Last summer erotic game developer Minori, developer of adult PC titles like Bittersweet Fools and Angel Type, blocked foreign access to its website in the wake of the Rapelay controversy.
The developer later explained in English: "Some foreigners seem to be having an antipathy against EROGE. Therefore, We prohibited the access from foreign countries, to defend our culture."
There's been quite a hubbub in the eroge-playing community this week, sparked by minori (ef, Wind, eden*) inducing an edit war on TLWiki's eden* page. Now, for those of you who remember, minori was one of the first eroge companies to block website access from foreign IPs last year after the Rapelay controversy exploded, citing a fear of "violating local laws and causing trouble for foreign fans" as motivation. A year has passed since then, and the minori website has remained shut to foreigners. Last week, minori emerged from its isolationist shell to delete the eden* translation project in its entirety. For a more detailed and comprehensive account of the events, please read these articles. The gist of minori's argument: We hold the copyright to these games, and we don't want them to be translated. Therefore, we're going to delete all of your translations and request that you stop. Reasonable, right?
Apparently not. Fans have already started whining and crying over minori's "betrayal" of their many years of loyal support. Says one disgruntled fan, "Dear minori: I'm a dirty gaijin and I bought all four of your shitty games…"
This is quite the intriguing statement. We can pick it apart a little bit and see what sort of thoughts are going through this particular fan's head.
He calls himself a "dirty gaijin"! This clearly denotes him as non-Japanese, and his facetious mockery of his own race seems to suggest that minori doesn't particularly like foreigners. Perhaps there's a case of racial prejudice going on here? minori might not be protecting its own rights, or looking out for the well-being of its fans; minori just hates white people. In addition, the statement "I bought all four of your shitty games" shows that this fan is rather loyal to minori, and feels betrayed and offended by minori's deletion of the eden* translation project. (Ironically, were he a true fan, he'd know that minori has produced more than four games.) This sort of mentality is fairly indicative of certain segments (dare I say, the dominant segment?) of eroge fandom: Translators are doing Japanese companies a favor by providing free advertising. Japanese companies should be paying translators for the free publicity that they're getting. How dare companies turn their backs on us, their most loyal and rabid fans from overseas?
While I am rather flattered that people think my work spreads good cheer and Japanese culture worldwide, I'd rather not take credit for it. I give out absolutely none of my contact information and shy away from taking credit for my translation projects for a reason. As a poor student, I'm not interested in having my ass sued into oblivion by some Japanese corporation. I simply don't have the time, energy or desire to get myself entangled into a long, drawn-out legal battle. In addition, I have no delusions about the legality of what I do. I understand that my work is absolutely illegal. If the rightful owner of any eroge tells me that he objects to my illicit translation of his work, I will back off. It's the sensible thing to do.
Note that this does not mean I endorse minori's actions. To be honest, I could care less about whether their games are distributed overseas, because I (and any other fan who is dedicated enough, I'm sure) will be able to find a way to import their games from Japan. For those of us financially unable to afford dropping 60 to 100 dollars on a video game, there's always software piracy. (Unfortunate, no doubt, but an alternative, nonetheless.) The fact of the matter is, whether minori decides to sell their games overseas or not, fans will be able to procure them (through legal or illegal means) in their countries of residence. Any drug addict will be able to get his fix, regardless of legality. In the same vein, any eroge fan will be able to get his games, regardless of legality.
Now, what about minori? Should they sell their games overseas?
The answer is most likely no. I actually had a long, protracted discussion with Kataoka Tomo (of NekoNekoSoft and Narcissu fame) about this two years ago when I met him for dinner. He told me that he was looking into the viability of jump-starting a small, niche eroge market internationally, and concluded that it was simply not worth the trouble. His reasoning ran thus:
The three largest international markets for visual novels are China, the United States and Western Europe (notably Germany and France). His research included that other markets are too small to justify investment. There are problems which significantly obstruct the import and distribution of eroge in these three jurisdictions:
1. China: Draconian pornography laws automatically rule out eroge as an importable good. In addition, Kataoka, like many other artists, is philosophically opposed to state censorship and monitoring.
