The Rise of Fan Activities and the Tension with Copyright Protection in the Digital Environment

He, Tianxiang

doi:10.1007/978-981-10-6508-8_2

Tianxiang He²

646 Accesses

Abstract

As this research is aimed at solving the problem of fan creations in China, it is necessary to first have a deeper understanding of fans and their behavior in the digital era, the opportunities and challenges thereof. For that purpose, the historical and functional aspects of the fan movement and the interconnections between them, and the major changes to the legal system brought by the Internet and digital technologies are examined. Studying these topics allows us to have a clear understanding of the true cause behind the copyright problems of fan creations.

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Notes

1.
Except for some domestic productions that use local dialogues, fansubbers are mainly focused on foreign works that use a foreign language.
2.
“Manga” are comics created in Japan. The term “anime,” from the Japanese abbreviation for “animation,” refers to a style of animation originating in Japan.
3.
Jenkins, supra note 2 in Chap. 1, at 284–286.
4.
Leonard, supra note 28 in Chap. 1, at 204.
5.
Mikhail Koulikov, Fighting the Fan Sub War: Conflicts between Media Rights Holders and Unauthorized Creator/Distributor Networks, 5 Transformative Works and Cultures (2010), at http://journal.transformativeworks.org/index.php/twc/article/view/115/171 (“Nearly all fan subs are now shared digitally, with little or no ties to any established communities… Thus, tightly knit fan subbing groups defined by geography could evolve into essentially global virtual teams defined by working on tasks.”).
6.
Donna S.C. Chu, Fanatical Labor and Serious Leisure: A Case of Fansubbing in China, in Frontiers in New Media Research 271 (Francis L.F. Lee ed. Routledge. 2012).
7.
Duo Hao (郝多) & Yingfei Wang (王颖菲) & Lei Jia (贾磊), Zimuzu (字幕组) [Fansub Groups], Xiandai Kuaibao (现代快报) [Modern Express], Mar. 2, 2014, at http://dz.xdkb.net/html/2014-03/02/content_326140.htm (China).
8.
This is evident as the disclaimer of “for translation practice purposes” is commonly seen at the beginning of many fansub videos.
9.
Koulikov, supra note 5 (“… one of the reasons for the existence of fan subs: the lag between a title’s release in Japan and its availability overseas.”). See also B. Dong & S. Pocock, Chicks on Anime Copyright Enforcement, Anime News Network, May 5, 2009, http://www.animenewsnetwork.com/chicks-on-anime/2009-05-05 (“…an overwhelming majority of users said that they’d watch the simulcast if it was available in their country.”).
10.
E.g., barrier to trade, screen quota, censorship, government policies, market analysis and company choice, etc. See generally, Priest, supra note 5 in Chap. 1.
11.
Sean Leonard, Progress Against the Law: Anime and Fandom, with the Key to the Globalization of Culture, 8 Int’l J. of Cultural Stud. 281, 285 (2005).
12.
Interview with Isao Takahata, Hayao Miyazaki Web, Oct. 1993, at http://www.nausicaa.net/miyazaki/interviews/t_corbeil.html#fn4.
13.
Jason Mittell, Genre and Television: From Cop Shows to Cartoons in American Culture 64 (Routledge. 2004).
14.
Guowai Donghua Pian Dui Zhongguo Ertong Jiazhi Guan de Yingxiang (国外动画片对中国儿童价值观的影响) [Imported Anime’s Influences on the Values of Chinese Children], Zhongyang Dianshi Tai (中央电视台) [CCTV], Oct. 12, 2004, http://www.cctv.com/tvguide/tvcomment/special/C11876/20041012/101985_4.shtml.
15.
See Examination Standards Concerning Imported Foreign Television Dramas, art. 4. See also, e.g., Foreign Television Program Import and Broadcast Management Regulations, art. 15; Television Drama Examination Management Regulations, art. 20; Dianshiju Neirong Guanli Guiding (电视剧内容管理规定) [Television Drama Content Management Regulations] (promulgated by SARFT, May 14, 2010, effective July 1, 2010, by SARFT Decree No. 63) art. 5 (China).
16.
Lele (乐乐), Bufen Zimuzu Shouru Da Baiwan Yuan Yingshi Wangluo Fanyi Quzhi Youdao (部分字幕组收入达百万元影视网络翻译取之有“道”) [Some Fansub Groups Make Millions a Year: Internet Visual Translation Reap with Their Way], Laodong Bao (劳动报) [Labour Daily], Aug. 6, 2009, http://ld.eastday.com/l/20090806/u1a610796.html (China).
17.
See Trish Ledoux, et al., The Complete Anime Guide: Japanese Animation Video Directory & Resource Guide 175 (Tiger Mountain Press 1st ed. 1995).
18.
