Open the Minorigate
I want to see if there is a rational basis in the action in which minori has taken in order to protect their operation in light of their recent announcement and run-in with fan translation operations of their visual novels. I guess first, a rehash of the basic facts.
minori is a Japanese game developer and IP house in which made the ef games, most notably. Their latest game eden* is not pornographic (rated Everyone), but their other games are. Nonetheless their games are fairly typical of modern reinvention of the visual novel genre, where the focus is story and not sex. During the RapeLay controversy and the subsequent rape game crackdown minori further made themselves outstanding to the non-Japanese galge fanbase by blocking all foreign IP from accessing their website. If I recall correctly their website is typical of other galge developer sites, so they aren’t hiding anything that you can’t find going to another developer’s site.
Fast forward to last week. A popular visual novel translation wiki broke out into an editing war. Later it was learned that the vandals were actually an agent of minori, and the subsections contested was about translating their games. A few days ago Minori posted a letter on their non-Japanese IP blocking portal that addressed the overall issue. Finally, you can read all about that here along with some thoughtful analysis and links to the edit war stuff.
Before people jump to conclusions (or after, w/e) there are some cold, hard facts to consider. Or rather, cold, hard recognition of ignorance, actually. There are some things we probably shouldn’t assume or conclude, simply because they are either things of speculation or runs contrary to conventional wisdom. And then there are some things that are pretty much factual.
First the legal issues. Overall they are not very relevant to the crux of the issue and I feel most of the time they’re just herrings to cover up something more goofy, but that’s the game people want to play…
One fact nobody brought up is that it is very unlikely minori can afford to sue anyone outside of Japan. Maybe Canada is cheaper, as it is where some parties to this controversy are located, but the typical intra-country US copyright infringement suit cost in the order of 20-100k USD, for one party, and that’s just to see a judge and maybe get some motions out there. I can only imagine how much more it costs someone who has no US presence to try to do this, who will have to get legal translators and hire foreign lawyers to do the dirty work.
[A little tangent and background--Funimation provides this service for their Japanese overlords, in order to lower the cost and help police the copyright of their works. But their business partners are the likes of Media Factory, Kadokawa, Bandai Visual, Aniplex, etc... These "masters" are on a totally different scale than any eroge makers, who all probably can enforce their rights overseas, even if it still hurts.]
Second, there is nothing criminal besides actual copyright violation, as in, distribution of a derivative work (translation). Of course if you are distributing the software itself, that’s obviously illegal, and so is distribution of the unauthorized translation. But if you didn’t distribute it, there’s nothing they could do (as in the cost of suit will easily surpass the potential recovery), plus you’ll have a very strong fair use defense.
These two issues are mostly speculative. Who knows, maybe someone can get some cheap lawyers. Who knows, maybe someone is loaded with $$$. Who knows, litigation can be a Russian roulette of sorts. But none of that is particularly relevant at the core issue.
Although minori raised these copyright issues, the most important legal issue they’ve raised is the condition of operation of their software based on a location restriction. That is no different than what is more commonly known as region coding. If Sony or Nintendo can get away with “we’ll sue you if you export our region coded games!” then they would have had; and for the record they couldn’t win suits like that. The law, as minori openly confessed their ignorance, is different once you leave Japan. And it isn’t even illegal or criminal to carry copies of their games outside of Japan (imagine you took your yacht to the middle of Pacific and installed ef on your laptop for a good time), so maybe they’re ignorant of their local laws too. Plus, the analysis of that kind of legal issues generally rubs up against consumer protection laws, and that definitely vary a lot from country to country.
[Aside #2: I'm making these claims based on the translation as I linked up there. So something could have gotten lost in the translation and I would be off. Legal arguments need a certain sort of precision after all.]
It’s hard to be sure if it is a breach of contract to export that sort of thing. I’m fairly certain it isn’t, but I doubt minori want to bring a civil suit in Japan against a non-Japanese person not living in Japan or otherwise have little to do with it, even if they could (which they probably can’t). Unless Japan is really whacked about their contract laws, I speculate that minori has actually zero legal grounds to make that particular argument.
The other big issue I have is that minori clearly illustrate a lack of understanding of the rating agency trap that the rest of the world do not live in. Japan is all about self-policing as far as industry behavior is concerned. America and the west? Not as much.
It might be fine that minori does not want to be a part of the growing problem that Japan has in the eyes of the international public as a peddler of sexualized images of children. In that sense it is okay to shut themselves out from non-Japanese eyes. However does minori even indemnify their local users against these sort of charges? If the Nonexistent Youth Bill were to ever pass, minori would be in the same boat as every other cultural exporters right along the lines with every anime publisher and adult game developers (dude, ef is srsbzns?). Is minori pulling this out of their collective buttocks? I can only speculate since this isn’t something that will likely to ever happen.
