FUNimation using ‘pirated’ subtitles

Torrentfreak ran an article about FUNimation using downloaded subs to create their dubs. It read, in part:

There is no doubt that Funimation is using ‘pirated’ subtitles, but it seems unlikely that they failed to secure the appropriate rights.

This is based on what tempest of ANN wrote:

1) Funimation did use HS’s video/subs in that recording session
2) We do not know why, we do not know if it is regular behavior
3) Funimation is the licensee, and their license almost assuredly includes CR’s subtitle script
4) Funimation’s license and US Copyright law and USC Section 17 give Funimation the legal right to use HS’s video/subs
5) As a result of #3 & #4 Funimation’s actions (not including font) were not illegal
6) If the font in question was included as an additional file (and not hard coded), and we assume that HS does not have a license to distribute the font, Funimation may have unwittingly infringed the copyright of the font if they do not have an appropriate license for that font
7) We do not know for fact if Funimation has a license for the font

Now as for the ethics side… most of it is pretty subjective.

This is, broadly speaking, true, but two parts stand out.

I take issue with tempest giving #2 its own point because it’s blowing smoke.  “We do not know if it’s regular behavior.”  Why emphasize this?  It’s safe to say at this point that some offical dubs use subs.  Should we say that all of them do? No. But neither should we take the stance that this is probably some kind of aberration.  Further proof is required to lean either way.  The concern of fans is that this comes at a time when FUNimation is suing downloaders.  Those lawsuits don’t hinge on “regular behavior,” do they?  It is irrelevant whether this is regular behavior, so the only reason for tempest to bring this up is to discourage people from exploring the possibility that dubs they have paid money for consulted subs.

I take issue with the way #4 is written, because it is only true as long as HorribleSubs are ripping off Crunchyroll.  In other words, there is no separate legal right that FUNimation has in that category.  It is inaccurate to suggest that FUNimation has rights they don’t have.

First off, it’s legally fine for FUNi to download fansubs if they have the legal rights to distribute the thing to begin with. They have the right to download an English version of the episode because they give themselves that right, as the legal distributor.  (The law is very accommodating – as long as one is on top.)  Politically, though, this is insensitive and is probably what has some people upset: why are you suing all these people if you yourself rely on these subs?

But there is another legal issue: it does not follow that FUNimation automatically has zero obligation to reimburse or acknowledge the fansubbers who did the translations, assuming it can be proven that their dubs are a derivative work of those translations.

Now, if they are only using subs done by Crunchyroll, and CR says it’s OK, then there is never going to be any legal action, and this is a nonissue. But if they are using subs by fansub groups, without getting their OK, then there is potentially a problem.

As for points 6 and 7, they are side issues: this font is not appearing on the dubbed product, because it’s a dub.  It’s unlikely to result in legal action, either way: font makers do not typically go around suing people for accidentally downloading their font without knowing better, the way that distributors go around suing people.

It would be an ironic twist to see a fansub group sue FUNimation in court for using their intellectual property.

Published in: on March 21, 2011 at 11:21 PM  Comments (7)  
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  1. Oh, I don’t think anyone really cares about the legality of what they did (It’s most likely legal, obviously, they have the distribution rights and bought the subs, probably), the POINT here is the following:

    A major media distributor notices that it needs video and subs, in a convenient format, for in-house use. What they do is fire up a torrent and grab those – because that is the most convenient way. At the same time, they complain that everyone else does as they do.

    There is a lesson here about making digitally distributable goods affordable and, beyond everything else, more hassle-free and higher-quality than what the pirates can offer. I haven’t pirated a single game since I got Steam, and I am a _cheap bastard_. It’s just that Steam is so convenient and affordable that pirating is much more of a hassle. Arguably, it’s probably harder to offer as much of a disparity for video, but… netflix seem to be doing well, don’t they?

  2. Impressions about your post (and the one you’re responding to):

    1. I like how you nitpick on #4. The core issue here is that copyright (in America and IRT WIPO) is not really some kind of moral soapbox; it is a private monopoly. In this case, whoever owns SoraOto obviously would give FUNi any and all permission to their material (as much as they could, since rights are often fragmented in something like a committee-produced anime) in order to facilitate FUNi’s work, so the legality issue should have stopped there. There’s zero reason to drag in any statutes, esp. since USC 17 is literally the entire book on US Federal Copyright. LOL overquote much.

    On the same token, I think your objection to #4, as I read it, is largely inaccurate too. It doesn’t matter if the video shown is a HS work, nor did it matter if the HS work is an derivative since it would have been deemed illegal under US Copyright, and the rights of the derivative returned to the original owner. Truth is, as long as FUNi had the blessing of all the legal rights holder involved in that video, they can do whatever. Derivative rights are a bitch, yeah?

