I'd like to try reading Supreme Court precedents on a whim as a way to learn about myself, though it's not the most appropriate direction for a business blog, the type that makes money by posting ads.
Note: This article is written by a non-lawyer for his own study, and the quality of the information in this article is not guaranteed.
089597_hanrei.pdf (courts.go.jp)
The first issue is
Case No. 1412 of 2008 (Receiver) requesting disclosure of sender's information, July 21, 2020 July 21, 2020 Third Petty Bench Decision
This is the judgment of the Third Petty Bench on July 21, 2020. You can download the text of the judgment from the Supreme Court page.
089597_hanrei.pdf (courts.go.jp)
This is a very important information for those of us who publish information on the Internet (probably almost no one who reads this blog).
Let's take a look at it.
This is also known as the retweet case.
1、Tweeting another person's photo without permission (with the name removed)
2、In response, the copyright holder of the photo (photographer) asked Twitter to disclose the information of the person who made such a tweet, claiming that his right to display his name was violated.
3、The disclosure includes retweeting the tweet with the name removed from such a photo.
This is the much-talked-about ruling that you can be sued just for retweeting.
To be precise, in the thumbnail state, the part where the name can be displayed is cut off due to Twitter's specifications, and if you click on the original file, the name is displayed, but it is not visible.
If you click on the original file, your name is displayed, but it is not visible. To put it simply, the problem is that the name display was not visible.
There are two copyright issues in this case (I will talk about the Provider Liability Limitation Act later, but let's start with copyright alone)
The first one is that "the retweeters in this case are using the copyright infringing works by retweeting this case.
The first is, "Since the retweeters in this case did not use the copyrighted works, they did not "provide or present the copyrighted works to the public" under Article 19, Paragraph 1 of the Copyright Act.
In other words, the retweeters simply passed the information from right to left, and did not use the copyrighted work, which cannot be called copyright infringement, right? In short, the retweeters were simply passing information from right to left and not using copyrighted materials.
The second one is, "Users who browse the web pages in question
The second one is, "Users who browse the web pages in question can see the original image with the name in question by clicking on each of the displayed images in the retweeted articles in question.
The second question is, "Since users browsing the web pages of this case can see the original image with the name part of this case by clicking on the displayed image of this case in the retweeted article, the retweeters of this case can say that the author has already
Therefore, the retweeters can be said to have "indicated the name of the author in accordance with what the author has already indicated" (Paragraph 2 of the same Article).
Therefore, it can be said that the retweeters in this case have "indicated the name of the author in accordance with what the author has already indicated" (Paragraph 2 of the same Article).
In other words, the author's name is already displayed because the author's name can be confirmed if you want to see it. In other words, the author's name is displayed because you can check the name if you want to.
As for the first, the court said, "It is reasonable to conclude that the 'offering or presentation of a work to the public' in the same paragraph does not require the use of the work pertaining to the above right. This is what the Copyright Act calls "offering or presenting a work to the public.
In other words, if the work is made visible to the public, it is not a question of whether the work is being used or not, but whether it can be seen or not.
As for the second, I'll pull out the underline and the different part.
In the second case, I will pull out the part that is different from the underline.
The user who browses the web pages in question will not be able to see the author's name unless he or she clicks on each of the displayed images.
The users browsing the web pages in question will not see the display of the author's name unless they click on each display image in question. In addition, if the user normally clicks on each of the display images in question, the author's name will not be displayed.
In addition, there are no circumstances in which it can be said that the user usually clicks on each of the display images. It is true that the user can see the images by clicking on them, but the destination of the click is another web page, and the user has to jump to the destination after all, so it cannot be said that the images are displayed at the original place. In addition, the fact that users usually click on it cannot be said to be common.
A critique of copyright: Hmm, that's a tough one. As for the first one, it is very difficult to determine what constitutes use, and it seems reasonable to "interpret that it is not required to be through the use of the copyrighted work," and I think there are many things that cannot be determined without doing so. I think it's a good idea if it's in a situation where the public can see it (which is also difficult, actually...).
The second problem is the first. The second problem is what to do if everyone goes to the same site, even if it is a different site.
It's easier to think in terms of books. Sometimes a quote goes across the page and the citation information is on the next page. Of course, books are usually read on the next page, so if your name appears on another page, but not on this page! ＝This is not a copyright infringement. However, it is a question of how many people read the index or "References" at the end? That is the question. However, in the case of books, this is accepted as a fair practice, so even if there is a list of references and works cited at the end of the book, there is no problem of copyright infringement. I think it is interesting to contrast this with the retweet case. I wonder what would happen if it was common for people to read the links as well, or if this kind of split display was common (as in books).
I think that the so-called "fair practice" of the Internet itself has not yet been established, and it is necessary to establish rules on what kind of quotations are allowed.
Next, about the Provider Liability Limitation Act
There are three points of contention.
