by Hugh Stephens
In my last blog I discussed the growing problem of online piracy in Japan, and the importance of site blocking as a potential remedy. Site blocking has proven to be a particularly effective remedy against rogue pirate sites that set up in jurisdictions beyond the reach of domestic law, as I have outlined in previous blogs on the subject (here and here), and has been adopted by more than 40 countries world-wide.
In Japan, although there is broad recognition that it would be an effective tool to use against the growth of online piracy, there are legal and cultural issues to consider. The biggest obstacle appears to be legal, namely the provisions of the Japanese Constitution, Article 21 (2) and Article 4 of the Telecommunications Business Act which relate to “secrecy of communications”. The Japanese Constitution states that,
“No censorship shall be maintained, nor shall the secrecy of any means of communication be violated”.
The Telecommunications Business Act, Article 4, states, in part,
“(1) The secrecy of communications being handled by a telecommunications carrier shall not be violated; (2) Any person engaged in the telecommunications business shall, while in office, maintain the secrets of others that have come to be known with respect to communications being handled by the telecommunications carrier. The same shall apply even after this person’s retirement from office.”
This penchant for privacy and secrecy goes back to pre-WW2 days, I was told, when the military authorities censored the press and spied on personal communications. Therefore it is both a legal and a cultural concern.
Let’s assume that the Constitution is not about to be changed to address the issue of site blocking and that Section 4 will remain on the books. How then can Japan move forward to join the growing international consensus to adopt site blocking as one important and effective tool to combat online piracy?
This was the core issue discussed at the 7th Motion Picture Association (MPA) seminar in which I participated as part of the 30th Tokyo International Film Festival. Co-organized by UNIJAPAN with the support of the US Embassy in Tokyo and the Federation of Japanese Film Industry (FJFI), the seminar was held on the afternoon of October 27. I was honoured to have been invited to make a presentation on the effectiveness of site blocking and its expanding reach globally. Others presenting and participating in the follow-on panel included Dr. Haramuchi Yuasa, Professor at the Graduate School of Information Security, Mr. Nobuo Kawakami, Chairman and CTO of Dwango Co. Ltd, and Mr. Tomohiro Tohyama, Attorney-at-Law and Partner, TMI Associates. Senator Christopher J. Dodd, Chairman of the MPA, Mr. Takeo Hisamatsu, Director of the Tokyo International Film Festival and Mr. Takayuki Sumita, Secretary-General of the Intellectual Property Strategic Headquarters in the Cabinet Office, all made opening remarks.
Two interesting lines of argument emerged from the discussions. Mr. Tohyama pursued the line of reasoning that the act of site blocking does notinterfere with privacy or secrecy of communications, and therefore concerns about violating Section 4 and the Constitution are moot. He pointed out that the installation of a site block by an ISP is similar to the establishment of a road block on a highway, preventing cars from passing through. The road block is established by the installation of a barrier placed on the highway (which could conceptually be the electronic highway that takes the user to the pirate website through the domain name server, or DNS, of an ISP.) Once installed, it is left in place to prevent traffic from passing. However the person or entity establishing the block is no longer present to inspect each car. When vehicles approach they are blocked by the barrier that has been pre-installed.
The same principle applies, according to Mr. Tohyama, with site blocking. An ISP sets in place the barrier by blocking the link that connects the user to the requested website through the DNS of the ISP. The key point is that the ISP has no greater knowledge of the user or the user’s identification whether a site is blocked or not blocked, i.e. whether the request from the user is simply passed through the internet domain searching system to connect the user to the requested site, or is not passed through. In other words, an ISP does not acquire, by virtue of site blocking, any further knowledge of information, “secret” or otherwise, that it did not already have access to prior to the block.
Mr. Tohyama has published a paper co-authored with Michael Schlesinger, Esq. which has been published in the CRIC journal (Copyright Research and Information Center). A key conclusion from the paper is that site blocking does not violate the constitution and the Telecommunications Business Act. The interpretation that it does so is faulty because it is largely built or supported by three incorrect assumptions, namely that
1) an ISP acquires, by virtue of site blocking, knowledge of secret information;
2) an ISP steals or uses, by virtue of site blocking, that secret information; or
3) an ISP, by virtue of site blocking, leaks or discloses secret information to third parties.
Professor Yuasa of the Graduate School of Information Security took a different approach to the issue. He argued, based on the precedent of how child pornography was blocked in Japan, that even if site blocking technically infringed on the secrecy of communications, that this could be justified for social reasons if the matter was sufficiently urgent. For example, site blocking is an effective tool to combat computer viruses and malware, and given the prevalence of cyberattacks, security of the internet could be one such urgent case.
He pointed out that a complication of Japanese law is that while it is possible to prohibit an action, it is more difficult to order that an action take place (i.e. institution of a block) since injunctions are not part of the Japanese legal system. However, it is important to look at what remedies are available to combat online piracy given that users know that obtaining infringing content from pirate sites is illegal. Given the underlying illegality of accessing copyright infringing materials, if other options do not work a case could be made for the institution of site blocking. One option could be for the Ministry of Internal Affairs and Communication to issue a “guideline” that would allow an exception to the secrecy of communication law. In sum, while creating an exception to the privacy and communications secrecy laws for the purpose of combatting copyright infringement would be a high hurdle to get over, if site blocking was the only truly effective measure to combat piracy, it may be possible to find a solution in Japan.
Mr. Kawakami of Dwango argued strongly for site blocking as the only effective way to prevent massive online infringement in a borderless internet.
The conclusion of the seminar was that progress is needed on site blocking in Japan now. There has been much talk of “further research” and “more study” being needed, but the case presented for the institution of site blocking to deal with growing online piracy is compelling. Whether the solution lies in achieving consensus that there is no interference with privacy or secrecy of communication as a result of the technical process used by ISPs to establish a site-block, or whether it is by finding a way around the legal constraints by invoking over-riding public policy reasons, implemented through interpretive guidelines issued by the ministry responsible, either way early action needs to be taken. The time for further study on site blocking is over; the time has come for the Japanese government to take action.