May 30, 2024

Copyright, Censorship, and Domain Name Blacklists at Home in the U.S.

Last week, The New York Times reported that Russian police were using copyright allegations to raid political dissidents, confiscating the computers of advocacy groups and opposition newspapers “under the pretext of searching for pirated Microsoft software.” Admirably, Microsoft responded the next day with a declaration of license amnesty to all NGOs:

To prevent non-government organizations from falling victim to nefarious actions taken in the guise of anti-piracy enforcement, Microsoft will create a new unilateral software license for NGOs that will ensure they have free, legal copies of our products.

Microsoft’s authorization undercuts any claim that its software is being infringed, but the Russian authorities may well find other popular software to use as pretext to disrupt political opponents.

“Piracy” has become the new tax evasion, an all-purpose charge that can be lobbed against just about anyone. If the charge alone can prompt investigation — and any electronics could harbor infringing copies — it gives authorities great discretion to interfere with dissidents.

That tinge of censorship should raise grave concern here in the United States, where Patrick Leahy and Orrin Hatch, with Senate colleagues, have introduced the “Combating Online Infringement and Counterfeits Act.” (PDF).

Google Threatens to Leave China

The big news today is Google’s carefully worded statement changing its policy toward China. Up to now, Google has run a China-specific site, google.cn, which censors results consistent with the demands of the Chinese government. Google now says it plans to offer only unfiltered service to Chinese customers. Presumably the Chinese government will not allow this and will respond by setting the Great Firewall to block Google. Google says it is willing to close its China offices (three offices, with several hundred employees, according to a Google spokesman) if necessary.

This looks like a significant turning point in relations between U.S. companies and the Chinese government.

Before announcing the policy change, the statement discusses a series of cyberattacks against Google which sought access to Google-hosted accounts of Chinese dissidents. Indeed, most of the statement is about the attacks, with the policy change tacked on the end.

Though the statement adopts a measured tone, it’s hard to escape the conclusion that Google is angry, presumably because it knows or strongly suspects that the Chinese government is responsible for the attacks. Perhaps there are other details, which aren’t public at this time, that further explain Google’s reaction.

Or maybe the attacks are just the straw that broke the camel’s back — that Google had already concluded that the costs of engagement in China were higher than expected, and the revenue lower.

Either way, the Chinese are unlikely to back down from this kind of challenge. Expect the Chinese government, backed by domestic public opinion, to react with defiance. Already the Chinese search engine Baidu has issued a statement fanning the flames.

We’ll see over the coming days and weeks how the other U.S. Internet companies react. It will be interesting, too, to see how the U.S. government reacts — it can’t be happy with the attacks, but how far will the White House be willing to go?

Please, chime in with your own opinions.

[UPDATE (Jan. 13): I struck the sentence about Baidu’s statement, because I now have reason to believe the translated statement I saw may not be genuine.]

Chilling and Warming Effects

For several years, the Chilling Effects Clearinghouse has cataloging the effects of legal threats on online expression and helping people to understand their rights. Amid all the chilling we continue to see, it’s welcome to see rays of sunshine when bloggers stand up to threats, helping to stop the cycle of threat-and-takedown.

The BoingBoing team did this the other day when they got a legal threat from Ralph Lauren’s lawyers over an advertisement they mocked on the BoingBoing blog for featuring a stick-thin model. The lawyers claimed copyright infringement, saying “PRL owns all right, title, and interest in the original images that appear in the Advertisements.” Other hosts pull content “expeditiously” when they receive these notices (as Google did when notified of the post on Photoshop Disasters), and most bloggers and posters don’t counter-notify, even though Chilling Effects offers a handy counter-notification form.

Not BoingBoing, they posted the letter (and the image again) along with copious mockery, including an offer to feed the obviously starved models, and other sources picked up on the fun. The image has now been seen by many more people than would have discovered it in BoingBoing’s archives, in a pattern the press has nicknamed the “Streisand Effect.”

We use the term “chilling effects” to describe indirect legal restraints, or self-censorship, because most cease-and-desist letters don’t go through the courts. The lawyers (and non-lawyers) sending them rely on the in terrorem effects of threatened legal action, and often succeed in silencing speech for the cost of an e-postage stamp.

Actions like BoingBoing’s use the court of public opinion to counter this squelching. They fight legalese with public outrage (in support of legal analysis), and at the same time, help other readers to understand they have similar rights. Further, they increase the “cost” of sending cease-and-desists, as they make potential claimants consider the publicity risks being made to look foolish, bullying, or worse.

For those curious about the underlying legalities here, the Copyright Act makes clear that fair use, including for the purposes of commentary, criticism, and news reporting, is not an infringement of copyright. See Chilling Effects’ fair use FAQ. Yet the DMCA notice-and-takedown procedure encourages ISPs to respond to complaints with takedown, not investigation and legal balancing. Providers like BoingBoing’s Priority Colo should also get credit for their willingness to back their users’ responses.

As a result of the attention, Ralph Lauren apologized for the image: “After further investigation, we have learned that we are responsible for the poor imaging and retouching that resulted in a very distorted image of a woman’s body. We have addressed the problem and going forward will take every precaution to ensure that the caliber of our artwork represents our brand appropriately.”

May the warming (and proper attention to the health of fashion models) continue!

[cross-posted at Chilling Effects]

The future of high school yearbooks

The Dallas Morning News recently ran a piece about how kids these days aren’t interested in buying physical, printed yearbooks. (Hat tip to my high school’s journalism teacher, who linked to it from our journalism alumni Facebook group.) Why spend $60 on a dead-trees yearbook when you can get everything you need on Facebook? My 20th high school reunion is coming up this fall, and I was the “head” photographer for my high school’s yearbook and newspaper, so this is a topic near and dear to my heart.

