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Court Rules Fan Subtitles On TV and Movies Are Illegal (thenextweb.com) 137

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.
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Court Rules Fan Subtitles On TV and Movies Are Illegal

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  • by d34thm0nk3y ( 653414 ) on Friday April 21, 2017 @03:31PM (#54278565)
    That sucks, but, it's pretty clearly a derivative work...
    • 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.

      • by dfn5 ( 524972 ) on Friday April 21, 2017 @04:10PM (#54278865) Journal

        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.

        • by Anonymous Coward

          For books translations are considered to be derivative work and requires the permission from the copyright holder of the original work.

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

            • by mark-t ( 151149 )
              Irrelevant... it is still a derivative work.
              • 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.

                • 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".

                  • 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-p

                    • 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 me

                    • Under copyright law: for profit and not for profit are no difference at all.
                      No idea where you got that retarded idea from.

                      If I'm the author of a piece of work and hate it being transalted into Klingon or Elvish then be ready for a fight if you do translate it. Why you for funk sake think it would not matter under the law if you do so and distribute MY WORK in a translated form, is beyond me.

                • by slew ( 2918 )

                  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

                  • Copyright literally means someone owns the rights to make copies. If the original material isn't being copied, then you didn't violate copyright. I'm not a lawyer, but I assume they wrote a clause in their laws to define translations as derivative works.
                • It is not fair use.
                  How stupid are you? Hint: read the law. It states what fair use is and what a derived work is.
                  It is clearly a derived work, your translation/subtitle would not an could not edist without the original work: it is clearly a derived work.
                  Or did you work hard on a subtitle for an imaginary movie, waking up in the morning with the subtitles in your hand, realizing that in the same night, by accident, someone made the movie you accidentally happen to have the subtitles for?
                  (facepalm)

        • the one I have concluded that translation is an art form.

          The artful and conscientious translation will remain recognizable as a translation to those who know the original. It will still be a clearly derivative work. You can botch a translation badly and the source can still be plain to see.

        • Of course translation is protected.
          Why would it not?

          Hiw would you think if
          i translate your original Korean 'Harry Potter' look alike into german? ? ?

    • Re: (Score:3, Insightful)

      Is reading a book aloud derivative work? Maybe if you are selling it as an audio book, but sharing is caring, not work!
      • by alexo ( 9335 )

        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.

    • So what? Merely being a derivative work is not a sufficient condition to make it "illegal;" it should have been ruled to be Fair Use.

      • So what? Merely being a derivative work is not a sufficient condition to make it "illegal;" it should have been ruled to be Fair Use.

        Sadly, derivative work [wikipedia.org] in intellectual property (copyright) is NOT fair use...

        • by vux984 ( 928602 )

          A movie review that contains plat elements, stills, quotes, and even clips is a derivative work.

          It's perfectly legal, under fair use. (as a critical work)

          Being derivative has no bearing on whether or not it is fair use.

          Fan subbing, is an "accessibility" transformation, and should be a fair use work, especially if it is produced non-commericially and distributed for free, separately from the copy protected film.

          • 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 a

            • 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

          • Why don't you simply read up the law?
            Derived work and fair use are contradictions in terms.
            A work can only be one of the ...

            • Why don't you simply read up the law?
              Derived work and fair use are contradictions in terms.
              A work can only be one of the ...

              Fair use is a _defence_ for copyright infringement, copyright infringement can only happen with derived work. By DEFINITION all fair use are derived works.

              So this begs the question: Are you are shill or a troll?, because I find it hard to believe you can be that stupid by accident.

              • By DEFINITION all fair use are derived works. By definition? You are an idiot, sorry.
                Showing a movie, that is copyrighted, without asking for permission, in a school class for 'educational purpose' ....
                IS NOT A DERIVED WORK!
                IT IS FAIR USE. (And it is not a copyright violation)

                Photocopying a part of a book, to hand it out to kids in school: is not a derived work! It is a _plain copy_ !!