However, I think minori got the wrong idea about the foreign rating agencies. In Japan, the two rating agencies for adult games serve as a mean to self-police. In America, the likes of ESRB serves not to just facilitate the game industry to rate their games, but it is a way to serve the government bodies and retailers whose businesses is to appease the public. Regulation on content protects some publishers and retailers, who are the biggest fish in that lawsuit chain. Developers are nobodies generally speaking. In practice, the retailers basically set a standard that mirrors what a state or federal regulation would be (ie., card a customer for buying AO games), but without the fines that would be associated if this was already on the books. And just because ESRB coins a game as “adult only” it does very little to ward off legal troubles based on claims of child pornography, obscenity, and anything addressing the content. In other words, ESRB does not guarantee the developers very much. They certainly do not indemnify anything once the lawyers come marching in, because ultimately developers are free to do what they want, and bear the risk on their own. I guess minori is not up for that.
As far as I can tell, EOCS does not indemnify either; they just draw lines for publishers and developers to follow, as games that are not rated will not get sold by retailers, and the games that get rated are for sure the ones that could not get into trouble. This is fundamentally similar to the US model, except that a ton of unrated games still gets sold over the net in the US, and lawsuits against games are almost always ones that were rated. Americans don’t do that group think thing, we rock boats.
That’s all the legal stuff. The rest is just politics. The cynic in me says basically:
- Japan is beset with legislative threats to crack down on content industry for sexualizing children, for portrayal of sexual violence as a legitimate mean of entertainment.
- These threats cut into the creative freedom, cause “meiwaku.”
- These threats and pressure come from outside of the group, foreign or otherwise.
- So in order to make it go away, let’s keep this dirty stuff…more secret so they will leave us alone.
It’s that simple. Translations popularize minori’s games, so cutting off the translations will minimize spread of minori’s games, both as a matter of information and interest as well as to minimize the illegal spread of the software. That much is both rational and something we all can swallow. And minori is entitled to stick its head into the sand, and do even more by asking people to remove their fan translations. However they could have done that much more effectively without raising a ruckus with those loopy reasons that make no sense and hollow legal threats.
A part of me thinks even minori knows the nonsense it espouses are a loopy set of rationale. They just want to say something; and it isn’t so much they don’t want “us” to play “their” games, but they just can’t handle us. Unless you become “them.” Which in this case it means someone who can read Japanese and keeps this dirty little not-so-secret.
Just to set the record straight, the real people that all of us should be blaming are the Japanese bureaucrats who are doing their politico thing by preying on the eroge makers. If they did not have the public support, they would not have and could not have tried to pass these kinds of laws to curry favor with the local conservatives, bible thumping or not. It isn’t even the international organizations slamming Japan for its sexual deviancy, but those locals who do not stand up and protect their way of life. In some sense, minori is actually fighting the good fight by doing something concrete about it.
It’s just too bad that minori is doing it backwards by alienating their fans overseas. It doesn’t matter if you are the “good” kind of fans who would break the support disc and buy another copy and would heed every word coming out of minori’s geo-blocked web portal, or what mt-i calls dirty pirates. Know this: minori would rather cut you loose, and justify it with some weird reasons that may be completely unrealistic.
You know, for all the cries of “anime is dying” maybe we should talk about “eroge is dying.” That actually has some legitimacy to it.
“Funimation provides this service for their Japanese overlords, in order to lower the cost and help police the copyright of their works.”
It’s possible that in the case of ef, given that there is an anime adaption there are bigger fish with their fingers in that pie too, but I honestly doubt they’d care enough.
“if you didn’t distribute it, there’s nothing they could do (as in the cost of suit will easily surpass the potential recovery), plus you’ll have a very strong fair use defense.”
In the case of Canada they may have some level of fair dealing defense regardless, since any translation patch usually requires a copy of the original game. Canadian fair dealing laws examine whether a legitimate alternative to the infringement exists (in this case, no, not in english), whether the derived work would cause wider public dissemination of the original (in this case, absolutely – it has been demonstrated that legitimate purchases of visual novels go up when translations are available) and whether it would affect the market of the original work (it probably would, but positively). The real issue is that NNL were going to release Ef as a full game and not a patch. That probably crossed the line for them.
“the most important legal issue they’ve raised is the condition of operation of their software based on a location restriction.”
It’s simply not possible to restrict the use of media to a specific country, at least not through copyright law. Copyright asserts them the exclusive right to distribute the product. They can restrict how people obtain it and sometimes how they use it, or what they use it for, but they can’t restrict where people view their work, or when. You could potentially argue that they might have a EULA that adds the Japan-only condition, but EULAs have never really been legally enforceable as contracts. The whole thing is a white elephant. In fact, region lockout is considered anti-competitive and potentially violates the principles of laid out by the WTO.
“Japan is all about self-policing as far as industry behavior is concerned. America and the west? Not as much.”
Australia is pretty much fucked in this regard though :( Government-mandated institutionalized censorship system.
