11

opportunities for discussions to share information regularly towards the enhancementof more substantial countermeasures. (Exhibit Ko 24)"
E. The phrase "平成３０年４月[in April 2018]" in line 4, page 14 of the judgment inprior instance is altered to "平成３０年４月１７日頃[around April 17, 2018]".
F. The part from the phrase （" 被告エムエムラボ」から「親会社）[(Defendant mmlabo"
to "parent company)" in line 7, page 14 of the judgment in prior instance is deleted;after the term "広告代理店[advertising agency]" in lines 9 and 10 on said page, theterm "（メディアレップ）[(media representatives)]" is added, respectively; the term"（子会社）[(subsidiary company)]" from the beginning of line 15 to the end of line
20 on said page and in line 21 on said page is all deleted; the phrase "アドネットワー
クにより[by the ad network]" in line 22 on said page is altered to "アドネットワー
クである「ＭＥＤＩＡＤⅡ」を利用して[using an ad network 'MEDIAD II']; the term"（親会社）[(parent company)]" in line 24 on said page is deleted; and the following
is added as a new line after the end of line 26 on said page.
"The Appellants transacted with the operator of the Website through Eeru andagreements related to the use of 'MEDIAD II' were also concluded between theAppellants and Eeru. In this regard, under the MEDIAD II Terms of Service as ofFebruary 15, 2016 (Exhibit Otsu 3), the following were stipulated: [i] after agreeing
with said terms of service, a website operator is to apply for registration with theservices related to 'MEDIAD II' and Appellant mmlabo will examine the details of theapplication; an agreement on said terms of service is to be established as of the date of
notification of the approval; and the operator's registration of membership with said
services is deemed to be completed (Article 1); [ii] the Appellant can refuse or stop thedelivery of advertisements that do not meet the advertising standards specified by theAppellant and is not liable for damages to the relevant operator (Article 3, paragraph(3)); and [iii] if a website operated by said operator has infringed or is likely to infringea third party's intellectual property rights, such as a trademark right, design right,
copyright, etc., the Appellant may not be able to approve the application or if theAppellant determines that the website falls under this case even after granting theapproval, the agreement may be canceled in accordance with the provisions of the termsof service (Article 4, paragraph (1) and Article 3, paragraph (2)). (Exhibit Otsu 3)"
G. The phrase "被告グローバルネットは[Defendant Global Net]" in line 2, page 15of the judgment of prior instance is altered to " 控訴人エムエムラボの従業員は[Employees of Appellant mmlabo]"; after the phrase "取引先からの[by a customer]"in said line, the phrase "「ＭＥＤＩＡＤⅡ」に係る[related to "MEDIAD II"]" is added;
the phrase "掲載には[posting]" in line 4 on said page is altered to "掲載は[posting]";12

after the phrase "回答をしていた。[replied.]" in said line, the phrase "上記問合せ及び回答に係る各メールには、「漫画村」という名称が明記されており、また、各
メールのＣＣ（共有する宛先）には、控訴人グローバルネットの共有アドレスとみられる「共有 グローバルネット」という名称のアドレスが含められていた。
[in each email related to the aforementioned inquiry and reply, the name "Manga-mura"is clearly indicated and in the CC (the addresses with which information is shared) toeach email, addresses with the name 'Shared Global Net' that are deemed to be sharedaddresses of Appellant Global Net were included]" is added; the term "被告グローバ
ルネット[Defendant Global Net]" in lines 5 and 8 on said page is all altered to "控訴人グローバルネットの従業員[employees of Appellant Global Net]"; the part fromthe beginning of line 10 on said page to the end of line 12 is deleted; and the following
are added as new lines after the end of line 14 on said page.
