Category Archives: The Law

March 19, 2013

Wiley E. Importy, Or a Charitable Perspective

By omo

Kobayakawa Rinko

Rock, meet glass house.

Whenever people complain about dysfunctional Japanese DVD/Blu-ray prices, all you need to do is point to the myriad of American or European media goods that are sold for a fraction in other countries, and how publishers sue or threaten reverse-importers for those purposes. And sometimes it’s not even media goods…

The latest US Supreme Court decision basically affirms a first-sale right of legitimately produced foreign good for sale domestically:

In Kirtsaeng v. John Wiley & Sons, the Court considered the “first sale” doctrine of copyright law.  This is a rule that means that when a publisher sells a copyrighted work once, it loses any right to complain about anything later done with that copy.  This is the rule that makes it okay to resell a used book to a used-book store, and for that store in turn to sell used books to its customers.

The issue in Kirtsaeng was whether the first-sale doctrine applies to copyrighted works manufactured overseas.  Kirtsaeng bought textbooks in Thailand, where they are cheap, brought them to the United States, and resold them at a large profit.  The lower courts said he couldn’t do this, and ordered him to pay damages to the publisher (John Wiley).  The Supreme Court disagreed.  The Justices said that the first-sale doctrine applies to all books, wherever made.  So even if you buy a book made in England, you can resell it without permission from the publisher.

Which is good! Because it would be sad if, I don’t know, J-List got shut down for something retarded. Oh wait, that doesn’t work. Actually, given this is a case on American copyright law, it doesn’t have anything to do with the situation where going to certain Akiba shops can score you FUNimation’s Spice & Wolf on Blu-ray, or anything like that, because that is solely the call of the Japanese government.

But that’s the internet armchair bandit version of the interpretation. The truth, as usual, is more like if companies can’t no longer forbid price discrimination along national/geographic boundaries, this is why we can’t have nice things. We’ve seen it happened once with Blu-ray when the US no longer sits in a different region than Japan, so dub-only BDs, hard-sub BDs, and in some cases, no-BDs, became the North American release. Does it suck? Kind of. What really sucks is that if a large company wants to sell cheaply to a poor and developing country, they will have to be wary of reverse-importers trying to make a shiny buck by undercutting and disrupting the home market. This may mean those guys won’t get to have a nice thing, too. And their nice things could be “college education” or “medicine so they don’t die.”

The narrative gets a lot worse once you consider that first sale doctrine applies to patents as well. This could mean cheap, patented drugs sold by big pharmas to poor countries at margin, could be reverse-imported for massive gain in the grey market, legally. And if you know anything about the grey market for drugs, well, you know how bad it can be. So does this kind of law actually serve society in a beneficial way? The irony is that Wiley (the loser/plaintiff) sold books cheaply in Thailand both because the cost of living just can’t justify the outrageous textbook prices here, but also it’s a humanitarian thing to do. It’s good to sell text book cheap to poor countries, to countries full of people who want to study but can’t afford to.

[It’s also kind of a head-turning moment when you realize why anime is cheap in America. I mean, Americans really are treated like third-worlders when it comes to this stuff…or are we? Anime does not cost significantly more here than most of East Asia, after all. Maybe there is something to paying more money for anime. Maybe there’s something fundamentally wrong with the way we value media, at least ones in print. Something to think about.]

The motives behind the decision, however, is sound. The idea is that the Justices simply interpret the law of copyright First-sale Doctrine this way to get the public (and more importantly, the rights holder) to think about changing the law via Congress. I think copyright is always something that should be revisited legislatively anyway; the overwhelming concept behind it is that this is a way for government to regulate the industry of intellectual properties, not some civil right or anything so sensitive. Given the climate of big tech getting their feet into the door of Capitol Hill, maybe now is better than ever before to hammer this copyright thing to fit the use for this millennium, because at least we’re slowly approaching parity of power, to not have the content-owner-tail wag the dog that is the rest of the world.

PS. More blogs should define its own self-citations…

4 comments | posted in Modern Visual Culture, The Law

February 15, 2013

Giving ANN More Referrals

By omo

So that “law of anime” thing is now a thing. I don’t think it is a bad read, but I’m not so sure.

