October 26th, Youku.com, one of the most popular video sharing websites in China (as well as in the world), was found a series of copyright infringements by Haidian District People’s Court in Beijing. The total damages for 47 movies (and that is 47 cases according to China’s civil procedure) is 450,000 RMB (about 64,000 USD). One of those judgments is scanned and posted at here (Chinese) by some anonym (the official one may be published later).

Voole, the plaintiff of the cases, expressed its appreciation to the judgment. While the defendent’s attorney reminds the press that that judgment may be overruled by the appellate court. Voole is an online VOD provider who claims being licensed the “right of communication through information networks” from the copyright owners.

Judgments are not binding to succedent cases in China, while it is very interesting to read the mind of the judge from the judgment. Here are some of my brief comments to it:

Firstly, the judgment obviously ignored that Youku is a video sharing website, namely a service provider. I am not saying the service providers would be exempt from liability per se, but at least the judgment should mention this and distinguish this from the direct infringement. 

Secondly, the judgement confirmed that even a work is not permitted by the State Copyright Office to distribute in China, it still enjoys the copyright protection. This again proved that Chinese courts do not interpret Article 4 of the Copyright Law literally. They limit the scope of “illegal works” that can not get copyright protection to the works with “bad” content. The procedure-illegal things are still protectable.

Thirdly, the amount of damages is based upon purely judge’s discretion. I am not saying it is bad or good. I just wish to read more rationales on how does that amount is figured out.

This is the outline of my talk at Berkman Fellow’s Hour on 17 Nov. 2009. Needs improvement, just post for commentaries.

1. Copyright protection is justified in a utilitarian way in the US. Contrary to many people’s granted thought, my study find that although it is deeply affected by the Germeneric-japanese form of civil code system, China’s current copyright law is also based on utilitarian philosophy.

2. Pros and cons of the utilitarian justification to the copyright law, as well as some of cyberspace law.

Advantage: that’s the sourse of various thinking to the legal reform.
Disadvantage: when the understandings of “progress” (US Constitution Art. 8; China’s Constitution Art. 19, 20, 47, Copyright Law Art. 1) in different countries conflict with each other, conflicts of the law will be inrooted and hard to be coherent.

3. When the US is a giant but China is a dawf in the matters of either economy or civilization, US can impose its understanding of “progress” and the corresponding detailed copyright law to China, as it has been for many years. While if China becomes a giant also, what will happen? No matter how do people celebrate it or demonize it based upon different values/ideologies, the unique “socialist regime with Chinese characteristics” is an existence, and has developed a more and more complicated legal system.

4. The first formal head-on confrontation happened at the WTO dispute on the provision of denying copyright protection to the “illegal works” (either content-illegal or procedure-unlawful) in China’s copyright act.

5. There is a trend of the isolation of the Internet. The isolated and respectively utilitarianized legal system may enlarge the differences of copyright/information law among countris in future. (example (1) firewalled but flourishing Chinese “Intranet”; example (2) differentiated treatment to the books in the latest Google book settlement because of the needs to comply with the territorial copyright law).

6. What would be a uniform legal justification for the future reformed copyright law (or law on “creation in commons”)? Or, in what level, that justification is possiblly uniformed in such a utilitarian world?

November 15th, 2009, at Internet Governance Forum (IGF) 2009 in Egypt, United Nations (UN) security took down banner / poster (as follows) of the forthcoming book Access Controlled: The Shaping of the Power, Rights and Rule in Cyberspace (MIT Press, 2010).

See Youtube: http://www.youtube.com/watch?v=d-kxYt2LwKc

Leaves, obviously.

Parking on leaves.

Not my car, but my camera.

Tree in Minute Man National Historical Park, Lexington, where the first shot for independence was triggered.

Before night fall.

OK, that’s Harvard main entrance, if there must be one.

Squirrel at the bus stop.