"(C) Other circumstances related to the Appellants' businesses
a. Around February 2018, Appellant Global Net received inquiries from the police
concerning services it had provided. (Exhibit Ko 29)
b. On February 2, 2018, Appellant mmlabo's employee C (hereinafter referred to as 'C')
received emails from customers, at the address including the domain name of theAppellant, including such statements as 'You are not posting advertisements on bootleg
websites (websites for illegally uploading content and websites providing links toillegally uploaded content), such as Manga-mura, that have recently been in the news,
are you?' and 'We have been very strictly warned by publishers and, therefore, please
do not post advertisements on them." In response to the above, C transferred theaforementioned email to the Appellant's employees from an address including thedomain name of the Appellant, as an employee of Appellant Global Net, while adding'In addition, the following is a media for which delivery is prohibited. 'You are notposting advertisements on bootleg websites (websites for illegally uploading content
and websites providing links to illegally uploaded content), such as Manga -mura, thathave recently been in the news, are you?' The advertisements are only for women, andtherefore, I think there is no problem, but please handle with care.' (Exhibit Ko 33)
c. On April 6 and April 7, 2018, in emails related to a request for approval from an
employee of Appellant Global Net to D, concerning the application status related to'MEDIAD II' in said month, specific 'media names' and 'vehicle names' were indicatedregardless of being a new media or continued media. (Exhibits Ko 30-1 to 3)
d. On April 13, 2018, as an employee of Appellant Global Net, C transferred an email
received from DMM.com Co., Ltd. to other employees of the Appellant. The email was
about the additional websites on which advertisements shall not be posted (NG13websites) and the request for suspension of advertisements when they are posted on
those NG websites. C requested other employees to take measures for not delivering
advertisements to NG websites. (Exhibit Ko 35)
e. On April 15, 2018, an article posted on a SNS, 'Hatena Tokumei Diary,' stated that
persons related to an ad network which had delivered advertisements on illegal websites
compiled advertising companies that posted advertisements on illegal websites, andpointed out that Appellant mmlabo had delivered advertisements on the Website andother illegal websites until recently. (Exhibit Ko 15)
f. On April 16, 2018, in response to an inquiry from a customer concerning its
advertising status on websites (including the Website) that the customer considered tobe illegal websites, a responsible person of Appellant Global Net exchanged emails
internally concerning the matters inquired about. At this time, the Appellant's other
responsible persons who were asked to check said matters replied to the inquiry about
the 'percentage of illegal websites among overall acquisition (the reply of'approximately NN percent' is acceptable)' that 'as of April, the percentage of fivewebsites related to MEDIAD II: approximately 65%' and 'It is the number of media andCV only for MEDIAD II. The number of affiliates is not added.' (said 'five websites'
refers to the top five websites with the highest impression among the websites, on which
the customer posted advertisements as of said month and which fall under illegal
websites, and websites named 'Manga-mura Girls' and 'Manga-mura Z' were included.)(Exhibit Ko 14)
g. The document that was created around May 2018 by Appellant Global Net concerning
the details related to the Website contained an apology for causing trouble since
advertisements were delivered to the Website through the advertisement delivery
service of the Appellant and a group corporation of the Appellant, Appellant mmlabo,
and it stated that an internal survey on the Website was started on April 13, 2018 andexplained future actions to be taken, etc. (Exhibit Otsu 1)
h. Appellant Global Net was a member of JIAA; however, as of July 17, 2018, it
submitted a notice of withdrawal (Exhibit Otsu 2) to JIAA and, on July 31, 2018, it wasdeleted from the list of regular members of the JIAA website. In the aforementioned
notice, there was a statement that 'we made every effort to change our internal structureand systems for two and half months after we caused trouble; however, we determinedthat it would be difficult for us to fulfill the requirements for your membership."(Exhibit Ko 26 and Exhibit Otsu 2)
i. Regarding the bootleg website, 'Dojin Antenna,' as of October 8, 2018, advertisements
were still delivered through 'MEDIAD II.' (Exhibits Ko 36, 37-1 and 2)"
14

H. The phrase "約２０００万部[approximately 20 million copies]" in line 18, page 15of the judgment in prior instance is altered to "第１巻から第３６巻までの累計発行部数で２０００万部弱（なお、最終巻である第３８巻は同年５月１７日に発行された。）であり[in terms of the accumulated number of copies issued from Volume
1 through Volume 36, slightly less than 20 million copies (the last volume, Volume 38,
was issued on May 17, 2018)"]; the part from "令和２年[in 2020]" in line 19 on said
page to the end of line 20 is altered to "令和２年１月２９日までの間に３７０万部を突破しており、令和３年７月８日までには原告漫画の累計発行部数は２６０
０万部を突破した。（甲１８、１９、乙７、１５）[during the period until January
29, 2020, it exceeded 3.7 million copies, and by July 8, 2021, the accumulated numberof copies of the Plaintiff's Manga issued exceeded 26 million copies (Exhibits Ko 18
and 19 and Exhibits Otsu 7 and 15)]"; and the phrase "およそ１０９億４９４０万円[approximately 10,949.4 million yen]" in line 22 on said page is altered to "約１２０
億１２００万円（４６２×２６００万）[approximately 12,012 million yen (462 ×
26 million yen)]", respectively; after the end of line 23 on said page, the phrase "（甲２０の１・２、乙７）[(Exhibits Ko 20-1 and 2, and Exhibit Otsu 7)]" is added; thepart from the beginning to the end of line 25 on said page is altered to " ８％～１０％程度となっていたところ、原告漫画については１０％が適用されており（甲４７）、これによると、被控訴人は、原告漫画１冊当たり４６．２円の利益を得られた。[approximately 8% to 10%. Concerning the Plaintiff's Manga, 10% was applied(Exhibit Ko 47). Based on this fact, the Appellee could have received a profit of 46.2
yen per copy of the Plaintiff's Manga.]."(2) Determination on Issue 1 (Whether the Appellants are responsible for the joint tort)
Based on the basic facts and the facts found in this case that are cited by altering
the judgment in prior instance respectively as stated in No. 2, 2. above and (1) above,the determination on the issue is made below.
