Court Rules Fan Subtitles On TV and Movies Are Illegal (thenextweb.com)

A court has just ruled that making fan subtitles or translations is not protected by the law. From a report: A Dutch group called the Free Subtitles Foundation took anti-piracy group BREIN to court over "fansubbing." BREIN has previously been active in taking fan subtitles and translations offline, and the Foundation was hoping a Dutch court would come down on the side of fair use. The court didn't quite see it that way. It ruled that making subtitles without permission from the property owners amounted to copyright infringement. BREIN wasn't unsympathetic, but said it couldn't allow fansubbers to continue doing what they're doing.

Comments

Sucks, but derivative work

[d34thm0nk3y]

That sucks, but, it's pretty clearly a derivative work...

Re:Sucks, but derivative work

[subanark]

Um.. no. Just like you can't just re encode a movie, you can't do a sentence by sentence translation, as the original material is copied in a form.

Automatic translation would be fine as long as they weren't transferred.

"Gag dubs" should also be fine.

Re:Sucks, but derivative work

[misexistentialist]

Is reading a book aloud derivative work? Maybe if you are selling it as an audio book, but sharing is caring, not work!

Re:Sucks, but derivative work

[alexo]

Is reading a book aloud derivative work? Maybe if you are selling it as an audio book, but sharing is caring, not work!

It's "public performance", which is a no-no.
Monopolizing culture is a profitable endeavour.

Re:Sucks, but derivative work

[dfn5]

Um.. no. Just like you can't just re encode a movie, you can't do a sentence by sentence translation, as the original material is copied in a form.

I have been learning a foreign language over the last few years and the one thing I have concluded is that translation is an art form. One must convert the original language into a concept and then restate that concept in the target language in a natural way that makes sense to the target audience. The translation may look entirely different than the source material. And two people may translate the same material very differently. Transcription may be one thing but I would think translation would be protected.

Re:Sucks, but derivative work

[wisnoskij]

For a book a translation is 100% of the content. A fan sub is a small addition to the original content.

Re: Sucks, but derivative work

[dnaumov]

Yet, cover bands in most (all?) countries do not have to pay royalties.

Re:Sucks, but derivative work

[mark-t]

Irrelevant... it is still a derivative work.

Re:Sucks, but derivative work

[wisnoskij]

That is like saying commentary is a derivative work. Sure, just copying a subtitle file would be derivative, but watching a movie, and writing a subtitle file from your interpretation of how best to translate it is fair use.

Re: Sucks, but derivative work

[lactose99]

In the US this fee, usually to ASCAP, is paid by the venue not the artist.

Re:Sucks, but derivative work

[St.Creed]

So all translations of any book are now fair game? After all, you would interpret the book in your own way and write a completely original translation...

Feel free to try your luck in court with that reasoning. So far, it didn't help any of the Harry Potter derivatives, who actually had more claim to originality than someone doing a translation. The keyword here is "substantial".

Re:Sucks, but derivative work

[wisnoskij]

For profit and not for profit works are completely different. As well as any potential effects on the profitability of the original work.
fair use factors:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Non-profit (check)
Amount Used (None)
Effect on Sales (Increase in Potential Sales)

Subtitles check off all the factors of what makes something fair use. A book translation does not.

Re:Sucks, but derivative work

[St.Creed]

First off, your fair use criteria may not apply - we're talking Dutch law, not US law.

Second, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole"
The judge judged that this was about 100%. That's basically the whole discussion. Translation does not mean adding new insights or pages, it's just a transcription into a different language. And I have translated several articles myself, I know there's a fair amount of creativity involved if you want to transfer the meaning of the text, not just the words, but it is limited compared to the creation of the original text (or script). The gist of the articles I translated would have been transferred regardless of who the translator was. And given the very limited amount of text in movie subtitles the creative input is very limited indeed. Much more limited than derivative works like "Larry Potter and His Best Friend Lilly".

Non-profit is debatable, the sites that publish the subtitles certainly make a nice profit off the ads.

Effect on sales: since sales are subtitled, subtitles only apply to movies that are pirated. While you can hardly prove that people would have bought the movie just because it was translated, it's hard to prove otherwise too - and since the FSF was bringing the suit, they had to prove that this was the case. Good luck with that.

