June 24th, 2012 
AstroNerdBoy 
Recently, ANN posted a small article about how illustrator, animator, and composer KANZAKI Hiro (aka: ODA Hiroyuki), who uploaded a couple of song videos to the Japanese site Niconico, which he (1) had permission to do and (2) actually drew the artwork used in said videos. However, because of the massive protectionist nature of copyright owners, Niconico made Kanzaki-san prove he had the rights to do what he had the rights to do. As such, Kanzaki-san has decide to no longer post things to Niconico. Be that as it may, this incident opened my eyes to something very scary and dangerous which most of us have just accepted without question — when it comes to alleged copyright infractions, we are all guilty until proven innocent.
In the U.S. and Japanese rule of law, those accused of a crime in a criminal proceeding, or of some wrongdoing in a civil proceeding, are considered innocent until proven guilty. That means that it is the burden of those bringing the charges, whether the State or other entity, to prove their case. In a criminal proceeding, the guilty threshold is high while in a civil proceeding, the guilty threshold is a lot lower (at least in the U.S. courts). That’s to protect citizens from being harmed by their Government (and why in the U.S., the founders made provisions for public defenders to further protect citizens from their Government), and to protect people from just being wrongly accused of misdeeds. It is a good system and one worth protecting, period.
Unfortunately, both here and in Japan, the giants of the entertainment industries have heavily lobbied their respective governments, passing stupider and stupider copyright laws in an attempt to protect dying industries or industries that are rapidly changing due to consumer demands. In other words, rather than see the demands of their customers and strive to meet those demands while getting paid in the process, these companies run to the Government to get laws changed so that these companies don’t have to accommodate their customers, and thus the consumer becomes the enemy. It is an old story, and one that goes back to the founding of the United States and beyond (a future Piracy Wars post will cover this aspect).
The result of all this is that large, copyright owners now demand that others enforce the copyright owners’ materials rather than the copyright owners doing it themselves. Further to this, to enforce their will on others, such as You Tube or Niconico, copyright owners threaten them with massive lawsuits. Since there are a lot of ignorant judges out there (and in Japan, it is apparently worse because convictions are supposedly king, no matter what), combined with ignorant politicians of any party who are more than happy to take some campaign contributions and let the entertainment industry write laws to protect themselves. SOPA anyone? So, places like You Tube and Niconico install systems to try to protect themselves against copyright infringement, thus creating a system by which all are guilty until proven innocent.
Sadly, especially for us in the anime and manga fandom community, we’ve bent right over, grabbed our ankles, and accepted this guilty until proven innocent aspect that has come into our legal system. Our attitude has been one of, “well, it is not a problem if you aren’t doing anything wrong.” I’ve been guilty of that thinking as well, more so in my younger years, but even now, I haven’t questioned this policy by which the war on piracy has been fought. That is, until now.
Seriously, would you allow Big Entertainment to install spy devices on your TV, DVD/BD player, computer, etc. in order to check to see if you had pirated materials? Would you let them install cameras and listening devices to see and hear if you were even conspiring to obtain or distributed copyrighted materials without permission? Just how much of your freedom and privacy will you give up in order to catch those evil copyright violators, who’s crimes against humanity are apparently worse than child rape?
Let us assume for a moment that you are a completely law abiding citizen who’d never do anything to violate copyright laws. Is it OK for them to look at everything else you are doing in the name of looking for a crime you aren’t committing? With them looking at your personal habits and the like, what then happens to the data that is mined? What happens if this data is captured by hackers? There are all kinds of evil and unscrupulous people in the world, and as it is right now, too much information is gathered about us each an every day by governments and private organizations.
Innocent until proven guilty means that even if someone is caught with a bloody knife in their hand, stabbing a victim to death, and screaming, “DIE BASTARD! DIE!”, they are still presumed to be innocent of the crime they are accused of and have to be proven guilty in a court of law. Obviously, in the scenario I just described, such a conviction would be easy. However, it also means that in order to protect the innocent, a guilty person sometimes goes free. It may suck, but in the U.S., the Founding Father’s believed that it was better that a guilty person walk than an innocent person be punished for a crime they didn’t commit. If you want to know how the guilty until proven innocent mindset can ruin an innocent person’s life, read about the Richard Jewell case sometime, where he was basically tried and convicted in the media when in fact, he was innocent.