A. Issue 1-1 (Whether the Acts fall under accessoryship)
The judgment in prior instance is altered as stated in (A) below and thedetermination on the supplementary allegations of the Appellants in this case is added
as stated in (B) below, and the remaining parts are as stated in No. 3, 1. (2) A. of thejudgment in prior instance and therefore they are cited.
(A) Correction of the judgment in prior instance related to the citationa. The part from the beginning of line 1, page 16 of the judgment in prior instance tothe end of line 2 on said page is altered to "争点１－１（本件行為の幇助行為該当性等）及び争点１―２（控訴人らの行為と被控訴人の損害との間の一般的な因果関係の有無）について[Issue 1-1 (Whether the Acts fall under accessoryship) and15

Issue 1-2 (Whether there is a general causal relationship between the acts of theAppellants and the damages to the Appellee)]".
b. From the phrase "前記認定のとおり[As it is found above]" in line 3, page 16 of thejudgment in prior instance to the phrase "このような[said]" in line 7 on said page isaltered to "控訴人らの本件行為が、本件ウェブサイトにおける[... the Acts of theAppellants ... on the Website]".
c. The phrase "１億７０００万にも上る[reached as much as 170 million]" in line 15,
page 16 of the judgment in prior instance is altered to "延べ１億７０００万人を突破する[exceeded a total of 170 million]".
d. The phrase " 広 告 費 に よ る [with advertising costs]" in line 22, page 16 of thejudgment in prior instance is deleted; the phrase "支払っていた行為は[payment]" inline 25 on said page is altered to " 支払うという行為は、一般的に [payment ....
generally]"; and the phrase "原告漫画の[of the Plaintiff's Manga]" in line 2, page 17
is deleted.
e. The part from the beginning of line 5, page 17 of the judgment in prior instance tothe end of line 22 is altered as follows.
"(D) Looking at the Acts of the Appellants, the Appellants are originally stockcompanies whose purpose is the advertising agency business to handle internet
advertisements. The representative of Appellant mmlabo, D, is a director of Appellant
Global Net. The location of the head office on the register of Appellant Global Net isthe same as the location of the branch office on the register of Appellant mmlabo. The
Appellants admitted that they have a relationship to the extent that they have commonshareholders. In the document created by Appellant Global Net (Exhibit Otsu 1), there
is a statement that Appellant mmlabo is a group corporation of Appellant Global Net.
In addition, even if Appellant Global Net receives a request to post an advertisement,
the advertisement is posted using 'MEDIAD II' that was operated by Appellant mmlabo.
When an employee of Appellant mmlabo handles an inquiry from a customer related to'MEDIAD II,' other persons related to Appellant Global Net are customarily includedin the CC of email correspondence and a single employee uses an email address as an
employee of Appellant mmlabo and an email address as an employee of Appellant
Global Net depending on cases. Based on the aforementioned circumstances, it should
be said both objectively and subjectively that the Appellants have been conducting theActs jointly.
In addition, as pointed out in (C) above, there are no circumstances to understandthat the Acts are different from acts that are generally deemed to be accessoryship of
the infringement of the right to transmit to the public.
16

Therefore, it should be said that the Acts conducted jointly by the Appellants fallunder the accessoryship of the infringement of the right to transmit to the publicconcerning the Plaintiff's Manga.
