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May 25, 2001 Tokyo District Court
Copyright Civil Litigation Case
1996 (wa) No. 10047, etc.
Case "A": 1996 (Wa) No. 10047:
A Case Seeking Recovery of Damages, etc.
Case "B": 1996 (Wa) No. 25582:
A Case Seeking an Injunction against Acts of Unfair Competition
Plaintiff in Case "A" (Defendant in Case "B"): Tsubasa System Kabushiki Kaisha
Counsel: Yoshiyuki Miyashita
Counsel: Michiru Takahashi
Assisting Attorney: Taira Yoshino
Assisting Attorney: ________________
Defendant in Case "A" (Plaintiff in Case "B"): Kabushiki Kaisha System Japan
Counsel: Kunuharu Yasue
There are reasonable grounds in the petition in Case "A" for a claim for damages based on tort (unlawful act).
(Case "A")
1. The defendant shall not manufacture, sell or otherwise distribute the products in the attached list of articles.
2. The defendant shall pay to the plaintiff the amount of 950,000,000 Yen plus interest thereon at the rate of five percent (5%) per annum from June 11, 1996 through the date when payment is completed.
(Case "B")
The defendant shall not reveal or disseminate the facts in the attached list of unfair competition.
1. Facts, etc. not in dispute
(1) (a) The plaintiff in Case "A" (defendant in Case "B"; hereinafter referred to simply as the "Plaintiff") is a corporation [kabushiki kaisha] in the business of selling and leasing computers, office automation equipment and communications equipment as well as developing, selling and leasing software for computers.
(b) The defendant in Case "A" (plaintiff in Case "B"; hereinafter referred to simply as the "Defendant") is a corporation [kabushiki kaisha] in the business of selling video equipment and computers, renting, leasing and repairing video equipment, and planning, editing, producing, selling, renting and leasing video software and computer software.
(2) In 1986 the Plaintiff developed a system for use in the automobile servicing industry called "suupaafurontoman" ["Super Front Man"] (hereinafter referred to as the "Plaintiff's System"). (Ko 25 ["A25"], gist of the pleadings)
In addition to facilitating for automobile servicers the preparation of written estimates, work instructions, delivery statements and the like, the Plaintiff's System databases input data regarding customers and vehicles, and was designed so that it could be used for customer management, the generation of direct mailings and so on, and the "shougen masutaa" ["Shogen Master", or "Basic Master"] data base, in which specific information was collected regarding four-wheel automobiles existing in Japan (hereinafter referred to as the "Existing Automobiles") is an important structural element thereof. (Ko 1, 25, gist of the pleadings)
Around 1994 the Plaintiff created the 1994 version of "Shogen Master" (hereinafter referred to as the "Database") and in June of that year commenced with sales thereof. (Ko 27, 56, Examination Ko 4, gist of the pleadings)
(3) From about March of 1986 the Defendant has manufactured and sold the "tomukyatto" ["Tomcat"] system for the automobile servicing industry (hereinafter referred to as the "Defendant's System"). (Otsu 62 ["B 62"], Case "B", Ko 1, gist of the pleadings)
In addition to facilitating for automobile servicers the preparation of written estimates, work instructions and the like, the Defendant's System databases input data regarding customers and vehicles, and was designed so that it could be used for customer management and so on, and a database in which specific information concerning the existence of automobiles has been collected (hereinafter referred to as the "Defendant's Database") has become an important structural element thereof. (Ko2, gist of the pleadings)
2. In Case "A", the Plaintiff alleges that, "The defendant is copying the Database and this copying constitutes an infringement of the copyright on the Database and a tort (unlawful act)", and seeks an injunction against the manufacture, etc. of the Defendant's System as well as damages. In Case "B", the Defendant asserts that, "The Plaintiff has spread falsehoods among our customers", and seeks an injunction against such dissemination of false facts.
No. 3 Points in Dispute, and the Parties' Allegations with respect to such Points
1. Points in dispute
(1) Whether or not the Database can be a copyrighted work
(2) Whether or not the Defendant reproduced the Database and vehicle
data taken therefrom
(3) Whether or not the copying by the Defendant of vehicle data from the
Database constitutes a tort
2. The parties' allegations with respect to the points in dispute
(1) Concerning Disputed Point (1)
(The Plaintiff's Argument)
The idea behind the Database was to assist automobile service providers in the efficient operation of their businesses by allowing them to creatively select data collected in the Database that was gathered from out of all the information concerning specific automobiles that is scattered among various media. Since the Database was developed with a systematic structure and since from the viewpoint of the (i) selection of subject cars, (ii) the selection of subject data items and (iii) its systematic structure it has creativity, it qualifies as a database that is a copyrightable work pursuant to the provisions of Article 12.2 of the Copyright Act.
(a) The Database is a collection of information, and it classifies that information in accordance with a set formula. Since it is systematically designed so that searches can be carried out on a computer when connected to the Database, it qualifies as a "database" as defined in Article 2 Section 1 Item 10 of the Copyright Act.
(b) The automobiles that are the subject matter of the Database, out of all those listed in the Annual Model Chart issued since June of 1982 by the Federation of Automobile Sellers' Associations [shadan houjin jidousha hanbai kyoukai rengoukai] (hereinafter referred to as the "Annual Model Chart") and the automobiles listed in the Official Gazette from July 12, 1989 through February 10, 1994, consist of those four-wheel automobiles that were made in Japan and those that were made overseas by foreign subsidiaries of Japanese automobile makers and intended for sale in Japan; the subject cars were only those judged by the Plaintiff to be actually in Japan and lawfully supplied for operation there.
Pursuant to Article 75 Section 1 of the Road Transportation Vehicles Act [douro unsou sharyou hou], on the occasion when an automobile receives a model designation from the Minister of Transportation, a designated number (hereinafter referred to as the "Model Designation Number") is given to that model and, depending on whether or not the vehicle has air conditioning or other equipment, and depending on which manufacturer made the car, the model is given a three-digit number (hereinafter this is called the "Type Classification Number" and the number that includes both the Type Classification Number and the Model Designation Number is hereinafter referred to as the "Model Designation - Type Classification Number").
Since even if an automobile manufacturer plans to sell an automobile and affixes a Type Classification Number to it there are cases when, afterwards, in fact the car is not put on sale due to a change of plans or the like, so it is not possible to unerringly decide on which cars have been sold in a particular time period; intellectual activity is necessary to investigate and make choices, by referring to materials such as vehicle inspection documents and catalogs issued by each of the car makers.
The Plaintiff selects the Automobiles to be recorded in the Database by using various data sources as the standard for gathering and selecting information, and bases its decisions on evaluations of and judgments about the trustworthiness of each data source.
Further, in the case of a database like this one, which manages an extremely large number of Model Designation - Type Classification Numbers, since data is amassed in accordance with unique evaluation and judgment and the individuality of the preparer is strongly evident, the collected subject matter of the Database differs considerably from that of other databases.
In this way, the database has creativity, based on the points that (i) it reflects the Plaintiff's own particular judgments about data source evaluations and about whether or not the automobiles in each of the data sources actually exist and (ii) as a result of those judgments the Plaintiff's own particular Model Designation - Type Classification Number vehicles are selected.
In addition, when taking into account the fact that the Database contains fictitious automobile data prepared by the Plaintiff in order to check into unauthorized reproduction by other companies (hereinafter referred to as "Dummy Data"), a considerable amount of creative invention is necessary in the selection and composition of the number of fictitious automobiles to be entered and the contents of the data about those cars.
Furthermore, as representative data about the automobiles that pertain to each Model Designation Number, fictitious cars with the Type Classification Number "000" are entered into the Database.
(c) The Database has been created on the supposition that it would be used by automobile service providers mainly in preparing automobile inspection certificates. Accordingly, the items of vehicle data collected in the Database do not include all information concerning the subject automobiles. Rather, the Plaintiff has gathered information it deemed necessary and sufficient for service providers to conduct their work; such information is collected only from the following items, out of all the various kinds of information for the vehicle models that is made available from official announcements in the Official Gazette, the Annual Model Chart, catalogs issued by each automobile manufacturer, various basic automobile charts issued by the Automobile Technology Association [shadan houjin jidousha gijutsu kai] (hereinafter referred to as "Various Automobile Charts") and so on. Many of these items conform to the formalities listed on the automobile inspection certificate, but also include original special features that are not listed as requisites on the inspection certificate, such as "vehicle type" in item {d} below.
