2021.03.01

2018 (A) 10

Keishu Vol. 75, No. 3

Decision concerning a program determined to fall under a "program with a function that interferes with the effectiveness of technological restriction measures and makes it possible to view images" as referred to in Article 2, paragraph (1), item (x) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015)

Case charged for violation of the Unfair Competition Prevention Act

Decision of the First Petty Bench, dismissed

Osaka High Court, Judgment of December 8, 2017

A technological restriction measure was designed to transmit images after encrypting the images to require decoding by a viewer installed in a specific licensed viewing device, etc., thereby restricting the viewing, etc. of the images. The same viewer has a function that prevents the recording and storage of decoded images, and "G," which is a program that restricts the viewing, etc. of images so that the images cannot be viewed by means other than the same viewer, was incorporated therein. G was installed at the same time as the same viewer as one of the programs constituting the same viewer. In absence of G, the same viewer cannot be activated, and it is impossible to receive issuance of a license and view transmitted images. "F3" is a program that makes it possible to view images by means other than the same viewer by disabling the aforementioned function of G and recording and storing decoded images. Based on the aforementioned facts of this case, the effectiveness achieved by the aforementioned function of G falls under the effectiveness of technological restriction measures, and F3, which disables such effectiveness, falls under a "program with a function that interferes with the effectiveness of technological restriction measures and makes it possible to view images" as referred to in Article 2, paragraph (1), item (x) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015).

Article 2, paragraph (1), item (x) and Article 21, paragraph (2), item (iv) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015)

Unfair Competition Prevention Act

(Definitions)
Article 2 (1) The term "unfair competition" as used in this Act means any of the following:
(x) the act of assigning, delivering, displaying for the purpose of assignment or delivery, exporting, or importing, a device (including a machine that incorporates such device and a set of parts for such device that can be easily assembled) with a function that makes it possible to view images, hear sound, or run programs, or record images, sound, or programs (hereinafter referred to as "to view images, etc." in this item) which are restricted by technological restriction measures that are used for business purposes (excluding technological restriction measures used to restrict all but specific persons from viewing images, hearing sound, or running programs, or recording images, sound, or programs), by interfering with the effectiveness of such technological restriction measures, or a data storage medium or machine on which a program with such function (including a combination of such a program with other programs) has been recorded; or the act of providing a program with such function over a telecommunications line (if such device or program has a combination of functions other than such function, this is limited to an act done in order to provide such a device or program for the purpose of making it possible to view images, etc. by interfering with the effectiveness of such technological restriction measures);

(Penal Provisions)
Article 21
(2) A person that falls under any of the following items is subject to imprisonment for not more than ten years, a fine of not more than ten million yen, or both:
(iv) a person that, for the purpose of wrongful gain, or for the purpose of causing damage to another person that is using technological restriction measures for their business purposes, commits any act of unfair competition set forth in Article 2, paragraph (1), item (x) or (xi);

The final appeals are dismissed.

The reasons for final appeal stated by the defense counsel for both accused persons, DAN Toshimitsu, et al., including the arguments of violation of the Constitution and violation of a judicial precedent, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts, and do not constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

In consideration of the defense counsel's arguments, the Court determines by its authority.

1. The summary of the facts of the crime found in the judgment in first instance upheld by the court of prior instance is as follows.

Accused A is a person who controls the overall operations of Company C as its representative director (of that time). Company C is a stock company that has its head office in Yokohama City and engages in the business of developing, selling, and otherwise handling computer software. Accused B is a person who works at the same company as a person responsible for the sale of program software. In distributing the images of e-books in Format E, Company D (a stock company) restricts the viewing and recording of the aforementioned images by a measure used for business purposes to restrict the aforementioned images from being viewed and recorded by electronic or magnetic means. In this measure, the aforementioned images are transmitted after they are converted in a way that a viewing device, etc. requires conversion by e-Book Viewer D that is image display and viewing software provided by Stock Company D (hereinafter referred to as the "Viewer") (hereinafter the aforementioned measure is referred to as the "Technological Restriction Measure"), so that the images cannot be viewed by means other than the Viewer installed in a specific licensed viewing device, etc. Nevertheless, on around the dates of September 10 and November 23, 2013, in conspiracy with the programmer of Stock Company C, for the purpose of acquiring a wrongful gain, both accused persons provided two customers with "F3," which is a program incorporated in the Viewer that is compliant with Windows and has a function that interferes with the effectiveness of the Technological Restriction Measure by disabling a function that prevents the recording and storage of images, thus making it possible to view the aforementioned images by means other than the Viewer installed in a specific licensed viewing device, etc. Both accused persons have those customers download F3 from a server computer in Tokyo to their personal computers, respectively, through telecommunications lines for using it for the aforementioned purpose without any statutory ground for exclusion, thereby having committed an act of unfair competition.

2. Article 2, paragraph (7) of the Unfair Competition Prevention Act (prior to amendment by Act No. 54 of 2015; hereinafter referred to as the "Act") defines "technological restriction measures" as measures which restrict images from being viewed, sounds from being listened to, programs from being run, or images, sounds, or programs from being recorded by electronic or magnetic means (hereinafter referred to as the "viewing, etc. of images") and which use a method in which signals to which a viewing device, etc. makes a specific response are recorded onto a recording medium or are transmitted along with the images, sounds or programs, or in which images, sounds or programs are recorded onto a recording medium or transmitted after they are converted in a way that a viewing device, etc. requires their specific conversion. Paragraph (1), item (x) of the same Article defines "unfair competition" as the act of providing a program with a function that interferes with the effectiveness of technological restriction measures that are used for business purposes and enables the viewing, etc. of images restricted by those technological restriction measures through telecommunications lines."

The defense counsel argues as follows: the Technological Restriction Measure uses an encryption method in which images are transmitted after they are converted in a way that a viewing device, etc. requires their specific conversion (decoding); however, F3 does not have a decoding function, and therefore, it is not a program that interferes with the effectiveness of technological restriction measures.

3. We consider the case on this point. According to the findings of the judgment in first instance upheld by the court of prior instance, as well as the case records, the following facts are found.

The Technological Restriction Measure was one that transmits the images of e-books after encrypting them so that decoding by the Viewer installed in a specific licensed viewing device, etc. is required and thereby restricts the viewing, etc. of images.

G is a program with a function that prevents decoded images from being recorded and stored, thereby restricting the viewing, etc. of images so that the aforementioned images cannot be viewed by means other than the Viewer. G was installed in the Viewer compliant with Windows at the same time as the Viewer as one of the programs constituting the Viewer. In absence of G, the Viewer was not activated, and it was impossible to receive issuance of a license and view transmitted images.

F3 is a program with a function that makes it possible to view the decoded images of e-books by means other than the Viewer by disabling the aforementioned function of G and recording and storing the aforementioned decoded images.

4. According to the facts mentioned above, the effectiveness obtained by the aforementioned function of G falls under the effectiveness of the Technological Restriction Measure, and F3, which disables this function, is recognized as falling under a program with a function that interferes with the effectiveness of technological restriction measures and makes it possible to view images. Therefore, the act of providing F3 committed by both accused persons falls under the unfair competition referred to in Article 2, paragraph (1), item (x) of the Act and thus falls under Article 21, paragraph (2), item (iv) of the Act. The determination of the court of prior instance that upheld the judgment in first instance that found constitution of the crime referred to in the same item is justifiable in the conclusion.

Accordingly, in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the Court unanimously decides as set forth in the main text of the decision.

Justice YAMAGUCHI Atsushi

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice MIYAMA Takuya