1997 Dan Rosen

John J. McAulay Professor of Law; Loyola University, New Orleans. The section of this work discussing the new Japanese election system was supported by a research grant from The Japan Foundation.

1. The House of Representatives has the right to receive the budget from the Cabinet prior to the House of Councilors, to overrule the House of Councilors on budget and other matters, to have the final say on appointment of a Prime Minister, and to dissolve the Cabinet. See HITUSHI ABE ET AL., THE GOVERNMENT AND POLITICS OF JAPAN 16 (James W. White trans. 1994).

2. Politics Logs on to Internet, ASAHI EVENING NEWS, Jan. 3, 1996, at 4.

3. See generally Dan Rosen, Speaking for Democracy: Japan's New Campaign-and-Election Law System, THE JAPAN FOUND. NEWSL., Mar. 1996, at 10; Masahiro Usaki, Restrictions on Political Campaigns in Japan, 53 LAW & CONTEMP. PROB. 133 (1990).

4. Public Officials Election Law, Law No. 105 of November 25, 1994.

5. In this essay, I have followed the Japanese practice of placing the family name first, followed by the given name, unless an author's name has been listed otherwise in an article or book.

6. Atsushi Kodera, Candidates Miss Cyber-Campaign Opportunities Due to Obscure Law, DAILY YOMIURI, Oct. 15, 1996, at 10. One party, the Democratic Party of Japan (Minshuto), was somewhat less timid. It opted to maintain the names and photos of its candidates on its home page but removed any information about the districts from which they were running. Id.

7. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) [hereinafter Telecommunications Act]. The act amends the Communications Act of 1934, 47 U.S.C. 151 et seq.

8. See, e.g., Barbara Dority & John Perry Barlow, A Declaration of the Independence of Cyberspace, THE HUMANIST, May, 1996, at 16:

In the United States, you have today created a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, de Tocqueville, and Brandeis. These dreams must now be born anew in us.

You are terrified of your own children, since they are natives in a world where you will always be immigrants. Because you fear them, you entrust your bureaucracies with the parental responsibilities you are too cowardly to confront yourselves. In our world, all the sentiments and expressions of humanity-from the debasing to the angelic-are parts of a seamless whole, the global conversation of bits. We cannot separate the air that chokes from the air upon which wings beat.

9. (d) Whoever-

(1) in interstate or foreign communications knowingly-

(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or

(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

Telecommunications Act, supra note 7, 502.

10. For example, panelists in the first session on The Advertising Model talked about how to get the attention of users of the Net. Nat Goldhaber of CyberGold, Inc., called the current era The Attention Society, and said that in such a society attention is the principal measure of power. His company pays consumers to look at ads it creates for various advertisers. Curt Blake of Starwave discussed the importance of brand names, such as ESPN, in attracting the attention of users.

Remarks at the Digital Content conference, University of California at Berkeley, Nov. 8, 1996.

11. "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." U.S. CONST. amend. I.

12. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (Black, J., concurring); Barenblatt v. United States, 360 U.S. 109, 141 (1959) (Black, J., dissenting). See generally Edmond Cahn, Justice Black and First Amendment "Absolutes": A Public Interview, 37 N.Y.U. L. REV. 549 (1962). Except for periodic sympathetic utterances by Justices Douglas and Brennan, however, Justice Black was alone on the Court in this belief. See generally WILLIAM W. VAN ALSTYNE, FIRST AMENDMENT 8-25 (2d ed. 1995).

13. John Perry Barlow, remarks at the Digital Content conference, University of California at Berkeley, Nov. 8, 1996. Barlow would not, however, allow fans of the Grateful Dead-for which he wrote songs-to enter their concerts and hear his music for free. Neither would he object, seemingly, to being paid royalties based on purchases of recordings of his songs or their performance on the radio and in other domains. Barlow's theory is that because copies do not deprive authors of their originals, they should be as free as the air. (He and the Grateful Dead did not prevent fans from taping their concerts.)