Leonard, supra note 28 in Chap. 1, at 192.
19.
Jordan Hatcher, Of Otakus and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law, 2 Script-ED 551 (2005).
20.
Gary Xu, Edification Through Affection: The Cultural Revolution Films, 1974–1976, in The Oxford handbook of Chinese cinemas 271 (Carlos Rojas & Eileen Cheng-yin Chow eds., 2013) (“As soon as the Cultural Revolution began, all the…foregin imports were sealed off…”).
21.
It must be noted that, as a convenient term for propaganda slogans, the “bourgeois ideology” notion mentioned here was only used for a short period of time before the open-up period.
22.
According to a 1995 study of the Chinese videotape market, some 20 million Chinese families then owned a videocassette recorder (VCR) nationwide, and the number of videotape theaters and rental shops in China was only around 120,000. See Jianshe Tang (唐建设), Rang Gao Pinwei Di Jiawei De Luxiangdai Jinru Jiating (让高品位低价位的录像带进入家庭) (Let the Videotape with Higher Quality and Lower Price into Our Family), Chuban Guangjiao (出版广角) [View on Publishing], no. 2, 1995.
23.
Ju Wang (王炬), Zhongguo Yinxiang Ye De Fazhan Xianzhuang (中国音像业的发展现状) [Status Quo of the Chinese Audiovisual Industry Development], in Zhongguo Wenhua Chanye Fazhan Baogao (中国文化产业发展报告) [Report on Development of China’s Cultural Industry] 151, 151–62 (Xiaoming Zhang (张晓明) et al. eds., 2005).
24.
Id.
25.
Id.
26.
Although there are differences between simplified Chinese and traditional Chinese, they do not cause problems in understanding.
27.
For example, the famous Japanese anime Tetsuwan Atomu (also known as Astro Boy in Western countries) was the first officially introduced title, appearing on China Central Television (CCTV) in December 1980.
28.
VCD is a standard digital format for storing video on a compact disc.
29.
Philips System Standards and Licensing, Super Video Compact Disc, A Technical Explanation, 1998, at 2, at http://www.datv.de/technische_Infos/SVCD.pdf.
30.
Scot Meyer, Versatile Video CD’s Get a Foothold in US, N.Y. Times, Apr. 26, 2001, at http://www.nytimes.com/2001/04/26/technology/versatile-video-cd-s-get-a-foothold-in-us.html.
31.
Anna Bakalis, It’s Unreel: DVD Rentals Overtake Videocassettes, Washington Times, Jun. 21, 2003, at http://www.washingtontimes.com/news/2003/jun/20/20030620-113258-1104r.
32.
Bob Starrett, The History of CD-R, Roxio Newsletters, Jan. 17, 2000, at http://mediajet.ru/history-cd-r/.
33.
Fansub, Bloomsburg University Manga and Anime Club (BUMAC), at http://www.bumac.org/index.php?page=fansub.
34.
Zac Bertschy, 2002—Fansubs in review, Anime News Network, Jan. 14, 2003, at http://www.animenewsnetwork.com/feature/2003-01-27/7.
35.
BUMAC, supra note 33
36.
Shule Zhang (张书乐), Zumu Zu de Huise Jianghu (字幕组的灰色江湖) [The Grey Coterie of Fansub Groups], Tai Mei Ti (钛媒体) [Tmtpost.com], Dec. 9, 2013, http://www.tmtpost.com/82623.html (China).
37.
Wang, supra note 23, at 151-62.
38.
Id.
39.
History of Cable Modems, InformIT, at http://www.informit.com/library/content.aspx?b=Planet_Broadband&seqNum=17.
40.
Andrew B. Whinston, IT Policies and Issues: US and the Americas, in Information Technology Policy and the Digital Divide: Lessons for Developing Countries 66 (Mitsuhiro Kagami, et al. eds., 2004).
41.
BUMAC, supra note 33.
42.
Ask John: What Are Fansubs? Animenation News Blog, Dec. 27, 2001, at http://www.animenation.net/blog/2001/12/27/ask-john-what-are-fansubs/.
43.
Yizhen Hu (胡绮珍), Zhongguo Zimu Zu yu Xin Ziyou Zhuyi de Gongzuo Lunli (中国字幕组与新自由主义的工作伦理) (Chinese Fansub Groups and the Neoliberal Work Ethic), Xinwen Xue Yanjiu (新闻学研究) [Mass Communication Research], no. 101, 2009, at 177, 181 (Taiwan).
44.
Jorge Díaz Cintas & Pablo Muñoz Sánchez, Fansubs: Audiovisual Translation in an Amateur Environment, The Journal of Specialised Translation 37, 37 (2006).
45.
Id. at 38–39.
46.
Traditionally, fan translation is usually done via listening, but with the ending of the analog broadcasting and the switchover to digital broadcasting in many countries, many of their channels are now offering extractable subtitles as an option with broadcasting. This will no doubt speed up the translation process.