The first one is that "the transmission of the Linked Image Display Data by the retweeters in question does not infringe the appellant's rights by the distribution of the said data itself, and therefore, the rights of the appellant are not infringed by the distribution of the infringing information" under Article 4, Paragraph 1, Item 1 of the Provider Liability Limitation Act. Isn't it true that the transmission of the link image display data by the appellant does not satisfy the requirement of infringement of rights "by the distribution of infringing information" under Article 4(1)(i) of the Provider Liability Limitation Act? This is what I mean. It may sound difficult to say, but the point of contention is that the distribution of data such as retweets does not mean that the interests of copyright holders are infringed.
The second is, "Since the retweeters in this case did not record any image data, which is the information that directly infringes the appellant's right, on the recording medium of the specified telecommunications equipment, they do not fall under the requirement of "sender of infringing information" in the same paragraph. This is a difficult way of putting it. This is also a difficult way of putting it, but even if you retweeted, you did not record it on the recording medium, did you? That's what I mean. The "sender of infringing information" is supposed to be the one who records it in something and transmits infringing information from there, so a person who just passes it from right to left is not transmitting infringing information. The third one is that "the person who transmits infringing information" should be the one who transmits infringing information.
The third one is "Regarding the infringement of the right to name by the retweets in this case, the above two requirements cannot be satisfied at the same time, but the judgment of the original trial that these requirements are satisfied is an error in the interpretation and application of the Provider Liability Limitation Act. This is what I mean. This is to say that the judgment of the original trial was wrong because both data distribution and transmission of infringing information cannot be satisfied at the same time. The court's conclusion was that the original judgment was wrong.
The court's conclusion on this is
"Regardless of the subjective recognition of the retweeter, the retweeter of this case, by retweeting this case, has created the linked image display data, which is the link to the original image file and the specification of the way to display the image, as described in Section 1-2(5) above. By doing so, the linked image display data pertaining to the link to the original image file and the specification of how to display the image are recorded in the recording medium of the server pertaining to the web pages, which is a specific telecommunications facility, and sent to the user's terminal, thereby causing the server pertaining to the URL for saving the image file, which is the link destination, to send the data of the original image to the terminal. In this way, it infringed the right to display the name of the user by having the data of the original image sent from the server of the URL for saving the image file to the terminal, which is the link destination, and having the terminal display each of the displayed images in a trimmed form according to the above-mentioned specification, resulting in the state where the part of the name display is not displayed. In this case, the rights of the appellant were infringed by the distribution of the Linked Image Display Data. In this case, the appellant's rights were infringed by the distribution of the Linked Image Data.
In this case, the appellant's rights were infringed by the distribution of the Linked Image Display Data.
The retweeters in this case are the ones who recorded the "infringing information," the Link Image Display Data, on the recording medium of the specified telecommunications equipment. The following is a summary of the case.
Let's break it down.
First of all, (1) "each retweeter, regardless of his or her subjective perception" means that the subjective requirement is not questioned. This is understandable, but it is scary for those of us who use Twitter, because we usually feel that we are not thinking when we retweet. I think it would be good to have a malicious intent requirement (knew), or at least a bona fide no-fault requirement (didn't know that the tweet was copyright infringement and had no way of knowing about it). I think there is a difficult issue of how to look at bona fide negligence (I didn't know, but I was negligent in not knowing) on the Internet (you can search for it and see if it is "illegal" or not).
I'm sure you'll be able to find a lot more information on this subject in the future.
In the event that you have any questions, please do not hesitate to contact us.
In addition to the fact that there is a lot of information available on the Internet, there is also a lot of information available on the Internet.
(5) "The retweeters in this case can be said to be the ones who recorded the Link Image Display Data, which is the "infringing information," on the recording medium of the specified telecommunications equipment.
Therefore, the conclusion is that the retweeting can be said to be the transmission of infringing information and the recording on the recording medium.
In a word, I think the conclusion is that a retweet is still a transmission of infringing information.
In the end, retweeting is also a form of information transmission, and it is not acceptable to retweet without thinking about whether the original content infringes copyright or not.
However, as mentioned in the supplementary opinion, I think this is a bit inconvenient for users. Even though it is assumed to be a mixed bag, there are ways to use retweets instead of notes (I do that too). Is it difficult to find out if all of them are copyright infringements? Google it, of course! but to such an extent that the name is not visible in the thumbnail in the first place, even if you know the right to display the name, you may make an OK decision because you can see it by clicking on it.
So, in the end, I think Twitter needs to take responsibility, or at least filter out copyright infringing content (and slander, although it is difficult to say) to a certain extent, or at least display a checklist when tweeting or retweeting, and have users check it. I think it would be difficult to do so because it would be less convenient and it is not part of the concept of a free Internet....
It was a difficult precedent.
Unrelated thoughts: The text of the Supreme Court decision is much easier to read. The points of contention and the decision are organized in an easy-to-understand manner. It is so well organized that I wondered if it was that easy to read. I wonder if this is a part of the open judicial system and they are trying to make it easier to understand. Please keep up the good work of disseminating information!
(It really helps when the primary source is easy to understand.)
*** Translated with www.DeepL.com/Translator (free version) ***