In addition, as a result of accessoryship, or the Acts conducted jointly by theAppellants, the Plaintiff's Manga were viewed using the Website. Then, it is found thatdamages, etc. due to decreases in sales of the Plaintiff's Manga were caused, andtherefore, it should be said that there is a corresponding causal relationship between theActs of the Appellants and the damages to the Appellee."f. The part from the term "原告漫画１[Plaintiff's Manga 1]" in line 26, page 17 throughthe end of line 2, page 18 of the judgment in prior instance is altered to " 原告漫画１の一部がアップロードされていた以上、それについての幇助行為は成立し得な
いと主張する。[alleged that as long as part of Plaintiff's Manga 1 had been uploaded,
no accessoryship can be established in relation to that.]"; and the phrase "同月以降[after said month]" in line 3 on said page is altered to "同月以降も[also after said
month]", respectively; at the end of line 7 on said page, the phrase "また、原告漫画
１の一部が本件ウェブサイトに初めてアップロードされたのは、平成２９年４月２１日であるところ、控訴人らは、遅くとも同月までにはエールとの間で本件ウェブサイトへの広告の提供に係る契約を締結するに至ったもので、本件行為は当該契約の履行としてされたものであるから、上記契約の締結日が同日以前であった場合はもちろん、それが同日より後であったとしても、本件行為は、
原告漫画のうち同月にアップロードされたものに係る公衆送信権の侵害状態をも前提としたものとみるのが相当である。[In addition, it was on April 21, 2017
when part of Plaintiff's Manga 1 was uploaded on the Website for the first time. The
Appellants concluded an agreement on the provision of advertisements to the Website
with Eeru by the end of said month at the latest. The Acts were conducted as
performance of the agreement. Therefore, even if the conclusion date of theaforementioned agreement was after said date, not to mention the case where it was
before said date, it is reasonable to consider that the Acts were conducted also based on
the premise of the situation where the right to transmit to the public would be infringed
in relation to the portions of the Plaintiff's Manga that were uploaded in said month.]"is added; the phrase "いえず[cannot be deemed to be]" in line 13, page 18 is altered to"認められず[cannot be found to be]"; after the phrase "本件ウェブサイトとは[withthe Website]" in line 23 on said page, the phrase "直接の[directly]" is added; and thephrase "原告漫画の売上減少という[decreases in sales of the Plaintiff's Manga]" inline 6, page 19 is deleted.
(B) Determination on the supplementary allegations of the Appellants in this case17

a. The Appellants alleged that the Acts do not directly cause or encourage the operatorof the Website to infringe the copyright and, therefore, they do not fall underaccessoryship. As stated in No. 3, 1. (2) A. of the judgment in prior instance that isaltered and then cited, in consideration of the actual situation of the Website where therevenue from the advertising fees is almost the only financial resource, it is reasonable
to consider that the Acts directly cause or encourage the operator of the Website tocontinue posting the Plaintiff's Manga that had been uploaded and to further add targets
to be uploaded. Therefore, the aforementioned allegation of the Appellants cannot be
accepted.
Concerning the above, the Appellants also alleged that the scope of application ofaccessoryship had become too wide and was unjust. However, it is only an allegation
based on the premise that the scope of accessoryship is expanded in general terms while
ignoring the aforementioned actual situation of the Website. In addition, theresponsibility for a tort is not immediately questioned for accessoryship because acertain act objectively falls under accessoryship, and therefore, the aforementioned
allegation of the Appellants do not affect the findings and determination above either.
b. The Appellants alleged, concerning the Plaintiff's Manga that had been uploaded, that
the Acts do not facilitate infringement of the right to transmit to the public; however,as stated in No. 3, 1. (2) (A) of the judgment in prior instance that is altered and thencited, the aforementioned allegation cannot be accepted either. In addition, theallegation of the Appellants to the effect that considering the Acts as accessoryshipmeans considering the operation of the Website itself as infringement of the right totransmit to the public, and the allegation of the Appellants to the effect that it is notconsistent with the understanding of accessoryship that was found by the judgment of
the Supreme Court in 2001, also contain errors in understanding the circumstances thatserve as the premise for making determinations in this case, and therefore, they cannot
be accepted.