Copyright owners, rather than do their own work on defending their copyrights, and being resistant to rapid changes in the world of entertainment that are wanted by their customers, have instead sought protectionist laws from the Government, and demand that others do their work for them. This has resulted in a guilty until proven innocent policy, and one which is a dangerous and slippery slope to be on. After all, for something as trivial as copyright violations to be in this state and accepted by the people, what other “crimes” could be nudged through and accepted as guilty until proven innocent? As Kanzaki-san discovered, although he was innocent, the system found him guilty and demanded he prove otherwise. That should never be allowed to happen, nor should it be accepted! People are supposed to be INNOCENT, and force the copyright owners PROVE the guilt of alleged violators.
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I completely agree with your overall position, but you’re making a logical mistake by mixing together presumption of guilt, Big Entertainment seeking protectionist laws so that criminal charges can be brought, and private companies adopting excessive measures to avoid getting sued or prosecuted.
If something is criminalized and you’re prosecuted by the Government instead of getting sued privately, presumption of innocence and the burden of proof beyond reasonable doubt apply. There is no presumption of innocence in civil proceedings and there is no legal presumption of guilt in companies enforcing their policies. If you don’t distinguish between these cases, you jumble your argument. It may not matter much here because you’re preaching to the choir, but it’s still something best avoided.
Yeah, I should have been clearer.
Honestly, the entertainment industry is made of a bunch of greedy pigs. They just want us to use and see things in their way. Of course, you already mentioned that part. If they did the reverse of what they are doing now, there would be less piracy. After all, the three strikes rule imposed in France did not even help the entertainment industry, even though it did stop piracy.
The industry is quite irritating to be sure. Piracy is down in the U.S. due to higher levels of legal means of accessing content online.
Good thoughts. I wrote something similar in a post a while back how physical media is phasing out in favor of digital distribution, and the big media corporations are trying desperately to hang on to the “old way.” Even with our “innocent until proven guilty” ideal, there are times when innocent people do get punished and guilty people go free. Everything’s a double-edged sword unfortunately.
Well, there is the double-edged sword thing, but it is better here than in some places. I’ve heard some really bad things coming out of Japan, where the need for a conviction seems to trump everything.
@Yumeka, re: digital distribution.
Interesting. I’ve been planning on writing an article saying the opposite: rather than phasing out, physical media is here to stay, and that the future will continue to be a mixed physical/digital market, probably well into the second half of the 21st century. Three major points: 1) There is still tremendous demand for physical media, and therefore the supply side of the equation will remain, 2) the CD is still relevant even a decade after the iPod debuted, thus showing that even in industries it affects most, digital is taking forever to “replace” anything, and 3) even in the year 2012, fully a third of U.S. households lack broadband access, to say nothing of other issues related to a digital infrastructure. Of course, there are tons of other issues surrounding the whole physical vs. digital debate (ownership & control issues, First-sale doctrine issues, strengths and weaknesses of physical and digital), but suffice it to say that I believe a digital-only future is nothing more than a tech-geek fantasy. The “old ways” of distribution aren’t still around simply because of “desperate” media corporations, but because of basic economic laws like supply & demand. As long as there are people either unwilling or unable to go digital-only (I’m one of the former), physical media won’t be going away.
I agree that intellectual property laws have expanded far beyond the Founders’ intent when the Copyright Clause of the Constitution was crafted. The first copyright law was the Copyright Act of 1790, which provided for a maximum copyright term of 14 years, renewable for a second term of 14 years for 28 years total. For the next 119 years, there would be only one other federal copyright law: the Copyright Act of 1831, which, among a couple of other things, extended the terms of copyright (maximum term of 28 years, renewable for a second term of 14 years). However, with the advent of media corporations in the 20th century, things began to change rapidly. We’ve seen copyright terms expand dramatically with copyright term extension acts passed in 1976 and 1998 (the latter known as the “Sonny Bono Act” and sometimes as the “Mickey Mouse Protection Act,” as Disney lobbied heavily for its passage since their mascot was on the verge of entering the public domain). That which constitutes criminal infringement has been greatly expanded. We’ve also seen the passage of ever more restrictive laws like DMCA, and now we have SOPA and PIPA, which, fortunately, have been shelved (for now…). Sites like YouTube now routinely pull videos (or mute their audio) because of the fear of possible civil or criminal liabilities, even when the content in question is ostensibly protected by fair use/parody provisions of modern copyright law.
The purpose of copyright is, according to the Constitution, to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors … the exclusive Right to their respective Writings…,” but when that clause was written, I sincerely doubt they had planned for IP law to have expanded to the scope and degree it has. I don’t think Madison, Jefferson, et al., were thinking of copyright terms well in excess of 100 years, often held by corporations (and the modern corporation, which is effectively immortal and is technically a construct not of the free market but of the stat, didn’t really exist in the late 1700s). Copyright law originally existed to give authors and artists protection and exclusivity rights to incentivize them to create their works and make a profit from them. However, I fail to see how Disney making sure Mickey Mouse never falls into the public domain (and thus continues making money for them into perpetuity) is congruent with the original intent of 18th & 19th century copyright law.