I mean, how many people talk about copyright registration? If I didn’t know better I would think this Mr. Sean Thordsen is just fishing for people to register their stuff. It’s kind of what you offer as a small business service if you’re a solo, general practitioner. Heck, I almost did copyright registration for someone (they didn’t want to foot the $35 times a billion or whatever at the time–let’s say you want to register a song, that is $70 for the lyrics and the recording; or you can do a “collection of song lyrics” hack but lol) at the clinic I worked in, because it’s a common thing.

It is a pretty standard POV from a legal professional. Yes cosplay tangos with public performance (but that’s…a really derivative sort of thing, given this is animation). Yes cosplay tangos with copyright not only for the character, but for the designs in the artwork. But I’ll go back to the DMCA legislative debate language: the internet is a copyright infringement machine. There’s not much to that this article has to say, at least at this point.

The article doesn’t really further much about the debate we have about copyright. What it does is illustrate that the war is a real war. Fansubbing is probably one of the less important battles you can fight in this digital age. A vocal cover of a vocaloid song is copyright infringement. A guitar cover of some anime OP is copyright infringement. Copying Yuno’s recipes, thankfully, still isn’t, but if you dressed up as her that might run afoul of the law, if you cooked in public.

Puyo & Kyubey

Back to the article; it’s full of languages like “a legal copyright” which is groan I mean com’on that’s like saying “a bird eagle.” There’s all kind of cringing verbiage that aren’t really wrong, but those ideas just could be put in a better way. Like the whole section about “consumer” doing anything with copyright–you would think stuff like First-sale Doctrine would be in there, but nope. I mean I read it, I knew what he was getting at the whole time basically, but I also know what he is talking about. I can’t say if someone who is reading about copyright the first time would get all the things he made subtle references to.

What’s probably more disappointing was the lack of mention on copyright on characters, or international copyright whatsoever. There’s some about licensing which is I guess helpful but Justin S. probably knows more about that. So I don’t even know what good that post does to entertain or educate besides to talk about registration LOL.

Come to think of it, this article is kind of forgettable other than the cosplay section, and the ever-necessary reminder about AMV is usually straight-up illegal use of someone’s music. Maybe this is why I wrote this post. And maybe because the dude with the Esq. behind his name could be this guy.

Leave a comment | posted in English Language Modern Visual Fandom, Modern Visual Culture, The Law

June 21, 2012

National DVD Ripping Day, Sept. 30, 2012

By omo

You’ve already read the background, right? So you know that the newly amended copyright code in Japan now not only carry prison (and obv., criminal) terms for illegal downloads, but also for home ripping and anti-circumvention stuff, right? So you get the joke in the post title, right?

You know when law school ruined you when you read this article and the one sentence stands out is the quote from the Bar Association (Japanese Federal BA), besides how it saps your sense of humor:

“Treating personal activities with criminal punishments must be done very cautiously, and the property damage caused by individual illegal downloads by private individuals is highly insignificant,” the group said in a statement.

I mean, I think it doesn’t need to be said that criminalizing this is the wrong way to go, and it doesn’t even come from the IP debate perspective. It comes from a social justice and criminal punishment perspective. I guess crime rate in Japan is so low, they need more inmates for their prisons to justify their existence? I don’t know. At any rate, it’s going to be interesting to see the impact of this law on the actual practice of illegal file sharing. But for countries busy locking up people doing pot, putting people who download rips in jail seems like a huge waste of the government’s time, money and resources. I mean, all for what, protecting some wag-the-dog media content industry? [I think Verizon still generates (much) more revenue in the same period than the total retail sales of music in the US. (Add AT&T and you get the US home video industry.)]

It’s kind of interesting to see the impact of this law on legal filesharing. Well, more like the hypothetical Youtube or NND cases–does this mean someone in Japan can break the law enough to go to jail just because you happened to click on a link that plays back some to-be-DMCA’d material that was hosted on a Japanese server/site? I think it’s bullocks in the sense that why does anyone consider this? I don’t think it’s going to have a serious impact with existing players. Japan just doesn’t work this way.

