Category Archives: The Law

Comic Cosmology or the Future of Doujinshi

YooriStyle

First, that Wired article really needs responding, thx PPP.

Disclaimer aside, the author of that article, Jennifer Granick, is working for Stanford Law School’s Cyber-Law clinic. Did that get me interested? Heh.

I’ve read pieces about doujinshi’s role in the manga-laiden content industry in Japan. I’ve read people shopping for doujinshi in Japan (check out Shingo’s … loot). Now I’ve read the reactionary nudgenudgewinkwink of a law professor’s yaoi doujinshi shopping trip in Tokyo.

Of course, that’s not all. Wired is considered as mainstream press, to me. Doujinshi, however, is not quite a mainstream item even in Japan. It’s the crowning icon of geek fandom, as the semi-annual Comiket is the holy grail of Japanese visual culture fans everywhere. But for us who cares about things like media content cartels and the rights of derivative use of copyrighted works, it’s an anomaly.

Since Suzumiya Haruhi is the top pick for day 3 of Comiket 70, that would make a fine example: Would you allow your fictional creation, the characters, settings, and concept of a juvenile science fiction series to be pasted all over the internet in various form of sexual deviancy? How about the animators and their drawings? The character designers and their designs? The voice actors’ likeness robbed?

Well, I don’t want to know your answer to having your work’s integrity reduced–how about the fact that Shingo spent over $600 on them and a fifth (I didn’t look at his loot pic closely) of the doujinshi he bought ($120) was pornographic, Suzumiya Haruhi doujinshi? Multiply that by, say, 120000 (a rough estimate of attendees on the third day)? Ok I know the numbers are way off and they’re estimates, but it’s still there to make a point: The reality is that in North America, that kind of profit making is not possible; at least not without a big, fat lawsuit attached.

Yet that is just not the case at Comiket, or the doujinshi scene generally. Creators often turn a blind eye to that. The behavior is reinforced when many of the creators themselves are a part of the doujinshi scene. The top two people for the Comiket committee are both professionals in the field; a manga critic and a manga editor for a major publisher. That’s not to mention the number of circles run by people who are professional mangaka, illustrators, designers, animators, etc.

Or the number of “professional” doujinshi circles, for that matter. People can make a living off this? That would be news to me if it didn’t make way too much sense. Even if for the most part doujinshi is inexpensive–usually size of trade paperback comics, and often with some colored pages, each going for about 1000 yen–it also doesn’t take a whole lot to produce one.

And here is where I totally kudos Granick’s second point: a creative environment fosters creative people when they’re allowed to innovate on other people’s intellectual works. It’s a careful distinction I’m making: it’s not about having the bread-cutter and bread so you can invent sliced bread, but being able to use knives, breads, chicken, widgets, and whatever so you can learn how to invent crap as a skill, and being able to make your creation relevant at least to a significant amount of people.

Indie artists and indie comic artists know how hard it is to break in. It’s kind of a serendipitous event that I’m so familiar with Megatokyo, because that could be considered as one of those webcomics that has kinda made it. And how so? It hitched a ride on roads paved by others. At least, if the road construction crew known as Air, Kanon, Martian Successor Nadesico, Bubble Gum Crisis, the concept of shoujo manga, and many other did pass by you, something like Megatokyo might ring a bell.

Indeed, it’s about harvesting that nexus of popular culture in order to web in an audience. It’s totally undeserving, but on the other hand it’s artistic expression at the edge of everything to fill in a vacuum untouchable by the legalities of copyright law and the common practices of copyright IP licensing. Just how do you make a pornographic version of Super Mario Bros crossed with Final Fantasy 7? Yet I’m sure there’s a significant demand for that, you sickos.

The nodnodwinkwink is really just that: America’s content producers and distributors: drop it already. You’re never going to reap where you are never going to sow, so why not let freedom of speech reign? Why not let culture develop like culture does? It fosters creativity! If you worry about integrity, you can still make a point out of that–Japan’s doujin scene is very good about that kind of ethical codes (unlike English-language fansubbers, sadly)! Besides I think any sensible individual knows to keep their Melfoy x Harry Potter yaoi somewhere where the sun don’t shine, and we can just tar & feather those insensible ones anyways.

Second, the future of Comiket.

Talking to a friend who talked to some of the Comiket committee people makes me understand that Comiket itself is just like any other convention structure that you’d expect. Considering the sheer size and the kind of obsessive behavior they have to combat, they actually have quite a tough time. On one hand, the recent years of Comiket had the local riot squad and FD handy at the event, just in case something breaks out; that’s not to mention the scores of security people they hire and the medical people. On the other hand they have to combat things like crime because the overnighters (people who camps out at the Big Sight from the day before) are usually loaded with cash (well, that goes for all the Comiket shoppers), attracting gangsters. Not to mention it’s just a big pain in the ass to anyone who lives near Tokyo Big Sight and the surrounding transit system.