47.
Existing subtitle formats including .srt, .ssa, .ass, etc.
48.
Normally a DVD-rip movie file will occupy 700 megabytes (MB) storage space or more, a BD-rip movie file will take even more than 1 gigabyte (GB) storage space, but a subtitle file only takes less than 1 MB storage space.
49.
Although some scholars have understandably claimed that “animation is a medium, not a genre”, here Chinese fansub groups are divided by their preferences, but not for the purpose of definition, see e.g., Leonard, supra note 28 in Chap. 1.
50.
The word “warez” is a leetspeak plural form of the word “ware”, coined by underground circles of online unauthorized distributions to describe the copyrighted works distributed online without authorization. Warez Scene is used to depict the underground community that specializes in that act.
51.
Most of these TV series and shows are from Japan, Korea, and the U.S.
52.
Sai Chen (陈赛) & Yu Liu (刘宇), Yueyu de Zhongguo Yinmi Liuxing (《越狱》的中国隐秘流行)[Prison Break’s Hidden Popularity in China], Sanlian Shenghuo Zhoukan (三联生活周刊)[Lifeweek], no. 413, Dec. 21, 2006, at http://www.lifeweek.com.cn/2006/1221/17226.shtml.
53.
Most open course videos are offered by famous universities such as Harvard and Cambridge.
54.
Technology, Entertainment and Design conferences are formed to disseminate “ideas worth sharing”. The free videos of TED conferences have been offered online in their official site since 2006.
55.
In most cases, it contains warnings such as “not for commercial purposes”. See e.g., The Term of Use, Fansub-share.org, http://fansub-share.org/tou/.
56.
Dichen Yang (杨涤尘) and Jiaxi Wang (王加喜), Meiju Hanju yu Riju You Yiqun Zhuijuren Jiao Zimuzu (美剧韩剧与日剧有一群追剧人叫字幕组) [There are a group of people who chase American, Korean, and Japanese dramas called fansub groups], Jing Bao (晶报)[Daily Sunshine], Aug. 14, 2013, at http://jb.sznews.com/html/2013-08/14/content_2587842.htm.
57.
An argument for copyright infringement exemption like “for translation studies” is only possible, if the subtitle file and audiovisual file are detached.
58.
The original Chinese words will be “仅供网络测试用” and “仅供学习和试看用”.
59.
For instance, the Kiotsukete fansub group in distributing the title “Koko wa Greenwood”, and William Chow of the Vancouver Japanese Animation Society in distributing Japanese Animes are following that rule. See Leonard, supra note 28 in Chap. 1, at 217.
60.
For instance, Toei Animation licensed the famous Japanese Anime One Piece, to Star Group Limited China. But Maplesnow Fansub group (枫雪), which is well known for its fansubs of One Piece, continued their distribution after Star Group started broadcasting the dubbed version of One Piece in mainland China in 2008. The distribution of One Piece fansubs has been parallel with the Star Group broadcast till now. But obviously, in keeping the pace with the original broadcast, fansubs did a better job than Star Group.
61.
Generally, fans used the SASE (self-addressed, stamped envelope) method to deliver fansub copies among fans. See Fansub, Anime News Network, http://www.animenewsnetwork.com/encyclopedia/lexicon.php?id=63. See also Leonard, supra note 28 in Chap. 1, at 218–19 (Leonard picked William Chow of the Vancouver Japanese Animation Society as the example).
62.
Lei Wang (王磊), Wangluo Zimu Zu Huoli Qudao Fenxi (网络视频字幕组获利渠道分析) (Analysis of Profit Channels of Internet Video Fansub Groups), Dianying Xinzuo (电影新作) [New Films], no. 2, 2012, at 10.
63.
For example, Btpig, a Chinese fansub group that is famous for fansubbing Japanese TV series and animes such as Naruto, broke down into two groups in 2006 due to differences in the understanding of the fansubbing ethos. The Subpig fansub group (猪猪乐园) now focus on fansubs of Japanese TV series; The Zmpig, later the Jumpcn fansub group (猪猪字幕组) inherited the anime line. When Subpig still adheres to its fansubbing ethos, Jumpcn now had crossed the border of non-commercial use by merging advertising clips of sponsors and their online accessory shop into their fansubs. Moreover, most of the accessories they are selling, such as T-shirts with printed copyrighted anime characters on, are not licensed. However, their “betrayal” triggered discontent among fan communities and audiences. Jumpcn was boycotted and alienated by other anime fansub groups, as they believe Jumpcn’s action will draw too much attention of the copyright owners; audiences dislike Jumpcn’s choice because the quality of fansub has deteriorated, as low-quality advertising clips were added. Consequently, the fans turned to other fansub groups that were working on the same title, but still Jumpcn has its loyal followers.
