Thursday, April 18, 2013

Heated Battle between Human and Computer on Shogi

April 20, 2013 can be a special day for Shogi (Japanese Chess) fans and computer science researchers. This is the day of a battle of Shogi equivalent to the chess match between Garry Kasparov and Deep Blue when a computer chess machine defeated the chess champion. From last month there has been a five-game match between professional Shogi players and computers and April 20 is the day of the last match.

The history of computer Shogi is not short. Even Nintendo's original Family Computer had a Shogi game. However, artificial intelligences (AIs) have been considered to be weak. One important moment was March 21, 2007, when Akira Watanabe, the title holder of Ryuo (Dragon King) had a match with a computer software Bonanza. Although Ryuo Watanabe won the game, he acknowledged the strength of Bonanza, saying, "I should admit that (the level of computer Shogi) is just below the level of professional Shogi players."

Then, Japan Shogi Association ("JSA") banned professional Shogi players from officially battling against the computer. In 2010, the Information Processing Society of Japan (IPSJ) sent a letter of challenge, asking to fight against professional Shogi players. JSA first offered to fight against a professional female champion who is regarded as one the strongest female Shogi players in Japan. (Note that (although I do not know why but) female professional Shogi players are generally weaker than male professional Shogi players.) The computer software called "Bonklers" defeated the woman champion.

As a result, five matches in a row are being held to decide which is stronger. The five strongest Shogi playing AIs were selected based on the result of World Computer Shogi Championships. JSA selected, three young professional Shogi players, one ex-title holder and one top player.

The result so far has been surprising. In the first battle, a young professional player defeated the software after thorough preparation, using the software provided by the developer. But on the second and third battle, although both parties seemed to have chances to win, the computer defeated professional players, making use of the professional players' mistakes. So, the first three battle was 2 to 1 for the computers. Another defeat means that humans are weaker than computers.

On April 13, 2013, Yasuaki Tsukada, the ex-title holder battled against Puella α, the descendent of Bonanza (matched against Ryuo Watanabe). To be objective, Tsukada has been out of the "top ten professional Shogi players" for more than 15 years. And as expected, the first half of the match was at the computer's pace. Tsukada lost most of his important pieces and virtually all the viewers believed his defeat. However, he never gave up. Under the rule of Shogi, when the game continues for a very long time and it is difficult for either party to check the kings, parties are entitled to draw the match under a certain condition. Tsukada, finding a narrow hope of satisfying such a condition, continued to play for nearly ten hours and finally satisfied the condition to draw the game. Tsukada's fighting spirit moved many viewers.

On April 20, 2013, Hiroyuki Miura plays a match against GPS Shogi. A defeat would mean the defeat of humans against computers in two ways. First, a defeat would mean 3 to 1 (with one tie) for computers in this five-games-in-row match. Second, as Miura is one of the ten top professional players, a defeat would mean that computers are stronger than the top players. The match is broadcasted through an internet broadcast website, Niconico. No Shogi fans and computer science researchers interested in artificial intelligence can miss it!

April 20: Mr. Miura lost. GPS Shogi won and one may be able to say that it was demonstrated that humans are weaker than computers.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Wednesday, April 17, 2013

A Japanese Court ordered Google to Enjoin Suggestion Function

In a French case, the court ordered Google Inc. to pay damages because of harmful suggestions when users enter the plaintiff's name. This kind of case also happened in Japan.

On April 15, 2013,
Tokyo District ordered a preliminary injunction to enjoin a part of the Google's suggestion function. When you enter a key word, Google automatically suggests related keywords. When one man searched his own name, Google suggested a crime-related word with his name. As a result, users could easily search the allegedly fraudulent web articles which associated him with criminal conducts.

First, he sought a preliminary injunction (karishobun). In Japan, a preliminary injunction is granted when (1) there is a right to protect and (2) a necessity for the preliminary injunction.

In the case of enjoinment based on privacy invasion, the petitioner should at least show that (1) the tort claim is likely to stand and that (2) enjoinment is necessary for avoiding substantial detriment or imminent danger. In 2012, Tokyo District Court found both and issued a preliminary injunction. However, Google Inc. did not comply, saying that adding a search keyword is not a privacy invasion and is lawful according to U.S. laws. Therefore, he sued Google for damages and a permanent injunction. In an unreported judgement on April 15, 2013, Tokyo District Court agreed with him, awarding both damages and a permanent injunction.

As the court opinion has not been published yet, I cannot comment on whether or not the court found the rights to be forgotten and if so, in what circumstances plaintiffs can assert such rights. However, two things can be said.

One good thing for the plaintiff is that in 2012, the Civil Procedure Law was amended to clarify the jurisdiction of Japanese courts on international cases. As a result, it has become easier for Japanese plaintiffs to ask for a Japanese court to decide on the merits even if the defendant is a foreign company. This may have contributed to the victory of the plaintiff.

