When I look at the Japanese justice system, I see it through the eyes of Law and Order. I imagine a Law and Order: Kabukicho edition, with one episode focusing on a university student who downloads an AKB48 album.
Starting with the arrests of dancers and the nightclub owners who enable them, Japan has extended its battle against entertainment with a law which punishes illegal mp3 downloads with 2 years of prison time.
It came after the Recording Industry Association of Japan fanned the flames of panic, pegging 668 billion yen of revenues as lost to file sharing. That’s about 1 million US dollars every hour or just slightly less than half of Japan’s entire trade deficit for 2012.
Let’s start with a pre-theme-song introduction to our perp: A good kid sucked into a mean world full of bad deeds. When his friends get an AKB48 CD on release date, he’s left out. He’s broke. Reluctantly, he downloads the mp3, at the urging of a neighborhood street tough – mullet included – who shows him The Pirate Bay. Maybe the guy’s yakuza.
Soon, he’s tempted again. To impress a girl, he downloads a pre-release leak of an Arashi album. Soon all the girls want a copy. All the bros want more. He starts trading favors. And just before the opening credits, he’s rolling around on a bed full of hard drives, drunk on the power of downloadable music.
The cops are on to this kid. But the new law requires that he knows downloading copyrighted music is illegal. In real life, the police don’t really want to prosecute you, so you can just save face, bow deeply to a record label exec, and save everyone the fuss of sending you to prison for two years.
In the good-cop, bad-cop world of American cop dramas, though, the police might go rogue. Maybe the kid’s snotty. Or maybe he’s just snotty in Japanese, meaning he isn’t apologetic enough. It really irks the cop.
Cue some young, sassy lady legal expert in the police headquarters explaining to the cop how best to go about this case. She’ll explain, for the audience’s benefit, that as the copyright law is now written, it’s up to police to decide if this kid was “aware” of the illegal nature of that Arashi mp3, but that nothing specifically restricts the method of determining that intent.
In my Law and Order fantasy, police storm into the kid’s apartment, tear his comic books apart, interview his friends and family, and search journals for “proof” that you knew “Heavy Rotation” was contraband.
This scenario is unlikely, given the lack of zeal by Japanese police for any kind of criminal investigation – it’s rude to ask questions, after all. But on TV (and under the TV interpretation of the law), the cops could pull this off.
And then there it is: A smoking gun, or really, a smoking DVD. A freshly burned backup copy of Pirates of the Caribbean (get it?).
“I know my rights,” the kid says. “That’s a backup copy.”
“Looks like that DVD…” (puts on sunglasses)… “just burned you.”
(Cue opening credits, for the second time)
The DVD Just Burned Him, Guys
The sassy legal lady character tells us that the new copyright law also bans the ripping of encoded DVDs into unprotected formats. Japan uses a region 2 base for Japanese DVDs. If you have a region-3 DVD from the US, you can rip that and change the encoding for use on a Japanese DVD player. This action is now illegal, either to thwart piracy or because Japan hates its foreign residents.
So now, with a history of illegal downloads and a backup copy of Pirates of the Caribbean playable in a Japanese DVD player, the prosecution takes the case to a court.
Meet The Jury
Japan’s jury system started in 2009, after a long public campaign including 500 performances of “12 Angry Men” for communities around the country. Six jurors sit with three judges and then vote, with the simple majority determining the verdict, so long as one professional judge agrees with the jury.
The trouble with putting a bunch of Japanese people in a room to argue is that they won’t. Jurors hesitate to express opinions. They ask the judge what he thinks.
From a New York Times Article from a trial practice session:
When a silence stretched out and a judge prepared to call upon a juror, the room tensed up as if the jurors were students who had not done the reading.
“I think there is also the matter of how much he has repented,” one of the judges said. “Has he genuinely, deeply repented, or has the defendant repented in his own way? What’s the degree? I mean, some could even say that he hasn’t repented at all.”
Hoping for some response, the judge waited 14 seconds, then said, “What does everybody think?”
Nine seconds passed. “Doesn’t anyone have any opinions?”
After six more seconds, one woman questioned whether repentance should lead to a reduced sentence. “The way the defendant expresses himself and such, it could be viewed as someone who’s not good at it,” she said.
You would imagine the second half of this episode to be pretty anti-climactic.
Unlike an American court case, where the jurors are told what to consider beforehand, the jurors (here we see why the better translation is “lay judges”) have to decide which facts to consider on their own, with “suggestions” from the three professional judges.
In a case like Internet piracy, a jury is pretty likely to side with authorities. The Recording Industry Association of Japan (RIAJ) cites $1,000,000-per-hour losses to kids like this dirtbag. The typically older, conservative jurors have no idea what the Internet is, and all this region 2/region 3 stuff gives them a headache.
Japan’s conviction rate is 99 percent – that is, 99 percent of trials end with a guilty verdict. There are a few reasons for this, along with the reasoning described above. The other has to do with pressures on the judge.
Judges act independently, but are subject to “reassignment.” A 1999 study of 321 cases found that:
“Judges who acquit do indeed have worse careers following the acquittal. On closer examination, though, we find that the punished judges are not judges who acquitted on the ground that the prosecutors charged the wrong person. Rather, they are the judges who acquitted for reasons of statutory or constitutional interpretation.”
In the case of a file-sharing law, where the statutory interpretation is so wide open, any judge handed a case is most likely to err on the side of conservative legal interpretations. In other words, if the cops or politicians say the law says something, that’s what it says.
Moreover, Japan only has 30,000 lawyers (compared to America’s 1.2 million, at three times the population, or the UK’s 151,000 with half of Japan’s population), which means that the busy prosecutors have to be both certain and half-assed about their cases.
So, there’s no doubt that the kid would be found guilty.
So what happens then?
Act III: Denouement!
Jurors tend to pass harsher sentences than judges, so perhaps the kid gets threatened with the full two years of jail time allowed by law. (I honestly have no idea if this type of case would be persecuted by a jury or by a solitary judge).
In this unlikely scenario, the kid goes to jail.
But this isn’t what typically happens. The legal system in Japan doesn’t facilitate this kind of drama. It’s too vague. The busy prosecutors wouldn’t welcome this case, and would push for the kid to apologize and settle.
In some situations, the cases are negotiated so that the kid would suggest a penalty to the recording industry or police, only to have the police or recording industry refuse it. One could imagine a lawyer telling this kid to suggest he never use the Internet again. The RIAJ would read it, agree to it, and then tell the kid that maybe some day, he’ll want to use the Internet again, and should do so when he’s ready.
Taking a case to court is a sign of failure. You lose face, you look stubborn, you make a lot of trouble. Resolutions here typically aren’t legal in nature, they’re facilitated by individuals, with or without the police as intermediaries, a practice known as komarigoto sodan. Judges are praised when things are settled out of court.
That system depends on vague legal mandates and laws, whereas the American system – lawyers first, ask questions later – depends on the letter of the law being detailed and specific, and so much of American Law is just defining what each word in any given law actually means.
The Japanese legal system seems insane to Americans, but there’s no denying that it seems to work, so long as you can wrap your head around the maddening ambiguity of never knowing just what, exactly, you’re supposed to do.
You might say that the Japanese “Law and Order” would just be called… (puts on sunglasses)… “Order.”
In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who follow This Japanese Life on Facebook; and the district attorneys, who follow @owls_mcgee on Twitter. These are their stories.