In response to Fasteriskhead’s essay "Anime Companies and Otaku - Another Look" which was a reply to my column "Otaku's Influence on Anime Companies," I’ve decided its time to talk about the legalities of fansubs and the fact that they do hurt both the American and Japanese industries.

First off, yes, fansubs are illegal. ANN says it best in their article on the Legality of Fansubs.

"American Copyright protects derivative works, which includes translations. However, US Copyright law inherently accounts for copyright protections of other countries, when "the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party"

The US and Japan have signed numerous treaties, the most important of which is the Berne Convention, although others exist. As such, US Copyright protects Japanese productions, including anime, as well as derivative works from it, such as translations."

“Legally, there is no difference between "fansubs" and "bootlegs". In the eyes of the law, both could be seen as damaging to the market. Regardless of whether or not a title has been technically licensed in North America, it is illegal. Lack of enforcement of copyright laws in terms of unlicensed fansubs maybe the result of several different factors. Some companies may believe that the early introduction of the title to North America is beneficial. Others may simply tolerate a "fan-activity" as long as it does not become too damaging to sales. And yet other companies may not want to or be able to invest the time and money necessary to prosecute foreign violations of their copyright.

In the end, regardless of ethics, or motive, fansubs are technically illegal.”

My biggest problem with fansubs and not supporting the American licensed goods, is that you are in turn not supporting the writers/creators. As a writer, creator, and self-publisher, I would be appalled if someone took my works and reprinted them in another language or sold copies online. The money that a US company pays for the rights to publish an American translation does go to the creator of the original Japanese. And it is usually a substantial amount of money. One of the things I hopped to stress in my original article is that by buying the American product, you are supporting the original creator.

It’s not that you owe the anime companies in America something necessarily, but you do owe the original creators. And like it or not, those American companies are the only licensed distributors.

And the American companies are listening, but slowly. And it might be an issue that some fan who has a better business model needs to step up and start their own company (look at all the various American manga publishers who have started up in the last five years). But look at the quality of dubs, look at Death Note being released online, etc. They are slowly listening, and the more vocal fans are about this subject, the more they will listen.

What I wanted to do here was compile a list of links from “the other side.” Statements from American companies, Japanese creators, and the Japanese government.

Let's start with a very famous Japanese creator, Shinichi “Nabeshin” Watanabe. He attended Greg Ayers’ panel on Fansubbing and Downloading at OniCon spoke out about downloading
view the video here

Gonzo International President, Arthur Smith, also spoke out about the affect that fansubs are having on the Japanese anime industry
“6. Is piracy affecting what sorts or how many new series we will be seeing from GDH?
Yes, we are already having to cut production budgets and asking all our staff and creators to accept little or no pay increases to help us survive. We are lucky that we have some other businesses such as on-line games to help us support the anime production business; otherwise we’d be in real trouble. I am sure there will be some production companies who go bankrupt – it is a real shame and is totally unnecessary.”

11. Shinichi Watanabe is probably the first Japanese creative talent that spoke about this hotly debated topic during his recent visit in the U.S., and the fans seemed to listen. Do you think that the creative talent in Japan should start becoming vocal on the matter, especially if they're directly affected by this?
Yes. The worst thing about piracy is that it affects the people who create the content first – which is ironic as those people are held in such high regard by the fans. Creators and animators in Japan are not paid like Hollywood superstars, they depend on the money they make to live and provide for their families.”
Full Interview

So what does the Japanese think about downloading fansubs? Well, in recent news, via Yahoo! news, “Japanese companies plan to cut off the Internet connection of anyone who illegally downloads files in one of the world's toughest measures against online piracy, a report said Saturday.” Full Article
In addition, several months ago they asked America to help them stop illegal fan subs – “The Japanese government issued a formal statement of requests to the government of the United States on regulatory reform and market competition policy on October 18, and included a request for the United States to help stop the unauthorized reproduction and distribution of Japanese animation online. Specifically, the formal statement mentions the spread of Japanese animation and other materials on video-sharing sites and peer-to-peer file-sharing networks.” Full article on ANN.

Let’s move on to Greg Ayers, an American voice actor who has spoke out about fansubs for years, often with angry replies from American fans. He has a collections of his thoughts on the subject and links to great resources on his Livejournal.

I’m not sure what the future of American anime will be, but FUNimation founder and CEO Gen Fukunaga had some great points and possible solutions in his interview with ICv2.
“Are you going to be expanding the number of titles or episodes available for download-to-own?
Absolutely. The only thing slowing us down is that it's not that easy to just convert it digital. You have to have equipment and people to convert it to digital, and that takes resources on top of everything else they're doing, then the flipside is the distributors, iTunes and Xbox, can't ingest that many titles because they're just bombarded with them; they can only take a certain number a month. So those bottlenecks are more the issue than us getting rights. We are getting rights, pretty much across all new titles, and we probably won't do a deal without those rights anymore. We have the rights, but we have to spin production and get through those bottlenecks.”
Full Article

An editorial on ANN lays out both sides concerns very nicely here, and I especially liked the following suggestion:
“Ask the commercial companies to please consider purchasing the rights to a fansub you like. This not only helps out the commercial company in finding what its audience wants, but is the actual purpose for fansubs in the first place.”
Full Article

People will do what they want, people will break whatever laws they want and justify it as they please. I'm not saying I haven't tried out anime via fansubs, that I haven't read scanlations before the American issue was released (damn my Skip Beat addiction!), but... one shouldn't try to idealize or justify it by saying it doesn't hurt the industry.

Because it does.

Respect those creators you love and give them your support.

Update:
Just today it was announced, "The Japanese media company GDH has announced that the YouTube, CrunchyRoll, and BOST online video services will be streaming new titles from GDH's Gonzo animation studio — worldwide and on the same day as their Japanese broadcast." Found via Bootleg News Reporter, which got it from ANN.

This is a pretty cool stride towards simultaneous releases, but I can't help but ask, is there a subtitle that goes along with this? The article mentions no such thing, yet emphasizes that its for foreign viewers. In which case, the fansubbers still need to sub it, and that will take it right back to the bittorrent sites.

Never mind, a different article states it will be subtitled in English.

Still, the quality of youtube sites is low and harder to download (though I'm guessing people must have ways to still do it). But, I do think this is a beginning of them listening to the fans and people who enjoy being up-to-date with Japan should take advantage of this opportunity.