Institute for Internet Policy & Law @ Beijing Normal University

山中相送罢

日暮掩柴扉

春草明年绿

王孙归不归

In the Traditional Calendar, it will soon be Qing Ming. Unlike Halloween, Qing Ming is not a playful day and absolutely not for children. It is a day to memorize the ancestors and the other dead family. It is also a day for everyone to review the past and think about the meaning of remaining life. I guess only Chinese who can maintain such a meditation “holiday” that links up the spiritual world with the reality, the past with the future, and the dead with the live.

Meditation can make people calm down and purify their thought. But meditation may not always provide the answer people are seeking for. How many times must Baidu be sued before we can know the right and wrong in cyberspace? Baidu that occupies 70% of Internet search market in China was pushed into spotlight by a group of well-know novelists who are angry at the Baidu’s document file-share services that enable millions of literary works (particularly novels) be uploaded and shared among Internet users. Baidu had been sued for a couple of times by phonograph industry for MP3 file-sharing services. However, the contradictory decisions made by a variety of courts under the influence of those “Gold-Ruble” scholars only serve to confuse the public and blur the line of right and wrong. I’m now in belief that the liability of inducement may not be a bad solution, because it could put an end to the game of “catch-me-if-you-can” played by those intermediaries in genuine bad faith.

Yes, the file-sharing services are free of charge to users, but they are profiting from commercial ads; Yes, there is “safe harbor” available in the law, it should never shield intentional and systematic infringers; Yes, people need to access information and copyright works, but the danger to let a commercial company to maintain a major information channel to the public is even more acute and penetrating. Cannot the people see that they will be at the mercy of a company if it is allowed to monopolize the source of information and knowledge? If one day, you can only read a novel from Baidu, you would have to accept any condition Baidu imposes on you. In a poor competitive environment, the danger of such monopoly is imminent.

An interview of mine on Baidu case has been published at BNU Newspaper on April 11, 2011.

My view on Google Book Project (article published on China Copyright, Issue 1, 2011) has been completely proved by the Decision of Judge Denny Chin in U.S. district court in Manhattan. I don’t think Baidu’s services is anything better than Google’s project that also labeled as a service to the public. But the answer to Baidu’s case is still blowing in the wind in this thousand-year old country.

UNCITRAL Colloquium on Electronic Commerce took place on 14-16 February 2011 at United Nations Headquarters in New York. The Colloquim was organized in line with the official request of the United Nations Commission on International Trade Law (UNCITRAL) at its forty-third session (2010) to identify a roadmap for future work by the Commission in the area of electronic commerce, with particular regard to legal issues relating to electronic transferable records, identity management and the use of mobile devices in electronic commerce, as well as to discussing recent developments in the area of cross-border electronic single window facilities (see Official Records of the General Assembly, Sixty-fifth Session, Supplement No. 17 (A/65/17), para. 250).

Prof. Hong Xue gave a presentation at the Single Window Session on February 16, 2011.  Prof. Xue presented on the challenges and opportunity of development of Cross-Border Single Window in Asia Pacific Region, referring to the drafting work of a Regional Agreement on Electronic Exchange of Data and Documents initiated by UNESCAP from 2010 and responding to the other panelists’ views on complexity of cross-border legal issues, such as risk of National Single Window service be subject to foreign jurisdiction and ratification of UN Convention on the Use of Electronic Communications in International Contracts. The presentation attracted huge interests from both the panel and the audience.

Immediately after 1.3 billion Chinese came back to work from the celebration of Lunar New Year–the Year of Rabbit, a few news reports attract the people’s eyeballs.

It’s reported that Chinese has published more papers on technological journals than people from any other country. But the “world record” has an ironical footnote that more than 100 countries rank higher than China regarding paper citation rates. Widespread of copying, plagiarism and other so-called academic corruption explains the large output of rubbish publications.

A more sensational news is that a 2nd-Class National Invention Prize awarded to a research team in Xi’an Jiaotong University was revoked officially because the “invention” contained a large percentage of fabricated or false information. The belated revocation owes great thanks to a group of professors from that University who persistently complained against the corrupt activities in seeking the National Invention Prize.

