A few weeks ago on 20 December 2007, Yahoo lost a law suit filed by the International Federation of Phonographic Industries (IFPI) for linking to web sites that hosted pirated music recordings. An Associated Press article, and a post at IP Dragon provide more background on this situation. The problem is that the standard that the Chinese courts are holding Yahoo to is way too high. Holding Yahoo liable for these deep links discourages the development of strong search engines by disincentivizing search technology that searches too well. This problem is compounded by Baidu winning a similar law suit filed by the IFPI.
If different results are being reached by the courts on almost identical facts (and we're assuming no secondary factors such as Party influence), then the courts are creating uncertainty for search engine operators in knowing whether they are violating the law. United States constitutional law questions tend to deal with uncertainty in a very particular way. When the current law makes both constitutionally protected and unprotected acts illegal, and it is unclear when one's conduct goes from constitutionally protected to unprotected, then the whole law is deemed unconstitutional because the courts are more afraid that the law will have a "chilling effect" upon the citizen's willingness to engage in constitutionally protected activities than they are afraid that citizens will engage in illegal and unprotected acts. This same effect applies to business. Innovation will be stifled because search engines will be afraid that their algorithms are linking to copyrighted material, and there will be little reason to make more powerful search engines.
It is not too much of a secret that I'm a fan of DMCA style Safe Harbors for Online Service Providers (OSPs). Reprinted below is my comment from Duncan Bucknell's IP ThinkTank blog:
Come, come to the United States. We will welcome you with open arms. We will grant a safe harbor under DMCA Copyright Act Sec. 512 to any ISP that:Can you take a guess at the identity of one of the strongest lobbyists for this safe harbor provision? Yep, that's it, Yahoo! Yahoo pushed this legislation to prevent the exact type of lawsuit in the U.S. that they just lost against IFPI in China. And, what was the winning argument that sold (or is it bought?) so many of our legislators? "Failure to incorporate immunity directly into the Copyright Act could severely impair their rapidly emerging industry and impede the growth of economic activity on the Internet" (from Merges, Menell, & Lemley's IP Survey textbook).
1. Adopts, implements, and informs its subscribers of its policy for terminating service to users who are repeat copyright infringers;
2. Adopts standard technical measures used by copyright owners to identify and protect copyrighted works; and
3. Designates an agent to receive notification of claimed infringements from copyright owners, and registers that agent with the Copyright Office.
Basically, if you're willing to give up your customers, and you don't review anything we'll let you walk!
There are two different types of ISPs:
1. "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received."
2. any "provider of online services or network access, or the operator of facilities therefor."
As long as it acts as passive conduit, ISPs falling under definition 1 have a safe harbor against transmission and transient storage of copyrighted works.
ISPs falling under definition 1 & 2, have a safe harbor for system caching, storing materials for users, and for information location tools. For these 3 safe harbors, the ISP must not know or have reason to know that the material cached, stored, or located is infringing.
If the Chinese government adopted a safe harbor provision similar to the DMCA, then they would be able to kill two birds with one arrow (一箭双雕）. First, they would eliminate uncertainty by creating a law that clearly tells OSPs when they are not liable for what they may be linking to. Secondly, impediments to the growth of e-commerce in China, which Jack Ma predicts will see incredible growth in 2008, would be lessened.
I'm going to avoid commenting on the other important copyright and internet issue because it was covered so well by Rebecca MacKinnon at RConversation (h/t China Law Blog). But I will say that I think All Roads Lead to China has the most concise post on the problem.
2 comments:
Went to a talk given here in London by Bill Patry (Google's in-house copyright counsel) back in November and he was banging the drum for the safe-harbours given for ISPs in US law there as well. Yes, this result does seem somewhat strange, especially considering how accomodating Yahoo! has been to the Chinese government.
Great blog you have here.
I think the Chinese courts are hindered by a couple of things. First, their legal system is pretty much in its infancy. This is just one of many examples of how opening up to the west is causing problems they've never had to deal with.
I also think that in part they've been slow to adapt because the government wants to slow the tide of westernization. All these legal problems are presenting road blocks and perceived risk by investors, delaying progress (at least a little bit).
And finally, Chinese courts have a "Robin Hood" mentality. I've read case studies where the courts there dismiss theft of all kinds, basically stating that while the Chinese citizens may be guilty of wrong doing, they didn't profit nearly as much as the western company in the course of its normal operations.
Courts in Asia tend to be nationalistic, siding more with their nationals... I think they are fairer than courts in Japan though, for what its worth.
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