c. The Appellants alleged that the advertising fees paid by the Appellants accoun t for asmall percentage of the advertising revenue of the operator of the Website. However,setting aside the point whether the percentage that serves as the premise of said
allegation can be admitted immediately based on the evidence, the following shoul d betaken into account, in addition to the actual situation of the Website where the revenue
from the advertising fees is almost the only financial resource as mentioned above: inlight of said actual situation, it should be said that the provision of advertisements tothe Website itself, regardless of the amount of advertising fees to be paid to the operatorof the Website, eventually facilitated the infringement of the copyright by said operator
18

(according to Exhibit Ko 7 and the entire import of oral arguments, the advertising fees
paid to the operator of the Website, is not simply determined by the number ofadvertisements posted, or the volume of advertisements, but the fact that users viewed
the posted advertisements of goods and purchased said goods has an impact on theamount of payment; and it thus seems that the degree of provision of advertisements
and the amount of paid advertising fees do not directly correspond to each other; inaddition, it is easily assumed that the more commission fees, etc. are deducted by anadverting agency from the advertising fees paid by the sponsor, the less advertising feesare paid to the operator of an website). Also, in light of the subjective mode of theAppellants that is found and determined in B. below, the aforementioned circumstances
alleged by the Appellants are only problems related to compensation between joint tort feasors and they are not circumstances supporting that the Appellants are notresponsible for the tort against the Appellee.
d. None of the other circumstances alleged by the Appellants affect the aforementioned
findings and determination.
B. Issue 1-3 (Whether there is intention or negligence of the Appellants)
The judgment in prior instance is altered as stated in (A) below and thedetermination on the supplementary allegations of the Appellants in this case is added
as stated in (B) below, and the remaining parts are as indicated in No. 3, 1. (2) B. of thejudgment in prior instance and therefore they are cited.
(A) Correction of the judgment in prior instance related to the citationa. The part from the beginning of line 10, page 19 of the judgment in prior instance tothe end of line 1, page 21 is altered as follows.
"(A) First, it can be pointed out that, [i] during the period leading to 2017, it became a
big issue that advertising revenue had become an income source for illegal websites;
many advertisement delivery companies took measures to investigate by a specificmethod whether any illegal information was posted on websites where they posted
advertisements; it is confirmed that, as joint activities of the public and private sectors,
measures to eliminate bootleg websites would be taken continuously and restrictions on
posting of advertisements would be a focus for accompanying measures. Under suchsituation, [ii] the Website was a website where manga could be read without any
registration and with no charge up until April 2017; it could be identified at a glancethat a large amount of manga was posted on the Website to the extent of requiring searchbanners; and there were many tweets pointing out its illegality on Twitter. In addition,[iii] as of May 10, 2017 at the latest, the Website was under conditions where it waseasy for viewers to understand that Japanese works were posted on the premise that19

their copyrights were not protected, etc.
Upon starting the delivery of advertisements on the Website using 'MEDIAD II,'
Appellant mmlabo received a presentation of the Website's title and URL, its operationteam examined whether or not to make registration based on the information including
the title and URL, approved the registration, and manually configured the settings forthe delivery of advertisements. Based on the circumstances in [i] through [iii] above,
up until May 2017 at the latest, the Appellants could have easily assumed that many
manga posted on the Website were posted without obtaining the approval of the
copyright holders; the revenue from advertising fees was almost the only financial
resource of the Website where manga that were illegally posted in the aforementioned
manner could be viewed without charge; and therefore, the acts of the Appellants toprovide advertisements to the Website and to pay advertising fees were nothing but acts
to support copyright infringement by the operator of the Website.
Based on the above, as of May 2017 at the latest, the Appellants were under a dutyof care to check with the operator of the Website in relation to the presence of consent
agreements with the copyright holders and to take appropriate measures or to refuse
registration of the Website on the 'MEDIAD II' without the need to even implement said
check (if said registration of the Website on the 'MEDIAD II' had been completed, theduty of care to take actions such as canceling the agreement related thereto). Despite
such a duty, the Appellants conducted the Acts and they are found to have negligenceat least in this regard.
Concerning the above, the following circumstances also support the fact that theAppellants neglected the duty of care as mentioned above as of May 2017, andsubsequently, conducted the Acts continuously without careful consideration: Appellant
Global Net was a member of JIAA, which promoted activities against bootleg websites;
according to the terms of service of 'MEDIAD II,' it is stipulated that if the Website
infringes the copyright of a third party, an agreement related to the use of the MEDIAD
II may be canceled; subsequently, it was reported that the operator of an illegal website,'Haruka Yumeno Ato,' which was related to customers of the Appellants, was arrested
on October 31, 2017, and the illegality of the Website was more focused socially; and,on February 2, 2018, the Appellants received inquiries from customers by mentioningthat the Website was an illegal website for bootleg manga; however, despite thesecircumstances, it cannot be seen that the Appellants examined the appropriateness ofproviding advertisements using 'MEDIAD II' to the Website; rather, the Appellants
clearly indicated the name of 'Manga-mura' and replied to customers that it was possible
to post advertisements on the Website on March 2, 2018; on March 23, 2018, the20Appellants indicated that they had the Website as one of the reasons for the high effects
of advertisements; and eventually, after the government announced its policy ofblocking by indicating the name of the Website on April 13, 2018, the Appellant started
to examine the suspension of the delivery to the Website for the first time."b. The phrase "している[is transacting]" in line 5, page 21 of the judgment in priorinstance is altered to "していた[was transacting]"; the phrase "規約に置いて取引先に注意義務を課している[imposed the duty of care on customers by establishing ...
