Japan is one-upping the U.S. when it comes to draconian copyright enforcement. The BBC reports that an amendment to Japan’s copyright law approved in June goes into effect today. The amendment imposes criminal penalties of up to two years in prison on people who illegally download copyrighted works. This law, of course, aims to deter potential downloaders and to protect the ailing Japanese entertainment industry. Both aspects of this policy — the targeting of downloaders and the possibility of imprisonment — raise interesting questions.
Targeting downloaders is difficult, as the U.S. recording industry discovered in the first half of the 2000s. Downloaders number in the millions, making effective identification and prosecution costly, and public sentiment isn’t likely to smile on overzealous industry litigation. It’s much cheaper to sue people who host infringing material or provide services that facilitate file sharing. Plus, if you can take down a file sharing service like Napster, you prevent all of its users from infringing with the service, rather than just stopping one user at a time. This is the strategy rights holders have adopted for the most part in the U.S. The danger of these lawsuits is that they endanger services less directly involved in facilitating infringement, with the ultimate consequences of chilling legitimate uses of the technology and strangling the development of new technologies which stand on shifting legal ground.
The deterrent effect of imprisoning infringers depends on two factors: the severity of the penalty and the probability that an infringer will be caught. The possibility of imprisonment certainly should have more of an effect than raising fines alone. But without widespread prosecution, the individual downloader will assume he won’t get caught. He, along with the many other like-thinking downloaders, will continue to download infringing content. Sufficiently widespread prosecution may have negative effects of its own, however. Incarceration seems a bit heavy handed, considering the relatively minor effects individual downloaders have on content creators.
Japanese uploaders of infringing content already face steep fines and jail-time. And the penalties are harsher: the maximum is ¥10 million or 10 years in jail. Apparently, this didn’t do enough to stop filesharing. Despite prosecutions of uploaders, illegal filesharing has continued to plague the Japanese entertainment industry. Now, Japan’s entertainment industry is sure that the solution to their problems is further expansion of procrustean criminal penalties.
Japan’s experiment with jail time for downloaders should be instructive to the rest of the world. Here in the U.S., we have extensive experience with large prison populations of non-violent offenders. We’ve declared multiple wars on social ills. Maybe The Land of the Rising Sun will show us that we only need to lock a few teenagers using BitTorrent up to stop copyright infringement. Maybe the successors of Jack Valenti can wage a successful war on infringement, but I’m not betting on it.