(Near) death of a salesman

After a decade of dealing with illegal digital downloads, Japan's music industry turns to the law for help


Amit started downloading music when he was 16 years old in India.

“In a place like Japan, where virtually everyone has access to the Internet, it is easy to sell music over the Internet,” Amit says. “People here don’t mind; they’re used to paying for stuff. I’m not.”

Throughout the decade, Amit has downloaded hundreds and thousands of files containing movies, Western music, J-pop and Indian tunes. All of them were available at the click of a mouse via peer-to-peer file-sharing networks such as eDonkey, LimeWire and BitTorrent.

Now 26, Amit, who requested we use a false name so as to avoid trouble at his place of work, lives in Japan and says he doesn’t download as much anymore because it’s unnecessary. The latest music and films are readily available through online-streaming services, so he doesn’t need to store them on a hard drive.

Without first listening to the content, Amit says he can’t decide whether he likes the music or not “There has to be exposure. Music has to be exposed to the public,” he said, adding that downloading has turned him into a fan of many kinds of music that he would never have encountered.

Amit is the kind of fan the music industry has come to dread.

“I don’t feel guilty about it,” he says. “After downloading, if I really like the artist and feel like I have to pay him or her something, I do go buy the CDs.”

This past decade’s digital revolution has been a nightmare for record labels around the world, as their copyrighted products have been freely distributed to massive audiences.

Shawn Fanning found himself the bane of the Recording Industry Association of America (RIAA) when he created the Napster file-sharing service in 1999. Napster was shut by court order in 2001, but users found their fix in services such as Audiogalaxy, Soulseek, Kazaa and more recently, MP3-blog aggregator The Hype Machine.

After Napster shut down (though it has since came back as a pay service), the industry continued hitting back hard. In the United States, 12-year-old Brianna LaHara was targeted by a RIAA lawsuit in 2003. After downloading more than 1,000 songs on song-swap service Kazaa, she faced a maximum penalty of $150,000 per song. The RIAA eventually settled in 2004, the first of 261 lawsuits, for a total of $2,000 — $2 per song.

Meanwhile in Japan, Isamu Kaneko, a former University of Tokyo researcher and developer of file-sharing service Winny, was named in a lawsuit that accused him of assisting two people who were arrested in 2003 for uploading copyrighted products through the service. The Kyoto District Court found him guilty and fined him ¥1.5 million in 2006; but, the Osaka High Court acquitted him this October, stating it could not be proven that he created Winny to encourage copyright infringement.

On Nov. 30, Tokyo’s Metropolitan Police Department, working with their counterparts in nine other prefectures, arrested 11 people nationwide for violating the current Copyright Law by uploading music and movie files through file-sharing service Share. Among the arrested were people who were secondary uploaders, meaning they did not upload the original material but by using file-sharing software were passing on what they had already downloaded.

Starting in Jan. 2010, copyright and downloading in Japan will enter a new stage, because the revised Copyright Law will go into effect. The law prohibits people from downloading illegally uploaded files if they know that those files are “illegal.”

Until Dec. 31, people are allowed to download illegally uploaded files as long as they are for private use. For instance, you are allowed to download music and transfer the data to a CD to listen to or share with family members or friends.

Files that will be prohibited for downloading are defined as “recorded” materials, which include music and movie files that have been uploaded without the permission of copyright holders.

Comics and computer software will not be included, but some video games with clearly copyrighted content will be prohibited too.

The Copyright Law revision does not enforce any punishment for violators, since it can be hard for rookie Web surfers to know whether or not the files they are about to download are legal or illegal. Because of this, some Internet-related groups and journalists are wary of the revision’s effects.

Yet the move is being praised by the Record Industry Association of Japan (RIAJ) and Japanese record labels, who claim sales have been damaged by illegal distribution. They believe this revision allows them to send out a clear message: Downloading illegal music files is unacceptable. On Dec. 6, the RIAJ held an event in Tokyo’s Shinjuku district to promote the Copyright Law revision. Music heavyweights such as hitomi, Hilcrhyme, Tiara and some of the members of top-selling pop group Exile attended. However, at an event about illegal downloading, the artists didn’t mention anything about the topic and instead spoke about what they’ve been up to recently.

The artists’ lack of lecturing was made up for by RIAJ Chairman Keiichi Ishizaka, who opened the event by telling a crowd of about 8,000 people that illegal downloads are financially hurting musicians and that it is possible musicians may not be able to continue their work due to a lack of financial resources.

