Yahoo!, the Shi Tao Case, and the Benefit of the Doubt

Rep. Tom Lantos has called on Yahoo! executives to return to Congress to talk about what they knew and when in the Shi Tao case. Rep. Lantos alleges that Yahoo!’s general counsel misled a hearing (at which I and others submitted testimony, too) in 2006 by indicating that the company knew less than it actually did about why the Chinese state police were asking for information about Shi, a dissident and journalist. Yahoo! did turn over the information; the Chinese prosecuted Shi; he remains in jail; and the issue continues to point to the single hardest thing about our US tech companies doing business in places that practice online censorship and surveillance. The case has led to Congressional hearings, proposed legislation, shareholder motions, and lawsuits against Yahoo!

(For much more on the general topic of Internet filtering and surveillance, see the OpenNet Initiative’s web site, a consortium of four universities of which we are a part: Cambridge, Harvard Law School, Oxford, and Toronto.)

The hard problem at the core of this issue is that police come to technology companies every day to ask for information about their users. It is a fair point for technology companies to make that they often cannot know much about the reason for the policeman’s inquiry. It could be completely legitimate: an effort to prevent a crime from happening or bringing a criminal to justice. In the United States, these requests come in the context of the rule of law, including a formal reliance on due process. And every once in a while, a technology company pushes back on requests for data of this sort, publicly or privately. The process is imperfect, if you consider it from a privacy standpoint, but it works — a balance is found between the civil liberties of the individual and the legitimate needs of law enforcement to keep us safe and to uphold the rules to which we all agree as citizens.

This hard problem is much harder in the context of, say, China. It’s not the only example, but it’s the example here with Shi Tao. In Yahoo!’s testimony in 2006, Michael Callahan, the executive vice president and general counsel, said that Yahoo! did not know the reasons for the Chinese state police’s request for information about Shi.

You can read the testimony for yourself here. The relevant statement by Mr. Callahan is:

“The Shi Tao case raises profound and troubling questions about basic human rights. Nevertheless, it is important to lay out the facts. When Yahoo! China in Beijing was required to provide information about the user, who we later learned was Shi Tao, we had no information about the nature of the investigation. Indeed, we were unaware of the particular facts surrounding the case until the news story emerged.” (Emphasis mine.)

The key phrase: “No information about the nature of the investigation.” Not that the information was inconclusive, or vague, or hard to translate, or possibly of concern. “No information.”

Now, we are told, there’s a big disagreement about whether that testimony was accurate.

Rep. Lantos, in a statement yesterday, claims that Callahan misled the committee. Lantos writes: “”Our committee has established that Yahoo! provided false information to Congress in early 2006. … We want to clarify how that happened, and to hold the company to account for its actions both before and after its testimony proved untrue. And we want to examine what steps the company has taken since then to protect the privacy rights of its users in China.” Rep. Chris Smith (R-NJ) says it more harshly: “Last year, in sworn testimony before my subcommittee, a Yahoo! official testified that the company knew nothing ‘about the nature of the investigation’ into Shi Tao, a pro-democracy activist who is now serving ten years on trumped up charges. We have now learned there is much more to the story than Yahoo let on, and a Chinese government document that Yahoo had in their possession at the time of the hearing left little doubt of the government’s intentions. … U.S. companies must hold the line and not work hand in glove with the secret police.”

Yahoo! responded with its own statement, pasted here in full:

“Yahoo! Statement on Foreign Relations Committee Hearing Announcement
October 16, 2007

“The House Foreign Affairs Committee’s decision to single out Yahoo! and accuse the company of making misstatements is grossly unfair and mischaracterizes the nature and intent of our past testimony.

“As the Committee well knows from repeated meetings and conversations, Yahoo! representatives were truthful with the Committee. This issue revolves around a genuine disagreement with the Committee over the information provided.”

“We had hoped that we could work with the Committee to have an open and constructive dialogue about the complicated nature of doing business in China.”

“All businesses interacting with China face difficult questions of how to best balance the democratizing forces of open commerce and free expression with the very real challenges of operating in countries that restrict access to information. This challenge is particularly acute for technology and communication companies such as Yahoo!.”
“As we have made clear to Chairman Lantos and the Committee on Foreign Affairs, Yahoo! has treated these issues with the gravity and attention they demand. We are engaged in a multi-stakeholder process with other companies and the human rights community to develop a global code of conduct for operating in countries around the world, including China. We are also actively engaged with the Department of State to assist and encourage the government’s efforts to deal with these issues on a diplomatic level.”

