Japan's Top Court Says 45 Million Twitter Users Must Check That Anything They Retweet Is Not A Copyright Infringement

from the yeah,-that's-feasible dept

Earlier this year, Techdirt reported on an extremely serious development in the world of Japanese copyright, with a new law that will make copyright infringement a criminal offense. Now the country’s Supreme Court has issued a ruling that will make using Twitter in Japan more of a risk, legally speaking. The case concerns a photo of a flower, originally posted on a web site in 2009, with the photographer’s name and copyright notice. As often happens, the photo was then tweeted without the photographer’s consent, and was further retweeted. The problem is that Twitter uses “smart auto-cropping” of images, with the aim of focusing on “salient” regions, and thus increasing the likelihood of someone looking at and engaging with the tweet. Twitter’s auto-cropped version of the photo did not include the photographer’s name or copyright notice.

As TorrentFreak explains, the photographer was not happy with these tweets and the trimmed versions of his image, even though the original photo showed up if viewers of the retweets clicked on the cut-down photo. He took legal action, and the Tokyo District Court found that the original posting of the flower had indeed infringed the photographer’s copyright, but dismissed the photographer’s demand for the identities of the people who re-tweeted the image. The photographer then took his case to the High Court division dealing with copyright matters in Japan. It agreed there had been a breach of copyright, and found also that the people posting the cropped image on Twitter had violated the photographer’s moral rights because his name had been removed. As a result, the Japanese High Court ordered Twitter to hand over the email addresses of all those who had posted the image.

Twitter appealed to Japan’s Supreme Court, arguing that the cropping of the images was automated, and therefore not under the control of users. According to TorrentFreak, the company warned that a judgment blaming Twitter’s users could have a chilling effect on the platform in Japan. Nonetheless:

In a decision handed down yesterday, the Supreme Court ordered Twitter to hand over the email addresses of the three retweeters after finding that the photographer’s rights were indeed infringed when Twitter’s cropping tool removed his identifying information.

Four out of five judges on the bench sided with the photographer, with Justice Hayashi dissenting. He argued that ruling in favor of the plaintiff would put Twitter users in the position of having to verify every piece of content was non-infringing before retweeting. The other judges said that despite these problems, the law must be upheld as it is for content published on other platforms.

It’s not clear what the photographer intends to do with the email addresses, but the larger problem is that the ruling makes retweeting images on Twitter much more of a legal risk for the service’s 45 million users in Japan. Taken together with the earlier criminalization of copyright infringement, this latest move is likely to discourage people in Japan from precisely the kind of creativity the Internet has helped to unleash. Japan will be culturally poorer as a result — just as the EU will be, thanks to the unworkable upload filters that are about to be introduced. And all because copyright fanatics seem to think their concerns must take precedence over everything else.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

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Comments on “Japan's Top Court Says 45 Million Twitter Users Must Check That Anything They Retweet Is Not A Copyright Infringement”

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Wyrm (profile) says:

Re: Re: Re:

It would be cheap for the copyright holders.

They would just leave the cost of enforcing to the police, as if police was not already overburdened with tons of work that have nothing to do with police.

Effective, it will certainly not be. But I doubt copyright holders would bat an eye at police shooting down suspected copyright violators. Imagine them breaking down your door and shooting at you because you have a computer mouse (aka "dangerous blunt weapon") in your hand.

Anonymous Coward says:

Re: Re:

Laws are just words if not enforced. Georgia has quite a few of those, iirc.

And that’s not even treading on morality. In that regard, I’d put the photographer’s moral right behind the moral obligation of a healthy society to share freely without hassles. I’m aware that’s a far cry from copyright law.

crade (profile) says:

Re: Re: Re:

laws are corrupting if they not enforced.

If we create a law that says one thing (regardless of whether you personally think it’s a good or a bad law.) and the judge says that law is stupid I’m going to pretend the people did not decide on that law democratically and do what I want instead, even assuming the judge is actually being honest that [s]he thinks the law is wrong and not doing it because of illicit motives [s]he is just choosing their own opinion over what the people decided together.

Anonymous Coward says:

Re: Re: Re:

in this case "moral right" is the name for a set of legal rights (i think the name is originally French), though IMO honest attribution is the only one which is beneficial to society.

As for twitter users, in the short term twitter could turn off auto-cropping, and in the long run they could use text recognition to detect watermarks and border labels and preserve them.

Jeff Green (profile) says:

but ...

Twitter has a relatively easy get out here, just stop autocropping images if doing so could cause their users a problem. I am not saying I believe (I don’t) that all such alleged infringements of copyright should be acted upon or should be able to be acted upon, merely that Twitter’s own actions, entirely voluntary actions, put their customers at risk and they do not have to.

That One Guy (profile) says:

... what pictures?

With the risk of legal action should you tweet and/or retweet the wrong picture I imagine Twitter in japan is going to become nothing but text very shortly, as few people are going to be willing to risk potential criminal penalties simply for sharing a photo, and best of all if the photographer thought they had it bad with people sharing a pic they are really not going to be happy when no-one knows who the hell they or any other photographer is because no-one dares share pictures.

Anonymous Coward says:

Good faith argument?

Assuming a case makes it to trial and is not just settled, could the defendants make a good faith argument, in that they believed the work was not violating copyright? After all, there is no reason to assume one is interacting with criminals by default. Then again, we’re talking about copyright here…

bhull242 (profile) says:

I feel like a lot of people forget that §230 also protects users of a service from being held liable for others’ content. True, this wouldn’t apply in this case (Japan and IP law), but it’s still important to remember. I wouldn’t be surprised if the DMCA has a similar provision, but I also wouldn’t be surprised if it doesn’t. Still, I think it’s generally accepted that vicarious infringement doesn’t extend that far in the US.

John85851 (profile) says:

Like drinking and driving

I compare this to drinking and driving: everyone knows there are huge penalties for drinking and driving, but how many people think about it when they drink? Okay, sure, a lot of people will be responsible and call a cab or Uber, but a lot of people don’t.

So it’s going to be the same thing: out of the 45 million Twitter users in Japan, how many will think about the consequences when they re-tweet something? Or will people assume they can get away with it? Or will they assume there won’t be much of a penalty if they get caught?

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