I'm not opposed to pirating, but at the same time let's not pretend this type of reasoning will hold up in court. It certainly didn't today.

Re:Sucks, but derivative work

[slew]

That is like saying commentary is a derivative work. Sure, just copying a subtitle file would be derivative, but watching a movie, and writing a subtitle file from your interpretation of how best to translate it is fair use.

IANAL, but although it might be true that watching a movie and writing a essay in another language that describes the movie completely in strict time-order might be fair use, but structuring your translation as a sub-title and synchronizing the sub-tiles back to the original audio-visual work (or simply replacing the sub-titles that came with that audio-visual work) will probably make it a derivative work under the law. Legally, part of the copyright of a movie is the synchronization between the audio and the video (and/or the sub-titles and the video) and it would be pretty hard to argue that independently developed sub-tiles aren't somehow derivative of the original audio-visual synchronization of the work which is (sadly) one the the elements of a movie protected by copyright law...

Re:Sucks, but derivative work

[harperska]

What is being distributed by the fansubbers? If it is just a file with a timecoded set of dialog lines which requires the user to have purchased the original movie from the copyright holder first, you may have a point. But very often what is distributed is the actual movie itself with the subtitles superimposed on. In which case it is piracy in that it is denying the copyright holder the original sale. And it is only minimally derivative as the majority of the creative work is in the original movie itself and any creativity on the translator's part is in fact in trying to preserve the original creative intent of the film maker in a new language. Thus the judge's ruling that the new portion of the derived work is minuscule with the vast majority of the creative work belonging to the original.

Even if it is just the dialog lines being distributed in a separate file, one could still argue that the substantive portion of the creative work still belongs to the original considering the intent of the translation is to preserve the original creative intent as closely as possible rather than adding any new ideas to the work.

Granted my personal philosophy is that piracy is not necessarily inherently bad, especially in situations where most of the money you pay for an album or movie goes to suits at the studio rather than the artists themselves, but to argue that this is not piracy in the first place is self-delusional.

Re:Sucks, but derivative work

[drinkypoo]

What is being distributed by the fansubbers? If it is just a file with a timecoded set of dialog lines which requires the user to have purchased the original movie from the copyright holder first, you may have a point. But very often what is distributed is the actual movie itself with the subtitles superimposed on.

It depends on who you describe as the "fansubber". Is it the person who does the subs? They're only distributing a srt or whatever. Is it the person who does the video overlay? They're creating a derivative work. Is it the person who actually seeds the torrent with the overlaid video? They're clearly distributing someone else's IP.

None of this is justification for taking down sites which only share subtitle files

Promoting Progress of Science and useful Arts?

[Anonymous Coward]

According to the United States Constitution, the purpose of copyright is...

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

What is the pupose of copyright in the Netherlands, and how does this ruling support that purpose?

Re:Promoting Progress of Science and useful Arts?

[Anonymous Coward]

The purpose of copyright in Netherlands is the same as in UK and Sweden:
1. To incarcerate and punish the nationals for the sake of foreigners and their wallets.
2. To maximize the outflow of cash from the local economy into foreign wallets.
3. To proudly look at the American owners, let your tongue out, and wag your tail so you can be called a good puppy boy
and patted on the head for doing actions 1. and 2.

Re:Promoting Progress of Science and useful Arts?

[thegarbz]

According to the United States Constitution, the purpose of copyright is...

What the purpose is according to the constitution and what it is actually used for hasn't been the same thing in a long long time. Not in the Netherlands, definitely not in the USA.

Re:Promoting Progress of Science and useful Arts?

[drinkypoo]

Forget all that crap. It's not like the constitution means anything anyway, every article of the bill of rights has been shit upon by our government anyway. In "170 UN member states plus the Holy See and Niue", copyright is defined by the Berne convention. And "among the rights that must be recognized as exclusive rights of authorization" is "the right to translate". So in short, no, you explicitly have no legal right to distribute translations.

With that said, going after sites that only publish subs is a total dick move, and there's no way that actually spending money on that is in the public interest.