{a} Model Designation Number
{b} Type Classification Number
{c} manufacturer's code
{d} vehicle type code
{e} model
{f} type code
{g} service code
{h} chassis shape code
{i} dimensions (length, width, height)
{j} axle weight (FF, FR)
{k} number of passengers
{l} maximum load
{m} vehicle weight
{n} vehicle gross weight
{o} engine (motor) type
{p} gross amount of exhaust
{q} fuel code
Taking the following points into consideration the Database has creative distinctive features: (a) with the intention and from the viewpoint of enabling the Database to be used in conjunction with an automobile parts database developed by the Plaintiff, in relation to the contents of the data that correspond to the data categories (i) the manufacturer's names that are used differ from those indicated in the automobile inspection certificate; for example, under "manufacturers", the maker that should be labeled as "Datsun" [dattosan] is indicated as "Nissan", and (ii) there are a considerable number of cases where car names other than those ordinarily used are employed, such as "Corona" [korona] for "Corona Exceive" [korona ekushibu]; (b) the Plaintiff's own original car type code numbers have been selected; and (c) the numerical value data are not those values listed in the referenced materials but are data verified by the check logic established by the Plaintiff.
(d) The Database classifies the data items as shown in the attachment hereto entitled "Data Item Classifications and Their Attributes", and since it has been designed in accordance with decisions about the attributes and so on of each of the items, by its very structure it possesses creativity.
(The Defendant's Argument)
The various bits of information in the Database are not subject to copyright. Therefore, to find that the Database is copyrightable, it must be found that there is creativity either in the selection of the included information or in the basic structure of the Database.
(a) In the Database, the selection of Actually Existing Automobiles, the selection of the collection of automobiles through the use of car inspection certificates, manufacturers' catalogs and the like, and the limitation of the subject automobiles to those within Japan is identical to that in the product databases of other companies; thus, there is no basis for finding creativity in the Database.
In addition, with respect to the fictitious automobiles, since they have nothing to do with the Database per se and simply constitute decoy information, the Database is not endowed with creativity by the inclusion of the fictitious automobile information.
(b) From among the information items in the Database, all those except "manufacturers" are listed in the automobile inspection certificate and have been selected for the purpose of conforming to that certificate. Also, even with respect to "manufacturers", since in fact it has become standard business practice to list this heading on the automobile inspection certificate, in the end the information items in the Database are selected "as is" from those items of information that exist in the inspection certificate. Accordingly, the selection of the information headings has no creativity.
The names that the Plaintiff insists it developed itself for vehicle types are those regularly used in the catalogs and the other literature of companies that sell cars. Furthermore, the Plaintiff's original type code numbers constitute an issue separate from that of the selection of information, and have no significance from the viewpoint of selection of information.
(c) For there to be creativity in the systematic construction of the Database, it is requisite that there be an individualistic systematic construction that can be said to creatively express thought or emotion, but when the systematic organization of the Database is compared with the organization of databases with information that is already public knowledge, it cannot be said to have creativity.
(2) Concerning Disputed Point (2)
(The Plaintiff's Argument)
(a) The Defendant got hold of the Database around the end of 1994, and from it the Defendant mechanically reproduced "as is" vehicle data about automobiles from Model Designation - Type Classification Numbers 4800-001 through 7619-004, preparing a vehicle database with the file name "RUIBETU.DAT" (hereinafter referred to as the "Defendant Database 1"), which it then sold to customers.
(i) Around the beginning of 1996 the Plaintiff discovered that users in Tokyo of the Defendant's System were using the Defendant Database 1. Out of all the automobiles collected in the Database, all the automobiles after a certain specific Model Designation - Type Classification Number were gathered in such Defendant Database 1, including Dummy Data made up by the Plaintiff.
(ii) On about December 11, 1994 the Defendant provided the Defendant Database 1 to Yugengaisha Tekigi Jidousha Seibi Koujou [Tekigi Automobile Servicing Factory, Inc.] (hereinafter referred to as "Tekigi Automobile"). This is made clear by the following facts.
A. On September 26, 1996, an employee of the Plaintiff, in the presence of employees of Tekigi Automobile, input Dummy Data Model Designation - Type Classification Numbers in the Defendant's System being used by Tekigi Automobile, and after confirming the existence of Dummy Data in this system's database, on September 28th copied "as is" the hard disc on which this database was installed on to a separate initialized hard disc and, in front of a representative from Tekigi Automobile, affixed the seal impression Tekigi Automobile's representative to that copied hard disc. The copied hard disc was opened in front of a notary public and copied on to a CDR (Ken Ko 1) [Investigation Ko ("A") 1].
Around the end of October of 1996, the Defendant again provided Tekigi Automobile, free of charge, with a vehicle database with the file name of "RUIBETU.DAT", in which the Defendant Database 1 was superscribed. On March 3, 1999 Tekigi Automobile's hard disc, in which the superscribed database was housed, was copied onto a CDR. (Ken Otsu 1) [Investigation Otsu ("B") 1]
B. From the below facts it is clear that the copied database in Ken Ko 1 is the database that Tekigi Automobile used until the aforementioned superscription.
(a) In the Defendant Database, Model Designation - Type Classification Numbers and vehicle data collected by the Defendant that are newly registered by the user and Model Designation - Type Classification Numbers that are renovated by the user are recorded with a "Flag" [1]. Model Designation - Type Classification Numbers that are newly registered by the user are sequenced at the end of the Model Designation - Type Classification Numbers that were provided by the Defendant. Also, in the case where the Defendant renovates data, the flagged data continues to exist as is in its initial position.
In both the RUIBETU.DAT file in Ken Ko 1 and the RUIBETU.DAT file in Ken Otsu 1 the identical item numbers and identical contents for items 9031 through 61,699 and from 61, 792 through 61, 901 are recorded. It is unlikely that this wide range of flagged data became identical just by the use of these files by the same user.
(b) The Model Designation - Type Classification Numbers at the end of the RUIBETU.DAT file in Ken Ko 1 are the Dummy Data confirmed by the Plaintiff's employee on September 26, 1996. This Dummy Data is also included in the RUIBETU.DAT file in Ken Otsu 1. The contents of that data are identical to that reported in the column just before the data in the notes possessed by the Plaintiff's employee at the time of the aforementioned confirmation. Since it cannot be thought that Tekigi Automobile would input Dummy Data with no actual existence, it is only natural that this data was recorded at the time when the Plaintiff's employee confirmed the Dummy Data at Tekigi Automobile.
(c) At the front of the RUIBETU.DAT file in Ken Otsu 1 there is data on Model Designation - Type Classification Number 4800-001. This data is flagged but, as argued above, it is unlikely that data newly registered by the user would be recorded at the front, and a database with this number in the front was provided to Tekigi Automobile. The Model Designation - Type Classification Number at the front of the RUIBETU.DAT file in Ken Ko 1 is 4800-001.
C. In the RUIBETU.DAT file in Ken Ko1, there are 60,238 items of vehicle data, from Model Designation - Type Classification Numbers 4800-001 through 7619-004, and these Model Designation - Type Classification Numbers are completely identical to those contained in the Database.
Out of all the Dummy Data collected in the Database, within the scope of the gathered data in the RUIBETU.DAT file in Ken Ko 1 five items of Dummy Data are included. Since the number of vehicle items in the Plaintiff's System that correspond to those items designated by the Minister of Transportation pursuant to Article 75 Section 1 of the Road Transportation Vehicles Act alone amounts to 150,000 items, it is impossible that the fictitious data regarding vehicles that was created by one person would by coincidence match the fictitious data created by another person.
The Database uses, with respect to "Vehicle Types", names other than those names listed in the vehicle inspection certificate, and the very same names are used in the Ken Ko 1 and Ken Otsu 1 databases. In the database in Ken Otsu 1, the same names for vehicle models ("Corona", "Karina", etc.) are used as in the Database, in connection with automobiles within the same range of Model Designation - Type Classification Numbers as that of the Database. But for automobiles outside that range the ordinary model names ("Corona Exceive", "Karina ED", etc.) are used in the database in Ken Otsu 1.