“Illegal distribution has spread more widely than expected,” Ishizaka said. “Stealing is not good, and you have to pay when you buy something. The revision of Article 30 of the Copyright Law is about realizing this basic principle.”

Ishizaka was followed by John Kennedy, chairman of the London based International Federation of the Phonographic Industry, which represents national record industries around the world. He said that some people may think file sharing is a problem for massive record corporations, not hardworking musicians.

“The fact is that music companies are the major investors in artists’ careers,” he said. “You may be able to put your music onto MySpace, but fans have to know about you before they will seek it out.”

Kennedy stressed the role music companies play in funding recording, producing music videos and promotion is an investment corporations make. But now, “this virtuous cycle of investment is under threat.”

According to a government-panel report, the number of illegally distributed files via peer-to-peer file-sharing networks was estimated at around 503 million, while legal distribution was 44 million in 2007.

Another popular way for people to acquire free music files, especially in Japan, is via cell phones. The RIAJ has said the number of illegally- distributed files on cell-phone Internet services was 407 million in 2008 and that the total for legal music-file downloads was 329 million.

“Considering the (illegal downloads) data, although the exercise of right could originally be applied to uploaders by law, it was discussed that it was not enough,” says Yuka Otomi, section chief of the Office for Copyrighted Works Distribution at the Agency for Cultural Affairs.

The world’s online music distribution market is valued at about ¥600 billion, and Japan’s market is about 20 percent of that figure, according to Seed Planning Inc., a Tokyo-based market researcher.

Legal music downloads for cell phones have been a growing market and a significant size of record-label profits. The market saw ¥90.5 billion sales in 2008.

However, market growth has been slow for the past year, and the RIAJ says that illegal downloads are the main contributing factor.

RIAJ research shows that younger people are more likely to download illegally uploaded files. In a recent study, 63.6 percent of cell-phone users aged 12-15 said that they have downloaded such music in 2008.

Despite the lack of an outline of punishment in the revised Copyright Law, the revision is still seen as progress for copyright holders to protect their works. The move, however, is not seen as positively by many Internet users.

When the a Cultural Agency subcommittee discussed the revision for an interim report in 2007, the agency sought input from the public. They received 7,500 comments, an unusually large number, and most were negative.

When the revision passed in the Diet last June, some Internet users voiced their confusion on Japan’s largest online discussion board, 2channel.

“I don’t really have a lot of money, so it would be troubling,” one commenter wrote.

“Regulating those who upload files and not asking anything in return violates their good intent,” another commenter said. “The regulation should be imposed on only those who are making money through illegal distribution.” Many 2channel users plan to download what they want by the end of the year. Other users question what they could or could not download under the new law — for instance asking if it would be illegal to watch popular video-streaming Web sites such as YouTube or Nico Nico Doga. (The revision does not prohibit viewing and listening to illegally uploaded files via video-streaming sites.)

Still, some on 2channel remain confused over whether or not they can be sued for downloading illegal files.

Daisuke Tsuda, a media journalist and representative of Movements for Internet Active Users (MIAU), a Tokyo-based organization that strives to create an environment suitable for Internet users, told The Japan Times that it would be unlikely that copyright holders could sue fans and win, because it would be difficult to prove whether people had knowingly downloaded illegally uploaded files.

MIAU submitted their opinion to the government and criticized the revision, saying it would create many unwitting criminals who have unknowingly crossed the legal line.

“One thing is that downloading (free) information is a characteristic of the Internet,” says Tsuda. “For some users, it is unclear whether the information (that they download) is legal or illegal.”

Asked if the revision could curtail illegal distribution, Tsuda said the number of illegally uploaded music files for cell phones will probably decrease in the short term, but he guessed that it will eventually grow again.

Tsuda added that the music and film industries in Japan need to make better efforts to create services that can attract consumers’ attention, such as Apple’s iTunes service. He said restrictions would only distance the music industry further from the fans, “The piracy measure should be approached from both angles (creating both restrictions and better services).”

Amit, the downloader, says he did not know about the Copyright Law revision and believes that since Japanese people are law-abiding, it is possible many of them could stop downloading, especially if the revision was widely campaigned.

But at the global level and for himself, he says, it does not really change a lot.

“It is impossible to stop technology,” Amit says. “Technology is far more advanced, and you can’t stop people from sharing music.”