Decision of the Supreme Court in the Winny criminal case

March 5,2012

Winny is a peer-to-peer file-sharing program developed by a certain Japanese individual. According to the 2006 report by the Recording Industry Association of Japan, more than three million people had tried Winny, and it had become the most popular file-sharing program in Japan. In 2003, two Japanese users of Winny were arrested and accused of sharing copyrighted materials via Winny and admitted their guilty of criminal copyright infringement. Then, the individual developer of Winny was also arrested and accused of aiding criminal copyright infringement by the users through developing Winny and providing the same to the users.

Then, in the Winny criminal case, although in 2006 the Kyoto District Court convicted the accused and sentenced the same to pay a fine, in 2009, the Osaka High Court overturned the decision by the District Court and denied that the accused’s act of developing Winny and providing the same to the users constitutes an accessory to a principal under Article 62(1) of the Penal Code of aiding criminal copyright infringement by the users. In doing so, the High Court established the standard which is favorable to a developer of a new program which would or would not be used by a user for criminal copyright infringement.

Then, on December 19, 2011, the Supreme Court found that the accused had no intention required under Article 62(1) of the Penal Code of aiding criminal copyright infringement by the users and affirmed the decision by the High Court as a conclusion. However, the Supreme Court denied the standard established by the High Court and established its own standard as follows:

　　It is reasonable to consider that an act of a person making newly-developed software (the “software”) available and providing the same to the public would constitute an accessory to a principal under Article 62(1) of the Penal Code of aiding criminal copyright infringement by the users, only in the case where

i)　the person makes the software available and provides the same to the public even though the person has specific knowledge that criminal copyright infringement using the software will actually be committed, and in fact said criminal copyright infringement using the software is subsequently committed, or

ii)　in light of the features of or objective status of utilization of the software or method for providing the software, it is considered highly probable that among those who obtain the software, a number of people which cannot be considered to be exceptional will use the software for committing criminal copyright infringement, and the person makes the software available and provides the same to the public even though the person is aware of the high probability, and in fact said criminal copyright infringement using the software is subsequently committed.

　　Applying the foregoing to this case, it is recognized that when making Winny available and providing the same to the public, the accused was aware that there were people who would use Winny for committing criminal copyright infringement and the number of such people had increased. However, there is not sufficient evidence to prove that the accused was aware that Winny had become widely used by a number of people which cannot be considered to be exceptional for committing criminal copyright infringement, and thus that it was highly probable that a number of people which cannot be considered to be exceptional would use Winny for committing criminal copyright infringement if the accused made Winny available and provided the same to the public.

The above standard established by the Supreme Court is not necessarily clear, although it seems to be less favorable to a developer of a new program which would or would not be used by a user for criminal copyright infringement. Therefore, the scope and impact of the decision by the Supreme Court shall be carefully studied from both sides of a copyright holder and a software developer. Further, the standard for a civil case after the decision by the Supreme Court for the criminal case shall also be carefully studied from both sides of a copyright holder and a software developer.

(End)

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