I think you’re spot-on with your conclusions though. Especially given that this comes so soon after CNN dug up the Rapelay controversy again. Additionally I suspect that Minori can’t actually fully understand the idea that there might actually be english-speaking fans of their work that would band together and – for fun – translate their games. The very concept of it seems to be so alien to them that they can’t believe it and think that the dirty gaijin pirates must be out to commercialise their work. They would never even think about threatening their Japanese fanbase with legal action like that.
There was a lot of obvious notions in this write-up, but I’m sure for many this is new insight; good job! :)
You know, for all the cries of “anime is dying” maybe we should talk about “eroge is dying.” That actually has some legitimacy to it.
Great point. It’s something visible, and being that the Japanese bureaucrats are the true pressure, the threat is assured. Whether overseas continues to translate and/or distribute these works is somewhat inconsequential imo, they may very well become extinct domestically and not one sould outside the country would be able to do much about it.
As you’ve pointed out, the real issue at hand is definitely the local political scene, and nothing to really do with any legal matters outside of Japan. I suppose Minori’s legitimacy — that is, in the eyes of foreign fans — would be very difficult to salvage in this situation considering (as you’ve mentioned) that the problem really isn’t about the illegal translations. It’s really about fear over the eroge industry being shut down or more thoroughly regulated.
Well, I can’t say that they’re wrong to take such action. After all, they can do what they want. But the justifications for all of that went straight down the shitter. But one thing I do think that must be pointed out, apart from Akira’s economic analysis such actions, is that the xenophobia here is very typical of Japan. And thus the foreign fans become targeted.
A big reason why I went and rehashed the obvious was to not use the term xenophobia. It is a gross over-simplification.
The reality of the situation is not one divided by any lines that can be defined as xenophobia. It is the group mentality, the us-versus-them reflex that is culturally ingrained within the Japanese society. Because to minori, the fact that their real enemies are their domestic politicians are not just words on a blog, but a reality that threatens their day-to-day operation. This royal, inclusive “we” may include the good-bad-and-ugly from the West, it might not; but while to minori their action may be one of self-preservation that they wish us to understand and preserver through, it will not appear to their non-Japanese fans as such as we don’t usually consider ourselves in that inclusive “we.” Us foreigners just don’t think that way.
Not all foreign countries are individualized. Some are considered relatively collectivist cultures (Norway, for example). Granted, much of what’s garnered from the social sciences is distinctly drawn data collected using populations in Western developed countries, it’s arguable that at least some points garnered from such sciences can be employed universally. However, I see where your alarm comes from: you don’t want us foreigners to misunderstand the way individuals in a collectivist culture would think.
However, let’s take for example in-group/out-group functioning that you refer to. Every society does the same. And when one group deals with cognitive dissonance — or any sort of external threat — rather than changing their own views, they tend to dehumanize or criticize them. It’s not necessarily a reaction based on fear, but it is arguably an irrational (and some would say, innate) response for humans, which have much to gain from social interaction and groups.
I suppose you’re right in that xenophobia isn’t the right word. In my opinion, what the West has done by attempting to force their interpretation of morality onto other countries is the very same thing as minori attempting to exclude foreigners. Perhaps justified for different reasons, but, in the end, it’s an attempt to deal with a dissonance in cultural understanding and acceptance. One method involves changing another group, and the other involves seclusion.
The main problem with minori’s statements are that this “we” is designed in the most degrading way. And what I mean by that, is an “unless you’re in Japan, you shouldn’t be playing our games” sort of mentality. They don’t want us to think of them as trying to protect themselves or anything like that, and seek our understanding. If they did, they wouldn’t be so quick to tell people to only enjoy the games in Japan. If being in the “in-group” was defined by location, then minori would be including its very own domestic enemies. However, if they consider foreign opinion the bigger enemy than domestic ones, then it’s not surprising that they are only so welcoming should the foreigners themselves go to Japan.
In the end, their enemies still remain there domestically. There is some sort of self-preservation, but an irrational fear, one that has been drawn based on lines of legality and territory comes with it. Since the domestic laws are different, what minori is truly afraid of is a law change, particularly one spurred by overzealous Westerners. My point isn’t to argue that what they’re doing is economically unreasonable. What I am saying is that their justification for their actions targeting their foreign fan base is based on something that is not borne only of good will and self-preservation. I don’t doubt that their intention is survival, but their outward actions are coupled with something other than a mere desire to survive.
Let me clarify: I mean it that we are not included, not that we don’t engage in group-think; it may be possible that they still do care about their western fans. It’s not my purpose to talk about group think, rather I think it’s important to note that aspect of minori’s motivation.
Late response and all, but I need to correct some misinformation.
>They would never even think about threatening their Japanese fanbase with legal action like that.
minori sued (yes, outright sued) the author of ExtractData for reversing their archive encryption. It was later settled out of court in minori’s favor.
Thanks for the note
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