Two grass-root migrant workers suddenly became pop-stars after a video of their singing a song emotionally got considerable hits on the Internet.  The pains in the song touches ordinary people who work hard for the same goal. They even sang the same song at the Chinese New Year Eve Gala Show, which was viewed by almost 10 billion Chinese. However, the song’s author, Mr. Wang, stood out recently to prohibit the two from singing the same song for commercial performances. The purely legitimate copyright claim angered two new stars’ fans. The anger and hatred against copyright suddenly erupted on the Internet. The Copyright Owner was pictured as mean, jealousy and selfish, although many others urged two new stars to perform their original songs, rather than relying the others’ works.

Professor Jianrong Yu, from Chinese Academy of Social Science, launched a campaign to save “children beggars” via micro-blog system.

It’s reported that more than 200,000 children were missing in China every year. The number is astonishing. Most missing children were kidnapped and sold to gangsters who use children to beg for money on the streets. There has been a considerable large black market of children trafficking operating many years. The children beggars, as young as 3 or 4 years old, are in miserable condition, frequently being beaten, starved and abused.

Prof. Yu’s campaign is let the people to photograph the children beggars on the streets and post the photos on micro-blog so that the parents of the missing children could find the clue of their babies. Prof. Yu’s call was warmly responded by more than 55,000 micro-blog posts with 800 photos of children. It’s reported that several children were indeed saved by the information revealed on the micro-blog.

However, the civil society campaign could make mistakes. For example, the parents from Shanxi discovered a boy beggar in a photo taken in Zhuhai looking extremely similar to their baby and reported to police. The local police immediately arrested the man who led the said children beggar and declared a success of micro-blog salvation. Sadly, it was too early to celebrate for the family reunion.  The boy was not the son of Shanxi parents.

There are other concerns over the campaign. All the children’s photos are published online. Does it violate the children’s privacy and minor’s legal protection? Would the photos be utilized for illegal purposes, such as commercial ads or extortion by organized crimes? Who is responsible for protecting the children’s personal information?

Fortunately, the campaign has noted these issues. Prof. Yu said a database of missing children will be set up and people’s submissions will not be publicly accessible anyway. Then it arises other issues, such as transparency of information and sustainability of the operation.

Some Congressmen have urged the police to take more effective actions against children kidnapping and trafficking and improve the social welfare system to help poor children, particularly in migrant workers’ families.

Professor Cai who publicly called for cancellation of the so-called Golden Week (week-long public holidays) in China found himself defamed and cursed by a large number of people on a BBS named after him. The furious Professor sued the BBS service provider, Baidu (one of the largest Internet company in China), for defamation. The first-instance court recently rendered the decision that Baidu was not the direct tortfeasor, neither did it knowing providing service to defame Prof. Cai. The court noted that Baidu’s act of taking timely measures to prevent the further spread of defamatory information after receiving valid notification from Prof. Cai was capable of proving its innocent. Interestingly, the court dismissed Prof. Cai’s claim for deleting the relevant BBS in the same name as him, because name of the BBS, per se, was not infringing and the people had the right to make comments on public issues or figures. However, the court ruled that Baidu must, within the capable of network technology, assume the obligation of a honest manage to identify its subscribers who had posted the defamatory information. Prof. Cai’s agent declared to appeal against the decision.

The decision rings the alarm for Internet users. With the implementation of the Tort Liability Law, netizens are exposed to more liabilities for infringement against civil rights. Previously, they were only subject to copyright enforcement. Now they must watch out any other rights, such as rights for reputation, honor, portraits and names. A service provider’s obligation to disclose users’ identities would have serious impact on privacy. In the above-mentioned case, the court demanded Baidu to identify all the persons who had cursed, insulted or verbally threatened Prof. Cai. However, how would Baidu judge if a post is insulting, defamatory or threatening? What if Baidu makes arbitrary judgment and unreasonably disclose some users’ personal information to Prof. Cai?