Question is profit

[gurps_npc]

If they are selling the movie without having paid for it, that's definitely copyright violation. But the fan subtitling people do not have to do that.

If you do it yourself and do not sell anything, that's not copyright theft.

If you buy the right to make and sell copies of the movie, then you are legally selling the item.

If someone else pays you for your subtitles but you only sell them a timed set of subtitles without the movie, then you are not breaking the law. If they already have (or get) the right to display/sell the movie and they combine your time subtitles, then no one is breaking the law.

Copyright is for the profit of the creator

[LeftCoastThinker]

Copyright should not preclude fansubs or fandubs until there is content in that language for sale/rent to the public. If you won't serve a market, there is no reasonable expectation for financial benefit and thus fair use precludes you from shutting out fansubs and the like.

Re:Copyright is for the profit of the creator

[Anonymous Coward]

It should also serve as a reminder that translations in different languages can have extremely different forms from the original due to lingual barriers,
whereby fansubs can sometimes even more accurately translate (reconstruct for local audiences) the meanings and wordplay for non-native understanding,
than licensed subs which sometimes are also censored or edited for sociopolitical reasons.
So by any and all means, attempting to play copyright police with fansubbing can be dangerous or destructive depending on the nature of the work.

Unusual way to be offended

[Whooty McWhooface]

So, the there is a copyright violation because people are providing a service (subtitles) for movies/shows that were released without subtitles, either in other languages or in any languages because the studios were too damn cheap to provide them?

So, if I see a fire break out and I put it out on my own, am I infringing on the work of the firefighter that either were not called or had not yet arrived?

Sure, you are producing a textual version of the movie, but it would be utilized in conjunction with the movie/show. It's not like someone is going to read subtitles on a movie they have not seen and feel, "Gosh! Now I don't have to see the movie at all! I can't believe Bruce Willis was actually a ghost. Didn't see that one coming.... (Sorry for the spoiler, you should have watched it by now.)

So are they actually upset because it is now becoming public how cheap and unsupportive the studio executives are to the hearing impaired?

Re:Unusual way to be offended

[pjt33]

I can't believe you would spoil Die Hard like that. Have you no pity, no compassion, no feeling for your fellow man/woman/small furry creature from Alpha Centauri?

Re:Unusual way to be offended

[Whooty McWhooface]

Well that was the reason his wife and kids moved to Los Angeles, after all. After all, he wasn't a workaholic and that caused his wife to leave him, he was dead!

Re:Copyright should have an availablity requiremen

[SirSlud]

Me not selling something today doesn't mean I won't want to sell it tomorrow. The issue with out of print books should be addressed by having reasonable copyright term limits.

Are they subtitling, or distributing the movie?

[MobyDisk]

Most fansubs I have seen are rips and re-encodes of the video with the subtitles baked into the video. That is clearly a derived work and subject to copyright law. If they just distributed an .srt file then they might not have the problem. There's technical issues with rendering the .srt from within an Amazon or Netflix player, or on your streaming media box, but that could be dealt with.

Re:Copyright should have an availablity requiremen

[Anonymous Coward]

This is one of the cases where spread of culture and a discussion on the ownership of language and implications behind this discussion, are more important than some self-righteous copyright prick trying to play "Masters of the Universe" because he treats copyright like ISIS treats the Quran.
This is now something bigger than the "creators" and their wallets, and i find it sad that the Dutch judicial system was too narrow-minded (or bribed) to properly
discuss this.

Former fansubber here

[snarfies]

Back in the pre-digital days, I was part of a fansubbing group called Lupin Gang Anime. These days, I capture laserdiscs of the many titles that have never been reissued on DVD or better (https://www.otakubell.com/)

I will continue to capture these endangered titles and put them on the internet. I will continue to do my best to preserve these titles from being lost. The only way I will stop is if I am locked up. Given the choice between following the law and doing what's right, I'll chose the later.

The Downfall ...

[PPH]

... of fair use.

Youtube video (with subtitles) to follow shortly.

Re:So MST3K is illegal?

[ewhac]

MST3K pays a license fee for the movies they use. Indeed, a significant chunk of the money they crowdsourced for Season 11 went toward obtaining licenses.