By Masako Wakae / Yomiuri Shimbun Senior WriterThe government announced a policy in mid-April to essentially demand that internet service providers block internet connections to websites offering material that violates copyrights, as a countermeasure against pirate sites.
This issue involves rights that are very important to us, such as copyrights and the privacy of communications, but because the technology involved is difficult to understand, it does not appear to have aroused much interest.
What is blocking and what are the problems that are connected with it? Are there any alternatives?
In a room in a multitenant building in Tokyo, three men silently gazed at personal computers. They are members of the Internet Content Safety Association, a general incorporated foundation that maintains a list of child pornography sites.
In Japan, blocking is permitted only for child pornography, and internet service providers have been blocking internet connections to websites offering child pornography based on its list since April 2011.
They receive 2,000 to 4,000 pieces of information a year, but staffers visually check each one to determine if it meets the criteria for blocking. The determination is based on such factors as the estimated age of the victim and the circumstances in which the photography was conducted.
When it is difficult to make a decision, staffers seek the opinions of lawyers or doctors. There are also periodic checks by experts. About 30 sites have gone through this process and been placed on the current list.
“It’s difficult emotionally to look at a lot of images of child abuse. The staffers receive counseling at regular intervals,” said their leader, Hayato Momozawa, 38.
According to Momozawa, the reason they go through such a rigorous process is “the fear that a single decision by us could get even legitimate expression removed from the internet.”
If the association wants to block a website, all it has to do is add a single line to the list with that site’s domain name. Then, like an assembly-line operation, the list is sent to a provider’s server. In most cases the settings will be updated automatically, with users attempting to access one of the listed sites being diverted to a separate warning site.
Checking users’ access and blocking it are infringements of the privacy of communications under the Electricity Business Law. For this reason, there were several years of debate before the introduction of blocking.
Some say that if sites were only checked by machine, then people would not see them and there would not be such cause for concern.
But Momozawa said: “Aren’t machines even more frightening? In an instant, a computer can sort through a far greater number of communications than a human does, and it will also make a record of it.” This sense of urgency comes from the fact that he works on the front line of checking.
However, with the appearance of various techniques for evasion, doubts have been raised about the effectiveness of current mainstream blocking methods.
A provider in Tokyo said: “I think only a few percent of the total can be blocked. People who connect to the sites knowing it’s wrong can slip through the blocking, while unrelated users have their right to private communications violated.”
Even if an act is illegal under the Penal Code, its illegality is denied if it can be classified as a “justifiable act,” “legitimate self-defense” or “necessity.” The blocking of child pornography is allowed because it has been classified as an act of necessity.
To be recognized as an act of necessity, all of the following requirements must be met:
■There is an ongoing danger.
■There is no other alternative other than the act of averting the danger.
■The harm produced by the act of necessity does not exceed the harm that will be averted.
So does this apply to pirate sites?
‘¥319.2 bil.’ in damages
Among the three sites the government has proposed blocking, Mangamura receives 600 million views in a six-month period, according to an investigation by a website analysis firm.
The Content Overseas Distribution Association calculated estimated damages of ¥319.2 billion by multiplying these access numbers by the average unit price of a collected volume of comics.
After the government announced its policy, those three sites have practically shut down, but most publishers believe another Mangamura will pop up soon enough.
Deletion should be requested first
Are there any other measures to be taken?
Shino Uenuma, a lawyer who mainly works with copyright law, said: “First of all, it is reasonable that rights are enforced against the operator of a pirate site that violates those rights. Even if this is difficult, it is a principle to ask the provider and others to delete the information.”
This is because deletion works against the infringing individuals, but blocking involves all users, including those who are unconnected.
Publishers have not disclosed what measures they have taken against sites like Mangamura. But in the past, they demanded that pirate sites and providers delete information, according to sources.
However, a publisher said: “They don’t respond to our requests promptly and lawsuits take a lot of time and money, so we don’t readily make such requests. Even if content is deleted, it’s quickly moved to a different site, like a game of cat and mouse.”
Nevertheless, in comparison to cases of defamation or violation of privacy, prompt action is expected in cases of copyright infringement under the U.S. Digital Millennium Copyright Act.
This is because when providers receive notice of a violation, they normally delete the data before investigating the facts or confirming with the distributors, and then deal with any protests.
There are also methods such as demanding that search engine operators like Google lower the search ranking, and cutting off their source of funds through advertising regulations.
It would also be effective to expand to comics the penalties for illegal downloading currently recognized for music and videos.
Concerns about expansion
What about the third requirement for an act of necessity?
“It’s clear that the right of private communications is of greater concern than copyright as a property right,” lawyer Ryoji Mori said. “If cases of copyright infringement were recognized as an act of necessity, there would be no way to avoid recognizing as an act of necessity the personal right, such as defamation or violation of privacy that are a more serious infringement of right.”
He added, “It could create a situation in which sites critical of the government can be easily blocked.”
An executive of a publishing firm said: “We’re an organ of the media. While we earnestly sympathized with the government’s request for blocking as a last resort, we’re concerned that blocking will restrict freedom of expression.”
I am fully aware of measures against pirate sites, but this decision to demand blocking does not seem to have been based on a broad range of views among the public.
It is hoped that the government will devise comprehensive countermeasures while assessing each step as to the degree it infringes on people’s rights.