2. United States: A convoluted patchwork of state and local regulations regarding obscenity require quite a bit of legal maneuvering; current American distributors are probably uninterested in picking up any of NNS's games.
3. Europe: Language barriers and a patchwork of legal regulations (similar to the United States) hamper market entry. In addition, the market is barely large enough, and many different teams of translators would have to be hired to translate each work.
minori, of course, faces the same issues that Kataoka and NNS does. There's simply no viable market for eroge overseas, and a large amount of legal research would need to happen before any sort of decision is made. I can definitely attest to the small size of the US eroge market: as someone who sells eroge at cons, I can say that business is relatively slow compared to sales for doujin, et cetera. As for legal maneuvering, most of these companies don't really have the spare capital lying around to hire legal crack teams to research foreign laws. (In fact, NekoNekoSoft is run out of an apartment in Saitama.) Non-ero visual novels may sell slightly better, but since this is minori we're talking about, this is a moot point. minori doesn't make non-ero works, more or less. (eden* and console ports would be notable exceptions… I guess.)
Given that it would be economically risky for minori to sell games overseas, and given that minori has no desire to sell their games overseas, should minori stop fan translation projects of its games? I argue that they most certainly can. Admittedly, starting an edit war on TLWiki is a rather childish way of saying, "I don't want you to translate my work," I highly doubt that the lovely folks at No Name Losers would stop translating ef if minori politely requested them to. Having worked with NNL on ef, I have seen firsthand the things that the group is willing to do. However, it would be rather petty of me to engage in ad hominem attacks, and this isn't the appropriate forum to do so, in any case. However, I will simply say that they have put a poll up on their website asking whether or not they should release ef after minori sent them a DMCA injunction. If I know NNL, I know that they fully intend to publish ef. Of course, having been a former member of the project, I have absolutely no say in this matter; I have politely asked them to remove my name from the staff credits, for I would not want the work of their wonderful translator to be tarnished by my incomplete scripts that I left behind. They have complied, and I thank them graciously for that. However, if minori is serious in pursuing their copyright, then the folks at NNL may end up in pretty deep trouble.
Many fans have also questioned minori's ability to prosecute overseas. I cannot speak for NNL's case, as they are a Canadian group. However, in the United States, this is what would happen:
The Japanese copyright holder [minori, Inc.] must first register his mark [ef, eden*, et cetera] in the U.S., but then he can sue. The fact that it wasn't registered in the U.S. when the infringement occurred does not preclude him from suing because copyright protection arises automatically by law when the work is created. It may affect claims for attorney's fees and stuff relating to the question of innocent vs. willful infringement, but that's not a huge deal in copyright cases. The fact that the copyright holder is not a U.S. national does not preclude him from suing. Most of the patent suits I helped defend were brought by non-U.S. corporations, and I assume copyright is the same. The copyright holder may only sue for U.S. territorial damages. Any damages occurring in other countries as a result of the infringement must be sought in the courts of those countries. Along with damages, the remedy would certainly include an injunction enforceable in the U.S. Damages sound like they'd be tough to prove. If they're too small, I think the copyright holder would probably be able to use the same 1203 claim that the RIAA uses to get up to $25,000 per "instance of circumvention." The details of the case would be important at this point.
So there you have it; it is most definitely within minori's rights to sue the living daylights out of anyone who infringes upon their copyright.
Now that most of the positive issues regarding Minorigate have been resolved, I'll insert a bit of my own opinions and talk about normative issues regarding the case.
Both minori and hot-headed fans are acting in a manner which is both irrational and destructive. Saying, "FUCK YOU MINORI, WE DO WHAT WE WANT" is not a great way to gain the trust of Japanese companies, and will most likely hamper legitimate efforts to bring eroge to the United States. In addition, fans claim that minori "does not care" about foreign fans. Well, to be honest, there's no reason for them to care. The minuscule amount of sales revenue that minori derives from foreign sales (through a third-party intermediary, I should add) isn't enough to justify caring.