64.
Lele, supra note 16.
65.
Joshua Preston, Georgia Tech Study Reveals Copyright Complexities, Social Norms in Online Media Creation, Georgia Tech News Center, Feb. 19, 2014, at http://www.news.gatech.edu/2014/02/18/georgia-tech-study-reveals-copyright-complexities-social-norms-online-media-creation.
66.
Some call these fansubbing ethos. See Rembert-Lang, supra note 24 in Chap. 1, at 22–3.
67.
Id.
68.
Most famous Chinese fansub groups like TLF (The Last Fantasy) and Maplesnow all have similar warnings. See, e.g., TLF History–the Memoirist of the TLF Fansub Group, The TLF Fansub Group Official Site, http://sub.eastgame.org/wp-content/uploads/2011/03/%E4%BA%86%E8%A7%A3TLF%E5%AD%97%E5%B9%95%E7%BB%84-TLF%E5%85%83%E8%80%81%E5%9B%9E%E5%BF%86%E5%BD%95.pdf; see also Disclaimer of Maplesnow Fansub Group, The Maplesnow Official Site, http://bbs.fxdm.net/disclaim.htm.
69.
Koulikov, supra note 5 (“…the ethical component of the earlier stage of group-controlled fan subbing began to fray as the scene itself grew.”).
70.
Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loy. LA Ent. LJ 651 (1997).
71.
Id. at 655.
72.
Leanne Stendell, Fanfic and Fan Fact: How Current Copyright Law Ignores the Reality of Copyright Owner and Consumer Interests in Fan Fiction, 58 S.M.U. L. Rev. 1551, 1552 (2005).
73.
Sharon Kinsella, Japanese Subculture in the 1990 s: Otaku and the Amateur Manga Movement, 24 J. Jap. Stud. 289, 295 (1998).
74.
Sharon Kinsella, Adult Manga: Culture and Power in Contemporary Japanese Society 104–5 (University of Hawaii Press. 2000).
75.
Noda, supra note 28 in Chap. 1, at 65.
76.
Colin Lankshear & Michele Knobel, Digital Remix: The Art and Craft of Endless Hybridization, Keynote presented to the International Reading Association Pre-Conference Institute “Using Technology to Develop and Extend the Boundaries of Literacy”, Toronto, 13 May 2007, 6–7, at http://extendboundariesofliteracy.pbworks.com/f/remix.pdf.
77.
Id.
78.
For doujinshis, they were sold through regular doujinshi conventions such as the Comiket. For a more detailed discussion on this, see infra Chapter 2.1.2 Fanfics, Doujinshis, and Scanlations.
79.
Steven A. Hetcher, Using Social Norms to Regulate Fan Fiction and Remix Culture, 157 U. Pa. L. Rev. 1869, 1870 (2009).
80.
Sarah Trombley, Visions and Revisions: Fanvids and Fair Use, 25 Cardozo Arts & Ent. J. 647 (2008).
81.
Fisher, supra note 23 in Chap. 1, at 1418 (“Digital mash-ups are created by combining audio, video, graphical, or textual material from pre-existing works into new digital works… Some mash-ups are parodies…”).
82.
See generally, Rogoyski & Basin, supra note 6 in Chap. 1
83.
Seio Nakajima, Film as Cultural Politics, in Reclaiming Chinese Society: The New Social Activism 178 (You-tien Hsing & Ching Kwan Lee eds., 2010).
84.
See e.g., SFTHQ, Tibetans vs China’s Xi Jinping: Gangnam Style, YouTube, Nov. 7, 2012, at https://www.youtube.com/watch?v=NxxEo6lEC_U.
85.
Lawrence Lessig, The Creative Commons, 65 Mont. L. Rev. 1, 4 (2004).
86.
Amy Harmon, Black Hawk Download: Moving Beyond Music, Pirates Use New Tools to Turn the Net into an Illicit Video Club, N.Y. Times, Jan. 17, 2002, at G1, at http://www.nytimes.com/2002/01/17/technology/black-hawk-download-moving-beyond-music-pirates-use-new-tools-turn-net-into.html?src=pm&pagewanted=2.
87.
Martin Kretschmer & Friedemann Kawhol, Chapter 2: The History and Philosophy of Copyright, in Music and Copyright 43–44 (Simon Frith & Lee Marshall eds., Edinburgh University Press. 2004).
88.
Id.
89.
Lessig, supra note 42 in Chap. 1, at 162.
90.
For example, the Motion Picture Association of America (MPAA) in their 2011 report claimed that the U.S. economy lost $58 billion per year in profits due to content theft. See MPAA Statement on Strong Showing of Support for Stop Online Piracy Act, MPAA, Dec. 16, 2011, at http://www.mi2n.com/print.php3?id=149522.