Therefore, the RUIBETU.DAT file in Ken Otsu 1 is none other than the Defendant Database 1.
D. When taking into account that fact that the operation files in the drive housed in the RUIBETU.DAT file in Ken Ko 1, except for the folder named "MS", are all from December 11, 1994, it can be concluded that the Defendant Database 1 was delivered to Tekigi Automobile around the dame day.
I. On September 26, 1996 (the Defendant wants to argue that pursuant to the yellow line in Attachment Ko ["A"] 36, any time from 9-27 is possible, but it is also possible that it was renovated in the course of Tekigi Automobile's business on that same day), the Plaintiff, in the presence of employees from Tekigi Automobile, entered "Dummy Data" into the database being used by Tekigi Automobile, and on September 28th, after confirming the existence of the Dummy Data, copied that database and sealed the copy. (Ko 40, 38, Witness "A"). The seal was broken in the presence of a notary public and the hard disc was copied on to a CD-R (Ken Ko Evidence No. 1) (Ko 34).
II. 60,238 items of vehicle data from Model Designation - Type Classification Numbers 4800-001 through 7619-004 are collected in the database in Ken Ko Evidence No. 1(in the database Ken Ko 1 the Model Designation - Type Classification Numbers are completely identical to those in the Database (Ko 43)) and from out of all the Dummy Data gathered in the Database, the gathered range of data in the Ken Ko 1 database includes five items of Dummy Data (moreover, they are not flagged).
The portions of the Database that have empty columns concerning certain vehicle models are also empty in Ken Ko Evidence No. 1.
The Database uses names for vehicles and models different from the names indicated in the vehicle inspection certificate, and Ken Ko Evidence No. 1 uses those different names "as is".
The Defendant's Database contains absolutely no data related to car models that are not included in the Plaintiff's Database. (Complaint)
The data items in the Defendant's Database are the data collected in the Database. (Gen 1 p. 12)
III. Ken Ko Evidence No. 1 is the database that was used by Tekigi Automobile. With Ken Ko Evidence No. 1 and Ken Otsu Evidence No. 1, it can be seen that there are portions common to both pieces of evidence that can be considered as having been input by users (flagged 9031-9675; 57094-57123; 61792-61901; the Defendant insists that there are differences in the contents of the two pieces of evidence). In both Ken Otsu Evidence No. 1 and Ken Ko Evidence No. 1 there is proof that on September 28, 1996 the Plaintiff confirmed the existence of Dummy Data (information 4357-600 is of 4987-050 (Otsu 42, Plaintiff's preparatory document 12(6)); Witness "A" also has attested to the input of Dummy Data about Subaru (4357-600 and 4981-050 are all about Subaru (Ko 40)). Ken Otsu Evidence No. 1 is about the fact that provision was made to Tekigi Automobile by September 28, 1996 of Model Designation - Type Classification Numbers 4800-001 through 7619-004; this can be understood by analysis of the flags in Ken Otsu 1 (Ko 42; see also Otsu 45 as counter-evidence), but this is the same as Ken Ko Evidence No. 1 (Appendix 5 to Otsu 35 concerns the front part thereof), and the database delivered by the Defendant to Ohtani in July of 1995 (Ken Ko Evidence No. 3) is also the same (Otsu 57 is concerned with 4800-001, the front part of Ken Ko 3).
Further, prior to copying Ken Ko 1, the Plaintiff did not add any changes to Tekigi Automobile's database. (Ko 35-2; 44-2)
In addition, Gen 16 p. 31 shows that vehicle data is not recorded in the "MEIBO.DIC" and "MEIBO.2.DIC" in Ken Ko 1.
Gen 16 pp. 42 ff. concerns the confirmation of Dummy [Data].
IV. Ken Otsu Evidence No. 1 evidences that the additional input made by Tekigi Automobile to the revised version of the October 1995 version of the Defendant's Database is what was copied by the Defendant from Tekigi Automobile on March 3, 1999, but in October of 1996, after the case was filed, the Defendant largely rewrote the version at Tekigi Automobile.
From among the amended versions of the October 1995 revised database, the Defendant provided the RUIBETU.DAT format version, free of charge, to customers who had been provided with the Defendant Database 1 and, from among the amended versions of the October 1995 revised database, the Defendant provided the RUIBETU2.DAT format version, free of charge, to customers who had been provided with the Defendant Database 2.
The Defendant alleges that it distributed these databases to all customers free of charge for the purpose of dealing with DOS system users all at once (or, it alleges, that in order to simplify the measures for users who did not switch over to ruibetu2, it upgraded the version free of charge only for the users who did not switch over (Otsu 46, 53)). If that is the case, though, (I) it is extremely unreasonable and unnatural, and even more so during the continuation of this litigation, that data maintenance, which up to then had been provided for a fee (Ko 22, 38), would be done even for customers who did not desire it; (II) that there are customers who were not provided with this database (Otsu 54, 55, 68, 69); (III) it is unnatural that at the time of October 1996 what would be distributed was not the amended version of the May 1996 revised database but the amended version of the October 1995 Defendant Database. (The Defendant states that at that time the May 1996 revised version had been completed but since Tekigi Automobile's personal computer did not have sufficient capacity, it could not be installed (Otsu 46), and alleges that up through the mid-course of the litigation, from around September 28, 1996, Tekigi Automobile was using the 1995 amended version). Taking all this into account, these allegations are extremely unnatural.
Furthermore, the "October 1995 reformed Defendant Database" alleged to by the Defendant either does not actually exist or was created after October 1996 (Gen 16 pp. 23-27).
Moreover, the Defendant uses names for cars and models that are not mentioned in the car inspection certificate, but those same kinds of names are also used in Ken Otsu Evidence No. 1. (In Ken Ko 1, there are also many cases where the ordinary model names are used. Ken Ko 1 uses the same car names ("Corona", "Karina") as the Database, with respect to cars within the same range of numbers as in the Database, but it uses the ordinary names ("Corona Exceive", "Karina ED") for cars outside that range.) * Also, in Otsu 47, the difference is clear between the April 1994 revised version and the manner of naming cars in Ken Otsu 1.
(c) Around March 9, 1995 the Defendant provided the Defendant Database 1 to Yuugengaisha Ohtani Jidousha Hachiman Shaken Sentaa Kabushiki Kaisha [Limited Liability Company Ohtani Automobile Hachiman Car Inspection Center Corporation {sic}] (hereinafter referred to as "Ohtani Automobile"). This is made clear by the following facts.
a. Around September 25, 1996 the Plaintiff went to Ohtani Automobile and, in the presence of its employees, copied on to a floppy disc the file called RUIBETU.DAT from the Defendant's System that was being used by Ohtani Automobile. (Ken Ko 3)
b. In that file are gathered 60,238 items of vehicle data, from Model Designation - Type Classification Numbers 4800-001 through 7619-004, and from out of the Dummy Data found in the Database, it includes five items from within the range of those classification numbers. Additionally, the Database contains some erroneous input values concerning vehicle data for a portion of the Model Designation - Type Classification Numbers, and those errors are entered "as is" in the above-mentioned file. Therefore, that file is none other than the Defendant Database 1.
c. On about March 9, 1996 Ohtani Automobile purchased the Defendant's System, but since thereafter, until the aforementioned copy was made, the Defendant added no changes to the above-mentioned file in the Defendant's System used by Ohtani Automobile, it can be concluded that the Defendant Database 1 was delivered to Ohtani Automobile on around the same day.
1. At around the beginning of March 1996 the Defendant made virtually "as is" reproductions of the Database, created a database therefrom, and sold it to customers. (This database has a file called "RUIBETU2.IND" containing Model Designation - Type Classification Numbers and the data corresponding to each such number is gathered in a file named "RUIBETU2.DAT"; hereinafter this database is referred to as the "Defendant Database 2".)
Moreover, by about the middle period of that month the Defendant, relying on the Database, prepared a vehicle database named "RUIBETU.DAT" (hereinafter referred to as the "March 1996 Revised Defendant Database"), and sold it to customers who had been provided with the Defendant Database 2.
