I Dreamed of Isamu Kaneko and Winny, Episode 13: The Trial, Part 5: The Acquittal
* This article is the 14th entry of the Advent Calendar 2023, 'I Dreamed of Isamu Kaneko and Winny'.
High Court Ruling
On October 8, 2009, the High Court (Presiding Judge Shozo Ogura) delivered its verdict at the Osaka High Court.
"Judgment: The original verdict is overturned. The defendant is not guilty."
A stir spread through the public gallery, and reporters rushed out. Mr. Kaneko wore an expression of relief. While the verdict was being read, Attorney Dan could be seen wiping away tears with a handkerchief.
Regarding the validity of the complaint and the issues with the method used to identify the principal offender, which the defense had challenged, the court upheld the first-instance ruling. However, Mr. Kaneko's deposition was excluded from the evidence.
Furthermore, for a software provider to be recognized as an accomplice to copyright infringement, merely being aware of the usage situation is insufficient. The court ruled that it is necessary for the provider to have promoted the software on the Internet for the sole or primary purpose of illegal activities when providing it, making this an ambitious verdict that took technological development into consideration. (*1)
At the press conference, a photo was taken of Mr. Kaneko holding a paper that read 'Not Guilty.' Although referred to by those involved as a 'banner' or 'unfurled sheet,' it was intended to inform those who could not get into the courtroom and were waiting outside of the verdict. Because a typhoon was forecast for that day, there were fewer people hoping to attend, and since everyone was able to get in, it wasn't used. However, since it had been prepared, Mr. Kaneko held it at the press conference.
Also, after the press conference, at a briefing for his supporters, Mr. Kaneko repeatedly expressed his gratitude, saying, 'Thanks to those who supported me, I was able to fight and win an acquittal. I am truly glad.' (*2)
Supreme Court Ruling
The prosecution, which had continued this mud-slinging battle, filed an appeal on October 21, 2009.
What had been considered definitive evidence was overturned, and on March 23, 2010, a serious 116-page statement of reasons for the appeal was submitted, which included the argument that 'if one recognizes that even one person might do something bad, then aiding and abetting is established.' Here, the prosecution finally clarified the grounds for the aiding and abetting charge. (*3)
On June 30, 2010, the defense team also submitted a written answer exceeding 100 pages.
A year and a half later, on December 20, 2011, the Third Petty Bench of the Supreme Court (Presiding Judge Kiyoko Okabe) dismissed the prosecution's appeal. Seven years and seven months after his arrest, the acquittal was finalized.
When the prosecution's appeal is dismissed, the defense is not notified, so Attorney Dan found out via Twitter. At 9:00 PM, Mr. Kaneko, the head of the defense team, and Attorney Dan gathered, and a press conference was held at the Tokyo Judicial Reporters Club.
During that conference, Attorney Katsura stated,
The fact that the Supreme Court supported the High Court's judgment and acquitted him is, while expected, something we appreciate. In the first place, this case was built on prejudice without any consideration of the technology or value of Winny, and it has been over seven years since the 2004 arrest. The seven lost years were a massive loss not only for Isamu Kaneko but for software engineers in our country. <Omitted> The police and prosecution stepped into an area where standards were ambiguous. I would like to urge them to reflect deeply on this stance.
He criticized the investigative stance of the Kyoto Prefectural Police High-Tech Crime Division (at the time), which forced its way through, stating,'The idea that it's impossible to crack is a prejudice. If you think you can do it, you can do it.' 'Whether you get results depends on how you see it through to the end.'
Reasons for Dismissal
Presiding Judge Kiyoko Okabe of the Third Petty Bench stated that "the defendant's primary interest was in the technical aspects," and ruled that the act of releasing and providing software constitutes aiding and abetting copyright infringement only in the following cases:
When the provider releases or provides the software while recognizing and accepting that specific copyright infringement will occur, and as a result, copyright infringement actually takes place.
When the provider releases or provides the software while recognizing and accepting that there is a high probability that "a non-exceptional range of users", who use the software, will utilize it for copyright infringement, and as a result, copyright infringement (the principal offense) actually takes place.
The phrase "a non-exceptional range of users" in this context is a mysterious term. It might mean 80% of users, or it might mean 20%.
The following is a summary of the judgment. Please assume there are errors, as I am not a legal expert and have prioritized clarity. If you intend to use this elsewhere, please be sure to check the original text.
Main Text
The appeal in this case is dismissed.
Reasoning
In the first-instance judgment, it was interpreted that the technology of Winny itself is value-neutral, and whether the act of providing such technology itself possesses illegality as an act of aiding and abetting depends on the actual usage of the technology in society, the awareness thereof, and the subjective attitude at the time of provision.
