Dec 29, 2009

The Splitting Internet Governance and the Down-to-Earth Solutions

Here is a very brief explanation to and my viewpoint of the latest development of China's compaign to the Internet Controlling. Like my other ideas, this one might not be mature enough. But anyway, the reason of saying something is to get the commentaries and/or criticisms.

 

1. The definition of the Splitting Internet Governance: it has multiple meanings

(1) The separation of the Internet under the governance of ICCAN (at least namely) and the "Cinternet" under the the governance of the China's government;

(2) the departed jurisdication of the Internet Governance in China.

 

2. The history of China's Internet Controlling: My own division of periods

Regulation/legislation regardless the techonology neutrality (1996-2003)

--> Technology Control but very low frequency to enforce the regulations (2003-2005)

--> Begin to rely on the law enforcement but the technology control is still the main stream (2003-2009)

--> Using the law, and put the technology filtering mechanisms the second place (2009)

 

3. Pros and Cons of the above Transform in 2009

Pros: It finally go back to the track of lawyering.

Compare:
2007: No one know who ordered to shut down the website, and sometime no one know the reason.
2008: At least one knows who ordered to shut down the website.
2009: The reason of shut down is explained, and the subject is clearer and clearer

Cons:

(1) The old law (regulation was promulgated in 1990s, and the provisions are not compatible to the ) and the older approach by itself are arbitrary and immature, the enforcement may cause the officals find the benifit of the selective enforcement.

(2) The law may not compatible to the other parts of the "Internet". The conflicts may be everywhere. The "dark net" may be highly developed.

 

4. the Down-to-Earth Solutions

... forthcoming...

Dec 21, 2009

Chinese Posts at BlawgDog from Dec. 14th to Dec. 20th: English Abstracts

From December 14th to December 20th, 2009, seven new Chinese entries have been posted to the Blawgdog. Here are the brief one-sentence abstracts for the English readers' reference:

  • Top Ten 2009 Copyright News in China
    Chosen by the China Copyright Journal. I added the referral links to those news that had been commented at blawgdog.
  • It's Wrong not because of Burdening the Duty of Carefulness, but because of Providing Joint Liability
    Some Beijing academicians oppose Article 36 of the drafting China's Tort Law Bill by saying it should not burdens the ISPs the duty of carefulness. I clarified in this essay that the key problem of Article 36 is wrongfully providing a joint liability to the ISPs. 
  • Turning Exemption Provisions to the Criterion of Liability
    This article is also about Article 36 of the drafting China's Tort Law Bill. I noted that, in the legal transplantation in recent years in China, the exemption provisions in foreign legislations are often (intentionally or mistakenly) shifted to be the criteria of liability. For example, Sec. 230 of the CDA in US is an exemption arrangement, while Article 36 is a criterion of liability; another example can be the safe harbour to the ISPs in the DMCA (on the so-called red flag test) was wrongfully transplanted to be a criterion of liability.
  • Xinhua News Agency: China will not Resolve the un-recorded Domain Names
    This entry has been translated into English at here.
  • I See the Historical Day
    This post mentioned the latest news: the Ministry of Industry and Information is proposing that the foreign enterprises "must register domain names from Chinese registrars if the names are used for business in China. The domain names oversea registered shall not be used in the businesses toward China." And admitted the state will "supervise the domain names that launches the website oversea, and take measures to control the foreign name registrars".
  • Reprint: Two Articles by Mr Youxi Chen
    Chen is a lawyer, and the vice Chair of the Committee of the Constitutional Law and Human Rights in China Bar Association. He published two articles at his website blaming the newspaper misleading the mass in reporting the news that lawyers are arrested in ChongQin. He argues that the Chinese lawyers are in very hard social environment now.
  • China IP Weekly Newsletter
    Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes SNDA Literature (NASDAQ: SNDA's subcompany) annouced suing Baidu for over one million in infingement of copyright, and the new development of Netac v. Sony, and other 7 latest news.