“We believe the answers to these broad and complex questions require a constructive dialogue with all stakeholders engaged in a collaborative manner. It is our hope that the Committee will approach the hearing in that same constructive spirit.”

I can understand why Yahoo! is claiming that they are being treated unfairly. Yahoo! has been the company that has been most tarred, in some ways, for a problem that is industry-wide, and should be resolved on an industry-wide (or broader, such as law or international law) basis. Yahoo! has been a very constructive player in the ongoing effort to come up with a code of conduct for companies in this position (along with Google, Microsoft, and others). And Yahoo! has been working hard to establish internal practices to head off similar situations and voicing its concern about Chinese policies in this arena. Their efforts since the Shi Tao case on this front have been laudable.

But if in fact the company knew more — even a little bit more — about why the Chinese police came knocking for Shi Tao than what Mr. Callahan led all of us to believe, (“no information”), then it is a big problem. Unless there are facts that I’m missing, for the Congress to call Yahoo! back to Capitol Hill to correct the record, in public, is completely appropriate, if “no information” is not what we were meant to understand. It may well be that what the company knew was in fact so vague, as many legal terms are in China, as to be inclusive. It may well be that someone in the company knew, but the right people didn’t know — and that an internal process was flawed in this case. But those are very different discussions, ones we should have, than the straight-up problem that the company didn’t have context for the request.

Because I respect many of the people working hard on this issue within Yahoo!, and credit that Jerry Yang is very well-meaning on this topic, I’ve been willing to give Yahoo! a big benefit of the doubt. After all, a key part of our own legal system — as part of a rule of law that we’ve come to trust here — calls on us to do so. The big problem here for me is if we’ve in fact been misled, all of us, to believe that it was one problem when it really was quite another. If “no information” proves to be inaccurate, I’m not sure how much longer I can keep extending that benefit of the doubt in this case.

(The Merc’s Frank Davies wrote up the story here, among a few hundred others in the last 24 hours. Rebecca MacKinnon, of course, had the story months before (also here) and said already much what I’ve said here.)

WaPo on the Myanmar Internet Crackdown

Roby Alampay nails some of the key issues related to Internet governance and international law in an editorial today in the Washington Post. It’s well worth a read, especially if you’ve been following the Myanmar crackdown. Alampay also makes a key link: the issue of Internet access should be perceived to be a human rights issue, and one which those thinking about Internet governance ought to take up.

In relevant part: “States have come far in such discussions and in reaching some levels of consensus. International standards have greater impetus, evidently, when they seek to cap that which they perceive as threatening to the civilized world: child pornography, organized crime, terrorism, and SPAM. This much is understandable.

“What the international community has barely begun to discuss, however, is the other side of the dilemma: What should be the international standard on ensuring Internet accessibility and openness?

“The more compelling Internet story last week took place as far away from Europe as one can get. It was from Burma — via defiant blogs, emails, and phone-cam videos posted online — that the world witnessed the other argument: that when it comes to the Internet (and all forms of media, for that matter) ‘standards’ is a legitimate topic not only with respect to limiting the medium’s (and its users’) potential harm, but more importantly in setting and keeping the medium (and its users) free.”

Three Conversations on Intellectual Property: Fordham, University of St. Gallen, UOC (Catalunya)

Three recent conversations I’ve been part of offered a contrast in styles and views on intellectual property rights across the Atlantic. First, the Fordham International IP conference, which Prof. Hugh Hanson puts on each year (in New York, NY, USA); the terrific classes in Law and Economics of Intellectual Property that Prof. Urs Gasser teaches at our partner institution, the University of St. Gallen (in St. Gallen, Switzerland); and finally, today, the Third Congress on Internet, Law & Politics held by the Open University of Catalonia (in Barcelona, Spain), hosted by Raquel Xalabarder and her colleagues.

* * *

Fordham (1)

At Fordham, Jane Ginsburg of Columbia Law School moderated one of the panels. We were asked to talk about the future of copyright. One of the futures that she posited might come into being — and for which Fred von Lohmann and I were supposed to argue — was an increasingly consumer-oriented copyright regime, perhaps even one that is maximally consumer-focused.