Furthermore, the court evaluated that because the defendant released Winny on a website he established and made it available to an unspecified number of people, thereby assisting each principal offender in carrying out their respective acts, the defendant's actions constituted aiding and abetting, and sentenced the defendant to a fine of 1.5 million yen.
However, in the appellate court, it was stated that aiding and abetting established by the act of providing software over the Internet is a new type of aiding and abetting that has not existed before, and that imposing criminal penalties requires careful consideration from the perspective of the principle of legality.
The court then stated, "For the provision of value-neutral software over the Internet to be considered as having facilitated the principal offender's act, it is not enough that the software provider merely recognizes and accepts the possibility or probability that some among an unspecified number of people will commit illegal acts; beyond that, aiding and abetting is established when the software is provided while encouraging its use over the Internet solely or primarily for illegal purposes."
The court concluded that while it is acknowledged that the defendant recognized and accepted the possibility or probability that someone would commit copyright infringement when providing Winny, it cannot be acknowledged that he provided Winny while encouraging its use over the Internet solely or primarily for copyright infringement purposes. Therefore, it was judged that the establishment of aiding and abetting could not be recognized for the defendant, and the defendant was acquitted.
First, the requirements for establishing aiding and abetting are three: "aiding act", "aiding intent", and "causality". It is argued that the original judgment's requirement of "acts encouraging illegal use" misinterprets Article 62 of the Penal Code.
Aiding and abetting is established when one assists in another's crime with the intent to contribute to it, through tangible or intangible means, thereby facilitating the other's crime, and performs the act of facilitating the other's crime while recognizing and accepting it, with the principal offense actually being committed.
The original judgment focused on the uniqueness of the act of providing value-neutral software to an unspecified number of people over the Internet and interpreted that aiding and abetting is established only when "the software is provided while encouraging its use over the Internet solely or primarily for illegal purposes."However, this interpretation is considered to have misinterpreted Article 62 of the Penal Code, as there is no sufficient basis to limit it only to cases where the provider externally encourages illegal use, regardless of the nature of the software (the high probability of it being used for illegal acts) or the objective usage situation.
On the other hand, Winny is software that can be used for both legal purposes and illegal purposes such as copyright infringement, and whether to use it for copyright infringement or other purposes is left entirely to the judgment of individual users. Therefore, it is considered that it should not be immediately interpreted as an act of aiding and abetting copyright infringement simply because there is a general possibility that it will be used for another's copyright infringement, and the provider releases or provides the software while recognizing and accepting this, and copyright infringement is committed using it..
Dissenting Opinion of Judge Takehiko Otani
Judge Otani alone argued that the defendant was guilty and expressed a dissenting opinion.
The file-sharing software (Winny) provided by the defendant, while having technical utility for efficiently exchanging information, also carries the possibility of copyright infringement due to its efficiency and anonymity features. This software was provided to an unspecified number of people, and there were no restrictions on the scope or target of the provision.
The act of providing Winny itself does not carry the risk of infringing on legal interests when used for lawful purposes; however, when its utility is abused for infringing purposes, the act of providing it carries a realistic risk of infringing on legal interests and becomes illegal.
In order to determine the punishability of the defendant's act of provision, it is required that the provision occurs under circumstances where a concrete and higher possibility of infringing use is objectively recognized. Furthermore, for an accomplice to be found guilty, the intent of the accomplice—specifically the awareness and acceptance of this objective high possibility—is required.
Regarding this case, in light of the nature and content of the software—specifically the ease and promotion of infringing use of Winny—as well as the manner of provision, which had an unlimited target and scope, and the aforementioned objective usage situation, it is considered sufficient to recognize that the defendant acknowledged the 'high possibility' of infringing use.
For an accomplice to be found guilty, the subjective element of the accomplice's intent—the awareness and acceptance of this objective high possibility—is required. It is argued that it is difficult to conclude that the defendant recognized and accepted that there was a high possibility that a non-exceptional range of people would use it for copyright infringement. However, I judge that the defendant's awareness and acceptance of the high possibility of infringing use are also recognized. This is the reason for dissenting from the majority opinion.
*1 "Winny Developer Isamu Kaneko Acquitted in Reversal, Appellate Court Ruling at Osaka High Court," Hideki Mitsuyanagi, INTERNET Watch, 2009-10-08
*2 "'Winning the trial was my job for the past five years': Winny developer Isamu Kaneko holds a press conference following the acquittal," Hideki Mitsuyanagi, INTERNET Watch, 2009-10-08
*3 "Winny: Seven and a Half Years with Genius Programmer Isamu Kaneko," p. 153, Toshimitsu Dan, Impress NextPublishing, 2020-04-24
*4 "Winny Developer's Acquittal to be Finalized, Supreme Court Dismisses Prosecution's Appeal," Hideki Mitsuyanagi, INTERNET Watch, 2011-12-20