But one bad thing is that it is still unclear whether Google will follow the order. An American lawyer might ask whether Google's conduct is a contempt of the court. In Japan, however, there is no general "contempt of the court" concept. (Note that some actions such as hindering the court procedure are illegal under a Law Concerning the Maintenance of Order in a Court of Law.) As a result, how to enforce a court order is important in Japan. As he got a permanent injunction, after the judgment becomes final, he can seek enforcement under the Civil Execution Act. One of the possible ways is by indirect compulsory execution, which asks the court to order a monetary sanction against the defendant in compliance with the original order. (Like A shall pay B $100 per day until A stops suggesting keywords when users search "B.") But as Japanese sovereignty does not extend to the USA, the enforcement is still unclear.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Monday, April 15, 2013

Amicus Curiae in Japan

Amicus Curiae, or a friend of court, submits a brief as a third party. An amicus brief is especially important in a case where a non-sympathetic figure is involved. A judge may focus on the fact of the particular case and forget the implication the opinion has to other cases. An amicus brief can let the judge know the broader concerns around a case.

In Japan, however, there is no Amicus Curiae, although there are arguments for its introduction. For example, the Japanese Civil Liberties Union (JCLU) proposed the introduction of the Amicus system in 2009. Last year, the Amicus Brief Committee of Japan Patent Attorneys Association (JPAA) published an opinion explaining the concept, importance and challenges of the Amicus Curiae.

I believe that the Amicus Curiae can play a very important role even in Japan. One example is the Google Streetview case. In this case, as I described previously, the plaintiff was not represented by an attorney in the district court and the appellate court also dismissed her claim although attorneys represented her in appellate level. I believe that as a privacy issue of Streetview can involve significant policy considerations, the case would be very appropriate for submitting an Amicus Brief. Therefore, I agree that the Amicus Curiae System should be introduced to the Japanese legal system.

However, JPAA's opinion has some problems. For example, the opinion indicated that the Amicus Brief in Japan would be prepared without reviewing the briefs of the parties. It is true that briefs are not uploaded onto databases in Japan. (Note that briefs can be viewed at a Japanese court.) But amici in the USA sometimes ask the parties to disclose their briefs and obtain their cooperation (especially in state court cases). Even in Japan, reputable institutions can obtain briefs from the parties if the parties understand the importance of the Amicus Curiae.

Another challenge not focused on in the JPAA is who will write the Amicus Brief. The Japan Federation of Bar Associations which frequently opines on civil liberties case, and some other NGOs such as JCLU (note, however, that JCLU members are only around 600) or MIAU (Movements for the Internet Active Users) could be possible amici.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog. 

Saturday, April 13, 2013

Journalist "Cracker" and CFAA

The hottest issue of the Japanese ICT field is the "cracking" conducted by a journalist of a reputable news service. The journalist was gathering news on the high-profile fake blackmail case which I previously posted. Somehow, the journalist guessed the password of the suspect's web-mail account and browsed the inbox and other folders. As you may recall from my previous post, the Japanese version of the CFAA criminalizes the usage of fraudulently obtained ID/passwords and according to the Ministry of Internal Affairs and Communications, this password guessing was the most frequently used method of unauthorized access in 2008. So, it is likely that the conduct of the journalist is a prima facie CFAA violation. The question is whether the journalist's conduct can somehow be justified.

On this issue, the Supreme Court held that
the freedom of news gathering for the news report deserves sufficient protection in light of the spirit of the (Japanese version of) First Amendment, in In Re Subpoena against RKB Mainich Broadcast Co., 23-11 Keishu 1490 (November 26, 1969). However, that does not mean that anything journalists do would be justified.

I already posted on
one old case where a journalist who had a sexual relationship with a government official to obtain secret information was convicted. Further, in another old case, a journalist received a piece of important evidence from a criminal group and eventually burned it up (allegedly, to avoid being confused as a group member). The prosecutor accused him and he was convicted in People v. Doe, 703 Hanrei-Jiho 121 (Urawa District Court, September 27, 1972). The court stated that it was regretful that the journalist approached the information source without consideration and made intimate connections which resulted in him assisting the criminal group.

Relatively recently, two new cases were held. Although they do not directly deal with typical journalists, they are somewhat relevant. One case is an
environmental protest group case. Group members, who wanted to investigate and report allegedly unlawful whale-hunting stole a piece of whale meat. Although they argued that it was necessary information gathering, the court did not buy the argument. The court held that even an investigation for public interest cannot be justified unless conducted so as not to invade other people's freedom and rights, and convicted them. This was an unreported case of Sendai High Court on July 12, 2011.