in the terms of service]" in lines 7 and 8 on said page is altered to "ＭＥＤＩＡＤⅡ利用規約（乙３）に定めて取引先に注意義務を課していた[imposed the duty of careon customers by stipulating ... in the MEDIAD II Terms of Service (Exhibit Otsu 3)]";the phrases "困難である[it is difficult]" in lines 10 and 11 on said page is altered to "困難であった[it was difficult]"; and the phrase "ことを踏まえると[in considerationof the fact that]" in line 19 on said page is altered to "ことなど既に指摘した諸事情を踏まえると[in consideration of circumstances that have been pointed out, such as]",respectively; the phrase "、外形上[from an appearance]" in line 20 on said page isdeleted; the phrase "予見する[foresee]" in said line is altered to "推測する[assume]";and the phrase "認識されている昨今の[current ... that are found]" in line 2, page 22
is altered to "既に認識されていた当時の[at that time that were found]", respectively.
(B) Determination on the supplementary allegations of the Appellants in this case
The Appellants alleged that, as of May 2017, they could not foresee the infringementof the right to transmit to the public on the Website. However, in light of what were
found and explained in No. 3, 1. (2) B. of the judgment in prior instance that is alteredand then cited, said allegation cannot be accepted. In this regard, the Appellants'
allegation that, at that time, bootleg websites had not become a social problem yet lacks
the premise (concerning Exhibit Otsu 9 stating that there is no article on bootleg
websites, including the Website, on the internet as of 2017, its search conditions, etc.
cannot necessarily be confirmed and, in light of the articles, etc. on the internet as foundabove, Exhibit Otsu 9 does not affect the findings and determination above). In addition,according to the findings and determination above, the fact that the Appellee did not
request suspending the posting of advertisements does not mitigate the duty of care of
the Appellants. Both the allegation that it was apparently difficult to determine whether
there was copyright infringement and the allegation pointing out that Eeru collectively
managed ad posts of media ignored specific circumstances related to the Website andare not reasonable. Furthermore, the allegation that it was impossible to survey the
copyright infringement due to their operation mode does not immediately mitigate theAppellants' duty of care in general. In particular, in consideration of specific21circumstances related to the Website, it does not at all fall under the circumstances tofind that the Appellants did not violate the duty of care in this case.
None of the allegation that the Appellants stopped the Acts on April 13, 2018 andafter, the allegation that the Appellants had no possibility to avoid the results, and otherallegations of the Appellants affects the findings and determination above.
C. Summary
Based on A. and B. above, the Appellants aided and abetted infringement of theAppellee's copyright (right to transmit to the public) on the Website, and therefore are
jointly liable for the tort.
3. Issue 2 (Amount of damages to the Appellee)(1) Allegation based on Article 114, paragraph (1) of the Copyright Act (additional
allegation in this case)A. (A) Concerning the calculation of damages based on Article 114, paragraph (1) of
the Copyright Act, the Appellee alleged 1PV per manga book based on the fact that one
manga book could be viewed by 1PV; on the other hand, the Appellants alleged thatsince a PV may be counted whenever a page is switched, the figure obtained by dividing
PV by the number of pages of the Plaintiff's Manga, should be considered to be thevolume transmitted to the public.
In examining the above, according to the evidence (Exhibit Ko 51) and the entire
import of oral arguments, it is found that all pages of one manga book can be viewed
without switching web pages on the Website, and therefore, it is found that even if all
pages of one manga book are viewed, it was counted as 1PV in some cases.
Consequently, the aforementioned allegation of the Appellants cannot be accepted.
On the other hand, however, according to the evidence (Exhibits Ko 4, 10, and 11),it seems that viewers of the Website needed to switch web pages several times before
starting to view specific manga. Therefore, the aforementioned allegation of theAppellee cannot be accepted immediately either.
