If Only I Could Download a Paycheck....

Matt Brown (Editor in Chief) — April 27th,2010
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I'd like to go on record and say: I don't have a problem with fan subs. I don't believe their very existence is immoral. I don't think their influence over the market is so great as to propel it toward a fiery global death. I don't see these producers or their clientele as evil, nor do I think they are ignorant of the gravity of their actions. I have downloaded a few fan subs in recent times — titles I couldn't buy with subs, or bought later. I do not regret doing so. I also forked over significant funds to the anime industry, both foreign and domestic, in exchange for goods. I don't regret that, either.

I do have a problem with downloaders who intentionally snub a licensed product in favor of the "free" alternative. I do have a problem with corporate figures who willfully misinform about the consumers' rights or peddle claims of demise (while keeping all the numbers secret) to protect their financial interest. I do have a problem with fan sub producers who claim that everything they are doing is in the consumers' interest.

To make it clear where I'm coming from: I am not an anime-industry insider. (How relevant inside knowledge is to this issue is debatable; I'll leave that question to those better informed than I.) I don't work in entertainment at all. I don't claim expertise in law, culture, or business. What I offer here is my own viewpoint on my relationship with the corporations that produce and market anime, and the groups who produce and distribute fan subs.

Here are a few other points for clarification, in case there's anyone who doesn't know this stuff already.

  1. Creating and distributing a translation of a creative work without permission is an infringement of copyright.
  2. Distributing a digital copy of a creative work from any digital or analog source without permission is an infringement of copyright.
  3. A copyright needs no registration with a government body to be enforceable.
  4. A copyright registered in any member country that is a party to the Berne Convention is enforceable in all other member countries.
  5. The fair use of a copyrighted work "is not an infringement of copyright" (these exact words are in the US Code) — despite representatives from Funimation legal, or even the major media conglomerations, trying to say otherwise at one time or another. Academic and journalistic uses of a work are usually considered fair use. Satire and parody often are.
  6. Quite obviously, distributing a translation for all to download is not a fair use.

Copyright Is (Not) Morals

What we call "intellectual property theft" has a fairly rich modern history which I won't go into much. One major highlight: Hollywood began as a group of independent filmmakers who defied patent law in producing and screening their films. Luckily for them, the government eventually took their side and slapped the patent holders (Thomas Edison, among others) with an anti-trust suit.

Patent and copyright law are similar in their original intents — to grant the inventor or artist the exclusive right to benefit from their work for a limited time, in exchange for disclosure of that work for public consumption. Case law has created exceptions to the exclusivity, such as the one above, when that right ran contrary to the public benefit that these laws envisioned.

Anime fansubbers have been known to advance the argument that they created the fandom that exists today in America. Anime certainly was less available a decade ago than it is today, and it's true that fan subs years ago were the only translation available for a wide variety of Japanese anime works. The question of whether all of this is an infringement of copyright has a simple answer and thus isn't terribly interesting, here. Doujinshi are also, more often than not, infringing, but the culture of doujin artists and publications thrives with little interference.

The entertainment industry at large seems to have taken a sort of mob-inspired stance on infringements: leave 'em alone as long as they stay in their own territory and don't try to cut in to our business. Start breaking knees if they get too big for their britches. Unfortunately, Internet-based infringement is by its very nature unable to restrain itself inside such a boundary. What started as a beneficial offering all-too-easily turns sour, and sometimes all it takes is for some rights holder to redraw the line, thinking that conditions are such that they can make more money off of the stuff.

When framing the debate over whether fan subs have a place in today's anime scene, I think the most important standard to apply is the level of public benefit that a particular sub provides. One unconvincing — yet not entirely merit-free — argument might be that a TV broadcast in Japan is meant to reach as many as possible, and so the fan sub extends its reach.

Today's domestic anime industry is responsive enough with simulcasts and their release schedules that they are able to be a fitting extension to the Japanese broadcasts, but I do remember a time not so long ago when the licensees would sit on the product for what seemed like ages before releasing it, if they did at all. At any rate: any attempt to paint fan subs of Japanese TV as beneficial when there are legal, easily obtained alternatives is dishonest, and it's fair to treat the groups who distribute these subs without regard to the rights of regional licensees as dishonest and selfish people. Much in the same way as it is dishonest for the companies to claim that fan subs are the chief player in the downfall of the industry, and nobody else is responsible. (Bear in mind that when I say "dishonest people," I say so within the scope of this issue alone.)

A Good Man is (Not) Hard to Find

In the midst of all the bickering over the morality of fan subs, one important topic seems to have been ignored altogether: the issue of rare and unavailable works. I'm not talking about so-called "orphan works," those in which a person incorporating the work in a publication have made a good-faith effort in locating the copyright owner to obtain permission, but failed. I refer to titles that might have had a print run but none further are in the plans, or titles that are some years old and weren't commercially promising enough for a domestic company to license. The obscure, the niche, the forgotten — many of the things that appear on Justin Sevakis's Buried Treasure column, for instance.

It's difficult to draw a line on what should be considered OK and what not, but I believe that fan translations of these works don't pose too much of a threat to the revenue potential of the industry, and they might reasonably be considered as an actual benefit to certain sectors, such as academia. These subs are still infringing on someone's rights, but by their nature should not be treated as harshly by rights holders as those subs which copy an ongoing and commercially-viable broadcast. If there's any hope of a commercial release, then protecting one's rights is a reasonable thing to do. Otherwise, the public benefit of making available those forgotten works might outweigh any desire by the rights holder to lock it in a closet.

I'd like to see the fan sub groups return to their symbiotic role of broadening our horizons, instead of directly competing with legitimate commercial interests for no tangible public benefit. I'd like to see the companies treat the issue as what it is: a legal issue, not a public relations issue. They need to be willing to go to battle over the things that legitimately affect their bottom line (assuming they can prove it), and should shut up about everything else. Incorporating anti-piracy into the PR strategy just makes the company look like a bully.

I Am (Not) Here to Help

I don't envy the position of the industry this year. Few salable titles remain to be license-rescued. And I believe Bang Zoom! CEO Eric Sherman when he says the domestics are in serious trouble (at least with respect to dub production). And I sympathize when it comes to the lack of money-making potential with online anime streaming. And it sucks for all of us that the home video market is drying up.

Here's what these guys are up against: from a shrewd market-oriented point of view, consumers are under no obligation to save the industry. There is no personal benefit and a financial cost to buying stuff just for the sake of helping a brother out. There aren't even all that many potential paying customers — many fans are either minors or are still supported by their parents, and there's no convincing these people to cough up the cash. It's like trying to teach a trust-fund baby about the dignity of work. These people aren't going to save anybody's job, so we might as well ignore them (and what they ask for).

The question becomes: what else can today's companies do to earn our money that they aren't already? I don't know about you, but I don't have a good answer to that. I might start on some drivel about not licensing shitty titles, or stop cow-towing to ridiculous demands from licensors that want to change the pronunciation of "eureka." (Hey; we all have our pet peeves.) Even if I could offer up a good idea, and they did what I asked, I might not spend the money anyway. Like I said, I don't envy their position.