91.
For instance, author Rob Reid questioned MPAA’s $58 billion number in the recent TED event, and he further indicated that the overall movie revenues are not down but on the contrary, increasing. See Rob Reid, The $8 billion iPod, Ted Conversations, Mar. 2012, at http://www.ted.com/talks/rob_reid_the_8_billion_ipod.html.
92.
See China (PRC), 2014 Special 301 Report on Copyright Protection and Enforcement, IIPA, Feb. 7, 2014, at 24, at http://www.iipa.com/rbc/2014/2014SPEC301CHINA.PDF (“…China is fast becoming the largest potential market in the world, and while some progress has been made to license services in China, the challenge of online infringement and illegal web and mobile services harming right holders in (and outside) China has grown faster than the legitimate market.”).
93.
Peter K. Yu, Still Dissatisfied after all These Years: Intellectual Property, Post-WTO China, and the Avoidable Cycle of Futility, 34 Ga. J. Int’l & Comp. L. 143, 153 (2005).
94.
Eric Priest, Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China’s High Piracy Environment? 27 Harv. J.L. & Tech. 467, 473 (2014).
95.
51,351 civil copyright cases were litigated in China in 2013. Supreme People’s Court (最高人民法院), Zhongguo Fayuan Zhishi Chanquan Sifa Baohu Zhuangkuang 2013 (中国法院知识产权司法保护状况2013) [Intellectual Property Protection by Chinese Courts in 2013], in Renmin Fayuan Bao (人民法院报) [People’s Court Daily], Apr. 26, 2014, available at http://rmfyb.chinacourt.org/paper/html/2014-04/26/content_81363.htm?div=-1.
96.
For instance, in 2004 SARFT had issued a regulation that required every participant who engaged in information network dissemination of audiovisual works to obtain a “License for Publication of Audiovisual Programs through Information Network”. See Measures for the Administration of the Publication of Audiovisual Programs through the Internet or Other Information Network, art. 6. For years online content distributors that have been engaging in unauthorized distributions chose to ignore this clause, simply because no specific enforcement measures were taken after that regulation entered into force. However, at the beginning of 2008, SARFT and Ministry of Information Industry together released a more detailed regulation, which states clearly that Internet content providers without obtaining the above-mentioned “License” cannot engage in any Internet audiovisual program service. See Administrative Provisions on Internet Audiovisual Program Service, art. 7. Actions were taken soon after the release: without obtaining the “License”, famous BT sharing sites like BT China, which is an important platform for the distribution of fansubs, were shut down for that reason.
97.
Hong Xue, A User-Unfriendly Draft: 3rd Revision of the Chinese Copyright Law, Infojustice.org, Apr. 25, 2012, http://infojustice.org/wp-content/uploads/2012/04/hongxue042012.pdf.
98.
2010 Copyright Law of the People’s Republic of China, art. 4.
99.
Leslie Pappas, China Hears Music, Issues Second Draft of Copyright Law, Bloomberg BNA, Jul. 12, 2012, at http://www.bna.com/china-hears-music-n12884910625/.
100.
Paul Goldstein, Copyright’s Highway: From Gutenberg to the Celestial Jukebox 176–77 (Stanford University Press. 2003) (noted that “since copyright allows creators and publishers of literary and artistic works to charge a price for gaining access to these works, the inescapable effect is to withhold the work from people who will not or cannot pay that price, even though giving them free access would harm no one else,” but “if society withholds property rights from creative work, the price that its producers can charge for access to it will begin to approach zero; their revenues will diminish and, with them, their incentives to produce more.”).
101.
Joanna Kostylo, From Gunpowder to Print: The Common Origins of Copyright and Patent, in Privilege and Property: Essays on the History of Copyright 31 (Ronan Deazley & Martin Kretschmer & Lionel Bently eds., 2010).
102.
Mark Rose, Authors and Owners: The Invention of Copyright 142 (Harvard University Press. 1993) (“copyright is…a specifically modern formation produced by printing technology…”).
103.
The beginning of copyright protection is debatable. Most Chinese intellectual property scholars believed that it starts from the Great Song Dynasty (a piece of a document about copy license in 1190–1194 was found in China), but William Alford in his book to Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization claimed that it could not be considered as the start because it is merely a proof of government control over publication. See generally Alford, supra note 5 in Chap. 1.
104.
Martin Peitz & Patrick Waelbroeck, Piracy of Digital Products: A Critical Review of the Theoretical Literature, 18 Information Economics and Policy 449, 468 (2006).
105.
Lessig, supra note 42 in Chap. 1, at 218–20.
106.