Further, the Defendant, on the occasion of editing vehicles, compiled the March 1996 Revised Defendant Database, the subject matter of which was only comparatively newer cars, in the RUIBETU.DAT file, which recorded vehicle data registered by users, and in order to supplement this it recorded the Defendant Database 2 in RUIBETU2.IND and RUIBETU2.DAT.
On about March 13, 1996 the Defendant delivered the Defendant Database 2 and the March 1996 Revised Defendant Database to Yuugengaisha Fuji Moutaasu Shoukai [Limited Liability Company Fuji Motors] (hereinafter referred to as "Fuji Motors"). This is made clear by the following facts.
(a) On September 21, 1996 the Plaintiff went to Fuji Motors and, in the presence of its employees, copied onto another initialized hard disc the hard disc that housed the Defendant's Database used by Fuji Motors, and afterwards reproduced that on a CDR (Ken Ko 2).
(b) 122,260 items of vehicle data, from Model Designation - Type Classification Numbers 1398-039 through 9527-004, are recorded in the RUIBETU2.IND and RUIBETU2.DAT files in Ken Ko 2. They include eight items of Dummy Data out of the nine such items in the Database; furthermore, they contain "as is" data that was erroneously input when the Plaintiff created the Database. The aforementioned files are none other than Defendant Database 2.
The RUIBETU.DAT file in Ken Ko 2 records 58,072 items of vehicle data, from Model Designation - Type Classification Numbers 5424-001 through 7944-012, and a considerable amount of data on it is identical to that on the Database. Further, an error is recorded in the Database as to the "height" of vehicle number 5684-400, and the same error is found "as is" in the aforementioned file. Accordingly, that file is none other than the March 1996 Revised Defendant Database.
(c) In around the beginning of November 1996 the Defendant provided Fuji Motors, free of charge, with the RUIBETU.DAT and RUIBETU2.DAT vehicle databases, and made revisions thereto.
By about the end of December 1996 the Plaintiff, before persons associated with Fuji Motors, boxed up "as is" Fuji Motors' computer in which the Defendant's System was installed, and sealed the box with Fuji Motors' company seal. On November 9, 1998 the seal was opened in the presence of employees of Fuji Motors and a notary public, and the Defendant's System contained therein was copied on to a CDR (Ken Ko 5).
It is clear that the Defendant's System in Ken Ko 5 is a copy of the Defendant's System that had been used by Fuji Motors, and in addition, the flagged data in the RUIBETU.DAT file in Ken Ko 2 and in the RUIBETU.DAT file in Ken Ko 5 have recorded in them identical contents in identical positions.
(d) On around March 13, 1996, the Defendant delivered the Defendant's System to Fuji Motors.
C. As shown from the above, after the Plaintiff brought this lawsuit, the defendant provided to customers free of charge the RUIBETU.DAT format and RUIBETU2.DAT format files, as revised versions of the October 1995 amended Defendant Database. From the facts that (1) although data maintenance had up to that time been provided for a fee, during the course of the litigation these files were provided even to customers who did not want data maintenance and to customers who did not desire to continue using the Defendant's System; (2) there were many customers who were not provided with revised versions of the October 1995 amended Defendant Database; and (3) at the time of October 1996, it was the revised version of the October 1995 amended Defendant Database, rather than the March 1996 Revised Defendant Database, that was provided by Defendant, and so on, it must be concluded that from about October of 1996 the Defendant methodically wrote changes into the Defendant's Database in order to conceal its own unlawful acts.
D. Even if for the sake of argument it is posed that the Defendant Database 1 and Defendant Database 2 as well as the March 1996 Revised Defendant Database do not constitute copies of the Database, since these databases of the Defendant were created in reliance on the Database and they directly express the essential characteristics of the Database, they constitute adaptations of the Database.
(The Defendant's Argument)
The Defendant denies every one of the Plaintiff's allegations.
(a) Since, from after the revisions in 1994 up until the revisions of May 1996, the only change made to the Defendant's Database was the October 1995 amended Defendant Database, which was necessitated by the change from seven to eight digits in the Type Classification Numbers, the databases identified as "the Defendant Database 1", "the Defendant Database 2" and "the March 1996 Revised Defendant Database" do not exist.
(b) The Defendant did not deliver the Defendant Database 1 to Tekigi Automobile.
Because the Defendant sold the April 1994 revised Defendant Database to Tekigi Automobile on April 18, 1994, prior to October 28, 1997, when the amended version of the October 1995 revised Defendant Database was delivered to Tekigi Automobile, the database used by Tekigi Automobile was the April 1994 revised Defendant Database, but this clearly is different from the vehicle database in Ken Ko 1.
On the occasion when the Plaintiff went to Tekigi Automobile and made copies of the Defendant's Database, the employees of Tekigi Automobile did not understand at all the details of the work being done by the Plaintiff.
(c) The Defendant did not deliver the Defendant Database 1 to Ohtani Automobile. The Defendant's Database that the Defendant sold to Ohtani Automobile and which was used by Ohtani Automobile from around the end of September 1996 was the April 1994 revised Defendant Database, but this is a database completely separate from the vehicle database in Ken Ko 3.
Ohtani Automobile cannot be said to be an impartial third party, since it profited from the payment of a lease balance by the Plaintiff and from receiving the Plaintiff's System free of charge. Moreover, on the occasion when the Plaintiff carried out the reproduction of Ohtani Automobile's copy of the Defendant's Database, the employees of Ohtani Automobile had no understanding whatever of the details of that work.
(d) The Defendant did not deliver the Defendant Database 2 or the March 1996 Revised Defendant Database to Fuji Motors.
On March 13, 1996 the Defendant delivered the Defendant's System that included the database amended in October of 1995 called "RUIBETU2.DAT", but the RUIBETU2.DAT in Ken Ko 2 and the RUIBETU2.DAT database amended in October of 1995 are completely separate databases.
Fuji Motors cannot be said to be an impartial third party since it profited from the payment of a lease balance by the Plaintiff and from receiving the Plaintiff's System free of charge. Moreover, on the occasion when the Plaintiff copied the Defendant's Database at Fuji Motors, the employees of Fuji Motors had no understanding whatsoever of the details of that work.
(e) The databases in Ken Ko 1 through Ken Ko 3 and the Database all differ from the database that the Defendant has provided to customers up to the present time. There is no database created by the Defendant that starts with Model Designation - Type Classification Number 4800-001 and ends with 7619-004.
(f) The Plaintiff had the technology to further process the Defendant's Database after getting access to it from users. From about the beginning of 1996 the Plaintiff paid many visits to Ohtani Automobile, Fuji Motors and Tekigi Automobile on a continual basis, and there is a very high possibility that it did some work on the defendant's database while at these companies.
(g) The reason why the Defendant provided the revised version of the October 1995 amended database to users of the Defendant's System free of charge was that there were some problems in the contents of the October 1995 amended database, and also it was an attempt to deal at one stroke with all DOS-version system users and those users who did not want to switch over to RUIBETU2.DAT. The Defendant also provides all kinds of data to users free of charge as necessity demands.
(3) Concerning Disputed Point (3)
(The Plaintiff's Argument)
(a) The tenor of the Copyright Act is not that it recognizes no legal protection whatsoever for things that do not possess creativity as provided under the Act. In particular, despite the fact that the development of a database requires a considerable investment, it can be copied easily and at a low cost; consequently, it has a high need for protection. Accordingly, in a case with the following factors, the act of extracting information from a database and exploiting that information should be understood as constituting an unlawful act (tort): (1) the database is developed through a considerable amount of investment; (2) the relevant database is not a mere arrangement of facts, but is produced as the fruit of intellectual creative activity; (3) a considerable portion of the conglomeration of data was abstracted and reproduced from the relevant database; (4) almost all of the abstracted and reproduced conglomeration of data is being sold "as is" as a competing product; and (5) the developer of the database has incurred economic damages by reason of such competitive actions.