However, relationships-by his view-can properly involve an exchange of money. A consumer may download copyrighted software for free in his world, but then be called upon to pay for the advice of the company on how to use it. This is either a "paradigm shift" or it is wrong. Ordinarily, people operate in the opposite way. I expect to pay for my computer software, but if it does not work, I do not expect to have to pay to consult the company and find out why. Indeed, I am currently vexed by the worst of both the ordinary and Barlowian worlds. I write with WordPerfect software purchased at the discounted academic price. For the discounted price, I am not entitled to call the company's helpline; thus, I have paid for the product but apparently not a direct relationship. "Technical support is limited on online support such as the Corel Bulletin Board Service (BBS), the World Wide Web and FTP Internet Sites, CompuServe(r) and the Corel Fax on Demand service. No telephone or other support will be included for the Corel(r) WordPerfect(r) Suite-Academic Edition." Corel(r) WordPerfect(r) 3.5 For Macintosh(r) box (1996).

14. David Hudson, Digital Dark Ages, S.F. BAY GUARDIAN, Nov. 6, 1996, at 26, 27.

15. Id. at 26.

16. See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (government limitation of working hours of bakers is unconstitutional interference with liberty and freedom of contract). But see Nebbia v. New York, 291 U.S. 502 (1934) (government can regulate economic policy).

17. David Hudson, There's No Government Like No Government, S.F. BAY GUARDIAN, Nov. 6, 1996, at 30, 33 (interview with Louis Rosetto).

18. The analogy could be extended by adding the development of telegraph, radio, television, and telephone systems, but enough has been said-I trust-to make the point.

19. See generally HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY: HOMESTEADING ON THE ELECTRONIC FRONTIER (1993) (describing the growth of Computer Mediated Communications).

20. Dick and Jane are enjoying a revival, fueled by a PBS documentary, a museum exhibit, and a book-all exploring the America depicted in the series, which taught 85 million Americans to read between the 1930s and the 1960s. CAROLE KISMARIC & MARVIN HEIFERMAN, GROWING UP WITH DICK AND JANE: LEARNING AND LIVING THE AMERICAN DREAM (1996). In general, Dick and Jane and the other characters were depicted as autonomous nouns individually acting upon their world through verbs. "Look Dick, look. See Spot run." In Japanese children's texts, however, characters are frequently seen as acting together. For example, a first grade arts and crafts book features photos of children in groups making mudpies, constructing a huge paper sculpture of Gulliver, building a sandcastle, parading in a festival, and drawing a gigantic chalk fish on the schoolgrounds. In all these pictures, each child is doing his own small part to contribute to the creation of a whole. Many of the projects are far too large for any one child to execute alone. Some, like the festival parade, by necessity involve the group. The unstated but (at least to outside eyes) clear message is that for society-the whole-to prosper, everyone must work together. NIHON JIDOU BIJUTUSU KENKYUUKAI [JAPAN CHILDREN'S ART RESEARCH CENTER], ZUGA KOUSAKU 1 [DRAWING, PAINTING, AND HANDICRAFTS, FIRST GRADE] (1991).

21. See generally THE ANALECTS OF CONFUCIUS (Mei Renyi trans. 1992).

22. See Kiyohara Keiko, Books in Japanese, JAPAN FOUND. NEWSL., Mar. 1996, at 15, 17.

23. MURAI JUN, INTANETTO [THE INTERNET] (1995).

24. Kiyohara, supra note 22, at 17.

25. NISHIGAKI TORU, MARUCHIMEDIA [MULTIMEDIA] (1994); see also NISHIGAKI TORU, SEINARU VACHARU RIARITI JOHO SISUTEMU SHAKAIRON [SACRED VIRTUAL REALITY: THEORIES OF THE INFORMATION SOCIETY] (1995).

26. Kiyohara, supra note 22, at 16.

27. Maeno Kazuhisa, late professor of Information Studies at Gunma University, worried about the consequences of Japan not trying to follow America's lead. He wrote, "Will multimedia bring us closer to the information society, shattering Japan's old ways of thinking in the process? Or conversely, will traditional ways of thinking obstruct multimedia's progress and cause Japan to fall behind the current of world history?" Maeno Kazuhisa, Multimedia Society and Japan, JAPAN FOUND. NEWSL., Mar. 1996, at 1, 9 [hereinafter Kazuhisa, Multimedia Society and Japan]; see also MAENO KAZUHISA, JOHO SHAKAI, KORE KARA DO HARU [THE FUTURE OF THE INFORMATION SOCIETY] (1991).