In the U.S., The 1998 Sonny Bono Copyright Term Extension Act is deemed as the result of the extensive lobbying from the Walt Disney Company, which is the largest media conglomerate in the world in terms of revenue. See Richard Siklos, Why Disney wants DreamWorks, CNN/Money, Feb. 09, 2009. http://money.cnn.com/2009/02/09/news/companies/disney_dreamworks.fortune/?postversion=2009020914. As a result, the Act is also known as the “Mickey Mouse Protection Act”. See Lawrence Lessig, Copyright’s First Amendment, 48 UCLA L. Rev. 1057, 1065 (2001).
107.
Tom W. Bell, Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, 69 U. Cin. L. Rev. 741, 783 (2001).
108.
Xinming Cao (曹新明), Guanyu Zhuzuo Quan Baohu Qixian De Tantao (关于著作权保护期限的探讨) [On the Copyright Protection Term], Faxue (法学) [Law Science] no. 4, 1991, at 22.
109.
Baozhang Chuban Wu Zhuzuo Quan Zanxing Guiding Caoan (保障出版物著作权暂行规定草案) [Provisional Rules on Protection of the Copyrights of Published Works (Draft)] (PRC Ministry of Culture, 1957) (China); accord Wenwei Guan, Intellectual Property Theory and Practice: A critical Examination of China’s Trips Compliance and Beyond 55 (Springer. 2014).
110.
Lessig, supra note 42 in Chap. 1, at 173; Glynn S. Lunney, Jr., Fair Use and Market Failure: Sony Revisited, 82 B.U. L. Rev. 975, 1015 (2002); Glynn S. Lunney, Jr., The Death of Copyright: Digital Technology, Private Copying, and the Digital Millennium Copyright Act, 87 Va. L. Rev. 813, 844 (2001); see also Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 294–297 (1996).
111.
Martin F. Halstead, The Regulated Become the Regulators-Problems and Pitfalls in the New World of Digital Copyright Legislation, 38 Tulsa L. Rev. 195, 228–229 (2002).
112.
Michael A. Carrier, SOPA, PIPA, ACTA, TPP: An Alphabet Soup of Innovation-Stifling Copyright Legislation and Agreements, 11 Nw. J. Tech. & Intell. Prop. 21, 30 (2013).
113.
The function of copyright is believed to be “the marketing of works”, and “to protect the materials disseminated”. L. Ray Patterson & Stanley F. Birch, Jr., A Unified Theory Of Copyright (Craig Joyce ed., 2009), printed in 46 Hous. L. Rev. 215, 286, 310 (2009).
114.
Lunney, supra note 110, at 819.
115.
Mathias Klang & Jan Nolin, Tolerance Is Law: Remixing Homage, Parodying Plagiarism, 9 Script-ED 172 (2012).
116.
See Wu, supra note 42 in Chap. 1, at 617–18.
117.
See e.g., Julie E. Cohen, DRM and Privacy, 46 Communications of the ACM 47 (2003).
118.
See supra note 14 in Chap. 1 and accompanying text.
119.
For example, the U.S. courts were found overloaded in handling civil cases, including copyright infringement cases. See Overloaded Courts, Not Enough Judges: The Impact on Real People, PFAW, July 21, 2014, at http://www.pfaw.org/sites/default/files/lower_federal_courts.pdf.
120.
Lee, supra note 16 in Chap. 1, at 1476–79.
121.
Just like the Supreme Court has indicated in the Grokster case that, “[w]hen a widely shared product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, so that the only practical alternative is to go against the device’s distributor for secondary liability on a theory of contributory or vicarious infringement.” See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 914 (2005). See also Anselm Kamperman Sanders, Intellectual Property Liability of Consumers, Facilitators and Intermediaries: Comparative Concepts, in Intellectual Property Liability of Consumers, Facilitators and Intermediaries 15 (Christopher Heath & Anselm Kamperman Sanders ed. 2012).
122.
Lessig, supra note 39 in Chap. 1, at 111.
123.
See Tianxiang He, What Can We Learn from Industries? The Differences Between the Domestic and Oversea Copyright Protection Strategies towards Fan Activities, 62 Am. J. Comp. L. 1009, 1010–2 (2014); See also Robert C. Piasentin, Unlawful? Innovative? Unstoppable? A Comparative Analysis of the Potential Legal Liability Facing P2P End-Users in the United States, United Kingdom and Canada, 14 Int. J. Law Info. Tech. 195, 220–23 (2006).
124.
Chosakukenho (著作権法) [Japanese Copyright Law], Law No. 48 of 1970, amended by Law No. 43 of 2012, art. 119(3) (2012), translated at Copyright Research and Information Center, Copyright Law of Japan 79 (Yukifusa Oyama et al. trans., 2013), http://www.cric.or.jp/english/clj/doc/20130819_July,2013_Copyright_Law_of_Japan.pdf (hereinafter Japanese Copyright Law). See also Japan Introduces Piracy Penalties for Illegal Downloads, BBC News, Sept. 30, 2012, http://www.bbc.co.uk/news/technology-19767970.