Unfortunately, the laws we have now are on the books thanks to armies of lobbyists and lawyers, and they’re going to be hard to get rid of without a massive, concerted effort by a citizen movement (no, I’m not talking about “Stick it to the man! Pirate everything!” or DDoS attacks by Ano- *ahem* “You-know-who”, but rather about responsibly protesting and petitioning the government for a redress of grievances). If it were up to me, the terms applied to all currently existing works would remain, but they would no longer be subject to extension, and copyright durations for all newer works would be scaled back (preferably to 1831 levels) to ensure that there will continue to be such a thing for the public domain (which under current law effectively only applies to works made at least a century or more ago; few if any 20th century works are public domain). I’d also reduce the scope of what constitutes criminal infringement (mainly, by limiting it to industrial-scale infringement such as that perpetrated by The Pirate Bay), if not outright make infringement a purely civil matter. Fair use provisions would also be greatly expanded and strengthened.
(continued from above due to post size restrictions)
Now, I would be remiss if I neglected the other side of the equation: the pirates themselves. Despite my gripes with current copyright law, the Constitution does provide for protection of intellectual property. IP law in and of itself can and does have a legitimate purpose, which I outlined earlier, and authors, artists, and so forth should be allowed to make money off of their work if they so choose, and should have adequate legal protections in place to ensure that they can. People who upload and/or download pirated material are not noble rebels who are, like some New Age Hippie, “sticking it to the man.” For lack of a better word, they’re thieves (i.e., someone who takes something that isn’t theirs without paying for it). There is nothing admirable, cool, or otherwise positive about piracy. Now, I am willing to make certain exceptions, such as when a particular work is not legally available in one’s region (many anime and manga never get licensed, even in the modern era of internet streaming, thus I think downloading fansubs and scanlations of unlicensed series, while filling a legally grey area, should have a blind eye turned towards it). But if a work is legally available to you in your region you either A) consume it via legal distribution channels (e.g., watching on TV, buying the DVD or book, streaming from Hulu, etc.), or B) do without. Nobody is entitled to free entertainment. Period. Maybe, just maybe, it’s probable that some of the most restrictive anti-piracy laws might not have ever come to pass if people simply didn’t pirate, but the fact that piracy does exist and on a massive scale gives ammunition to media conglomerates to use. If piracy couldn’t be demonstrated to be anything more than a rare occurrence that has no practical negative effect on anyone’s bottom line, then bills like SOPA might not have ever found their way to the floor of Congress in the first place.
Regarding piracy, I know where you are coming from, but the term “piracy” is one that causes me problems, outside of those making pirated DVD’s and selling them, or pirated sites and selling access to anime/manga/whatever. The reason I have this problem is that whatever entertainment industry has used this term like a club for a VERY long time. The publishing industry used to decry the selling of used books as “piracy.” Recording music off of the radio was “piracy.” Recording TV shows for later viewing was “piracy.”
When it comes to fansubs, today there are less “fansubs” and more “lets steal the crummy Crunchyroll subtitles and redistribute the anime for everyone who can’t access Crunchyroll, or for those who don’t want to be restricted by Crunchyroll.”
As to “free entertainment,” I would say that consumers get “free entertainment” all the time. Yes, someone paid for the broadcast TV views, and the broadcast radio views (which is why the music and video entertainment industries decried recording stuff off the air as piracy), but not the end user. If I borrow your anime DVD’s or your manga collection, am I not getting “free entertainment?” You paid for it, but I’m enjoying it for free.
I’d also say that when it comes to downloads, the industry is using false numbers. For example, if 1,000,000 download a movie, the industry will immediately say, “We lost 1,000,000 sales to piracy.” However, because it is not in their interest to do so, there is no counting of the people who either already own said movie and downloaded a copy for whatever reason, or who decided to go out and purchase said movie after having watched a downloaded copy. So, if half of the people went out and purchased the movie, the piracy problem is suddenly no where near as bad as stated.
Also take people who cover songs from anime or dub them. They put ‘original song from so and so, by so and so, these English lyrics by me’, and yet the videos are still taken down, and their account still gets strikes. Whatever happened to the days where you could just sing and upload, and never have to worry about copyright?
Companies became more intolerant.
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