In addition to the aforementioned circumstances, according to the evidence (Exhibit
Otsu 17) and the entire import of oral arguments, and based on the fact that it is foundthat the PV per visitor to the Website was 10.69PV (in Exhibit Otsu 17, it is stated thatthe number of impressions per month of advertisements can be calculated bymultiplying PV by the number of visitors per month and the number of ad posts per
page; and therefore, PV is based on web pages on which advertisements are displayed),
it is reasonable to consider as follows: visitors are considered to visit the Website dueto the attractiveness of the Website where manga can be viewed free of charge inprinciple; if a visitor visits the Website, in particular, in cases of serial manga, such as
22the Plaintiff's Manga, it is quite conceivable that multiple volumes are viewed during
one visit; on the other hand, it is also conceivable that a viewer stops viewing after
previewing it to the middle; and the details are not clear of how individual visitors used
the Website and it is impossible to identify them due to the characteristics of the case;in consideration of the allegations, etc. of both parties concerning damages based on
Article 114, paragraph (1) of the Copyright Act comprehensively, the average volumeof "copies transmitted and received" per manga book is found to be at least no less than
50% of the number of the Website's visitors (in other words, the volume of "copies
transmitted and received" is deemed to be approximately 5% of PV and one manga book
per two visits).
(B) According to the evidence (Exhibits Ko 5 and 8) and the entire import of oral
arguments, for the period from April 2017 to April 17, 2018 (the date when the Website
was closed), the number of the Website's visitors is found to be at least 100 million in
total per month. In addition, according to the evidence (Exhibit Ko 5 and Exhibit Otsu
23) and the entire import of oral arguments, the number of manga that could have beenviewed on the Website is found to be approximately 50,000 to 70,000 books. Therefore,
the intermediate value, 60,000 books, is used for calculation. It is reasonable to consider
that there were 1,666 visitors per month (100 million / 60,000; below the decimal pointis rounded off; hereinafter the same applies) in average per volume of manga that wasposted on the Website.
Then, in addition to the point indicated in (A) above, based on the number of issuesof the Plaintiff's Manga and the evidence (Exhibits Ko 1, 45, and 47, and Exhibit Otsu
15), it is reasonable to consider that the Plaintiff's Manga had visitors approximately
two times more than said average as alleged by the Appellee. In consideration of above,it is found eventually that the number of "copies transmitted and received" per volumeof the Plaintiff's Manga is no less than 1,666 books per month (1,666 × 0.5 × 2).
B. (A) As stated in (3) B. in No. 2, 1. "Facts and reasons" section of the judgment inprior instance that is altered and then cited, concerning Plaintiff's Manga 1, at least
Volume 1, Volume 6 through Volume 15, and Volume 24 were posted from April 21,
2017 through June 24, 2017 and Plaintiff's Manga 2 was posted by November 18, 2017.
According to Exhibit Ko 10 related to the screen of the Website on June 26, 2017, more
specifically, the aforementioned posting of volumes of Plaintiff's Manga 1 was foundto be implemented in the following order.
a. April 21, 2017: Volume 6 of Plaintiff's Manga 1b. April 22, 2017: Volumes 7 and 8 of Plaintiff's Manga 1c. April 23, 2017: Volumes 9 and 10 of Plaintiff's Manga 1
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d. April 24, 2017: Volume 11 of Plaintiff's Manga 1e. April 30, 2017: Volumes 12 and 13 of Plaintiff's Manga 1
f. May 1, 2017: Volumes 14 and 15 of Plaintiff's Manga 1
g. May 6, 2017: Volume 24 of Plaintiff's Manga 1
h. June 24, 2017: Volume 1 of Plaintiff's Manga 1(B) In addition to the posting conditions described in (A) above, in consideration of thefollowing facts, it is reasonable to assume that Volume 2 through Volume 5 and Volume
16 through Volume 23 of Plaintiff's Manga 1 were posted on the Website by June 26,
2017 at the latest, and Volume 25 through Volume 38 of Plaintiff's Manga 1 were postedon the Website by November 18, 2017 at the latest, and there are no circumstances tooverturn this assumption: Exhibit Ko 10 that is found to be related to the screen of theWebsite as of June 26, 2017 is the first page of the webpage on which Plaintiff's Manga
1 was posted; there are signs that seem to indicate that viewers can go to the next page
(page 2), under the posting of images of the cover pages of the aforementioned volumes,
including Volume 24 of Plaintiff's Manga 1 (12 volumes in total); it seems that there
were other pages on which Plaintiff's Manga 1 was posted; in Exhibit Ko 38 related tothe display of the Website on May 10, 2017, there is a statement that if the manga isinterrupted or missing, measures will be taken if possible, within three days after areport is made; and all volumes of Plaintiff's Manga 2 were posted (according to theevidence (Exhibits Otsu 15 and 16) and the entire import of oral arguments, Plaintiff's
Manga 2 is a sequel to Plaintiff's Manga 1.).
