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The Cinternet is Donnie Hao Dong’s name for the Chinese Internet. Donnie studies and teaches law in China and is also a fellow here at Harvard’s Berkman Center. As Donnie sees (and draws) it, the Cinternet is an increasingly restricted subset of the real thing:

map[19]

He calls this drawing a “map of encirclement.” That last noun has a special meaning he explains this way:

“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.

Encirclement is more than censorship. It’s a war strategy, and China has been at war with the Internet from the start.

But while China’s war is conscious, efforts by other countries to encircle the Net are not. To see what I mean by that, read Rebecca MacKinnon‘s Are China’s demands for Internet ‘self-discipline’ spreading to the West? Her short answer is yes. Her long answer is covered in these paragprahs:

To operate in China, Google’s local search engine, Google.cn, had to meet these “self-discipline” requirements. When users typed words or phrases for sensitive subjects into the box and clicked “search,” Google.cn was responsible for making sure that the results didn’t include forbidden content.

It’s much easier to force intermediary communications and Internet companies such as Google to police themselves and their users than the alternatives: sending cops after everybody who attempts a risque or politically sensitive search, getting parents and teachers to do their jobs, or chasing down the origin of every offending link. Or re-considering the logic and purpose of your entire system.

Intermediary liability enables the Chinese authorities to minimize the number of people they need to put in jail in order to stay in power and to maximize their control over what the Chinese people know and don’t know.

In its bombshell announcement on Jan. 12, Google cited massive cyber attacks against the Gmail accounts of human rights activists as the most urgent reason for re-evaluating its presence in China. However, the Chinese government’s demands for ever-increasing levels of censorship contributed to a toxic and unsustainable business environment.

Remember that phrase: intermediary liability. It’s a form of encirclement. Rebecca again:

Meanwhile in the Western democratic world, the idea of strengthening intermediary liability is becoming increasingly popular in government agencies and parliaments. From France to Italy to the United Kingdom, the idea of holding carriers and services liable for what their customers do is seen as the cheapest and easiest solution to the law enforcement and social problems that have gotten tougher in the digital age — from child porn to copyright protection to cyber-bullying and libel.

I’m not equating Western democracy with Chinese authoritarianism — that would be ludicrous. However, I am concerned about the direction we’re taking without considering the full global context of free expression and censorship.

The Obama administration is negotiating a trade agreement with 34 other countries — the text of which it refuses to make public, citing national security concerns — that according to leaked reports would include increased liability for content hosting companies and service providers. The goal is to combat the global piracy of movies and music.

I’m not saying that we shouldn’t fight crime or enforce the law. Of course we should, assuming that the laws reflect the consent of the governed. But let’s make sure that we don’t throw the baby of democracy and free speech out with the bathwater, as we do the necessary work of adjusting legal systems and economies to the Internet age.

Next, What Big Content wants from net neutrality (hint: protection), by Nate Anderson in Ars Technica. According to Nate, more than ten thousand comments were filed on the subject of net neutrality with the FCC, and among these were some from the RIAA and the MPAA. These, he said, “argued that the FCC should encourage ISPs to adopt ‘graduated response’ rules aimed at reducing online copyright infringement”, and that they “also reveal a content-centric view of the world in which Americans will not ‘obtain the true benefits that broadband can provide’ unless ‘copyrighted content [is] protected against theft and unauthorized online distribution’”. He continues,

What could graduated response possibly have to do with network neutrality? The movie and music businesses have seized on language in the FCC’s Notice of Proposed Rulemaking that refuses to extend “neutrality” to “unlawful content.” The gist of the MPAA and RIAA briefs is that network neutrality’s final rules must allow for—and in fact should encourage—ISPs to take an active anti-infringement role as part of “reasonable network management.”

Not that the word “infringement” is much in evidence here; both briefs prefer “theft.” The RIAA’s document calls copyright infringement “digital piracy—or better, digital theft,” and then notes that US Supreme Court Justice Breyer said in the Grokster case that online copyright infringement was “garden variety theft.”

To stop that theft, the MPAA and RIAA want to make sure that any new FCC rules allow ISPs to act on their behalf. Copyright owners can certainly act without voluntary ISP assistance, as the RIAA’s lengthy lawsuit campaign against file-swappers showed, but both groups seem to admit that this approach has now been hauled out behind the barn and shot.

According to the RIAA, “Without ISP participation, it is extremely difficult to develop an effective prevention approach.” MPAA says that it can’t tackle the problem alone and it needs “broadband Internet access service providers to cooperate in combating combat theft.”

“No industry can, or should be expected to, compete against free-by-theft distribution of its own products,” the brief adds.

“We thus urge the Commission to adopt rules that not only allow ISPs to address online theft, but actively encourage their efforts to do so,” says the RIAA.

And that’s how we get the American Cinternet. Don’t encircle it yourself. Get the feds to make ISPs into liable intermediaries forced to practice “self discipline” the Chinese way: a “graduated response” that encircles the Net, reducing it to something less: a spigot of filtered “content” that Hollywood approves. Television 2.0, coming up.

Maybe somebody can draw us the Content-o-net.

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The best insights compound the obvious. They make so much sense that you struggle to comprehend their many implications. Such is the case with the first line, and then the first paragraph, of Kevin Kelly‘s Better than Free:

The internet is a copy machine. At its most foundational level, it copies every action, every character, every thought we make while we ride upon it. In order to send a message from one corner of the internet to another, the protocols of communication demand that the whole message be copied along the way several times. IT companies make a lot of money selling equipment that facilitates this ceaseless copying. Every bit of data ever produced on any computer is copied somewhere. The digital economy is thus run on a river of copies. Unlike the mass-produced reproductions of the machine age, these copies are not just cheap, they are free.

Consider the implication of this for the concept of copyright, then ponder the pile of law that first defined it in 1790 (in the U.S.) and has expanded on it ever since.

I won’t offer an opinion about that here, but instead turn our floor over to a pair of brilliant opponents on the subject: William F. Patry and Ben Sheffner. Bill is the author of Moral Panics and the Copyright Wars and a blog by the same name, subtitled “A blog about copyright discourse”—and a copyright attorney in the employ of Google (though he is careful to add, everywhere it makes sense, that “This is a personal blog, not a Google blog”.) Ben is a “copyright/First Amendment/media/entertainment attorney and former journalist” with a long list of credentials in the sidebar of his Copyrights & Campaigns blog, subtitled “Ben Sheffner’s notes on copyright, First Amendment, media, and entertainment law, and political campaigns”. Bill and Ben have been enjoying a very civil and illuminating debate, which Bill outlines this way:

Given the reverse-chronological nature (or LIFD–Last In, First Dug) nature of both blog publishing and geology, the first post is the bottom one on that list. Start there and work upward. I guarantee you will be smarter by the time you get to the top, and hungry for more.

As a pair of bonus links, I’ll point to Edward Samuels’ The Illustrated Story of Copyright, and Michele Boldrin and David K. Levine‘s Against Intellectual Monopoly. I’ve read the first, but not the second. Basically I’m just sharing my reading list here. Again, no opinions. Yet.

Oh, one more recommendation: Adam Gopnik’s Angels and Ages: A Short Book About Darwin, Lincoln, and Modern Life. Among many of its quotable nuggets is this one: “Law is the practice of rules in a context of deals, and Lincoln believed in both.” Keep that in mind when reading all the above.

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