Let’s put it another way. If you read this article it might give you the impression that the copyright amendments passed without really any fanfare, and the legislature just rubber-stamped it. Why? Because politically it just isn’t that important. It’s kind of the thing that gets shoved through as the course of normal business in the Japanese legislatures. One org pushes one way, the other relents only to get some other favor their way later. Contrast this with B156’s passing rites, it is a huge difference, despite ultimately the Tokyo metro ordinance (rather than a national one that’s this copyright law change, by the way) doesn’t really impact individuals but rather publishers. (And thanks to that, I got to watch some cool ACE streams off Nico!)

Well, maybe that is not a fair comparison. Everyone reacts to child pornography (even if it’s the fake kind). But yeah. I don’t expect Japanese kids and youths (people under 40 years old) to stand up for their rights. I just don’t have the respect that I have for your parents (despite the bad pun on ice cream)…unless you take away their To-love-ru Darkness (which, as expected, does not happen).

Silver lining (maybe… not): Hopefully this is yet another opportunity for some internet people to learn the difference between “illegal” and “criminal.” Because that change is a major highlight of the amendment.

PS. If I was in Japan and I published this post, the top image alone will get me in trouble!

4 comments | posted in Modern Visual Culture, Popular Culture, The Law

January 19, 2008

Legitimization of Your Fanboyish Behavior

By omo

Well, I guess it’s a little more than LOL copyright. This is kind of a comment to my own blog post in a way.

Thanks to Avatar and others (and maybe over at CCB), I’ve managed to say more than what I originally did, and in the process came to realize that this is really a viable possibility. Yes, fansubbing can be reasonably dealt with, outside the shadow of law. I’m glad to run into blogs and editorials of people who are continuing this conversation, because I think it is helpful.

Granted, this is more like a pipe dream than something feasible in the near future, but it’s a start (or a checkpoint?) to the legitimization of fansubbing. To me, fansubbing is a thing that fans do–can we at least legitimize, well, fandom? In general? I don’t really care about specifically fansubbing all that much. This blog post is not just about the economics of it, as some people have previously thought. It’s about the way people live, or will live, in the future.

Here’s an example. I like CLAMP. They’re good at design, specifically. In fact they’ve made a name for themselves as designers in a competitive marketplace with notable power in their brand. Now insert genki-go-lucky, CLAMP-loving, cosplayer teen. Congrats, you just have witnessed the mind set of copyright infringement! I mean, this is probably the least sinister example. It doesn’t involve obscene stuff (porn), it doesn’t involve a tarnishing of CLAMP’s IP (I guess unless you’re an old, fat man trying to do a CCS cosplay or something? I dunno.), nobody loses money, and what’s more, it’s a widely accepted practice that is pretty kosher even in commercial venues. Everyone loves cosplayers, they make good centerpieces for conventions, sets the mood, and it makes great front page pictures for local newspapers.

Is casual, fan cosplaying fair use, however? It’s non-commercial and fairly transformative, but it’s a taking of the entirety and engaging in conduct that is, well, infringing in likely arenas of commercial practice by the rights holder (and the gap has already been bridged in some other instances). In other words, a lawyer could say to the fans that you can’t make and sew your own outfits to resemble these characters. You have to license the right to do so, or buy it from a commercial vendor who did. That is the sad state of affair today. Sure, perhaps if you are an individual there is no incentive for a copyright owner to go after you. But what if you want to start a cosplay cafe? Or sell doujinshi? Or make an AMV collective website and make money via donation and ads? And of course, form a fansub/scanlation organization? The list is long and growing, and it’s all copyright infringement (with a shaky fair use defense at best for them all). As fans do it on their own, they are protected by their own poverty and the inhibiting cost of a federal and/or international lawsuit (at least in the US). But it’s still copyright infringement and the law itself stands in the way between collaboration between the fans and the publishers that lives off the fans, even if neither side cares for it in this context. This legal divide is particularly evident with the debates and controversies surrounding the semiannual Comiket and the doujinshi culture, but the same legal problem comes up in other places too. Traditionally in the US authors and creators have gone after fanfiction writers that produced works they didn’t like, and even entities like Blizzard and Sony-Varent took legal action over fan uses of their MMORPG content they didn’t like.