Another case is that a journalist approached a doctor who was appointed as an expert on a high-profile criminal case and had some secret documents of the case. The doctor lent her the documents and later she wrote a book using the information. Both the journalist and doctor were arrested but only the doctor was prosecuted and later convicted. Nara District Court stated although more deliberate and careful review was necessary in the case of journalist, as the doctor accused was only an information source, the level of scrutiny is different and was thus denied justification.
People v. Doe, 2048 Hanrei-Jiho 135 (Nara District Court April 15, 2009). The conclusion of denying justification is affirmed by the Supreme Court in People v. Doe, 66-44 Keishu 405 (Feb 13, 2012).

As of now the information is scarce, and as a result, I cannot say whether the acts of a journalist "hacker" are justifiable. But three things can be said. First, prosecutors seem to respect the freedom of the press when they exercise their discretion on whether to accuse a suspect. So, there is a possibility that the prosecutors will decide not to accuse the journalist, like in Nara's secret document case. Second, once a journalist is accused, the chance of acquittal might not be very large considering the courts' attitude in two old cases. Third, the defense should focus on the distinction Nara District Court made (and Sendai High Court might have made implicitly) between real journalists and others (such as information sources or activist groups). The defense counsel can emphasize the fact that the journalist belongs to a reputable news service but, as I said, I am not sure whether this line of argument acquits the journalist. 

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Wednesday, April 10, 2013

Storing Data on a Database

One potentially interesting case recently judged in the U.S. is White v. West Publishing Corp., S.D.N.Y., No. 12-1340. This is a case where lawyers brought a lawsuit against Lexis and West because the sites stored the lawyers' briefs submitted to the courts in their databases. U.S. District Judge Jed Rakoff dismissed the lawyers' action but the judge has not issued a detailed opinion. As the question is whether Lexis and West are protected by the fair use doctrine, it is possible that the judge found there to be a transformative nature to storing files in databases.

What I found intriguing is that in Japan, the absence of a fair use doctrine forces potential infringers to argue a quite opposite argument.

In the case of fair use, the more transformative the usage is, the more likely for the defendant to win. Therefore, the defendant would argue that the files stored in a database, can be searchable by keywords or other methods,
creating an entirely new use for an original work. This tendency is seen in a famous Google Image Search Case, when the court found that "a search engine transforms the image into a pointer directing a user to a source of information [namely the thumbnails]" and found it fair use. Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1165 (9th Cir. 2007).

However, in Japan, potential infringers are arguing quite the opposite. In
Doe v. Shogakukan, 1255 Hanrei-Taimuzu 328 (Tokyo District Court, May 30, 2007), Shogakukan constructed a database to use for licensing pictures. Doe is a photographer who submitted photos to Shogakukan for their magazine. Shogakukan scanned the photos and uploaded them to the database. Doe sued Shogakukan because Shogakukan infringed on Doe's rights of reproduction.

Shogakukan argued, curiously, that it was merely for the purpose of a "back up." It claimed that the database was at the construction stage and it just uploaded the files to avoid deterioration or the loss of the pictures. It further claimed that Shogakukan has no intention of using the uploaded data. For an American lawyer, it may be viewed as denying the transformative nature of its conduct. But that is because of the no fair use doctrine. Here, we can see an interesting difference between a country with a "fair use" doctrine and a country without a "fair use" doctrine.

Tokyo District Court did not buy Shogakukan's argument. Finding that even a reproduction without any intention of using the reproduced copy can constitute a violation of exclusive right of reproduction, and it therefore found a copyright infringement.

Although there is no Japanese case of making a database of briefs, because the briefs are generally not published as in the case of the United States, if Lexis or West publishes briefs of Japanese cases in their database, they are likely to end up in trouble. (Note that in some cases, the court "attaches" a brief to the judgment as a part of its opinion but these are rather rare cases.)

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.

Tuesday, April 9, 2013

Open Access in Japan

Recently the movement of Open Access is becoming stronger and stronger. What is the situation of Open Access in Japan? 
Note that this article discusses the trend or movement toward open access in general. So, the subject of this post is not limited to an "open access journal."

In Japan, we can see the movement toward Open Access. On March 16, 2009, Japan's Association of National University Libraries Issued a "Statement Toward Open Access," which started this trend.  The Statement called for everyone involved to cooperate by offering open access to academic papers.

Many universities started repositories of papers of their journals. In Japan, universities issue journals or bulletins (kiyo), in which the papers of professors or some affiliated researchers are published. As they are in control of the universities, it is rather easy to start uploading them onto the Internet for free. Some of the repositories even include their professor's papers even though they are not published in the universities' journals. The number of repositories exceeds 200. Here is the link to the list of repositories.