Let’s break down everything that a yearbook actually is and then think about how these features can and cannot be replicated in the digital world. A yearbook has:

  • higher-than-normal photographic quality (yearbook photographers hopefully own better camera equipment and know how to use their gear properly)
  • editors who do all kinds of useful things (sending photographers to events they want covered, selecting the best pictures for publication, captioning them, and indexing the people in them)
  • a physical artifact that people can pass around to their friends to mark up and personalize, and which will still be around years later

If you get rid of the physical yearbook, you’ve got all kinds of issues. Permanence is the big one. There’s nothing that my high school can do to delete my yearbook after it’s been published. Conversely, if high schools host their yearbooks on school-owned equipment, then they can and will fail over time. (Yes, I know you could run a crawler and make a copy, but I wouldn’t trust a typical high school’s IT department to build a site that will be around decades later.) To pick one example, my high school’s web site, when it first went online, had a nice alumni registry. Within a few years, it unceremoniously went away without warning.

Okay, what about Facebook? At this point, almost a third of my graduating class is on Facebook, and I’m sure the numbers are much higher for more recent classes. Some of my classmates are digging up old pictures, posting them, and tagging each other. With social networking as part of the yearbook process from the start, you can get some serious traction in replacing physical yearbooks. Yearbook editors and photography staff can still cover events, select good pictures, caption them, and index them. The social networking aspect covers some of the personalization and markup that we got by writing in each others’ yearbooks. That’s fun, but please somebody convince me that Facebook will be here ten or twenty years from now. Any business that doesn’t make money will eventually go out of business, and Facebook is no exception.

Aside from the permanence issue, is anything else lost by going to a Web 2.0 social networking non-printed yearbook? Censorship-happy high schools (and we all know what a problem that can be) will never allow a social network site that they control to have students’ genuine expressions of their distaste for all the things that rebellious youth like to complain about. Never mind that the school has a responsibility to maintain some measure of student privacy. Consequently, no high school would endorse the use of a social network that they couldn’t control and censor. I’m sure several of the people who wrote in my yearbook could have gotten in trouble if the things they wrote there were to have been raised before the school administration, yet those comments are the best part of my yearbook. Nothing takes you back quite as much as off-color commentary.

One significant lever that high school yearbooks have, which commercial publications like newspapers generally lack, is that they’re non-profit. If the yearbook financially breaks even, they’re doing a good job. (And, in the digital universe, the costs are perhaps lower. I personally shot hundreds of rolls of black&white film, processed them, and printed them, and we had many more photographers on our staff. My high school paid for all the film, paper, and photo-chemistry that we used. Now they just need computers, although those aren’t exactly cheap, either.) So what if they don’t print so many physical yearbooks? Sure, the yearbook staff can do a short, vanity press run, so they can enter competitions and maybe win something, but otherwise they can put out a PDF or pickle the bowdlerized social network’s contents down to a DVD-ROM and call it a day. That hopefully creates enough permanence. What about uncensored commentary? That’s probably going to have to happen outside of the yearbook context. Any high school student can sign up for a webmail account and keep all their email for years to come. (Unlike Facebook, the webmail companies seem to be making money.) Similarly, the ubiquity of digital point-and-shoot cameras ensures that students will have uncensored, personal, off-color memories.

[Sidebar: There’s a reality show on TV called “High School Reunion.” Last year, they reunited some people from my school’s class of 1987. I was in the class of 1989. Prior to the show airing, I was contacted by one of the producers, wanting to use some of my photographs in the show. She sent me a waiver that basically had me indemnifying them for their use of my work; of course, they weren’t offering to pay me anything. Really? No thanks. One of the interesting questions was whether my photos were even “my property” to which I could even give them permission to use. There were no contracts of any kind when I signed up to work on the yearbook. You could argue that the school retains an interest in the pictures, never mind the original subjects from whom we never got model releases. Our final contract said, in effect, that I represented that I took the pictures and had no problem with them using them, but I made no claims as to ownership, and they indemnified me against any issues that might arise.

Question for the legal minds here: I have three binders full of negatives from my high school years. I could well invest a week of my time, borrow a good scanner, and get the whole collection online and post it online, either on my own web site or on Facebook. Should I? Am I opening myself to legal liability?]

Chinese Internet Censorship: See It For Yourself

You probably know already that the Chinese government censors Internet traffic. But you might not have known that you can experience this censorship yourself. Here’s how:

(1) Open up another browser window or tab, so you can browse without losing this page.

(2) In the other window, browse to baidu.com. This is a search engine located in China.

(3) Search for an innocuous term such as “freedom to tinker”. You’ll see a list of search results, sent back by Baidu’s servers in China.

(4) Now return to the main page of baidu.com, and search for “Falun Gong”. [Falun Gong is a dissident religious group that is banned in China.]

(5) At this point your browser will report an error — it might say that the connection was interrupted or that the page could not be loaded. What really happened is that the Great Firewall of China saw your Internet packets, containing the forbidden term “Falun Gong”, and responded by disrupting your connection to Baidu.

(6) Now try to go back to the Baidu home page. You’ll find that this connection is disrupted too. Just a minute ago, you could visit the Baidu page with no trouble, but now you’re blocked. The Great Firewall is now cutting you off from Baidu, because you searched for Falun Gong.

(7) After a few minutes, you’ll be allowed to connect to Baidu again, and you can do more experiments.

(Reportedly, users in China see different behavior. When they search for “Falun Gong” on Baidu, the connection isn’t blocked. Instead, they see “sanitized” search results, containing only pages that criticize Falun Gong.)

If you do try more experiments, feel free to report your results in the comments.