A new twist in the Fansub wars....

[MrDisco]

oh well too bad for that japanese company. w/o fansubs i would have no clue as to what was good and worth buying. since i rarely buy sight unseen it just means i'll buy less :|

[Pat Payne]

There is a serious question as to the constitutionality of the convention because the Constitution does not expressly provide our government with the power to enforce other countries' laws.

I'm not sure about that. It's kind of like an extradition treaty. If we have someone a treaty-signatory country wants, assuming we don't have a compelling reason to keep him/her (i.e. it would violate our own laws to do so), we have to turn that person over. The same principle would probably be at work with the Berne Convention. If another signatory country complains that one of our nationals is poaching IP, we'd probably be bound to swat him/her down.

Since, while in the Constitution, there is no provision for upholding other countries' laws, true, there is provision for upholding treaties with other countries. Not that there's enough wiggle room to where the SCOTUS wouldn't get involved, but at the end of the day, barring any arcane legalism, my money's on them saying that the Berne Convention passes muster.

The important point, from our perspective, is that the court believes that Berne is not "self executing". This means that the treaty didn't become US law because the US signed it. Rather, the provisions of the treaty were executed by a new law passed by Congress, the Berne Convention Implementation Act of 1988.

That's interesting, though. And I can't see how that could be. IANAL, either, but IINM, under the Constitution, all treaties have the force of law once signed (although some have more force than others, sadly) and are considered to be such in the eyes of the Government. Certainly laws have to be enacted to enforce treaties (for instance, with START, SALT/SALT II and other nuclear reduction treaties, Congress had to authorize the disarmament programs, albeit within the framework of the treaties), but the treaties themselves are in force and activated at whatever period after signing pleases the signatory nations. To say otherwise, that a treaty is not a treaty until COngress not only ratifies it but a law along with it is putting the horse before the cart, in my opinion.

Edited December 13, 2004 by Pat Payne

[mikeszekely]

I think it's not that copyright laws were unenforceable against fansubbers, rather that they have been unenforced because the Japanese companies didn't bother to try to enforce their rights, for whatever reason.

The reason is probably because they didn't, and for the most part, still don't care. Like I've said, Japanese companies do not distribute their material directly, but rather license it to other companies for distribution in territories outside of Japan. Fansubs have been a way for some companies to judge what's popular, and to decide which series to license. As long as American companies keep licensing anime, the Japanese studios are happy. And as long as the fansubbers stop distributing once a series has been licensed, the American studios have been "no harm, no foul." We've been speculating about what this incident means for fansubbing, but realistically, I don't think means much at all. This isn't a case of American companies cracking down on bootlegs, or Japanese studios worrying that fansubs will cut into a potential American market. This is ONE company upset because they felt that fansubs for ONE particular series might have cut into their own region 2 market. I think this is an isolated incident, and that it's bascially going to blow over, reguardless of whether or not WF finishes School Rumble or not.

[ewilen]

That's interesting, though. And I can't see how that could be. IANAL, either, but IINM, under the Constitution, all treaties have the force of law once signed (although some have more force than others, sadly) and are considered to be such in the eyes of the Government.

The judgment addresses this point and acknowledges that the treaty-making power of the government has some leeway even if it potentially conflicts with the constitution. This why it's not completely inconceivable that the Berne convention could be found by the Supreme Court to have self-executing aspects.

But it's easy to see that in the general case, a treaty can't supersede the Constitution. E.g., suppose the President and the Senate entered into a treaty with a foreign country, by which the US agreed to suppress critical comments about that country. The First Amendment would obviously prevent the treaty from becoming the law of the land.

Basically, there are two kinds of treaties: those that have the force of law automatically (self-executing) and those that are merely "understandings" between governments, thus requiring further legislation to bring the signatories into compliance. (See http://en.wikipedia.org/wiki/Treaty#Execut..._implementation )

E.g., the US has been found to be in violation of the WTO, a treaty organization of which we're a member. However, US courts aren't able to directly enforce the treaty; instead, the Congress has had to pass legislation to bring us into compliance. (Right now, the issue has to do with certain anti-dumping rules. http://www.eubusiness.com/afp/041126194845.x8zrx2li )

Edit: Take a look at this: http://cyberlaw.stanford.edu/packets/vol_2_no_2/002692.shtml

It's a good example that shows:

• A treaty can require signatories to pass laws to bring them into compliance, rather than directly becoming laws in themselves.
  