Abstracts of the Chinese Posts at BlawgDog from Dec 3 to Dec 13

Seven Chinese posts have been posted to the Blawgdog from December 3rd to December 13th, 2009. Here are the brief one-sentence abstracts for the English readers' reference:

Dec 18, 2009

The License to Domain Name Resolution - this time not only .CN

To control the pornographic websites, China's Minstry of Industry and Information annouced today five measures that the registrar (CNNIC) and domain name registration service providers shall do, .

1. Establish a blacklist of the the domain name holders whose website has been shut down by the government.

2. The  applicants of domain names must provide all the informaiton for the name registration.

3. If a website is not approved to "record" by the telecommunications administration bureau, the affiliated domain name shall not be resolved.

4. Once a website is found "pornographic or illegal", the resulution of the affliated domain name shall be stopped, and all other domain names that the same registrant has held will be suspended to be resolved. And the registrant will be listed in the blacklist.

5. Investigate the way of coorporation, modes of advertisment and the way of connection between the regsitra/domain name registration servicer providers and their cooporative partners.

 

This time, based on this announcement, not only .cn, but also all the domain names registrated/managed in China will not be reolved unless the corresponding website is "recorded" (actually approved) by the government. And if one's webstie has been shut down, she may not be permitted to registrate new domain names.

Dec 16, 2009

"Map of Internet Encirclement Compaign in China"

A "Map of Internet Encirclement Compaign in China" was released by some Chinese netizens yesterday. It is very interesting and has been switfly spreaded to BBS and weblogs in Chinese Internet sphere.

fanweijiao 

Here is an English translation of the map (click the picture for a better view):

map

 

[Background] "The Wars of (anti-)Encirclement Compaign" were a series battles between China Communist Party and the KMT's Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT's army tried five times to attack and encircle the territory of CCP's regime. And The CCP's Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

Dec 6, 2009

Cyberpluralism?

I just read Tim Hwang's essay on the "Berkman School". It is very interesting although I am not a fan of categorizing "schools". He says Berkmanites tend to share the notion that the Internet has specific configuration of features, such as openess, freedom and unfathomably deepness. Hence the fire-walled China's Internet might not be regarded as "The Internet".

This might be correct when one asks the Berkmanties what is the "ought to" Internet in their minds. While as a Berk-freshman, I'd rather considering what is the truth of the Internet. In my suspicion, the nuance or even major variety of cyber ecology among different countries/cultures/languages/regimes is unavoidable and has actually been formed for years. Considering the 1 billion accounts of QQ, the seperation of the Internet, the isolation of various version of "Internet" seems not merely a trend but also a truth. The problems seems not only "what are the features of the Internet distinct from the pre-internet society", but also "To each pre-internet community, what are the features of the Internet respectively."

Rebecca MacKinnon says there is a "Cyber-tarianism" not uniquely in Chinese Internet sphere. I am waiting for reading that. Nevertheless, I assume there is a trend of Cyber-ANY-isms emerging from everywhere. At this stage, shall we take a "cyber-pluralism" into account firstly?

Chinese BT websites are shut down because of "No License"

The leading Chinese websites of BT sharing are shutting down since the beginning of December. BTChina (btchina.net), one of the most famous such sites, is totally shut down. And the rumour that its webmaster has been arrested was once widely spreaded. Yesterday, the webmaster of BTChina left a very brief message at the webpage:

截图00

It says:

I have to clarify that ... the Radio, Film and Television Administration noticed me BTChina should be closed because the Register Serial Number of the Website (RSNW) is canceled by the Ministry of Industry and information Technology (MIIT). The reason of cancelling the Register Serial Number is BTCHINA has no "License for Dissemination of Audio-Visual Programs through Information Network" (LDAV). I am safe (not arrested). And this proved the online rumours are not reliable, especifically the news.