    The same extends to, well, the same arguments people made about CR back when it was not legit. Or the one you made there about how there is potentially a problem. Well, I guess potentially it could be a problem, but we’re looking at odds smaller than getting hit by lightning. Because anyone who has enough standing to sue CR, unless they’re doing it in the popular copyright troll style, is going to get countersued and lose. Plus how many anons can pony up fees for a federal suit?

    2. The typeface argument is pretty amusing though. I mean, this actually suggests when you watch a fansub you are infringing at least 2 or more copyrights, where one of them is a protection on the font. LOL. However just like nobody is suing anime blogs for copyright infringement on the scans, layouts and fanart they appropriate without permission, nobody cares about fonts in fansubs. Will it stand up in court? Dunno, someone should post some info on the font.

    3. It’s unclear if CR owns the subs. In fact it’s unclear CR owns anything in this instance. It may very well be that the subs were owned by the Japanese rights holder. How and who paid for the work is a different story.

    • 1. I suspect I do mean a lawsuit in what you call “copyright troll” style – just to make a point. (For those reading other than omo – if you get an impartial judge, and if it can be shown that a dub translation was copied wholesale from a fansub translation, a case can be made that a translation was taken and used to make a derivative work and there was no compensation for the translator. It probably wouldn’t be thrown out of court summarily if the use of the fansub was total and complete. That would not mean that fansubbers would win, only that it would be heard. This is the goal of many activists: simply to get their case heard in court.)

      I agree that a countersuit for distribution would almost certainly crush the fansubbers, as their work is in turn a derivative work of the original Japanese, but that’s another issue*. “Can a company win a suit against a few private citizens for illegal distribution?” isn’t really a question we must think hard to answer in this day and age.

      *Strangely enough, perhaps bad fansub groups could cite in their defense DarkMirage’s rants as expert testimony about how they diverge so far from the original that they aren’t really offering just a translation, but a reinvention of the story.

      2. I am not aware of any precedents involved. I just know that font companies don’t aggressively sue people. It would be very complicated for websites if they started doing so, but of course that doesn’t mean they don’t have the legal right.

      3. In an unclear situation, I believe the translator generally retains some rights to his or her translation. As William Flanagan puts it, “They have the right to their words.”

      • Let me get this out of order.

        In the first case about translations, it’s just creation of some thing that can be protected by copyright, where that thing arises from another copyright-protected work. Of course, fansubbers that actually translated the work has a copyright claim. It’s a different story in HS’s case, of course, so if we don’t deviate from the example case, HS does not even have a copyright claim on the translation/script grounds.

        If you just want to make up a hypo to probe your question, or assume HS has made some kind of editorial change to the CR script they ripped (don’t think they do this normally, but anyways) , then maybe your argument has some weight. But the way copyright law works is that if the act of creating your derivative work violates copyright, then you don’t have rights to the work you’ve created.

        This is a very different thing than the WFH case where statutorily a translator almost always do not have any copyright claim to the work s/he creates because s/he signed it away on the contract. So let’s not worry too much about that since it’s not related to this fansubbing issue.

        So while on paper translators have some kind of right via copyright law, they always sign it away. And they have no right via copyright law if they translated it illegally (and this is where fair use gets actually…fairly used, as a defense in certain situations).

        As to the copyright troll thing, I presume you are familiar with what I’m talking about: basically some group of lawyers file lawsuits against John Does on behalf of content owners, extorting these individual defendants into quick settlements. Generally speaking copyright trolls never wins cases, since it’s more a ploy than a valid claim in court. Of course they won’t target actual corporations with in-house counsels and the like (ie., FUNi). But it seems to be one of the two plausible scenario that what you propose could happen. As implausible as it may be.

        As far as “bad” fansub groups, I suppose it’s another thing that is possible, but extremely unlikely. For that matter I’m not even sure actual parody sub groups can get away with what they do in most cases.

        Heck I don’t even know if AMV people can get away with the footage portion in some cases.

      • We agree there is little possibility of a fansubber exercising full copyright powers, but the broader issue of doing useful work and then seeing that work used to make other products, without reimbursement, is problematic. The fundamental idea behind intellectual property law is that if someone does work and creates something new, then intellectual property is created. You are right to mention that the wording of the copyright act of 1976 denies rights to unlawful creations, but it does not deny that a creation takes place – in fact, it requires it in order to apply. The intent is to prevent profit by the derivative creator. Using such a derivative to make a further derivative for profit – and thereby profiting from the derivative without compensation or consent – is contrary to the general principle of IP law, and a case can be made that this is an abuse of the denial of copyright for unlawful derivatives.