The papers stored in the repositories are searchable and accessible through JAIRO's website. JAIRO is the abbreviation of Japanese Institutional Repositories Online. JAIRO announced in June 2012 that the number of papers searchable through JAIRO with free access to all contents of the paper was more than a million. This shows the popularity of open access repositories in Japan.

One of my papers is stored in a university repository. One intriguing thing is that the repository disclosed the most accessed paper and my paper, which obtains 200 to 400 accesses each month, was No.1 in February and is still No.2 in March. From this fact, you may be able to guess the ballpark figures of accesses to each open access paper in Japan.

A similar but different move is that from April 1, 2013, the Regulation on Doctoral Degree was amended and publishing online (instead of publishing by physically printing out) was mandated. 

Now the funding institutions have started to publish the papers based on their grant. A couple of examples are the MHLW grant system and Tsuboi Memorial Research Grant.

The biggest institution of academic funding, Japan Society for the Promotion of Science ("JSPS"), only discloses the reports by summarizing the results of the research, not the papers themselves. However, as the JSPS has started to research the current situations of open access in foreign countries, I hope that in the near future they will disclose all papers based on the research conducted by JSPS's funding.

On the publisher of journal's side (mostly academic societies), although there are still many publishers (more than half) which did not decide their own policy, some publishers have a positive policy toward self-archiving or disclosing the papers of their magazines in the university repositories of their authors. For example, Japan Public Law Association, who publishes a journal called Public Law Research (koho-kenkyu) allows researchers to disclose their paper either before or after the peer-review and the researchers can upload the published version of the file. Although not all the journal publishers have this kind of generous policy, the number of journals admitting self-archiving is increasing.

Although there are challenges such as the fact that the number of Open Access Journals in Japan is still small, I hope that the trend of open access continues.

Are you a student or a researcher interested in researching on Japanese law? I can assist you "for free" under certain conditions.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog. 

Tuesday, April 2, 2013

Scanning Books and Copyright Law

In the United States, scanning books is becoming popular. Google Book project and its litigation has been an important topic of discussion. There are some services such as 1DollarScan which provides a scanning service for people who hate the burden of DIY scanning. In the U.S., scanning and copyright are discussed in the context of fair use. However, Japanese copyright law has no fair use clause. 

The most relevant clause is the Private Usage clause which excludes the individual's private reproductions from infringement (Article 30). But, it is questionable whether this clause is applicable to a third party scanning business. I believe that if a mother asks her son to scan a book for her own private usage, this would be lawful because of the private usage clause, as the son is deemed to be the hands and feet of his mother. However, it is not clear whether a third party business can be regarded as such and the answer might be negative.  There is no court opinion on this point. 

Last year, famous novel writers and manga artists including Jiro Asada, Keigo Higashino, Kenshi Hirogane, and Son Buron filed lawsuits against two Japanese scanning businesses. However, one of the defendants voluntarily acknowledged its responsibility and the other abandoned its business and the plaintiffs dropped the lawsuit. As a result, no court opinions were rendered. 

A recent new movement in this situation is the establishment of My Book Digital Council last month. This is a council to establish a rule on book scanning and a scheme of licensing for the reproduction (scanning) rights of a scanning business. What is important is that three of the four main founders of the council are on the rights holder's side: The Japan Writers' Association, Japan Photographic Copyright Association, and Japan Cartoonists Association. This initiative of the rights holder for the convenience of consumers itself should be positively evaluated. This will increase the convenience of the users especially because many Japanese people live in a very small apartments. (I used to live in an apartment less than 100 sq.ft.)   

However, the main question should be the concrete contents of the scheme. For example, the council implies that the copyright holders who agree with the scheme should charge a license fee to the scanning business. But if the license fee is too large, there might not be anyone wishing to use the scanning service. In addition, if the license given is a voluntary license, there still are problems determining whether the licensor is the owner of a particular work. (This can become complicated if a copyright is owned jointly, the work is a part of compilation, or the work is a derivative work.) If the system is complicated and needs a lot of time and money, the system would again not be widely used.  One possible scheme is a compulsory licensing system where the scanning business may scan any work they want as long as they pay (or deposit) a certain amount of money which is enough to incentivize the authors yet cheap enough to enable the scanning business to offer reasonable prices for the customers.  

Yet another important issue might be whether "scanning" is the best method of achieving the same convenience.  Some may argue that attaching a digital file with a paper book and promoting the sales of digital books might be better than promoting scanning.   In any event, I believe that the topic of scanning books is very interesting.

DISCLAIMER: "IT Law issues in Japan" only provides general information about Japanese information technology law and does not, under any circumstances, constitute legal advice. You should first obtain the advice of professional legal counsel who is qualified in Japan before acting or refraining from acting based on this blog.