Not merely BTChina, many other well-known websites sharing  BT seeds are shut down since last week (read the story in Chinese at here). It is apparently that a campaign of cracking down online piracy has been kicked off by some Chinese central government officers, just following the compaign of shutting down pornographic wap sites for mobile phones.

Please, read the above story from a social-legal perspective. The compaign is obviously aiming at piracy. But the reason of shutting down those websites is not that they don't have copyright license, but that they don't have an administrative license of online dissemination of audio-visual programs issued by the government.

Although China has an Administrative License Law to restrict the pervasive application of it, the wide usage of licensing system can be parallel to the technical measures of GFW as the pillars of the Internet censorship. It is apparently that in China, proving a website "has no adminitrative license" is far easier than proving the content of that website "has no copyright license". When Chinese officers say "the government administers the Internet according to the law", they are saying mostly the licensing regulations, like the LDAV and the RSNW in the above story. In this circumstance, the copyright owners' best strategy of fighting piracy may not be filing the case to court, but reporting the authority that the targeted website does not obtain the license of disseminating Audio-Visual programs (or license of disseminating other contents).

I personally don't like such situation. But it is there, lively. That's why I say the free culture in China should not merely be the freedom of amateur using copyrighted works, but also be the freedom of disseminating information. This is the premise of discussing copyright issues. I mean, either in a soceity that the freedom of dissemination exist or in a soceity that it does not exist, the copyright law may survive. But the "copyright paradox" in these two contexts should be various.

Dec 4, 2009

Is Google Books Infringing Copyright under Current Chinese Law?

As an Interent application or online service, "Google Books"  may not necessarily be found infringement.

But, Google would be held infringement liability if it really scanned Chinese books without authors' consents.

First of all, I am talking about Chinese copyright Law. As for whether the same act would be held infringement in the US courts, I don't know. I don't know because once the Google Book Settlement is approved by judge, the case will be dismissed without ruling. Even if the settlement were not approved, and even if the case were finally ruled favoring Google, it would merely be a US judgement binding in the US, not necessarily binding in China.  In other words, so long as the case is in Chinese courts' jurisdiction, Chinese courts shall, according to Chinese copyrigh law, make their onw decisions no matter what the US court's ruling is. This is a crutial common sence, but I doubt many people may forget it, because for a long time, I see too many comments to Chinese cases according to US laws.

Second, the only relationship between the US court's ruling and China is: if China thinks a US binding judgment or the approval of settlement violate TRIPS, China may file the case to the WTO.

Third, back to the dispute between Chinese writers and Google, for the forgivable exploitation of the copyrighted works, Chinese copyright law is following the European mode of "limitations to coyright" but not the US concept of "fair use". Therefore, unless a non-liability provision has been provided explicitly, the conduct will be judged infringement once such conduct is regulated in Art. 10 of Chinese Copyright Law as the content of copyright. Until now, China only allows the search engines to store the content in other websites automatically. A conduct of scanning the books, from the first pege to the last, from the first line of each shelf to the last line, constitutes infringement definitely (unless the conductor is public library).

Fourth, Google's self-limitation of accessing to the full-text of the scanned books is another story. The infringement has been established soon after scanning and storing books in its servers.

Last but not less importantly, this is a legal and positivist analysis. Not a value criticism. I am not saying that Google Books is a good/bad thing hereby. I am also not saying that one should not look at the case and the whole set of the current law critically. On the contrary, the real criticism should be based the fact on which some obvious good thing is hindered by the existing law, or some obvious bad thing is permitted by the existing law.

Dec 3, 2009

Fighting Google Unarmed?

China Association of Copyright on Literature Works (CACLW), the governmental authorized org for collective copyright management) is searching the books which are scanned by Google, and calling Chinese authors either sign the GoogleBookSettlement or join CACLW's collective legal action.

The following are the lists of the authors whose works are scanned by Google, collected (seems manually) by CACLW. And today the third list is published. Besides, the lists are published on the webiste of China Association of Writers, which is actually not the authorized collective management organization in China. Why not the website of CACLW itself? Because the CACLW's website seems passed out because of technical problems ... Unarmed fighting?

