Introduction of Court Precedent – Denial of unity between posted video excerpt from the plaintiff’s video and an article quoting the posted video, and approval of establishment of copyright infringement by the posted video

1. Introduction

A case in which copyright infringement was contested (Case No. 2021 (Wa) 27488) will be introduced.

The case is related to SNS (Twitter), and will serve as a reference in presenting problems related to recent information transmission.

2. Overview

In the present case, the plaintiff demanded disclosure of identification information of the sender to the defendant, who ran a telecommunications business, alleging that the plaintiff’s copyright (public transmission right) and moral rights (right to maintain integrity) had been violated by the posting of excerpts from the plaintiff’s copyrighted video to Twitter.

When the court approves the demand for the disclosure, information for identifying the sender will be disclosed to the plaintiff, and it will become possible for the plaintiff to file a lawsuit for copyright infringement against the sender. One of the requirements for the demand for the disclosure to be approved is that there be an adequate reason (here, copyright infringement can be established) for the disclosure.

In this regard, the court ruled that the plaintiff’s copyright was violated by the video posted to Twitter and that the plaintiff can demand disclosure of identification information of the sender to the defendant.

3. Case Summary

(3-1) Posting of Video by Plaintiff

The plaintiff posted a video (hereinafter, referred to as “this Video”), which was its own work and copyrighted, to YouTube.

(3-2) Posting by Sender

The sender posted two videos (hereinafter, referred to as “the Posted Videos”) excerpted from this Video, as the Respective Posts, to Twitter by way of the defendant’s specified telecommunications facilities.

The sender further posted an article (hereinafter, referred to as “Dft. Ex. 3 Article”) that criticized this Video, and posted the Respective Posts, alleging that the Posted Videos are “excerpts” of this Video, using a web service other than Twitter.

(3-3) Disclosure Procedure of Identification Information of Sender Pertaining to Dft. Ex. 3 Article

The plaintiff filed a petition with the Tokyo District Court for a provisional injunction against note inc. as a debtor with respect to the send information pertaining to Dft. Ex. 3 Article.

The plaintiff and the Sender made an agreement (hereinafter, referred to as “this Agreement”) that (i) the Sender would delete Dft. Ex. 3 Article, (ii) the plaintiff would withdraw the above petition after the deletion of Dft. Ex. 3 Article, and (iii) the plaintiff would promise not to demand disclosure of identification information of the Sender to note inc. with respect to Dft. Ex. 3 Article.

This Agreement contained the office address and the name of each representative attorney, but does not contain the name and address of the Sender.

In this Agreement, there was no clause to the effect that the plaintiff’s claim for damages against the Sender will be settled.

4. Issue

(4-1) Clarity of infringement (Issue 1)

(4-2) Eligibility of disclosure-related service provider (Issue 2)

(4-3) Presence or absence of justifiable reason (Issue 3)

5. Judgment of Court

(5-1) Issue 1 (Clarity of infringement)

In response to the defendant’s allegation that it is not clear that the plaintiff’s rights were violated by the Respective Posts, as the Posted Videos were legally “quoted” (Article 32(1) of Copyright Act) in Dft. Ex. 3 Article, the Court ruled as follows.

“The Posted Videos were uploaded to Twitter as the Respective Posts. Although the Posted Videos are associated with Dft. Ex. 3 Article by a link, etc., each post to Twitter is expected to be viewed independently due to the nature of the service. In light of these circumstances, it is reasonable to consider that the Posted Videos were publicly transmitted independently from Dft. Ex. 3 Article, which was posted using a web service other than Twitter. In that case, it cannot be said that the Posted Videos are legally “quoted” in relation to Dft. Ex. 3 Article.

Even if it may be understood that the Posted Videos were integrally transmitted to the public at least in relation to the Respective Posts, the Respective Posts only include the Posted Videos together with the titles “B’ Verification Video Digest 1” and “B’ Verification Video Digest 2” and have no mentioning of criticizing the contents of the Posted Videos or specifying the source of the Posted Videos. Moreover, there is no clue to supplement the contents of Dft. Ex. 3 Article, such as a link to Dft. Ex. 3 Article. In light of these circumstances, the Posted Videos are not legally “quoted” even in relation to the Respective Posts.

It is clear that at least the plaintiff’s copyright (public transmission right) was violated by the Respective Posts”.

(5-2) Issue 2 (Eligibility of disclosure-related service provider)

In response to the defendant’s allegation that, unless there is a special circumstance such as there being temporal proximity between posting of infringing information, like the Respective Posts, and the login, it should be understood that the identification information of the Sender does not correspond to “identification information of the sender pertaining to the violation of the rights”, the Court ruled as follows.

“If a person who logged into the account is deemed to have sent the information pertaining to infringement of rights, it is reasonable to consider that the identification information of the sender pertaining to the communication at the time of login falls under “identification information of the sender pertaining to the violation of the rights”, even if there is no temporal proximity such that this is a login immediately before or after sending the information related to infringement.”

“The identification information of the sender pertaining to the communication identifies the Sender who violated the plaintiff’s rights, and corresponds to “identification information of the sender pertaining to the violation of the rights” in Article 4(1) of Provider Liability Limitation Act.”

(5-3) Issue 3 (Presence or absence of justifiable reason)

In response to the defendant’s allegation that the plaintiff promises not to demand the disclosure of the identification information of the Sender pertaining to Dft. Ex. 3 Article and that the plaintiff’s demanding the disclosure of identification information of the Sender pertaining to the Respective Posts contained in Dft. Ex. 3 Article circumvents the promise and has no “justifiable reason”, the Court ruled as follows.

“This Agreement is nothing more than a promise that the Sender will delete Dft. Ex. 3 Article and the plaintiff will not demand disclosure of identification information of the Sender to note Inc. for Dft. Ex. 3 Article. It is not agreed not to demand disclosure of identification information of the Sender to the defendant for the Respective Posts.”

“The plaintiff’s demanding the disclosure of identification information of the Sender does not circumvent this Agreement, and its necessary and reasonableness can be approved”.

6. Observation

The Sender uploaded the Posted Videos excerpted from this Video posted by the plaintiff to Twitter, and further posted Dft. Ex. 3 Article in which the contents of the Respective Posts were mentioned, alleging that the Posted Videos were “excerpts” of this Video using a web service other than Twitter. Although it is approved that Dft. Ex. 3 Article mentioned that the Posted Videos “quote” this Video, the Posted Videos contained no mentioning of quoting this Video.

The present case is a judicial decision showing the judgment as to whether such a situation falls under the category of “quotation” as defined in Article 32(1) of the Copyright Act. The Article 32(1) defines that “It is permissible to quote and thereby exploit a work that has been made public. In such a case, the work must be quoted consistent with fair practices and within a scope that is justified for the purpose of news reporting critique, study, or other place in which the work is quoted.”

If Dft. Ex. 3 Article is read, it may be possible to understand that the Posted Videos quote this Video, but the Posted Videos themselves have no mentioning of quoting this Video. Also, the Posted Videos can be viewed independently regardless of whether or not Dft. Ex. 3 Article exists. Thus, it was judged that this Video was not legally “quoted”.

If it can be understood that this Video was quoted by viewing only the Posted Videos, the Court’s ruling may have changed.

Edited by Shoichi Miyamoto

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