28. See generally EDWIN O. REISCHAUER & ALBERT M. CRAIG, JAPAN: TRADITION AND TRANSFORMATION 118-22 (2d ed. 1989).

29. Even the idea of a consciousness of culture was in some ways a Western import. See Tessa Morris Suzuki, The Invention and Reinvention of "Japanese Culture," 54 J. ASIAN STUD. 759, 761-763 (1995); see also W.G. BEASLEY, JAPAN ENCOUNTERS THE BARBARIAN (1995) (describing Japanese sent abroad in the mid-nineteenth century to acquire foreign knowledge).

30. REISCHAUER & CRAIG, supra note 28, at 145-89.

31. See generally Y. NODA, INTRODUCTION TO JAPANESE LAW 41-62 (Anthony H. Angelo trans. 1976). Still older examples include the reception of Ch'an Buddhism from China in the twelfth and thirteenth centuries, which became Japanese Zen; tea drinking from China, which was stripped to bare essentials by the Japanese priest Sen Rikyu and transformed into the Japanese tea ceremony; and certain pottery-making techniques from Korea. See, e.g., SOSHITSU SEN XV, TEA LIFE, TEA MIND 12-14 (1979); DAISETSU SUZUKI, ZEN AND JAPANESE CULTURE 50 (1970). See generally Dan Rosen, The Koan of Law in Japan, 18 N. KY. L. REV. 367, 370-75 (1991). Cf. J. MARK RAMSEYER & FRANCES M. ROSENBLUTH, THE POLITICS OF OLIGARCHY: INSTITUTIONAL CHOICE IN IMPERIAL JAPAN (1995) (ultimate failure of Meiji era leaders to construct government structures that would preserve their power).

32. See generally EDWARD BEHR, HIROHITO: BEHIND THE MYTH (1989); JOHN TOLAND, THE RISING SUN: THE DECLINE AND FALL OF THE JAPANESE EMPIRE (1970).

33. No one really knows the number of Internet users in China, but most 1996 estimates place it at fewer than 100,000. See, e.g., China, Wired, TIME, Apr. 22, 1996, at 73 (40,000); Estimated 60,000 mainland Chinese in cyberspace, REUTERS, Mar. 28, 1996; Renee Schoof, China Says Censorship Laws Apply to the Internet, AUSTIN AMERICAN-STATESMAN, Apr. 15, 1996, at D1 (100,000); But see Steve Higgins, Why Internet Curbs in China May Not Hurt U.S. Business, INVESTOR'S BUS. DAILY, Apr. 16, 1996, at A10 (200,000).

34. See generally WILLIAM ALFORD, TO STEAL A BOOK IS AN ELEGANT OFFENSE (1995).

35. Monroe Price, Electronic Media and the Global Competition for Allegiances, 104 YALE L.J. 667, 668 (1994).

36. Price notes that governments have various ways to regulate media: they can subsidize, censor, or speak themselves. Id. at 677-81. America is unusual in the world in its almost complete reliance on commercial broadcasting. See, e.g., Dan Rosen, Broadcasting in the Public Interest: Lessons from Japan, 7 CONST. COMM. 35 (1990). Only recently, for example, did Austria gain its first private radio station. Most countries have at least one publicly-supported television and radio service, and often only that (with perhaps several different channels). Other countries, such as Japan, Britain, and Canada, have created broadcasting corporations free of direct government control but funded through listeners' fees imposed by law.

37. The Neilson rating service estimates cable penetration at 69.1% in the U.S. See Joanne Ostrow, Cable's Future Depends on Whose Crystal Ball You See, DENV. POST, Oct. 31, 1996, at F1.

38. For a comparative analysis of regulation of broadcasting in Japan and the United States, see generally Jonathan Weinberg, Broadcasting and the Administrative Process in Japan and the United States, 39 BUFF. L. REV. 615 (1991). For an overview of the origins of broadcasting and its regulation in Japan, see NIPPON HOSO KYOKAI (NHK), FIFTY YEARS OF JAPANESE BROADCASTING (1977).