This has nothing to do with an collaborative enterprise like open source coding, and the strength in public domain against the monopoly (and subsequent control) of proprietary code and patents. It doesn’t even have all that much to do about fighting to restore balance, the power of the past leeching away from the future of you and me in the name of “lol support the artists.” (Even if the end result is some kind of naughty kiddy porn? But don’t we have laws to address that in the parallel?) Fact remains Japanese (and Korean and Chinese and Vietnamese and whatever) animators are already some of the lowest paying workers in this industry, but did anyone or any organization do anything about it? Then again, the industry has plenty of other problems to worry about, and fans too should give all of this a damn (and we don’t).

It’s about legitimizing fandom. It’s about free speech, not free beer. The latter is just a side effect, that, I believe, will continue to exist until the end of time. Sure, the excuse “They Might Be Pirates” can justify the paranoid ways some media companies operated, but is it even a rational thing to do in light of expanding your revenue? Does it even work? Can anyone actually do anything about it? Like propping up the sinking city of Venice, or transplant it to an alien world? You get to keep your pristine world order but at what cost? (Maybe media company execs can use some iyashikei anime too?) I propose a cheaper alternative to fight this particular kind of piracy: legalize it.

Still, the first step about legitimizing fandom is to, well, be legit. Fans have to make a statement about our identity and our condition. For most people this means simply buy the anime you like (as well as the merchandise that you like). Assert your identity through commercial impact, like a good capitalist. As much as I detest R1 DVD art boxes and super LE $$$ releases (because they’re usually low quality from a design point of view, and you’re not getting what you are paying extra for), I buy them because I like it. Isn’t that how it is suppose to work? I have a figure of Haruhi Suzumiya riding high with her Gibson, because I thought that was a captivating imagery, not because I want to support Atelier-Sai and how it makes a living for sculptors riding on the coattails of other people’s intellectual properties. I don’t buy stuff just to “support the artist” because some artists out there are just not worth supporting, and you do better writing them a check as donation than to support them than via some 3rd party which takes a 80-98% cut of the money you give. Besides, what does it say about the artists working for those publishers anyways? The moment we start down that “support” road it becomes a moral and ethical quagmire that betrays the fundamental principle behind charging money for intellectual property: creators and publishers can charge money for it because their IP and services have intrinsic value.

To me that last sentence is the crux of the copyright debate. Fans have to value the stuff they like; if they don’t then we shouldn’t expect publishers and creators to value the stuff they produce. And vice versa–the middleman has to value the creators’ creations beyond merely “business as usual.” The popular misconception that strikes the chord of common conscience is just a hair off. In other words, sure, people should get paid for their labor, but crappy products from hard work is still worth crap, and you shouldn’t be forced to pay for it, even if people “consume” said crappy product the same way they do with a quality work in a mass media context. IP is not commodity like a bar of soap; it’s not like a pile of iPods stocked outside on the street. And the general failure to treat IP as, well, IP, is one of the worst remaining traces of the industrial revolution-era misconception holding back progress in the 21st century. And this is a sin repeated by fans (can we even call them fans?) and by the industry alike.

It’s almost like the objectification of women, except as applied to artistic expressions instead.

Can we just say “support the arts” instead of “support the artists”? I believe most people know the music or TV show they listen to or watch better than how either is produced and financed. Besides, may it be artists or consumers, the art is what we are ultimately after anyways. And ultimately I believe supporting the arts will support the artists indirectly, and that’s a truer reflection of how things really work.

And once you start to see things from “support the arts” perspective, it’s just a different world. And why things like legitimizing fandom becomes so important. As fans naturally we want to share what delights us, and we want to produce derivative works based on these things that delight us. A cursory view into history tells that is how anime companies started in the North America–fans who wanted to make it legit. It’s a history that has repeated itself times and again. It’s how human beings have done it in all of recorded history. It’s how we make more art. We just can’t outlaw that.