                I can hardly imagine a situation where one creates a derived work first and then claim they are using it in fair use ...
                Exce

    • Indeed, a translation is derivative work and this particular case it's not covered with fair use exemption. So it's an argument in favor of abolition of copyright law, since there's no benefit for society in disallowing fan translations.
  • by Anonymous Coward

    Is this because the original content (video) is being published along with the translations? What about other translation or transcribing tools (like for the hearing impaired)?

  • by Anonymous Coward

    I don't know any better example of "derivative work" than translations

  • by Anonymous Coward on Friday April 21, 2017 @03:38PM (#54278625)

    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?

    • by Anonymous Coward on Friday April 21, 2017 @03:47PM (#54278713)

      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.

    • 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.

      • by Anonymous Coward

        Agreed. Sadly, what I think most (good) people don't realize about Copyright's intended purpose
        was to establish a clear and orderly progression of (any) work into the public domain. That is, it
        "rewards" the author for a limited period of time from a work's creation an exclusive right to profit
        for said work, if the author so desires. After that time, the monopoly "license" is revoked and the
        work becomes part of the public (culture).

    • 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 [wikipedia.org]. 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 t

  • by Anonymous Coward

    https://www.youtube.com/watch?v=QSYk8ofhYFY

  • by Anonymous Coward

    because such a stupid ruling will never be enforceable. Meanwhile anyone who is a liberal and a globalists disagrees with anyone attempting to stonewall the freedom of communication which sees different people coming together through mediums such as entertainment, where political and social aspects implicated by fan-subbing vastly outweigh BREIN's opinions and the opinions of the copyright cartel behind them using this ruling as a smokescreen precedent to censor and attack freedom of expression down the lin

    • Just because you're a liberal or even a globalist doesn't mean you don't care about copyrights and having your work taken without pay or attribute. Lots of artists are liberals and don't appreciate being taken advantage of.
  • Question is profit (Score:4, Interesting)

    by gurps_npc ( 621217 ) on Friday April 21, 2017 @03:54PM (#54278773) Homepage

    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.

    • by Anonymous Coward

      What's extra funny is that there is a willing market that isn't being served officially, just by fansubbers. If I can't pay them, they won't be getting my money one way or the other. I know people who go out of their way to IMPORT foreign content to pay, despite having to find fansubs to get the most out of it. But instead of putting their resources into serving large, untapped markets, they focus on people who would never pay them in the first place. It really puts things into perspective.

    • by mark-t ( 151149 )
      Actually, that timed set of subtitles is a translation of the verbal audio, and as such a derivative work... you need permission from the copyright holder for that unless fair use can be determined to apply. If you are making money for it, then it cannot possibly be fair use.
      • Incorrect. It's not about money. Fair use covers things like citations and parodies, even if you make money on them.
        • But a translation is exactly the kind of work that is supposed to count as derivative while NOT being covered by fair use.
    • In Germany, in the long chain of small 'copyright' infringements, everyone in that chain, copier of the movie, subtitle maker, torrent distributor, translator etc. can be sued for the full damage.
      I doubt it is different in your country!

  • by LeftCoastThinker ( 4697521 ) on Friday April 21, 2017 @03:58PM (#54278789)

    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: (Score:2, Interesting)

      by 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

    • Copyright is for the profit of the creator

      No, copyright is for promot[ing] the progress of science and the useful arts. Enabling the creator to profit is only a means to that end.

      • by sconeu ( 64226 )

        That's in the US (in theory). This is the Netherlands. I'm not sure what the Dutch goverment has stated as the purpose of copyright.

      • No, copyright is for promot[ing] the progress of science and the useful arts.

        Copyright is a form of social engineering. Once you get away from protecting life, liberty, and [real] property, everything goes to hell where the government is concerned.

        There are winners and there are losers. Almost always, due to concentrated benefits and diffuse costs [commentarius.com] the winners are small interests and the losers are the rest of the People. This subbing case is a clear example of that.