125.
See Kazuaki Nagata, Copyright Law with Teeth Leaves Download Masses Puzzled, Japan Times, Jul. 11, 2012, at http://callcenterinfo.tmcnet.com/news/2012/07/11/6430387.htm.
126.
Denis McQuail, Mcquail’s Mass Communication Theory 39 (Sage Publications 6th ed. 2010).
127.
Motoko Rich & Brad Stone, E-Book Price Increase May Stir Readers’ Passions, N.Y. Times, Feb. 10, 2010, http://www.nytimes.com/2010/02/11/technology/11reader.html?_r=0 (reported the battle over the pricing of digital copies of books between the consumers and the copyright owners.).
128.
For a general discussion about the dispute of the Google Book Project, please see Kate M. Manuel, The Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law?, CRS Report for Congress, Nov. 27, 2009, at http://www.dtic.mil/dtic/tr/fulltext/u2/a511070.pdf.
129.
Erick Schonfeld, Post-Napster, Peer-to-Peer Computing Gets Ready for Prime Time, Fortune, Oct. 25, 2001.
130.
Lee Bruno, Rights Fielder: Lawrence Lessig on Intellectual Property Rights and Cyberspace, Red Herring, Dec. 4, 2000.
131.
Gonzalo Camarillo, Ed, Peer-to-Peer (P2P) Architecture: Definition, Taxonomies, Examples, and Applicability, RFC 5694, IETF Networking Group, Nov. 2009, http://tools.ietf.org/pdf/rfc5694.pdf.
132.
CacheLogic is a British P2P traffic management and network intelligence solution company.
133.
ZDNet Research for IT Facts, 61.44% of P2P traffic is video, 11.34% is audio, ZDNet, http://www.zdnet.com/blog/itfacts/61-44-of-p2p-traffic-is-video-11-34-is-audio/8641.
134.
Report: Movie piracy nearing music levels, Media Life Magazine, Jul. 14, 2004, http://www.medialifemagazine.com:8080/news2004/Jul04/Jul12/3_wed/news8wednesday.html.
135.
See e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004,1029 (9th Cir. 2001); Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1161–62 (9th Cir. 2004).
136.
Hendrik Schulze & K. Mochalski, Internet Study 2008/2009, Ipoque, at https://www.christopher-parsons.com/Main/wp-content/uploads/2009/04/ipoque-internet-study-08-09.pdf.
137.
Camarillo, supra note 131.
138.
For example, P2P technologies nowadays are firmly connected with lots of mainstream commercial software like Skype and video streaming services and online audiovisual sharing platforms as Joost. Moreover, official authorities like the U.S. Department of Defense launched its modern network warfare strategy research on P2P networks in 2001. See Leslie Walker, Uncle Sam Wants Napster! The Washington Post, Dec. 8, 2001, at http://pqasb.pqarchiver.com/washingtonpost/doc/409185410.html?FMT=ABS&FMTS=ABS:FT&date=Nov+8%2C+2001&author=Walker%2C+Leslie&desc=Uncle+Sam+Wants+Napster%21. The European Union (EU) has also invested 14 million euros in a P2P based Internet television research project, aiming to provide video-on-demand functionality and community features for a range of devices. Janko Roettgers, EU Sponsors P2P TV with 14 M Euros, Gigaom, Feb. 9, 2008, at http://gigaom.com/video/eu-sponsors-p2p-tv-with-19m-euros/.
139.
See Alfred С. Yen, Sony, Tort Doctrines, and the Puzzle of Peer-to-Peer, 55 Case W. Res. L. Rev. 815, 818 (2005) (mentioning the social benefits of the P2P technologies). See also Lessig, supra note 42 in Chap. 1, at 66 (mentioning p2p sharing is different from piracy, and the industry should find a way to protect artists while enabling p2p sharing to survive).
140.
For example, study shows that, it is technically impossible to put a stop to BitTorrent ecosystem. See Prithula Dhungel, et al., Is BitTorrent Unstoppable? 2007, at 14, at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.414.971&rep=rep1&type=pdf; Some also noted that it is destined for digital contents to be free, and no one can stop that process. See Anderson, supra note 5 in Chap. 1, at 191, 201–02.
141.