(b) The Database is the result of the intellectual creative activities of the Plaintiff. Moreover, the checking of the suitability of the information that was obtained and the input of that information required huge expenses and effort. More than forty persons expended a total of 72,000 hours in its development. The development itself required an outlay of over 500,000,000 Yen and the annual expenses for maintenance management come to 40,000,000 Yen. For all these reasons, the Plaintiff, who developed this product, has a legal right that the Database not be misappropriated. Nevertheless, the Defendant has taken a free ride on the enormous effort and expense invested by the Plaintiff and has enjoyed unfair business profits. The Defendant has misappropriated the Database without permission and incorporated it into the Defendant's System, which competes with the Plaintiff's System. As a result, the Plaintiff has incurred economic damages and the Defendant's actions constitute and unlawful act (tort).
(The Defendant's Argument)
Holding that the Database is an asset subject to legal protection is premised on finding that it can be copyrighted.
The Defendant's Database is not a copy of the Database but, rather, was one developed by the Defendant itself.
1. Concerning Disputed Point (1)
Below we will look into the Plaintiff's assertion that the selection of the subject automobiles, the selection of information about the automobiles in the Database and the systematic structure of the database possess creativity.
(1) Regarding the selection of subject automobiles, from the tenor of the evidence (Ko 3 through 10, including branch numbers thereof) and the pleadings, the following facts can be found.
Since the Database is employed in a system for meant for use by the automobile servicing industry, it was created for the purpose of providing automobile servicers with information about actually-existing automobiles.
Pursuant to Article 75 Section 1 of the Road Transport Vehicles Act, when an automobile receives a model designation from the Minister of Transportation, a Model Designation Number is assigned thereto, and a three-digit Type Classification Number is assigned by each car manufacturer, corresponding to whether or not that car has an air conditioner or other equipment or the like.
Nevertheless, even if an automobile maker assigns a Type Classification Number because it plans to sell a certain automobile, there are cases where, afterwards, due to a change in plans or the like, such automobile is not actually sold, so it is not necessarily the case that although a model is published in the Official Gazette or a Model Designation - Type Classification Number is published in the "Model Designation - Type Classification Chart" issued by each automobile manufacturer the car actually exists.
The Plaintiff verified whether or not automobiles made in Japan and those manufactured overseas by foreign subsidiaries of Japanese makers for sale in Japan that were listed in the Annual Model Chart published in June 1982 and in the Official Gazette from July 12, 1989 through February 10, 1994 actually existed, through checking materials such as automobile inspection certificates, automobile basic tables, catalogs of each car maker, and service data issued by the Japan Federation of Automobile Servicing Promotion Associations, and collected in the Database only automobiles that it judged to actually exist.
Further, in addition to the aforementioned actually-existing automobiles the Plaintiff added to the Database Dummy Data and fictitious data for a car with Type Classification Number "000". as representative data for cars belonging to each Model Designation Number (hereinafter referred to as "Representative Data") in order to verify if other businesses were reproducing the Database without permission.
From the above facts it can be found that the Database is a compilation of automobile data that was judged to be about four-wheel automobiles actually existing in Japan that were made in Japan or made overseas by subsidiaries of Japanese car makers for sale in Japan as well as Dummy Data and Representative Data, but with respect to the point of the aforementioned kind of selection of actually-existing cars, that is a selection that would normally have been done for an automobile database aimed at the domestic automobile servicing industry. So, since the database cannot be recognized as having unique characteristics, it cannot be found that the selection of information has creativity.
The Plaintiff argues that taking into consideration the point that the Database reflects the Plaintiff's evaluation of data sources and judgment as to whether or not automobiles actually existed, the selection of automobiles has creativity. Nevertheless, although a certain amount of intellectual work, involving specific evaluation and judgment in verification, goes into the process of selecting information for confirming the actual existence of automobiles, it goes no further than that; creativity is not a basic element in the selection of the information.
In addition, with respect to the matter of compiling Dummy Data and Representative Data, since that consisted of nothing more than the Plaintiff compiling fictitious data that it had made up, that does not serve to attach a basis for creativity in the selection of information.
Therefore, it cannot be held that the selection of the subject automobiles in the Database had creativity.
(2) Selection of Items of Data related to the Automobiles
Pursuant to the tenor of the evidence (Ko1 and 12) and the pleadings, it can be found that the data items in the Database do not encompass all information concerning the subject automobiles, but mainly are a collection only of the following information, for the purpose of assisting in the preparation of automobile inspection certificates.
{a} Model Designation Number
{b} Type Classification Number
{c} manufacturer's code
{d} vehicle type code
{e} model
{f} type code
{g} service code
{h} chassis shape code
{i} dimensions (length, width, height)
{j} axle weight (FF, FR)
{k} number of passengers
{l} maximum load
{m} vehicle weight
{n} vehicle gross weight
{o} engine (motor) type
{p} gross amount of exhaust
{q} fuel code
Pursuant to the tenor of the evidence (Ko 15-1 through 15-3, Otsu 11-1 and 11-2) and the pleadings, it can be found that all of such items, except for "car type" are those that should be listed in the automobile inspection certificate.
Also, pursuant to the evidence (Otsu 31, 38 and 39) it can be found that items that should be listed in the automobile inspection certificate as automobile data are also found in databases for use in the automobile servicing industry prepared by other companies, and that there also are databases that collect only items that should be listed in the automobile inspection certificate.
Furthermore, pursuant to the evidence (Otsu 12-1 and 12-2 and Otsu 38), it can be found that there are multiple cases where car models called "Corolla" and "Skyline" were also compiled in the databases created by other companies for use in systems used by the automobile servicing industry.
Based on the above facts, it can be found that the items of information collected in the Database consist of those necessary for listing in the automobile inspection certificate and of model names for cars, but that these data items would normally be selected in a database meant to assist in the creation of automobile inspection certificates used in the systems of automobile service providers and, since in fact these data items have been selected in the databases of other companies, the Database cannot be found to have creativity by the fact of the selection of the data items in it.
b. The Plaintiff argues that the Database has creative special characteristics by the fact that it uses names for makers and models that differ from those ordinarily used.
Pursuant to the general tenor of the evidence (Ko 43) and the pleadings, it can be found that since it was necessary to coordinate the Database with the database for automobile parts developed by the Plaintiff, in the Database, for some of the makers the names are indicated by "Nissan" instead of "Datsun" and so on, and names for car models are used that differ from those in the automobile inspection certificate, such as "Karina" for "Karina ED", and that the Plaintiff thus uses names that are different from those used in publications such as the various automobile basic charts and annual model tables, but since this is no more than using an original name as the name for a car or model with respect to already-selected car information, this cannot be a ground for finding creativity in the selection of information.
c. The Plaintiff asserts that there are creative special characteristics by reason of the fact that for part of the aforementioned data items the Plaintiff affixed its own original code numbers. Pursuant to the tenor of the evidence (Ko 12, 27 and 29) and the pleadings, it can be found that for a portion of the items out of the aforementioned data items in the Database the Plaintiff has recorded its own original code numbers, and these code numbers are related to collected files of graphic information corresponding to each code number. Nevertheless, these code numbers are merely numbers attached to already-existing information and are not a ground for finding creativity in the selection of information.
d. The Plaintiff argues that there are creative characteristics by reason of the fact that each of the numerical value data is not a numerical value recorded in the referenced materials, but is a piece of data verified by the Plaintiff. However, since this can be said to be a gathering of verified numerical values for the data, it is not a ground for finding creativity with respect to the selection of data.
(3) Since it can be found from the tenor of the evidence (Ko 12 and 27, Otsu 58 and Ken Ko 4) that the Database lists the items of automobile data in the order found in the attachment entitled "Classifications and Attributes of the Data Items", starting from the Model Designation - Type Classification Numbers for the older automobiles, and there is no other classification apart from that, and that the automobile databases of other companies use the same sequence, it cannot be found that there is creativity in the systematic structure of the Database.
(4) Accordingly, it cannot be found that the Database has creativity as a database subject to copyright.
2. Concerning Disputed Point (2)
(1) As stated in the aforementioned No. 2-1(2), the Plaintiff commenced sales of the Database in around June of 1994.