Many Western eroge fans have a sense of elitism about them. "We took the time to buy your shitty game, so thank us for it," they seem to say. There's absolutely no reason why minori, or anyone, should thank western eroge fans for anything. Western fans are just customers, engaging in consensual market transactions. Just because I live in the United States and happen to be one of the few people who are interested in eroge here in the US does not suddenly make me more entitled. I am not delusional: minori owes me nothing. I bought their games because I enjoy playing them.
So, if we frame foreign purchases of minori products as a voluntary exchange between two consenting individuals, what reason does minori have to stop a consenting, rationally-thinking adult from purchasing its product?
The easy answer, of course, is that minori is a xenophobic and racist company that doesn't want its products in foreign hands. Somehow, I doubt this.
Rather, minori is simply acting on rational economic incentives. As previously stated, the company has very little incentive to expand their operations overseas. In addition, assume that minori allows foreigners to visit their website and purchase their games. If RapeLay wasn't indication enough, someone will pick up on the fact that "pornographic video games" are being sold on the Internet, and protests will ensue. Empirically, this brouhaha will lead to moral conservatives and feminist organizations to protest the eroge industry, potentially changing social norms, if the new Tokyo anti-lolicon bills are any indication. This will lead to a net loss in revenue for minori and other firms. Therefore, it is in minori's best interest to keep its business within circles that are complacent with the status quo; i.e., domestic consumers. I point to the fact that no one gave any attention to eroge until RapeLay came up for sale on amazon.uk last year. This shows that the Japanese public is more or less happy with current laws and regulations; only after British and American media exerted significant pressure on Japan did domestic organizations begin protesting against eroge. minori can decrease its visibility and minimize its own risk by pursuing a isolationist business policy; in the mind of its executive, the revenue gained from allowing foreign sales is far dwarfed by the potential moral backlash that could lead to the entire eroge industry tumbling down.
Naturally, their rhetoric about "protecting foreigners" is complete hogwash, but also very in line with what a Japanese company would say. The concept of 迷惑をかけないように (Cause no trouble to anyone) is a very strong one in Japanese society, and also a handy excuse. While western observers may be infuriated by minori's apparently patronizing tone, I do not think that they are intentionally talking down western fans.
Finally, I have a futile request: moderation on both sides. Fans do themselves no favors by forcibly releasing illicit translations of copyrighted material; there is no "sticking it to the man" going on here; fans will hurt themselves in the long run if they continue to be defiant towards Japanese companies' demands to stop translation of video games. No amount of moral or economic justification can change the fundamental fact that fan translations are illegal. minori, for its part, is acting in a rational but incredibly childish manner. They're a bunch of dicks, to be sure, but nothing is more infuriating than a dick who is justified.
Notes and Acknowledgments:
I would like to graciously thank my colleague and dear friend Kylaran for voicing his opinion on the issue before this article was published. I would also like to thank Dr. D. R. Thompson for his legal observations. The image is from moe.imouto.org, which, as you all know, is questionably safe for work.
I fully intend to continue translating visual novels. Being a devious, rebellious college student, I am of the opinion that a crime is not a crime until the criminal has been caught. However, I do believe that a translation is much more fulfilling when the original author consents to its translation. For me, translation is a hobby and a mentally stimulating exercise. I do it not for the fame, or the ego trip, or because I think that certain stories are worth sharing with the world- I do it because I find it interesting and feel that it is a good investment of my time. I am completely uninterested in legal issues. If any author tells me that he doesn't want me translating his work, I'll stop and find something else. Simple as that.
It is true that translations allow works of art and literature to reach a wider audience. I think that we should promote the translation of eroge into English, but we legally can't. There is a difference between what we can realistically do and what we wish to accomplish, and we should always keep that difference in mind.
I am contemplating taking up minori's offer to visit their headquarters in Tokyo for the purpose of securing authorization to translate eden*. Wouldn't that be a blast?
Finally, if one is truly dedicated to playing minori's games, learn Japanese. Everyone has the capacity to learn a language, and if you have the spare money and time to blow on buying eroge and doujinshi and then masturbating to them, you should be able to direct that energy to learning Japanese. Besides, the long-term investment is definitely worth it. Shit, you could learn Japanese while playing eroge and doing your business! Isn't that just great?!
In short: Be easy. Seriously.