Dutch Court Rules That Freely Given Fan-Subtitles Are Copyright Infringement

from the can-you-translate-that? dept

For some reason, there has been a sub-war raging for more than a decade between anti-piracy groups and fans who create free subtitles for content so other regions can enjoy that same content. While much of this war has been fought for years on the anime front of all places, the conflict has spread to mainstream movies and television as well. And it is a painfully dumb war to fight at all for the content creators, whose publishers have failed to provide the subtitle translations that are obviously in demand, and which would open up new markets at no cost for them. Instead, they typically choose to scream “Copyright infringement!” at these fans instead.

In the Netherlands, one group of fans that creates free subtitles in this way took BREIN to court to have its work declared kosher. Unfortunately, the Dutch court appears to have drunk the BREIN kool-aid on how fan subtitles are the bane of the entertainment industry and used only by pirate-y pirate types.

The Free Subtitles Foundation, after coming under fire from the Netherlands’ anti-piracy association BREIN, decided to raise some money and take BREIN to court. The Foundation’s lawyer told TorrentFreak that the lawsuit sought to clarify whether the creators of a TV show or movie can reserve the right to create and distribute subtitles.

And indeed, that’s exactly what the court ruled: that subtitles can only be created and distributed with permission from the rights holders. Doing so without permission is copyright infringement, and thus punishable with either jail time or a fine, depending on where you live.

Now, FSF took this to court because BREIN has a habit of threatening fans who create these free subtitles. It’s important to draw the distinction that this is about copyright here, because the key point in all of this is that BREIN does not have to threaten fansubbers at all. This isn’t trademark law. There is no requirement to police this sort of thing. This kind of action only makes sense if either fansubs are a true danger to the entertainment industry or if BREIN and other anti-piracy groups are in the habit of seeing dangers everywhere they look and picking unneccesary fights.

One of those is certainly true. Fansubs, long vilified by the content industries, have actually been shown to open up entire new markets for content where the creator or publisher didn’t bother to create subtitles for those markets. And, taking a step back, the very, very simple fact is that fansubs wouldn’t be needed at all if those same subtitles were offered up by the publishers themselves.

Much like file sharing websites themselves, actually policing subtitle sites will be difficult. Just look at the world of anime fansubbing, which has been under fire for more than a decade but is still going strong—or, in some cases, has shifted to just straight-up anime streaming websites with baked-in English subtitles. A better solution might be for content creators and distributors to release officially subtitled content simultaneously worldwide, much in the same way that some big American TV shows and movies are now being released in Europe and Asia at the same time, rather than a few months or years later.

What fansubs actually do is serve as free market research for content publishers to determine where additional demand for their content is geographically. A freely given fanmade subtitle to a movie or show is only necessary when content providers don’t provide it first. The product is not serving the market in which the subtitles will be used, which makes targeting them for copyright infringement all sorts of silly.

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Companies: brein

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Comments on “Dutch Court Rules That Freely Given Fan-Subtitles Are Copyright Infringement”

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41 Comments
aerinai says:

Free the Subs!

What I really wish was that there was an open API that would allow a user to create subtitles and add them programmatically to video on a legitimate service (e.g. netflix, hulu, etc).

There’s a lot of reasons for this other than just the obvious it-doesnt-exist-in-a-language-i-need. I’ve seen deplorable ‘official’ subtitles that ruin shows. I’ve seen anime subs that do ‘translations’ where it takes a serious anime and turns it into a comedy (think MST3K). Also having descriptive subtitles for cultural differences or for commentary are a valid use case; no different than actor commentary on movies.

I will agree that these types of use cases are few and far between, but there is an untapped market of creativity that could be unleashed if it were easy to use and on a legitimate service.

Anonymous Coward says:

Re: Free the Subs!

It is the remix culture that is the larger issue. Most people would love to have more control over content and what is worse: The whole issue of people wanting better abilities to remix the content is already partially dealt with if you buy it on a CD, which makes downloading pirated films that much more of a subpar solution! Instead of the content getting found as infringing, the better solution would be a compromise where people are free to remix all they want without having to know the way platform x works (absurdly ie. Youtube do not operate according to the specifics of laws in lacking the protection of content uploaders in cases of potential infringement).

Anonymous Coward says:

Re: Free the Subs!

” I’ve seen anime subs that do ‘translations’ where it takes a serious anime and turns it into a comedy”

Presumably, only accurate 1:1 translations would have any chance of falling under copyright laws. Parody is definitely not copyright infringement in the slightest sense, and other gross mistranslations from the original text, even if unintentional, should receive some degree of similar legal protection from charges of copyright infringement.

However, the film studios could make the claim that unsanctioned translations are degrading their work, hurting their reputation, and thus causing future economic loss. It’s not a meritless claim. Since the silent film era, scripts were changed and scenes re-edited to accomodate the different moral taboos and perceived tastes of various non-native audiences. Film studios naturally don’t ever want to give up that control when releasing films in targeted international markets.