Pursuant to the evidence (Ko 12, 27, 56 and 79, Otsu 58 and 60 and Ken Ko4), it can be found that 123,407 items of automobile data, from Model Designation - Type Classification Numbers 1398-039 through 9542-012 (119,039 items if Representative Data are excluded) are collected in the Database, and among them are included nine items of Dummy Data for the purpose of finding out if other companies were reproducing the Database.
(2)a. Based on the evidence (Ko 34, 35, 38, 40, 41 and 44, Ken Ko 1, and "Witness "A"), it can be found as fact that on September 26, 1996 the Plaintiff's Employee "A" went to Tekigi Automobile and conducted a confirmation of whether or not Dummy Data recorded in the Database was gathered in the database in the Defendant's System being used by Tekigi Automobile; that on that same day when a worker from Tekigi Automobile typed "Model Designation - Type Classification Number 4899-750" in the Defendant's System, the data for that automobile appeared, but this automobile was one of the nine items of Dummy Data collected in the Database; that on September 28th of that year Employee "A", together with other employees, copied the hard disc on which such Defendant's System was installed on to another initialized hard disc, and this copied hard disc was sealed with the seal of the representative of Tekigi Automobile, was opened before a notary public and was again reproduced on a CDR (Ken Ko 1); and that the automobile database file called "RUIBETU.DAT" was housed in this CDR.
Further, based on the evidence (Otsu 26, 30, 34, 74, 77 and 98 and Ken Otsu 1), it can be found as fact that on October 28, 1997 the Defendant delivered to Tekigi Automobile free of charge a new Defendant's Database; that on March 3, 1999 the Defendant, at the location of Tekigi Automobile, copied the hard disc containing the Defendant's System that Tekigi Automobile was using on to another new hard disc and subsequently reproduced that on a CDR (Ken Otsu 1); and that this CDR contained the vehicle database file called "RUIBETU.DAT".
b. Based on the evidence (Witness "A") it can be found that on September 26, 1996 the Plaintiff's employee conducted the aforementioned confirmation and that before the aforementioned copying was done on September 28th, he visited Tekigi Automobile for business purposes but on that occasion that employee did not touch the Defendant's System being used by Tekigi Automobile. Furthermore, there is no evidence to find that, other than that, the Plaintiff added changes to the Defendant's Database prior to the time of the above-mentioned confirmation and reproduction.
This being the case, it can be found that the database reproduced in Ken Ko 1 was the database delivered by the Defendant to Tekigi Automobile and used by that company along with the Defendant's System.
c. It should be clear from the following facts that the database reproduced in Ken Ko 1 was the database delivered by the Defendant to Tekigi Automobile, and used by that company together with the Defendant's System.
(a) Pursuant to the evidence (Ko 72, Otsu 41), the following can be found as fact. Flagged [1] data was recorded in the Defendant's Database concerning (1) Model Designation - Type Classification Numbers newly recorded by the user and (2) Model Designation - Type Classification Numbers recording vehicle data read out by the user from the vehicle data gathered by the Defendant. Model Designation - Type Classification Numbers newly recorded by the user were recorded sequentially at the end of the Model Designation - Type Classification Numbers supplied by the Defendant. When the Defendant renovated vehicle data the flagged [1] data continued "as is" in the initial position where the recorded vehicle data had been.
From the evidence (Ko 42, Otsu 43), it can be found that in the front part of the RUIBETU.DAT file in Ken Otsu 1 flagged [1] data is recorded at the Model Designation - Type Classification Number 4800-001 vehicle. Further, pursuant to the evidence (Otsu 35, 36, 43 48, 56, 59 and 82), it can be found that the front part of the Defendant's Database revised by the Defendant in April of 1994 has Model Designation - Type Classification Number 0049-022 and the Model Designation - Type Classification Number 4800-001 vehicle is recorded as the 7692nd from the front. When taking this into consideration together with the above finding about the arrangement in which the flag [1] was recorded, it can be inferred that even if the April 1994 revised Defendant Database was delivered to Tekigi Automobile, afterward, but before the RUIBETU.DAT file in Ken Otsu 1 was delivered, a database in which the initial vehicle was Model Designation - Type Classification Number 4800-001 was delivered to Tekigi Automobile.
At the same time, as will be held below, the RUIBETU.DAT file in Ken Otsu 1 has Model Designation - Type Classification Number 4800-001 as its first vehicle.
(b) From the evidence (Ko 42, Otsu 40) it can be found that in both the RUIBETU.DAT in Ken Ko 1 and the RUIBETU.DAT in Ken Otsu 1 there is flag [1] data existing among the items 9031 through 61,699 and among the items from 61,792 through 61,901, and the positions of these flagged [1] data are in conformity. Just from the fact that the positions of the flagged data are in conformity over such a broad range it can be inferred that both the RUIBETU.DAT in Ken Ko 1 and the RUIBETU.DAT in Ken Otsu 1 are identical to the database used by the user, Tekigi Automobile.
(c) Pursuant to the tenor of the evidence (Ko 40 and 71) and the pleadings, it can be found that data for the Model Designation - Type Classification Number 4357-600 vehicle is recorded at the end of the RUIBETU.DAT in Ken Ko 1 at item number 61,901, that this vehicle is Dummy Data recorded in the Database, and that the data for the Model Designation - Type Classification Number 4357-600 vehicle at item number 61,901 in the RUIBETU.DAT in Ken Ko 1 is flagged. Further, from the gist of the evidence (Ken 40, Otsu 42, Witness "A"), the following facts can be found: that, as for the content portion of these vehicle data, on the occasion when on September 26, 1996 Witness "A" carried out at Tekigi Automobile a confirmation of whether or not Dummy Data existed in the Defendant's System used by Tekigi Automobile, on a list of Dummy Data that he brought along, one line before the Model Designation - Type Classification Number 4357-600 vehicle there was data for the Model Designation - Type Classification Number 4987-050 vehicle; and that on that same day an employee of Tekigi Automobile input the Model Designation - Type Classification Number 4987-050 in to the Defendant's System and after that vehicle data appeared, and when he input Model Designation - Type Classification Number 4357-600, since that vehicle was not recorded in the Defendant's System, the vehicle data for Model Designation - Type Classification Number 4987-050 stayed on the monitor, but in order to carry out the operation "end recording" in that condition, data for Model Designation - Type Classification Number 4987-050 was recorded as vehicle data for Model Designation - Type Classification Number 4357-600. From these facts it can be inferred that the 61,901st item of data in both these files, Model Designation - Type Classification Number 4357-600, was also [already] recorded when Employee "A" confirmed Dummy Data at Tekigi Automobile on September 26, 1996.
(d) The Defendant asserts that on April 18, 1994 it sold the April 1994 amended Defendant Database to Tekigi Automobile, but thereafter, until October 28, 1997, it did not provide any Defendant Database to Tekigi Automobile, so that the database in Ken Ko 1 is not the Defendant's Database that the Defendant supplied to Tekigi Automobile, but as already mentioned above, this assertion cannot be accepted.
(e) Pursuant to the tenor of the evidence (Ko 36, 42 and 43, Otsu 52) and the pleadings, the following facts can be found with respect to the RUIBETU.DAT file in Ken Ko 1.
(i) Approximately 60,000 items of automobile data are gathered in this file in ascending order from Model Designation - Type Classification Number 4800-001 through 7619-004, and thereafter there is data newly recorded by Tekigi Automobile.
(ii) Out of all the Dummy Data in the Database, this file has five items of Dummy Data from within the range of the database collected in the file. Since these data are not marked with a flag [1], they are not automobile data newly recorded by Tekigi Automobile.
(iii) For "Car Model Names", the Database, in part, uses different names from those used in the various original automobile charts, such as "Karina" instead of "Karina ED", and the aforementioned file uses the very same names for cars with identical Model Designation - Type Classification Numbers as in the Database. In addition, the Defendant's Database in Ken Otsu 1 also uses, in part, the same names for cars with identical Model Designation - Type Classification Numbers.
(iv) The vehicle data items in this file are completely identical to the ones in the Database.
(v) The vehicles with Model Designation - Type Classification Numbers that were recorded in this file when it was first delivered are also recorded in the Database, and the contents of such automobile data are identical to that gathered in the Database. Conversely, the vehicles with Model Designation - Type Classification Numbers that were not recorded in this file when it was first delivered are also not found in the Database.