The calling was announced in October before the revised google settlment was submitted. While it seems there is no where noticing that the revision of the settlement has excluded the foreign works ... 

image   image

image image

BTW, According to China's Regulations to the Collective Copyright Management, the establishment of a collective managment organization should fulfill some qualifications before approved by the State Copyright Administration Office. When googleing the news, I see very confusing news, from the China Association of Writers' website, the CACLW was just celebrating its establishment on 1 Sept. 2009. But based on my understanding from other sources, the CACLW has celebrated its setup once in last Oct ... What's the hell are they doing?

Let's see what will happen ...

Author’s right or Copyright: The Melting Pot of China’s Copyright Law

Here are the slides I presented at Harvard-MIT-Yale Cyberscholar Working Group Monthly Meeting on 2 December 2009.

I reviewed the Chinese legislative history of copyright protection during the past hundred years, and draw the conclusion that the Chinese copyright law has been, and still is, justified with the utilitarian approach. I think that this characteristic, rather than the difference between the respective legal systems (author's right vs. copyright), may be one of the reasons that cause the continous collision between the US copyright law and its Chinese counterpart in future. In the new circumstance that China is more and more willing to express its own value, the collisions may lead to the isolation of the internet in respective jurisdictions, or even the super-national treatment to those inconsistent mechanismes.

Dec 2, 2009

Collective Management Should Not be the Source of Monopoly Earnings

This is a Column essay in Chinese, published in 21cn Economic Post (GuangZhou). Here is a brief English abstract.

Abstract: China Audio-Video Copyright Association (CAVCA) filed a law suit against SuperStar Co. (a KaraOK service company) on the breach of contract. CAVCA is a national-wide copyright management organization to the audio-visual products in China. The contract says the CAVCA licenses the the copyrights of all the MTV works that it managed to the SuperStar. The SuperStar should pay the money to an account "designated by TianHe Inc." Tianhe Group is a company established in 2007, and it's only job is to manage the MTV copyright under the CAVCA's authorization. This article recalled the aim of the collective copyright management, and questioned the legitimacy of such authorization.

The full-text and the machine translation by Microsoft Translator can be accessed at here (alert! the translation is really terrible).

Dec 1, 2009

Harvard-MIT-Yale Cyberscholar Working Group Event

Just a cross-post from Berkman Website. I am going to talk at Harvard-MIT-Yale Cyberscholar Working Group monthly Meeting on 2 December 2009. The content of my talk will be posted later.


6:00 pm - 8:30 pm, Wednesday, December 2, 2009
Conference Room 202, Berkman Center
23 Everett St 2nd Floor, Cambridge, MA
Please RSVP to Herkko Hietanen at herkko.hietanen@hiit.fi before 12/2/09
Refreshments provided

Donnie Hao Dong is a Fellow at Berkman Center and a Lecturer at Yunnan University (PRC). His research interests cover copyright law, cyber law and law and social development in digital age. He got a JSD from China University of Polictics and Law with his dissertation on the public domain in the context of Chinese copyright law. Now Donnie is a PhD Candidate in City University of Hong Kong closing his research on the lessons of Chinese copyright reform for digital age.  His publications, short essays and nags can be accessed athttp://www.BLawgDog.com.

David Singh Grewal is a Junior Fellow at the Harvard Society of Fellows, and an Affiliated Fellow at the Information Society Project at Yale Law School. His first book, Network Power: The Social Dynamics of Globalization was published by Yale University Press in 2008. He holds a JD from Yale, and is currently completing his PhD in the Harvard Government department, where he is finishing his dissertation, "The Invention of the Economy." He is also on the board of the Biobricks Foundation, a non-profit working to develop an open-source platform for the emerging field of synthetic biology.

Mackenzie Cowell graduated from Davidson College with a BS in Biology in 2007 and currently works as a Research Assistant at the Berkman Center for Internet and Society at Harvard University.  He is booting up a public biotech lab in Boston (bosslab.org). He tweets: @100ideas.

