The arrest this week of the Japanese author of a popular online file-sharing program appears to be an extreme reaction, at least by American standards, to his alleged abetting of copyright infringers, according to a patent attorney in Chicago.
In what’s been reported as the first arrest of a software developer for helping others to violate copyright law, police pinched Isamu Kaneko, 33, a teaching assistant at the University of Tokyo and the author of Winny, a peer-to-peer (P2P) file-sharing program that’s been downloaded by anywhere from 250,000 to 1 million people, most of them in Japan.
If convicted of criminal charges leveled against him by the police, Kaneko faces up to three years of jail time or a fine of up to 3 million yen (US$27,000).
“From a criminal penalty standpoint, this is overkill in my view,” James Muraff of law firm Wallenstein Wagner & Rockey told TechNewsWorld. “It’s pretty stiff compared to U.S. law.”
He explained that in the United States, there are no criminal penalties for authoring software that may be used for copyright infringement. Such authors, however, could become targets of civil actions for contributing to copyright infringement.
“In the Japanese situation, you’ve got criminal penalties against someone who created software that allows other people to directly infringe — a contributory infringement situation that, in my view, doesn’t warrant a criminal penalty,” he argued.
Whether or not P2P software can be legally tagged in the United States as a contributor to copyright infringement is still up in the air, according to Muraff. “No final decisions have taken place, but some initial decisions favor the recording industry,” he said.
According to the P2P industry, any contribution its software makes to copyright infringement is outweighed by its legitimate purposes — a line of reasoning successfully used to introduce the VCR into American markets.
“If all the person did was write software that was generally useful, then it’s mindboggling that they would hold the software developer liable for a tool that’s similar to many other tools on the Internet,” Greg Bildson, COO of P2P software maker LimeWire in New York City, told TechNewsWorld.
“If the Japanese law allows that, then they really are going to stifle competition,” Bildson added. “They’re going to stifle innovation in this kind of distributed computing area.”
When making their arrest of Kaneko, police reportedly cited the author’s cavalier attitude toward copyright law as evidence of his intent to encourage infringements.
Police quoted Kaneko as saying: “I am doubtful about the current ways businesses control digital content. It’s wrong that big business uses the police to crack down on violations and maintain the status quo. The only way to destroy that system is to continue to spread ways to violate copyright laws.”
Target of Destruction
Kaneko isn’t the only one concerned about the lengths to which copyright holders will go to preserve their intellectual property.
“These guys have so much money and they’re spending so much money in lobbying that it’s difficult to protect anybody’s rights,” Wayne Rosso, CEO of P2P software maker Optisoft of Madrid, Spain, told TechNewsWorld.
“The content industry will use any means that they have to destroy P2P,” he added.
An aspect that has added to the popularity of Kaneko’s Winny program is its purported ability to keep its network users’ identities anonymous. That feature is apparently imperfect, as two men using Winny were arrested last November for illegally sharing movies and video games on the network.
Users of P2P systems shouldn’t look to anonymity for comfort from the prying eyes of copyright enforcers, cautioned LimeWire’s Bildson.
Most anonymity schemes require a third-party intermediary to launder user identities, he explained. “Any of those intermediaries could theoretically have their computers searched and identities discovered that way.”