With respect to measures, which restrict images from being viewed by means of encrypting images to transmit them in a way that requires decryption by a viewer installed on a specific viewing device for which a license is issued, of the “Technological Restriction Measures” set forth in Article 2, Paragraph 7 of the Unfair Competition Prevention Act prior to its amendment by Act No. 54 of 2015 (the “former Unfair Competition Prevention Act”), the wording of “interfering with the effectiveness of the Technological Restriction Measures” set forth in Article 2, Paragraph 1, Item 10 of the former Unfair Competition Prevention Act does not require a function of disabling said measures themselves, while performing the function of decrypting images required by said measures, and for a program which is integrally incorporated in the installed viewer as its component, has a function of preventing decrypted images from being recorded and stored, and makes it impossible to view decrypted images by a viewer other than the installed viewer, it is sufficient to disable such a function and make it possible to record, store, and view decrypted images using a viewer other than said installed viewer.
In this case, the Supreme Court rejected a final appeal on the ground that the reasons for the final appeal do not correspond to any of the grounds listed in Article 403 of the Code of Criminal Procedure which was filed against the high court judgment of second instance in the criminal case (the Osaka High Court Decision of December 8, 2017 [Case No. 2016 (U) 596]) which held that the Defendants’ act of providing consumers with the program named “KOMISUKE 3” was committed for the profit-making and damage-causing purposes set forth in Article 21, Paragraph 2, Item 4 of the Unfair Competition Prevention Act, and constituted an act of unfair competition set forth in Article 2, Paragraph 1, Item 10 (currently Item 17) of the former Unfair Competition Prevention Act.
Regarding the Summary of Judgment, the Supreme Court made an ex officio judgment that the program in question is considered to correspond to a program with the function of “interfering with the effectiveness of the Technological restriction Measures” in that the program in question disables not the “Technological Restriction Measures” themselves, but the function of preventing decrypted images from being recorded and stored by the software named “Q Guard” which is used together with the “Technological Restriction Measures” by means of encrypting images, and makes it possible to record, store, and view decrypted images by using a viewer other than the authorized viewer.
【Keywords】Article 2, Paragraph 1, Item 17 of the Unfair Competition Prevention Act, the meaning of “interfering with the effectiveness of the Technological Restriction Measures”
※ The contents of this article are intended to convey general information only and not to provide any legal advice.
Kei IIDA (Writer)
Attorney at Law & Patent Attorney (Daini Tokyo Bar Association)
Contact information for inquiries: k_iida@nakapat.gr.jp