• Congress's ability to make copyright law is limited by the Constitution.
  

The second point is also illustrated by a recent Supreme Court case, Eldred vs. Ashcroft. Even though the judgment didn't strike down the law which was being challenged, the majority acknowledged the Constitutional limitations while finding that the law didn't exceed them. (The law was an act that extended the length of copyrights.)

Edited December 13, 2004 by ewilen

[ewilen]

I think it's not that copyright laws were unenforceable against fansubbers, rather that they have been unenforced because the Japanese companies didn't bother to try to enforce their rights, for whatever reason.

The reason is probably because they didn't, and for the most part, still don't care.

I agree completely. But again, just because it's usually Amercian companies that end up doing the distribution, that doesn't mean a Japanese company would have no interest if it believed that fansubbing would negatively affect the value of its product to the licensee.

[ewilen]

And just like that, both anime-keep and wannabefansubs are off the net.

Click their names to see the Google caches of their sites, including declarations they'll ignore the MF C&D. Reminds me of a Union commander in the Civil War, General Sedgwick: "They couldn't hit an elephant at this dist---"

Or maybe more appropriate, given the audience,

Evacuate? In our moment of triumph? I think you overestimate their chances.

I assume that whatever the fansubbers' legal/ethical opinions, their ISPs decided they didn't want to take any chances.

Edited December 13, 2004 by ewilen

[bsu legato]

All this will do is drive fansubs deeper underground. A perfect example is the Appleseed movie, whichI watch the weekend before last. First a rip of the DVD showed up on the torrent sites, then days later a timed sub script appeared. Combine the two with the appropriate player and bingo! Fansubbed anime, just like we've always been watching.

[ewilen]

Well, DVD ripping and distribution is obviously illegal, so it's just a matter of time before the media companies ramp up their legal assault. Who knows if they'll succeed.

If fansubbers go ahead and make timed scripts, though, maybe some people will buy the R2's and sub them for personal use. Even this is technically illegal for various reasons (e.g., most of the ways of doing this would violate the Digital Millenium Act, and translation of scripts is a violation of copyright) but I doubt that any studio would be upset by this.

Anyway, I may be wrong about those two fansubber groups' websites going down. AnimeSuki forums says its just a coincidence, and indeed Wannabe Fansubs is back up.

The AnimeSuki forums have quite a good discussion, amid all the flamage and trolling.

Edited December 13, 2004 by ewilen

[bsu legato]

Well, DVD ripping and distribution is obviously illegal, so it's just a matter of time before the media companies ramp up their legal assault. Who knows if they'll succeed.

As I see it, the biggest obstacle is file sharing in general, which the entire industry has no clue how to stop. For every Kazaa that gets shut down, a new better Bit Torrent shows up to replace it. And if huge companies like 20th Century Fox can't prevent movies like Aliens Versus Predator from showing up on torrent sites weeks before the DVD release, itty bitty Media Factory has no chance whatsoever. Maybe someday they'll end file sharing, but I don't think it will be any time soon.

The AnimeSuki forums have quite a good discussion, amid all the flamage and trolling.

I'm currently knee deep in the Anime News Network thread on the same topic, with similar results. That's just t3h lnt4rw3b, I guess. *sigh*

[ewilen]

Agreed, agreed. One small point, though--couldn't the media companies form a consortium or consortia, banding together to fight piracy? Isn't that what the RIAA is doing?

Again, the article I pointed to upthread points out the legal obstacles to shutting down a bittorrent website if the website wants to fight. OTOH, the RIAA tactic of hitting individual downloaders will work as long as IP addresses can be tracked.

[wolfx]

And just like that, both anime-keep and wannabefansubs are off the net.

Click their names to see the Google caches of their sites, including declarations they'll ignore the MF C&D. Reminds me of a Union commander in the Civil War, General Sedgwick: "They couldn't hit an elephant at this dist---"

Or maybe more appropriate, given the audience,

Evacuate? In our moment of triumph? I think you overestimate their chances.

I assume that whatever the fansubbers' legal/ethical opinions, their ISPs decided they didn't want to take any chances.

Wannabe's still there. They say it was due to their server's faulty drive.

http://www.wannabefansubs.net/