(3)a. From the evidence (Ko 27, 45 through 47 and 58, Ken Ko 3) it can be found that on September 26, 1997 the Plaintiff's employee visited Ohtani Automobile and confirmed that the vehicle database in the Defendant's System being used by Ohtani Automobile included Dummy Data recorded in the Database; and that that employee copied this database file called "RUIBETU.DAT" in the Defendant's System on to a floppy disc and, after sealing it, took it into his custody.
Based on the evidence, it can be found that on November 8, 1996 the Defendant delivered a new Defendant's Database to Ohtani Automobile free of charge.
b. Since there is no evidence that prior to the aforementioned confirmation and copying the Plaintiff's employee tried to confirm that revisions were added to the Defendant's System used by Ohtani Automobile, it can be found that the database copied on to the above-mentioned floppy disc is that database that was delivered by the Defendant to Ohtani Automobile and was used by Ohtani Automobile together with the Defendant's System.
The Defendant asserts that around March 9, 1995 it sold to Ohtani Automobile the Defendant's System that housed the April 1994 amended Defendant Database, so the database that was copied on to the aforementioned floppy disc is not the Defendant's Database that the Defendant delivered to Ohtani Automobile, but as the facts mentioned above illustrate, this assertion cannot be accepted.
Further, the Defendant insists that Ohtani Automobile has been receiving profits from the Plaintiff, but the things mentioned in Otsu 84 in support of this allegation are no more than mere hearsay and cannot be readily trusted, and there is no other evidence sufficient to find that the Plaintiff provided any profit to Ohtani Automobile.
In addition, pursuant to the evidence (Ko 40 And 77) it can be found that at the end of the RUIBETU.DAT file database copied on to the above-mentioned floppy disc there is the Dummy Data recorded in the Database for the car with Model Designation - Type Classification Number 4357-600, and that as to such vehicle data, on the occasion when Employee "A" typed in Dummy Data in the Defendant's System at Tekigi Automobile from a list of Dummy Data that he brought along, one line before the vehicle with Model Designation - Type Classification Number 4357-600 was recorded vehicle data for the car with Model Designation - Type Classification Number 4987-050. To this, the Defendant argues that it is unnatural that the end portion of the file that the Plaintiff alleges to have copied at Tekigi Automobile would be identical to the data at the tail end of the file it alleges to have copied at Ohtani Automobile. However, when it is taken into consideration that, as found in (2)c(iii) above, at the time when the Plaintiff's employee confirmed the Dummy Data at Ohtani Automobile the very same procedures to collect automobile data were taken as those taken at Tekigi Automobile, it is not unnatural that the data at the end of both files would be in conformity; on the contrary, these facts should be taken to support the finding that the database reproduced on the above-mentioned floppy disc was the database delivered by the Defendant to Ohtani Automobile and used by Ohtani Automobile together with the Defendant's System.
c. Based on the general tenor of the evidence (Ko 26 and 27, Ko 31-4 through 31-7, Ko 32-4, Ko 33, 77, 79 and Otsu 57) and the pleadings, the following facts can be found with respect to the RUIBETU.DAT file reproduced on the aforementioned floppy disc.
(i) 60,238 items of automobile data are gathered in ascending order in the above-mentioned RUIBETU.DAT file, from Model Designation - Type Classification Number 4800-001 through 7619-004, and after that there is automobile data newly collected by the user.
Among the vehicle data collected in this file in ascending order, 58,841 items are completely identical to the data gathered in the Database. Out of the rest of the data, since 41 items are flagged, that means the contents were changed by Ohtani Automobile. Further, out of the remaining data, 681 items are for the fuel code only, and are recorded as gasoline not "LPG"; the car models for 367 items do not conform with the car model codes in the Database but the remainder of the data is identical to the data in the Database.
Furthermore, the vehicles recorded in this file at the initial stage when it was delivered are all also gathered in the Database.
(ii) From among all the Dummy Data gathered in the Database, within the range of collected information in this file are contained five items of such Dummy Data.
(iii) The Database in part uses names not used in the various automobile charts. For example, for "car name" it indicates "Mitsubishi" for "Diamond Star" and for "model name" it uses "Estima" for "Estima Lucida"> The aforementioned file uses those very names "as is" for cars with identical Model Designation - Type Classification Numbers.
(iv) The correct "height" for the car with Model Designation - Type Classification Number 5684-400 is "182" but it is mistakenly recorded in the Database as "171". In the aforementioned file there is an identical mistake in the numerical value.
(v) The vehicle data items in this file are identical to those in the Database.
(4) From the evidence (Ko 48 through 54, 65 and 67) it can be found that at around the beginning of 1996 the Plaintiff confirmed that in addition to Tekigi Automobile and Ohtani Automobile other users of the Defendant's System were using a Defendant's Database in which was gathered 60,238 items of automobile data, from Model Designation - Type Classification Number 4800-001 through 7619-004 and within its scope of collected information it included five items of data from the Dummy Data in the Database.
(5)a. Pursuant to the evidence (Ko 30, 62 and 78, Ken Ko 2, Witness "B"), it can be found that on September 21, 1996 the Plaintiff's employee went to Fuji Motors and after confirming by typing in Dummy Data from the Database that there was Dummy Data existing in the database in the Defendant's System being used by Fuji Motors, he made a copy of the hard disc in which the Defendant's System was installed on to another initialized hard disc, and then further copied that on to a CDR (Ken Ko 2).
Based on the evidence (Ko 11, 26, 30, 76 and 79, Otsu 64, 70 and 78, Ken Ko 2), the following facts can be found: that among the files reproduced in said CDR, the file called RUIBETU2.IND was a readout-only file and on the date when it was renovated, February 27, 1996, it included 122,260 items of Model Designation - Type Classification Numbers, from 1398-039 through 9527-004; that the file called RUIBETU2.DAT that was reproduced in said CDR was a readout-only file and on the date when it was renovated, March 8, 1996, it contained in successive order vehicle data with respect to the automobiles recorded in the aforementioned RUIBETU2.IND file; and that since users could input new vehicle data in the file called RUIBETU.DAT reproduced in said CDR, the renovation date of the file was September 20, 1996.
b. Based on the tenor of the evidence (Otsu 74, 77, 80 and 98 and Witness "C") and the pleadings, it can be found that on November 6, 1996 the Defendant delivered to Fuji Motors free of charge a renovated version of the Defendant's Database and also set up a password in the Defendant's System for Fuji Motors.
From the evidence, the following facts can be found: that in around the middle of December of 1996 the Plaintiff boxed up Fuji Motors' personal computer in which the Defendant's System was installed and sealed the container with the company seal of Fuji Motors; that on November 10, 1998 the seal for this computer was opened in the presence of a notary public and the hard disc therein on which the Defendant's System was installed was copied on to a CDR (Ken Ko 5); and that this CDR contains database files such as RUIBETU.DAT, RUIBETU2.DAT and RUIBETU2.IND.
c. Since there is no evidence sufficient to find that prior to the aforementioned confirmation and copying the Plaintiff's employee made changes to the Defendant's Database possessed by Fuji Motors, it can be found that the databases reproduced in the aforementioned CDR (Ken Ko 2) were the databases that the Defendant delivered to Fuji Motors and were used by Fuji Motors together with the Defendant's System.
The Defendant asserts that on March 13, 1996 it delivered anew to Fuji Motors a Defendant's System but that since the database it delivered to Fuji Motors was the one called the October 1995 Amended Defendant Database (Ken Otsu 6), the database in Ken Ko 2 was not the one delivered by the Defendant to Fuji Motors. For reasons illustrated by comments made above as well as by the following sub-section "d", however, this assertion cannot be accepted.
d. It should be clear from the following facts that the database reproduced in Ken Ko 2 was the one delivered by the Defendant to Fuji Motors and used by that company together with the Defendant's System.
(i) Pursuant to the evidence (Ko 75 and 81) it can be found that in both the RUIBETU.DAT in Ken Ko 2 and the RUIBETU.DAT in Ken Ko 5, positions of the flagged [1] data that exist among the 58,178 items of data from the beginning are identical. As illustrated by the collected arrangement of flags, as found in section (2)c(i) above, it can be inferred that both these databases were used by only one user, Fuji Motors.