(C) Based on the above, the numbers of volumes of the Plaintiff's Manga posted on theWebsite are outlined below.
a. April 21, 2017: one volume
b. April 22, 2017: 3 volumesc. April 23, 2017: 5 volumes
d. April 24, 2017 through April 29, 2017: 6 volumes
e. April 30, 2017: 8 volumes
f. May 1, 2017 through May 5, 2017: 10 volumes
g. May 6, 2017 through June 23, 2017: 11 volumes
h. June 24, 2017 through June 25, 2017: 12 volumes
i. June 26, 2017 through November 17, 2017: 24 volumes
j. November 18, 2017 through April 17, 2018: 53 volumes
C. On the other hand, as stated in No. 3, 1. (1) E. of the judgment in prior instance thatis altered and then cited, the Appellee could have received profits of 46.2 yen per bookof the Plaintiff's Manga (the Appellants do not particularly dispute that sa id amount is24

to be deemed as "the amount of profit per unit" as defined in Article 114, paragraph (1)of the Copyright Act).
D. Based on A. through C. above, the profits that the Appellee could have received inrelation to the viewing of the Plaintiff's Manga on the Website are calculated as follows(= Number of volumes of the Plaintiff's Manga posted on the Website × Number ofcopies transmitted and received per volume per month (1,666 books) × Profits of theAppellee per book of the Plaintiff's Manga (46.2 yen) × Number of months; even basedon the time of establishment of the Appellants' negligence related to the Acts that has
been determined based on the Appellee's allegation concerning Issue 1-3 as the premise,in light of the mode of violation of the duty of care that has been found and explained
and the points that have been found and explained concerning Issues 1-1 and 1-2, whencalculating damages related to the Acts, it is reasonable to include the Plaintiff's Mangathat were uploaded in April 2017 in the basis of the calculation).
(A) April 21, 2017
1 × 1,666 ×46.2 × 1/30 = 2,565 yen(B) April 22, 2017
3 × 1,666 ×46.2 × 1/30 = 7,696 yen(C) April 23, 2017
5 × 1,666 ×46.2 × 1/30 = 12,828 yen(D) April 24, 2017 through April 29, 2017
6 × 1,666 ×46.2 × 6/30 = 92,363 yen(E) April 30, 2017
8 × 1,666 ×46.2 × 1/30 = 20,525 yen(F) May 1, 2017 through May 5, 2017
10 × 1,666 ×46.2 × 5/31 = 124,143 yen(G) May 6, 2017 through June 23, 201711 × 1,666 ×46.2 × (1 + 18/30) = 1,354,657 yen(H) June 24, 2017 through June 25, 2017
12 × 1,666 ×46.2 × 2/30 = 61,575 yen(I) June 26, 2017 through November 17, 201724 × 1,666 ×46.2 × (4 + 6/31 + 17/30) = 8,793,358 yen(J) November 18, 2017 through April 17, 2018
53 × 1,666 ×46.2 × 5 = 20,396,838 yen(K) Total
30,866,548 yen (when said amount is divided by the amount of profits of theAppellee per book of the Plaintiff's Manga, 46.2 yen, the result is 668,107 copies; in25light of the number of issued copies of the Plaintiff's Manga (the peri od related to theissuance includes the period when the Plaintiff's Manga were posted on the Website),the aforementioned amount is not considered to be excessive.)
E. It is reasonable to find the legal fees of 3,080,000 yen, approximately 10% of theaforementioned amount of damages.
F. Based on the above, the Appellee's claim to seek payment of 11 million yen, whichis the total sum of 10 million yen from among the amount of damages based on Article
114, paragraph (1) of the Copyright Act and one million yen of legal fees, has grounds.
It is found that the damages exceeding the aforementioned amount had been caused
before November 18, 2017, which the Appellee considers to be the start date of delay
damages. Therefore, the incidental claim of the Appellee to seek payment of delay
damages from said date has grounds.
No. 4 Conclusion
Consequently, without the need to make determinations on the remaining issues, thejudgment in prior instance that granted all the Appellee's claims is reasonable and there
are no grounds for the Appeal. Therefore, they are dismissed and the judgment isrendered as indicated in the main text.
Intellectual Property High Court, Second Division
Presiding judge: HONDA Tomonari
Judge: NAKAJIMA Tomohiro
Judge: KATSUMATA Kumiko

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