        But until those People mature and reali

      • OK, but even in the US, how do they achieve the lofty, high minded goal of promoting science and arts? By creating a profit motive for the creator to share with the world (i.e. copyright). So you can be pedantic, but my original statement still holds true to the key intent of copyright, which is to enrich creators and distribute their work to the people to the greater benefit of both sides. The net result is BOTH to promote science etc. AND profit the creator.

    • by Aereus ( 1042228 )

      The wrinkle is that this is rarely abided by. Even in the case of comics (manga) that are seeing a dual release in Japanese and English by the publisher, you have groups stealing advance copies of the magazine and putting out hastily prepared translations days before the street date of said magazine. Gotta have that ad revenue, after all. In the past you could make a case for it, as licenses took 1-2+ years to make it overseas, if ever.

      It gets really murky though, when you factor in geoblocking. Especially

  • If the rights-holder is unwilling to provide copies (or in this case translations) then they should not be able to prevent others from doing so. This is currently a huge problem with out-of-print books as well.

    • by SirSlud ( 67381 )

      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.

      • Me not selling something today doesn't mean I won't want to sell it tomorrow.

        Fair point. You can have until next Thursday.

        • by Aereus ( 1042228 )

          And that's just it—the expectation from the general public has been reduced to almost zero. It used to be fansubs thrived due to taking 2+ years (if ever) for series to come out officially. Now you have people whining if there is even a one week delay in the English, as many series receive a simultaneous digital release alongside the Japanese broadcast.

          Viz has a number of manga that are simultaneously published in English and Japanese on the street date of the magazine. Yet there is still a large nasc

      • Well, this is a case when calling this "selling" is misleading. "selling" implies transferring some good to buyer, or at least doing something for him that requires any effort.
    • Re: (Score:2, Interesting)

      by 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.

    • I believe the word is 'compulsory licensing'. If you want copyright/patent protection, you should be required to license it for a reasonable price. But, since the public doesn't give a damn, it ain't gonna happen.

  • by Whooty McWhooface ( 4881303 ) on Friday April 21, 2017 @04:06PM (#54278847)
    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?

  • 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.

    • This. Fansubs in my experience are always hard subs. they are always redistributing the original content. Otherwise they are just call subs, and I presume most of the subs floating around are fan written (but they are not called fansubs outside of anime.).

  • by Anonymous Coward

    Translation of books have long been covered under copyright as derivative works. Many authors knowing that their work was to be translated might have opinions on who and how the work is translated as the translator could very easily change the intended meaning of the work. Subtitles are no different here.

    • > as the translator could very easily change the intended meaning of the work.

      If the translator changed the meaning it would probably fall under fair use.

  • by snarfies ( 115214 ) on Friday April 21, 2017 @04:43PM (#54279165) Homepage

    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.

    • On behalf of all the Anime fans who, like me, love the classics but can't understand more than a small handful of phrases I would like to say:

      Thank you!

  • Or is it only because they're not mocking?

    • by ewhac ( 5844 )
      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.
  • .... from this yet, we are just going to make it illegal until we do. How UTTERLY pathetic :-D
  • by PPH ( 736903 ) on Friday April 21, 2017 @04:51PM (#54279219)

    ... of fair use.

    Youtube video (with subtitles) to follow shortly.

  • The ruling is a setback for accessibility to the deaf of movies and TV programs.
    Same as prohibiting, without rightowners' permission, auditory transcription of books for the benefit of the blind.

  • I guess no dutch movies allowed in the US

  • Just as long as they don't take my angry Hitler away.

  • Under the ADA, broadcasters (of all sorts) have to provide a percentage of subtitled works. This is giving deaf and hearing impaired people access to all kinds of visual media. If effect, it gives the handicapped access to previously unaccessible media and the Media access to the handicapped. This handicapped group is, in the USA, a sizable market. Amazon Prime Video made a considerable effort to provide subtitles on the majority of their considerable library. I watched their progress and it was very qu
  • How about we just sue the producers for releasing content without subtitles - which discriminated against the hard of hearing?!

    Yea. I know. This is a bit of a stretch, yet so is being a prick about a free feature. The producer should get the master, though!

    Yet, we all know where this is going. It's all about the $$$$!

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