(ii) According to the Defendant's allegation, the flagged vehicle data in the RUIBETU.DAT file in Ken Ko 5 (excepting the data newly recorded by Fuji Motors) should conform to the vehicle data collected in the October 1995 Amended Defendant Database (Ken Otsu 6) unless Fuji Motors revised the data contents, but pursuant to the evidence (Ko 82) it can be found that there are a considerable number of flagged vehicle data in the RUIBETU.DAT file in Ken Ko 5 that do not conform to the RUIBETU.DAT vehicle data in the October 1995 Amended Defendant database (Ken Otsu 6); moreover, both of them are in conformance with the vehicle data in the Database.
(iii) From the evidence (Ko 72, 75 and 81) it can be found that at the end of the RUIBETU.DAT file in Ken Ko 2 there is content identical to that recorded in the Database for Dummy Data concerning Model Designation - Type Classification Numbers 4278-010 and 4357-600, and that in the RUIBETU.DAT file in Ken Ko 5 as well these data are flagged in identical positions, and when these facts are combined with the tenor of the evidence (Ko 72) and the pleadings, it can be found that since on the occasion when the Plaintiff's employee went to confirm the Dummy Data at Fuji Motors the Dummy Data for these vehicles was read out from RUIBETU2.DAT but did not exist in RUIBETU.DAT, the RUIBETU.DAT file had newly-recorded data in it.
d. In addition, the Defendant asserts that Fuji Motors received profits from the Plaintiff, such as the payment of the balance of lease fees and the provision of the Plaintiff's System free of charge. Based on the evidence (Otsu 81, Witness "B") it can be found that when the Plaintiff took possession of Fuji Motors' personal computer as found in section "b" above, it paid Fuji Motors' lease fee for the Defendant's System and provided the Plaintiff's System free of charge, but this was in compensation for the Plaintiff's receipt of the Defendant's System being used by Fuji Motors, to be used as evidence in this lawsuit. Based on these facts, the Plaintiff did not provide a profit to Fuji Motors. Moreover, as shown in the findings in section "a" above, there is no evidence sufficient to find that the Plaintiff rendered a profit to Fuji Motors before the time when the database was copied in to Ken Ko 2.
e. Pursuant to the gist of the evidence (Ko 26 and 30, Ko 31-1, 31-2, 31-5, 31-6 and 31-7, Ko 32-1 and 32-4, Ko 33 and 79, Otsu 94) and the pleadings, the following facts can be found with respect to the files in Ken Ko 2.
(i) Out of the 122,260 items of car data in the RUIBETU2>DAT file in Ken Ko 2, over 100,000 items conform to the data in the Database, and of the nine items of Dummy Data in the Database, eight are included in that file.
The Database uses, in part, names different from those used in the various automobile charts. For example, under "car names", "Diamond Star" is expressed as "Mitsubishi" and under "model names", "Estima Lucida" is expressed as "Estima". In the aforementioned file, those names are used "as is" for the vehicles with the identical Model Designation - Type Classification Numbers.
The correct height of the car with Model Designation - Type Classification Number 5684-400 is "182", but it is mistakenly recorded as "171" in the Database, and the same error exists in the aforementioned file.
(ii) The RUIBETU.DAT file in Ken Ko 2 has 58,000 items of car data, from Model Designation - Type Classification Number 5424-001 through 7944-012, and out of those items a considerable number conform to those in the Database.
(6) As found above, after the filing of the lawsuit the Defendant delivered a new Defendant's Database free of charge to each of Tekigi Automobile, Ohtani Automobile and Fuji Motors, but the Defendant alleges that the reason it did so was because there were problems with the contents of the October 1995 Amended Defendant Database and it wanted to deal with all the users at the same time.
Nevertheless, according to the tenor of the evidence (Ko 38 and 68, Otsu 80, Witness "C") and the pleadings, it can be found that the new Defendant's Database was delivered free of charge even to users who did not actively express the wish for one; and pursuant to the evidence (Otsu 54 and 68) it can be found that there were users of the Defendant's System who were not provided with the new Defendant's Database. As will be found below, the acquisition and maintenance of vehicle data requires a considerably high amount of expense and effort. Based on the evidence (Ko 22, Otsu 34, Witness "D"), it can be found that renovations of the Defendant's Database had been done for a fee prior to the aforementioned delivery that was made free of charge. From all these facts it is concluded that the aforementioned allegation by the Defendant as to the reason why the delivery of the new Defendant's Database was made free of charge is unnatural and cannot be upheld.
(7) As shown from the above, the following facts can be found. In the Defendant's Database that the Defendant sold to Tekigi Automobile and Ohtani Automobile, approximately 60,000 items of vehicle data match those found in the Database. In the Defendant's Database that the Defendant sold to Fuji Motors, more than 100,000 items of vehicle data match those in the Database. The Defendant's Database delivered to each of Tekigi Automobile, Ohtani Automobile and Fuji Motors included within its respective range of data the Dummy Data collected in the Database. Further, all said databases contain the input errors found in the Database and the unique car and model names used in the Database.
After the commencement of this lawsuit the Defendant renovated said databases free of charge. The Plaintiff discovered that the databases in the Defendant's System used by customers other than the three above-named companies also contained Dummy Data and other items from the Database. Recognizing all of these facts and taking them into account, it should be clear that the Defendant made as aforementioned numerous reproductions of the data in the Database, assembled them into the Defendant's Database, and sold that to customers.
3. Concerning Disputed Point (3)
For an infringement of rights to constitute the requisite formation of an unlawful act [tort] under Article 709 of the Civil Code, it is not always necessary for there to be an infringement of a strictly concrete legal right under the law; it should be sufficient that there be the infringement of a profit worthy of legal protection. Furthermore, in the case where a database is created through the gathering and arrangement of information through people's expense and effort, and business activity is conducted by means of the manufacture and sale of that database, the act of creating another database by copying data from the first database and then selling that second database in a territory in which it competes with the first database is, in an organized transactional society with principles of fair and free competition, a remarkably unfair method of infringing on another person's legally-protected profits from business activity, and should be deemed to constitute an unlawful act.
Viewing this case with those points in mind, the database, as shown in the findings in section 1 above, had the purpose of providing information about actually-existing automobiles to those in the automobile servicing industry. Based on various materials from such sources as the Official Gazette, annual model charts and tables and automobile inspection certificates the Plaintiff amassed a database of automobile data that it judged to be about actually-existing automobiles. Pursuant to the tenor of the evidence (Ko 25) and the pleadings, it can be found that great expense and effort is required in the gathering and maintenance of this kind of data about actually-existing automobiles, and the Plaintiff expended more than 500,000,000 Yen in the development of the Database and spends as much as 40,000,000 Yen annually for its upkeep.
In addition, since from the general gist of the pleadings it can be found that both the Plaintiff and the Defendant developed systems for use in the automobile servicing industry and sold them nationwide, they had a competitive relationship in the sale of systems for the automobile servicing industry, and pursuant to the evidence (Witness "B"), it can be found that in actuality at first the Plaintiff's System had been delivered to Fuji Motors but later on it was replaced with the Defendant's System.
Further, as shown in the above findings, it is a fact that the Defendant reproduced a great many items of data from the Database, incorporated them into the Defendant's vehicle database, and then sold that to customers.
Tokyo District Court, Civil Part 47
Chief Judge: Yoshiyuki Mori
Judge: Motokazu Okaguchi
Judge: Satoko Otokosawa
List of Articles
Product name: tomukyatto [Tomcat]
Type: computer system for the automobile servicing industry and the sheet metal coating industry
Manufacturer: Kabushiki Kaisha System Japan
List of Unfair Competition
1. System Japan misappropriated Tsubasa's data.
2. System Japan has badly dangerous business conditions.
3. System Japan thinks it better not to spend money, since it finds that more pleasant.
4. Tokio Marine stopped cooperating with System Japan and switched over to Tsubasa all at once.
5. The production number for System Japan differs from that of Nisseiren.
Classification, Attributes, etc. of the Data Items
(abridgment)
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