It’s also about working together, too. It’s pretty clear that people are willing to pay for anime, and pretty much mass media in general. The question is how to extract this money efficiently and give it to the people who produce anime, without making too much of an economic footprint that suppresses creativity. And I think fans are willing to work with companies in exploring new options to make this exchange of money for services work better. It’s natural to say that, at one extreme end, a guy can go around with a sawed-off shotgun and hold people up at gunpoint, demanding them to buy stuff; or at the other extreme just have people make and publish works for free for all, and take up a donation (although this does work for some businesses). It’s important, I believe, to have a rational dialog between publishers and consumers. It means people have to stop and listen–or else it’s just a shouting match, not a dialog. At any rate, this ongoing dialog will help to figure out what works for us as fans and businesses, and what doesn’t. A site like AoDVD, IMO, is what we need, but it shouldn’t just stop there. And of course we have other tools in our disposal beyond just that, and we should use them.

That’s not to mention many creators and animators are fans themselves, naturally. Invariably legitimizing fandom legitimizes creators, as well. I think this is a necessary step to incorporate and bring closer the distance between creators and people who appreciate those creators’ works. For example, the ongoing dispute (did it end?) between Rowling’s plans to publish an official Harry Potter encyclopedia clashed with plans to publish a book version of the Harry Potter Lexicon, the premiere fan site which even Rowling herself used as a reference in working on the books. It’s just another unfortunate example that the copyright industry we have in place today doesn’t jive with the shrinking distance between fandom and creators, squeezing and trespassing onto the middleman’s territory. Sure, thankfully this will never happen in the US for anime because most anime companies are poor, but it shouldn’t even be an issue. Imagine if Nausicaa.net decided to publish a book on Studio Ghibli and got shut down by Disney? Hmm, I guess it’s not impossible.

Anyways. In a nutshell, I think fans and companies can only work together to deal with issues like fansubbing and doujinshi when we honestly confront each other in a loving way; that we are only here today because we care about the anime/manga/game/whatever we like. The legal barrier that protects the rights of the licensees only gets in the way when it is not put in light of faith in the enterprise of artistic works, but focused merely on money gained and lost. It puts the fans on the defensive and the companies the shoes of oppressors when in reality they’re just between the frying pan and the fire. Fans may be able to say whatever they want but corporate execs can’t because of these laws. It’s not to say we should discard these rights, but rights and entitlement come with responsibility and hard work that justifies them. We need laws to encourage industry practices that bend but not break. It’s not an all-or-nothing proposition; with just limited rights you can still operate a simple business model of selling merchandises and DVDs effectively, and what good is it to sit on all the exclusive rights when you can’t even take advantage of the bulk of these rights?

So to sum it up: fight for your rights. When I say fight I don’t mean cause an argument or shoot people. In a Christian context resistance starts with a death of self in the service of love for other. It’s a fight against complacency and the convenience that robs creativity. It’s a fight against greed and against the principalities of this world (like how the past clamps onto the future). It’s only violent in love. Voting with your money speaks volume louder than a meager blog post (as the good book says, “for where your treasure is, there your heart will be also”). Louder still is the silent majority who choose to not spend any money for whatever the reason. But as fans you are obligated to preach what you are crazy about–that’s part of the job description. That’s why I’ve been prodding Momotato again and again, because while he hasn’t watch a lot of shows this past year (witnessed by the 50% reduction in post count), it serves as a barometer to the health of the industry. It also works well as a non sequitur to end this long rambling thing of a post.

11 comments | posted in Modern Visual Culture, Off Topic, Popular Culture, The Law

January 8, 2008

LOL Copyright

By omo

I just have to do this every once in a while.

This post is brought to you by killing time with William Patry‘s blog. Patry is better known as a leading copyright (and I guess also copyleft) guru working as Google’s chief copyright attorney, and he keeps a pretty fat blog. And as you may expect, I’m going for somewhat Longcat here too. TL;DR warning! And most of it won’t have much to do with anime, so feel free to skip towards the bottom.

Continue reading

14 comments | posted in Blogging, Off Topic, Popular Culture, The Law