It might seem artistically “dishonest” to consumers and fans that films can be tweaked and reworked at any time by studios as they see fit, but let’s keep in mind that the studios see their content not as some kind of sacred scroll, but as a commercial venture with the goal of maximizing profit in each of every possible market and venue, artistic consistency be damned. Fansubs and other internet-age innovations simply don’t fit into that kind of old-school business model in which the corporation maintains absolute control over everything.

Anonymous Coward says:

It’s not about piracy and it’s not about financial loss. It’s about CONTROL. Content holders simply think that if they don’t deem something of theirs worthy of being made available then it should not be available, period. They want the power to offer and the power to withhold something. Not because its unrestricted availability causes them great losses – but because they want it to be their decision and their decision alone…

BernardoVerda (profile) says:

Re: Re: Re:

"Which is why copyright enforcers and supporters are so against fansubs, because it shatters their narrow worldview and convinces governments against giving them funding."

At first I considered this statement to be, basically, pure snark.

But upon reflection, I suspect that this interpretation does indeed correctly and precisely identify a major element in the "content industries" motivations.

Gary says:

What is interesting to me is that they have extended copyright to a work that doesn’t actually exist.
The fansubbers are creating a Dutch translation of the movie. Before they do this, there is no Dutch translation to copyright. They are creating an actual work that didn’t previously exist. So what is BREIN claiming to have copyright over?

Anonymous Coward says:

Some day some smart person will invent a Star Trek style replicator making it possible for everyone to have everything they need or want. But the tech will surely be locked away with IP protections.

The richest man in the planet will prolly buy up the tech, replicate money, weapons and robots and then proceed to take over the universe.

Hollywood actors are always saying how they think everyone should have free healthcare, college and various other liberal ideas. But their desire for IP protection might be the one thing that prevents such a utopia.

Wendy Cockcroft (user link) says:

Re: Re:

I concur, for the most part.

I could certainly make a conservative case for free healthcare (public/national interest; savings for businesses) or free-in-some-cases college (fill skills shortages with our own people instead of relying on foreign skilled workers).

Utopia, though? Human nature wouldn’t let that happen. IPR is but one of the things that gets in the way.

Anonymous Coward says:

Re: Re:

“Because we are perfect in every way, and if you don’t like something we’ve graced you with, well you’re a dirty criminal that needs to be punished.”

These people don’t care about the reason you didn’t buy their latest work. In their minds, the crime you are guilty of is not paying them. Therefore you must be punished. Dislike, lack of money, lack of availability, illegality, purchased second-hand, etc. are all irrelevant. You didn’t give them money, so you are guilty period.

This is not “harm” in any sense of the word. The only thing that could be, is the “harm” that their egos feel about their wallet not getting fatter quick enough, or someone else’s wallet being fatter than theirs. Neither of which justifies in any amount the level of legal threats, actual harm, or artificial restrictions they impose on others.

David says:

What did you expect?

Of course fan-subbed movies are cutting into the entertainment industries’ profits. In our near post-scarcity society, the limited resource is not the money people are willing to spend on movies but the time they are able to spend on movies. And given today’s bombastic crap, you can’t blame them spending their time on composted material rather than straight from the source.

That’s why the main use of 95+ year copyrights is not to sell the old stuff (how much can you demand here really?) but to bury it in order to free up boredom resources to be spent on more expensive new stuff.

PaulT (profile) says:

Yet another example of the industry attacking their own fans to try and protect a service they’re not adequately supplying to begin with. Do some people use fanmade subtitle services to add value to their pirated movies? Sure. Is this the only use for them? Not by a long shot.

“A freely given fanmade subtitle to a movie or show is only necessary when content providers don’t provide it first”

It’s been said above, but this isn’t strictly true. Some fan translations are simply better than the official ones – partly due to cultural and other references being missed/screwed up, sometimes due to them simply not paying enough and ending up with a shoddy translation from someone who doesn’t care and rushes it off in an afternoon. I’ve lost track of the number of VHS tapes I saw (some officially released in the UK, some imported) back in the day where the subs were either laughable Engrish or just so badly composited they were barely legible. To the point where I simply stopped buying titles from certain distributors because I knew they’d be terrible even if I enjoyed the movie itself. If fansubs were possible at the time, maybe I’d have bought them anyway.

The end result is essentially the same – people don’t go looking for fansubs if the official version is available – but it’s worth noting that it’s sometimes because they do such a poor job of it that people who care about their product have to step in.

Anonymous Coward says:

Re: Re:

People don’t buy subs. People do not "pirate" subs. Subs without the movie are useless. There is no market for subs. You might argue the "pirated" movie is a financial loss. But, hey, is you need subs, you probably have acquired the movie anyway. If you "pirated" it – the subs are irrelevant – the "loss" has happened anyway (not much of it, as the movie was not available in the market). If you bought it – there is no "loss" at all.