Donnie will discuss his research on the justification of copyright protection in China. He will review the Chinese legislative history of copyright protection during the past hundred years, and draw the conclusion that the Chinese copyright law has been, and still is, justified with the utilitarian approach.  He thinks that this characteristic, rather than the difference between the respective legal systems, may be one of the reasons that cause the continous collision between the US copyright law and its Chinese counterpart in future.


David
will examine the question of: Is there a way to bring "free culture" into biotechnology? His talk will explore one recent effort to do so: the creation of the Biobricks Public Agreement, a legal mechanism meant to assist the development of an open, shared platform in the emerging area of synthetic biology.

Mackenzie Cowell co-founded DIYbio.org after witnessing hundreds of undergraduate teams successfully design and build standardized biological parts and devices while competing in the International Genetically Engineered Machine competition, which Cowell helped organize at MIT from 2006-08.  DIYbio.org is now the center of a diverse and international community of people interested in amateur biotechnology, from artists to scientists to schoolchildren to garage entrepreneurs. In this presentation, Cowell will present some of the projects currently being developed by this community of non-institutional researchers.

Followed by Open Discussion

The "Harvard-MIT-Yale Cyberscholar Working Group" is a forum for fellows and affiliates of the Comparative Media Studies Program at MIT, Yale Law School Information Society Project, and the Berkman Center for Internet & Society at Harvard University to discuss their ongoing research. Each session is focused on the peer review and discussion of current projects submitted by a presenter. Meeting alternatively at Harvard, MIT, Yale, the working group aims to expand the shared knowledge of young scholars by bringing together these preeminent centers of thought on issues confronting the information age. Discussion sessions are designed to facilitate advancements in the individual research of presenters and in turn encourage exposure among the participants to the multi-disciplinary features of the issues addressed by their own work.

Two Methodologies Books and more...

Just for a record, as mentioned yesterday in the course of Seminar on Research Methods on Internet and Society, led by John G. Palfrey and Professor Eszter Hargittai.

 

Two books:

 

image

Eszter Hargittai (ed.):

Research Confidential: Solutions to Problems Most Social Scientists Pretend They Never Have

This collection of essays aims to fill a notable gap in the existing literature on research methods in the social sciences. While the methods literature is extensive, rarely do authors discuss the practical issues and challenges they routinely confront in the course of their research projects. As a result, editor Eszter Hargittai argues, each new cohort is forced to reinvent the wheel, making mistakes that previous generations have already confronted and resolved. Research Confidential seeks to address this failing by supplying new researchers with the kind of detailed practical information that can make or break a given project. Written in an informal, accessible, and engaging manner by a group of prominent young scholars, many of whom are involved in groundbreaking research in online contexts, this collection promises to be a valuable tool for graduate students and educators across the social sciences.

 

Cross-Cultural Survey Methods (Wiley Series in Survey Methodology)Cross-Cultural Survey Methods (Wiley Series in Survey Methodology)

by Janet A. Harkness, Fons J. R. van de Vijver, Peter Ph. Mohler

Breaking new ground in its approach, Cross-Cultural Survey Methods describes how to recognize and deal with the major obstacles at each stage of researching, striving for equivalence and comparability. Topics include:
* Designing and crafting questionnaires for comparative subjects, including questionnaire translation
* Error and bias issues in cross-national surveys
* Techniques for analyzing bias and equivalence
* Statistical techniques for substantive analysis and the use of multidimensional scaling to analyze bias and research questions
* Important issues of preparing data for secondary analysis, such as data access, and documentation
* An introduction to meta-analysis in comparative survey research

 

and more:

Cross-Ideological Discussions among Conservative and Liberal Bloggers

by Eszter Hargittai, Jason Gallo, Matthew Kane.

SurveyFail: an unfortunate case of trying to administer a study in an online community.