But troubles aside, it’s still the pinnacle and heart of the Japanese doujinshi scene. While doujinshi and the like are sold all year round, in stores as well as in other cons and market gatherings, there’s already that legendary aura around this event. It’s still the de facto commercial end of operations, drawing clubs, circles, veterans and nubz alike. If someone were to pull a calculator and did a net revenue thing, it would yield an impressive number. Even with the fact that the doujinshi scene gets away with rubbing copyright law, it’s becoming a large enough of a thing to worry some corporate interests.

And of course, there’s just a problem with its sheer size. It’s hard to run a con that huge. Otakon capped its attendence in knowing that to run a con that’s even bigger it would require some significant change in its costs, characteristic, venue, and/or organization. From its humble beginning, Comiket went from 750 attendees to its fire-hazardous mass today. The real attendence is sketchy since they’re tallied on a per-day basis, to form a total of 420000 for C70 this past weekend. Obviously a lot of people went on more than 1 day, so there’s a lot of double or triple counting.

Still, one must contemplate the eventual end of Comiket. I’m in no place to guess how it will end and why, but it can’t go on forever. Has it already gone Red Giant? Will it go dwarf or nova next? These are exciting times indeed.


Casulties of War

Hanabi is copyrighted, but sad gothloli in france is probably patented, too.

Last week, the potentially landmark lawsuit LabCorp v. Metabolite got dropped from the US Supreme Court. The three dissents were hell bent on kicking patentability back a notch, and I am with them. However I think everyone who is actually practicing patent law would prefer to let the sleeping beast sleep for some more.

But I guess we shouldn’t speak too fast. In the mid-to-late 1900s we’ve had some serious caselaw over what is obvious in respect to what can be patented. Needless to say it’s a big, grey mucky area that no one can say for sure all the time. As a subscriber of the future curve theory of social and scientific progress, I feel like a war profiteer, going into this industry during such a time of unrest. Indeed times have changed, will our jurisprudence remain?


Nothing Is Obvious

Patentable Subject Matter

It’s just Patently-O, but this and this bothers me.

Seriously, though. Is it really lawyers and judges’ place to make this kind of decision? I really don’t think so, simply because I respect what patents are ultimately trying to do.

Ok, it’s a little dated, but hey.


Killing them softly with his sweet opinion♪

Adjudicator Ciel

This past Monday, the landmark patent law case, eBay v. MercExchange, was decided by the US Supreme Court. You can find the complete slip opinion here. Many other patent law blogs summarized the issue to its extremities and fine grain details, but you can look at it as one of the key battles between so-called patent trolls and big tech corporations in summary.

Surprisingly the Supreme Court came out with a fairly centrist opinion but ruled in favor of eBay (kind of) to vacate the appeals court decision. One of the axioms of the US Supreme Court in the mess that is patent law today was that each Supreme Court opinion messes with the overall structure, harming rather than helping patent litigators, prosecutors, investors and inventors. Why is that? It’s hard to say in short but it might have to do with making laws in the vacuum.

Thankfully this opinion isn’t likely to alter the landscape of law too much. While weakening what injunctions are for patent infringers today, the opinion seemed more corrective than authoritative. The normal elements of injunctive relief is still fully available as they were for decades, and at the discretion of the trial court. The two concurring opinions were very informative and Chief Justice Robert’s opinion re-nailed the opinion of the court:

“The decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards.”

The standards, on that note, are:

“(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. “

The surprise is just how the Supreme Court justices couched their positions. It seemed that this is one thing that the various justices tend to agree with, given its unanimous decision with two heavily-joined concurrences. Probably slightly less than exciting, overall, was this case given the hype it had. And all is good.


Law of the Blog?

Do you think, for us American bloggers with our sites hosted in the US, with an English, non-discriminating (aside from subject matter) audience, are we entitled to our First Amendment rights? Do we violate copyrights by including caps, lyrics, quotes from other texts (commonly other blogs, news, wikis, etc)? How about music? Designs (like a WP theme)? How about flaming and things like that?

IMO they’re all valid questions–just where the line is drawn? Obviously there’s little in terms of previous instances where a court said something. Blogging is generally new. We all know the Internet is the super copyright infringement machine, and even in that area of law the dust is far from settling. The niche that bloggers belong to seems like the least of all worries. Just how marketable are blogs? I guess they are as long as you’re not comparing them to selling CDs and DVDs.

I don’t have any real answers. What I’m trying to get at is that are two opposite but converging perspectives to look at the issue: free speech versus copyright. At times these two views are in conflict, but that’s rare; usually they mind themselves. But just when should good faith and interest in free expression overcome commercial interests?

After all, ultimately as long as you’re not just doing detail summaries with screen caps, you are probably putting a lot of copyright-able material into your blog. That’s good. It’s important to cite back either with a simple text saying where, or a trackback, or whatever, when you cop something. It is good to avoid plagerism. But neither is the case we worry about usually; or rather, it’s the opposite. We don’t want to be just merely pawning off pretty pictures from anime to “generate a lot of site traffic” or merely retelling a textual by-the-book synopsis as a public resource. There may be places for that, but are those uses “fair”? Is the world a better place without blogs telling you what’s hot in Japan so you can infringe copyright in a smart and efficient manner?

I don’t know. But it’s good to look on the other side of the coin every now and then.