PaulT (profile) says:

Re: Re: Re:

“People don’t buy subs.”

Not directly, but they’re certainly an incentive for people to buy a product. As I mentioned, they can also be a disincentive if not done properly.

“People do not “pirate” subs”

Well… in a roundabout way they do. People create the subs without authorisations from the copyright holders. The dialogue is copyrighted as part of the script. So, in theory the subs are infringing copyright (i.e. pirated) in the same way as me writing a version of a Harry Potter book in another language would still count as “piracy” even though I changed the language.

Again, I’m not saying it makes sense, but that’s their argument.

“If you “pirated” it – the subs are irrelevant – the “loss” has happened anyway”

The argument appears to be that the subs encourage piracy and that people would simply buy the legal version if the subs weren’t available.

Like most industry arguments, it’s nonsense that falls apart when you examine what people actually do, but there it is.

Anonymous Coward says:

Re: Re: Re: Re:

Yes, legally it is "piracy" (well, infringement). To be as terse as possible, the translated "sub" is technically a derived work distributed without permission (that’s really the infringement part) from the copyright holder.

You can legally translate a copy of any work you own a copy of but only for personal use. You can’t distribute that translation, even non-commercially (and defining what is non-commercial is a whole different can of worms).

Also IANAL but I did hit enough of these issues to kind of know the basics.

mattshow (profile) says:

Re: Re:

On what grounds though? There are plenty of legitimate criticisms to be made of how the industry is handling this situation, but the court’s role is not to decide whether it thinks the industry is doing a good job. The court’s role is to interpret and apply the law. If, under the law, this is copyright infringement then the court’s decision was entirely correct.

Techdirt may not agree with the law, or with industry’s use of it, but if the court correctly applied it then there’s nothing to appeal.

Wendy Cockcroft (user link) says:

Re: Re: Re:

Fair use/de minimis, on the grounds that nobody’s making a profit, the translation is not negatively affecting the profitability of the movie, and the fact that it offers a commentary on the original script by way of translation.

I realise the last point is a bit of a stretch, but any port in a storm, eh?

mattshow (profile) says:

Re: Re: Re: Re:

And is any of that relevant in Dutch copyright law?

Most of those wouldn’t be relevant in an analysis under Canadian or US law (the only two copyright laws I really claim to be familiar with). I can’t see how it’s de minimis – it’s literally a translation of the entire script of the movie.

Again, I understand not liking the law or the way companies use it, but I just any clear indication the court applied the law incorrectly.

Anonymous Coward says:

Nothing new here. Modern copyright enforcement has shifted from fighting actual damages to “potential” ones.

True, copyright gives them the right to do so, but at the same time copyright was never meant to be a tool for region locking.

Selling staggered distribution rights makes sense when you have to ship out & drive tonnes of (expensive) media but nowadays it’s just remnant bullshit.

Even without digital distribution, discs cost pennies to press & ship. Staggering I know but you CAN buy physical discs online.

Content owners could hire their own translators.
Or they could work with these fans.
They don’t not, not for lost profits, mind you, but petty politics.

PaulT (profile) says:

Re: Re:

“Even without digital distribution, discs cost pennies to press & ship. Staggering I know but you CAN buy physical discs online.”

Honestly, I think that’s half of what started to drive the problems people had with digital movie distribution. From living in the UK during the early days of DVDs – it wasn’t unusual for movies to be available for import from the US before the UK cinema release. Extras were routinely stripped off between the US and UK DVD release, either make room for dubbing & subtitles in 20 languages because region 2 happened to include those countries or so that they could get away with using cheaper media (e.g. flipper discs rather than dual layer). The packaging was usually noticeably shoddier, especially compared to some Asian releases.

So, lots of people in the UK started buying the better, cheaper, quicker releases from overseas. The industry’s reaction to this? Improve quality of local stock? Reduce prices to a market level? Not shoehorn 20 languages people clearly didn’t need when all they wanted was the same content as the US release? No, it was to try and introduce more stringent checks on region codes to break older multiregion DVD players from using them.

Their idiocy and attacks on their own customer base predate the panic over digital piracy. In fact, it can be argued that this treatment of their paying customers is why nobody feels too bad about not paying them for their inferior products. If people were feeling so ripped off and underserved by the decisions of the industry when they had physical good and finite space, why would they suddenly fall in line in a time when they can just create the content they feel is missing?

Tim Kuik (profile) says:

This is opinion without knowing the facts. These subtitles were only making translations for pirate copies of popular English language content, working together with a release group. Often US pay-TV episodes just before their same day release (Sunday evening in US, Monday in NL). Then they sued BREIN to get a stand alone right to subtitle without consent. They did not get it. Subtitles for any niche product like Japanese anime were not at issue. If anime producers agree to fansubbing then there is no problem because then there is consent.

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