39. See Eri Kim, Digital Sats Target Japan, VARIETY, Sept. 16, 1996, at 58. The figures, as of March 1995, mean that the number of subscribers is about 2.2 million.

40. NTT has more than 93% of the local telephone business and 70% of the long-distance market. ASAHI SHIMBUN, JAPAN ALMANAC 180 (1996); see Jonathan Watts, Japan: Where the Phones are Highly Regulated-and Highly Priced, THE OBSERVER, Nov. 10, 1996, at 6.

41. KDD retains almost 70% of the international calling market from Japan. See ASAHI SHIMBUN, supra note 40. Callback services, by which the customer calls a computer in the U.S. for one ring, hangs up, and waits for the computer to call him back with a dial tone (and a cheaper international rate based on the cost of an American phone line) have gained some popularity among expatriates and their businesses, including your author. Japanese consumers, on the other hand, remain wary.

42. The Ministry's web site includes information on Japanese telecommunications regulation and policy. See Advisory Committee to the Posts and Telecommunications Industry (visited Apr. 18, 1997) <http://www.mpt.go.jp/> .

43. Id. The United States, of course, is itself going through this painful process. See generally Lawrence A. Sullivan, Elusive Goals Under the Telecommunications Act: Preserving Long Distance Competition Upon Baby Bell Entry and Attaining Local Exchange Competition: We'll Not Preserve the One Unless We Attain the Other, 25 SW. U. L. REV. 487 (1996).

44. Compare DDI Calls for Splitting Up NTT's Operations, JAPAN ECON. NEWSWIRE, Nov. 13, 1996, with NTT Head Opposes Split Due to Global Competition, JAPAN ECON. NEWSWIRE, Nov. 13, 1996. DDI is one of the companies competing with NTT. Ironically, both sides are looking to government regulators to make regulations favorable to their interest. Neither is interested in complete deregulation. NTT wants the government to preserve its dominance of the local phone network and discourage access to its networks by competitors. On the other hand, it wants the freedom to participate in the market for international transmissions. The President of NTT, Miyazu Junichiro, has said rather than competing for international voice telephone business, "[w]hat we are interested in is offering data communications and other multimedia-related services through our networks. And it is inevitable that we offer international services if our multimedia services require a network with international communications capability." Joshua Ogawa, Company's Leader Takes a Global Line, NIKKEI WKLY. (Japan), Oct. 28, 1996, at 9. Thus, NTT is presumably enthusiastic about one recommendation of another government advisory group, The Economic Council, that it be allowed to compete in the international market, but less so about the Council's other suggestion to allow greater competition in city calls and increased access to NTT's grid. See Panel Urges Reform of Financial, Labor, Telecom Marts, MAINICHI DAILY NEWS (Japan), Oct. 18, 1996, at 7.

45. A recent Japanese government report, for example, spoke proudly of the creation of a total of five new community broadcasting stations in the entire country. MINISTRY OF POSTS AND TELECOMMUNICATIONS, WHITE PAPER: COMMUNICATIONS IN JAPAN 17 (1994).

46. Stories of how Japanese companies' market shares remain relatively stable (where winners tend to continue winning) are recounted in JAMES C. ABEGGLEN & GEORGE STALK, JR., KAISHA: THE JAPANESE CORPORATION 42-66 (1985).

47. Hideo Fuji, The Role of Lawyers in Japanese Society, in UNITED STATES/JAPAN COMMERCIAL LAW AND TRADE (Valerie Kusuda-Smick ed. 1990). Access to the Bar is even more tightly controlled in Korea, where the passage rate is "less than a few percent" and the total number of active lawyers less than 3,000. Kyong Whan Ahn, The Growth of the Bar and the Changes in the Lawyer's Role: Korea's Dilemma, in LAW AND TECHNOLOGY IN THE PACIFIC COMMUNITY 119, 120 (Philip S.C. Lewis ed. 1994).

48. Communications Decency Act, Telecommunications Act, supra note 7, Title V (codified as amended at 47 U.S.C. 223 (1996)).

49. See Telecommunications Act , supra note 7, Title III (codified as amended at scattered sections of 47 U.S.C. 522-613 (1996)).