The evolutionary product in this case that challenged the copyright regime, was a home video recording machine that could be used to make copies of an entire copyrighted work that had been broadcast via television channels. According to the then contemporary U.S. copyright rules, this kind of time shifting technology created potential dangers for the beneficiaries of copyright: Media conglomerates, such as Universal and Disney, still relied heavily on theaters and television broadcastings at that time, and they feared that with this video recording machine they would lose control over their products and advertising revenues. Together they sued the Sony Corporation, alleging that their machine could potentially be used for copyright infringement activities and, thus, Sony should be held responsible for any further infringements. The rulings of the U.S. courts varied; the American judges knew that their decisions might determine whether the ‘delicate balance’ could be maintained in the future or not. At first, the District Court considered home use recording as fair use, but later the Court of Appeals for the Ninth Circuit held that Sony was liable for contributory infringement. This ruling was reversed afterwards by the Supreme Court, which considered that the new technology had significant non-infringing uses and, thus, it was indeed a fair use. The final decision of that established a general test to determine whether a new device with a copy or record function infringes copyright law or not. More importantly, the Sony case paved the way for a new market of home video products, and the world has benefited greatly from their sale and that of prerecorded movies. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).
142.
Dufeng He (何笃丰), Wo Guo Bu Cunzai Zhenzheng Yiyi Shang De P2P Qinquan An (我国不存在真正意义上的P2P软件侵权案)[There exist no P2P software infringement lawsuist in China], Dianzi Zhishi Chanquan (电子知识产权) [Electronics Intellectual Property] no. 5, 2009, at 90.
143.
Chinese courts have demonstrated in several cases that, defendants lost the case due to their contributory infringement actions, rather than the technologies they employed. See e.g., Beijing Ciwen Yingshi Zhizuo Youxian Gongsi Su Beijing Zhenglejia Keji Youxian Gongsi Qinfan Zhuzuoquan Jiufen An (北京慈文影视制作有限公司诉北京正乐佳科技有限公司侵犯著作权纠纷案) [Beijing Ciwen Video Production Co., Ltd. v. Beijing Zhenglejia Technology Co., Ltd.], (People’s Ct. of Haidian District, Beijing, HMCZ.No.21822, Oct. 29, 2007) (北京市海淀区人民法院(2007)海民初字第21822号), at http://pkulaw.com/fulltext_form.aspx?Gid=117531737&Db=pfnl. See also Huaxia Shilian Konggu Youxian Gongsi Su Kuaibo Gongsi Lijun Qinfan Zhuzuoquan Jiufen An (华夏视联控股有限公司诉快播公司、李军侵犯著作权纠纷案) [Huaxia Video & Connection Holding Co., Ltd. v. Shenzhen Qvod Technology Co., Ltd.], (People’s Ct. of Futian Dist., Shenzhen, SFFZCC.No.227, 2009)(深圳市福田区人民法院(2009)深福法知产初字第227号). Guangdong Zhongkai Wenhua Fazhan Youxian Gongsi Su Guangzhou Shulian Ruanjian Jishu Youxian Gongsi An (广东中凯文化发展有限公司诉广州数联软件技术有限公司案) [Zoke Culture Group, Limited. v. Poco Co., Ltd.], (Shanghai First Interm. People’s Ct., IPF.No.384, Dec. 12, 2006) (上海市第一中级人民法院 (2006) 沪一中民五 (知) 初字第384号).
144.
Schulze & Mochalski, supra note 136.
145.
A BBC report shows that some distributors even used certain software to split the to-be-distributed content into multiple parts and upload them to different sites. Their followers will receive a list of address where the parts of the files can be downloaded. With common software like WinRAR, the original files could be restored if all the parts were successfully downloaded. Although file names and extensions could reveal some information about the file origin, but when the files are split into multiple parts, it is impossible for service providers to tell which file is unauthorized copyrighted content and which file is not. File-sharers swap more than video, BBC News, Aug. 11, 2005, at http://news.bbc.co.uk/2/hi/technology/4139314.stm.
146.
Jiayi Liu, No to Internet Piracy and Pornography, China Cracks Down on P2P Video Platform, ZDnet, Apr. 24, 2014, at http://www.zdnet.com/no-to-internet-piracy-and-pornography-china-cracks-down-on-p2p-video-platform-7000028693/.
147.
For instance, a popular download application in China, called Xunlei, is also the most common means of unauthorized distribution of copyright contents in China. During the campaign, Thunder had declared that they will be “fully cooperative and resolutely resist any content that involves pornography and copyright issues.” Since the downloading speed boost function is based on their cloud storage, they are actually censoring every file that goes through their cloud server. Any file with sensitive words will be marked and cannot enjoy their speed boost function. However, uploaders sensibly opted to split the original file or compress it before they upload it. In that case, the system is unable to identify whether the file contains illicit content or not. See Xunlei declaration, Xunlei.com, available at http://act.vip.xunlei.com/vip/2014/report/.
148.
File-sharers move from BitTorrent, BBC News, Aug. 30, 2005, at http://news.bbc.co.uk/2/hi/technology/4196642.stm.

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He, T. (2017). The Rise of Fan Activities and the Tension with Copyright Protection in the Digital Environment. In: Copyright and Fan Productivity in China. Springer, Singapore. https://doi.org/10.1007/978-981-10-6508-8_2

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