        Again, the reason I bring this up is to note that this potential complication does not arise as long as FUNimation does not use some fansubber’s work. It’s a line they haven’t crossed yet, and probably won’t, and people should recognize that.

        “While on paper translators have some kind of right via copyright law, they always sign it away.”

        Almost always. I understand that Frederick Schodt has actually retained copyright to his translation work in some cases, but that he is also the exception to the rule.

        I have heard of the abuses you refer to where the threat of lawsuits is enough to make people fold, but I didn’t realize that was what you meant when you said “copyright troll;” I thought you were referring to the general phenomenon of people going to court to prove a point rather than to win.

        Insofar as parody subs go, parody is a very well established fair use, and I think there would have to be something egregious about them for them to not be protected by a court. Courts have found that even drawing a mustache on the Mona Lisa qualifies as fair use. The bar is pretty low as long as it’s evidently an attempt at parody.

  3. Let me take some more shots at some of your assumptions.

    1. You said
    The fundamental idea behind intellectual property law is that if someone does work and creates something new, then intellectual property is created.
    The fundamental idea behind intellectual property law vary. Really, it depends on who you ask. But one thing everyone who knows his copyright will tell you is that it doesn’t protect merely “sweat of brow” work. In fact it’s one of the fundamental principles of copyright: you have to be doing something creative. So merely ripping and slapping some ripped subs then encoding it and then putting on a file server … don’t really think any creativity is involved in that process IRT the actual work, for example. Well, one can make an argument in, for example, the BakaBT scenario where people break copyright law to create some uber product that is otherwise commercially unavailable in its ultimate form. Even if it’s pretty clear no creative endeavor happened per se in the final results.

    This is probably the line of thought and reasoning you should dig into further to get at the juicy innards of people’s gut reactions.

    2. Copyright law in general doesn’t really give a damn about you using someone else’s work. In fact it explicitly provisions that after a (very long) period of time, you can (ie., public domain). My take is that it’s an instrument at regulating commercial and institutional use of IP. It is only in recent years that individuals are going at it with non-commercial purposes in mind en masse.

    As such, an institutional/commercial transaction that results in a copyright-protected work are generally governed by some kind of contract. (In fact, I’d go as far as to say that anyone who doesn’t do so is not a pro or acting professionally.) These contracts generally are the overriding guide to any transaction of these IP. To make an analogy, we use contracts and deeds to buy and sell houses and land. We don’t use federal statutes, because it’s a very problematic thing to use! Clearly it is a bad idea to default to some archaic crevices of 17 USC to conduct your everyday media consumption behaviors.

    3. And that leads into the whole parody thing. I’m not going to outright disagree with you, so let me just point out that parody is a fair use defense, and it’s well-documented what the fair use elements are in terms of determining if a smirk on Mona Lisa qualifies (tip: it is not enough, alone), or anything you want to claim as parody or whatever. Crevices I tell ya!

    • Of course interpretation of legal principles varies. But that is one interpretation, which may be argued in a court of law. I note that you won’t go so far as to deny the possibility, and you previously agreed that there is good legal precedent for thinking that translations are “creative” works. For my part, I don’t go so far as to say it’s the only possibility, just that it is one possibility. That’s why I said a “possible” or “potential” legal issue instead of “a definite legal problem.”

      As a society, we are in the process of redefining the intellectual framework of intellectual property . . . witness Joe Biden’s speech. Whether to stress the older paradigm or the newer is, again, a detail of an actual case.

      I don’t see anything wrong with justifying behavior from first principles, if someone wants to do so (it is the theoretical basis of not just law, but also ethics, theology, and philosophy, all of which purport to justify behavior.) On the other hand, I think that cases abound where people trusted their “common sense” with regard to what was or was not their legal obligation, and turned out painfully wrong. So, where law or any other codified rule system is concerned, I’d say reasoning from first principles is better than intuition or gut reaction, unless you are a highly trained professional, in which case your gut reaction likely follows the principles anyway.

      While you sort of dismiss the case of non-professionals, they are the very crux of the above discussion: what is created and what rights or considerations may pertain in the absence of a formal contract? Our discussion also took a turn to “What might be argued in court?” I’m sure you’d agree that nuances, however archaic, are things that might affect how a case would be argued.

      As to putting the mustache on Mona Lisa, I’ll reiterate that one change alone has been thought of as sufficient, given the context of what Mona Lisa represented. (See: LHOOQ.) So while we agree that it’s a fair use defense, I think that my broad statement about the bar being pretty low for parody holds true. You mostly just have to be able to explain how it is a parody and have some experts agree, which I presume almost any artist can do.

      I enjoy a good mock trial as much as the next person, but there’s little point in going into too much detail over the internet and in a comments section. I think at this point we’ve made clear that the argument exists in a sea of other arguments.

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