50. Id. at Title II (codified as amended at 47 U.S.C. 251-261 (1996)).

51. Id. at Title III (codified as amended at 47 U.S.C. 271 (1996)).

52. Id. at Title II (codified as amended at 47 U.S.C. 251-261 (1996)).

53. Shigenori Matsui, Lochner v. New York in Japan, in LAW AND TECHNOLOGY IN THE PACIFIC COMMUNITY, supra note 47, at 199, 237.

54. Id. at 229.

55. Id.

56. It should not be thought that such decisions all come from the top down. As a matter of fact, the consensus-based ringi system of decisionmaking favored in Japan often requires broad-based support from the principal participants. Decisions tend to be slower in coming, but once achieved can be implemented with lightning speed. Professor John Haley, in his close analysis of administrative behavior in Japan, has concluded that the authority of Japanese bureaucrats is extensive, but their power to implement their decisions in isolation is quite limited. JOHN O. HALEY, AUTHORITY WITHOUT POWER: LAW AND THE JAPANESE PARADOX 200 (1991).

57. See More Electronics Firms Join DVD Standardization Efforts, DAILY YOMIURI (Japan), July 26, 1996, at 14.

58. See Industry Hopes for Swift Growth After DVD's Troubled Birth, FIN. TIMES, Oct. 31, 1996, at 23.

59. See Shigenori Matsui, supra note 53, at 229.

60. Judgment of November 22, 1972, Supreme Court, Grand Bench, 26 KEISHU 586, translated in THE CONSTITUTIONAL CASE LAW OF JAPAN, 1970 THROUGH 1990, at 183 (Lawrence W. Beer & Hiroshi Itoh eds. 1996).

61. Judgment of January 26, 1955, Supreme Court, Grand Bench, 9 KEISHU 89; Judgment of January 20, 1989, Supreme Court, 2d Petty Bench, 43 KEISHU 1; Judgment of March 7, 1989, Supreme Court, 3d Petty Bench, 1308 HANREIJIHOU 111.

62. Judgment of January 20, 1989, Supreme Court, 2d Petty Bench, 43 KEISHU 1, 3, translated in Shigenori Matsui, supra note 53, at 220.

63. Id.

64. For the story of the transformation of American baseball into Japanese baseball, see ROBERT WHITING, THE CHRYSANTHEMUM AND THE BAT (1977); ROBERT WHITING, YOU GOTTA HAVE WA (1989).

65. Kazuhisa, Multimedia Society and Japan, supra note 27, at 5.

66. Japan's Internet Connection-Who's Who, What's What, FOCUS JAPAN, Jan./Feb. 1996, at 1. Asia in general is far behind the United States and Europe in the number of Internet host computers. See William McGurn, Net Assets, FAR EASTERN ECON. REV., July 27, 1995, at 68, 69.

67. FOREIGN PRESS CENTER/JAPAN, JAPAN'S MASS MEDIA 15 (1994).

68. Id. at 73.

69. Domestic use of the Net within Japan, of course, is another matter. The craze for cellular telephones, handy phones, and pokeberu (pagers) may indicate substantial growth potential for the Internet. However, the use of these other electronic technologies is a matter of convenience or amusement, as with the games that young people play making homonym number messages on their friends' pagers (Example: 3 is pronounced san or sa ; another pronunciation of 3 is mitsu or mi; 4 is shi; 1 is ichi or i. So, 3-3-4-1 is samishii, which means "I'm lonely.") See William Marsh, A phone in the hand, MANGAJIN, Nov. 1996, at 92. When extolling the liberatory virtues of the Internet, its advocates presumably have something more in mind.

70. Each of Japan's largest newspapers, the Asahi, Mainichi, and Yomiuri, has its own television network. The Fuji Sankei group, the owner of another network, also operates newspapers, but their circulation is much smaller than the big three.

71. The first digital satellite television service in Japan was scheduled to being in late 1996, offering 70 channels to subscribers. Eri Kim, supra note 39.

72. On the other hand, the number of specialized magazines published in Japan is astronomical. Were I a salesman for a service depending on extensive consumer choice on the Internet, I would point to the magazine industry as evidence that Japan is not immune to this sort of individualization.