– For starters, I am not sure that “consumer” maximalization is the way to think about it. The point is that it’s the group that used to be called the consumers who are now not just consumers but also creators. It’s the maximization of the rights of all creators, including re-creators, in addition to consumers (those who benefit, I suppose, from experiencing what is in the “public domain”). This case for a new, digitally-inspired balance has been made best by Prof. Lessig in Free Culture and by many others.

– What are the problems with what one might consider a maximalized consumer focus? The interesting and hardest part has to do with moral rights. Prof. Ginsburg is right: this is a very hard problem. I think that’s where the rub comes.

– The panel agreed on one thing: a fight over compulsory licensing is certainly coming. Most argued that the digital world, particularly a Web 2.0 digital world, will lead us toward some form of collective, non-exclusive licensing solution — if not a compulsory licensing scheme — will emerge over time.

– “Copyright will be a part of social policy. We will move away from seeing copyright as a form of property,” says Tilman Luder, head of copyright at the directorate general for internal markets at the competition division of the European Commission. At least, he says, that’s the trend in copyright policy in Europe.

* * *

Fordham (2)

I was also on the panel entitled “Unauthorized Use of Works on the Web: What Can be Done? What Should be Done?”

– The first point is that “unauthorized use of works” doesn’t seem quite the relevant frame. There are lots of unauthorized uses of works on the web that are perfectly lawful and present no issue at all: use of works not subject to copyright, re-use where an exception applies (fair use, implied license, the TEACH Act, e.g.s), and so forth. These uses are relevant to the discussion still, though: these are the types of uses that are

– In the narrower frame of unauthorized uses, I think there are a lot of things that can be done.

– The first and most important is to work toward a more accountable Internet. People who today are violating copyright and undermining the ability of creators to make a living off of their creative works need to change. Some of this might well be done in schools, through copyright-related education. The idea should be to put young people in the position of being a creator, so they can see the tensions involved: being the re-user of some works of others, and being the creator of new works, which others may in turn use.

– A second thing is continued work on licensing schemes. Creative Commons is extraordinary. We should invest more in it, build extensions to it, and support those who are extending it on a global level (including in Catalunya!).

– A third thing, along the lines of what Pat Aufderheide and Peter Jaszi are doing with filmmakers, is to establish best practices for industries that rely on ideas like fair use.

– A fourth thing is to consider giving more definition to the unarticulated rights — not the exclusive rights of authors that we well understand, but the rights of those who would re-use them, to exceptions and limitations.

– A fifth area, and likely the discussion that will dominate this panel, is to consider the role of intermediaries. This is a big issue, if not the key issue, in most issues that crop up across the Internet. Joel Reidenberg of Fordham Law School has written a great deal on this cluster of issues of control and liability and responsibility. The CDA Section 230 in the defamation context raises this issue as well. The question of course arose in the Napster, Aimster, and Grokster contexts. Don Verrilli and Alex Macgillivray argued this topic in the YouTube/Viacom context — the topic on which sparks most dramatically flew. They fought over whether Google was offering the “claim your content” technology to all comers or just to those with whom Google has deals (Verilli argued the latter, Macgillivray the former) and whether an intermediary could really know, in many instances, whether a work is subject to copyright without being told by the creators (Verilli said that wasn’t the issue in this case, Macgillivray says it’s exactly the issue, and you can’t tell in so many cases that DMCA 512 compliance should be the end of the story).

* * *

St. Gallen

Across the Atlantic, Prof. Dr. Urs Gasser and his teaching and research teams at the University of St. Gallen are having a parallel conversation. Urs is teaching a course on the Law and Economics of Intellectual Property to graduate students in law at St. Gallen. He kindly invited me to come teach with him and his colleague Prof. Dr. Bead Schmid last week.

– The copyright discussion took up many of the same topics that the Fordham panelists and audience members were struggling with. The classroom in Switzerland seemed to split between those who took a straight market-based view of the topics generally and those who came at it from a free culture perspective.

– I took away from this all-day class a sense that there’s quite a different set of experiences among Swiss graduate students , as compared to US graduate students, related to user-generated content and the creation of digital identity. The examples I used in a presentation of what Digital Natives mean for copyright looking ahead — Facebook, MySpace, LiveJournal, Flickr, YouTube, and so forth — didn’t particularly resonate. I should have expected this outcome, given the fact that these are not just US-based services, but also in English.

– The conversation focused instead on how to address the problem of copyright on the Internet looking forward. The group had read Benkler, Posner and Shavell in addition to a group of European writers on digital law and culture. One hard problem buried in the conversation: how much help can the traditional Law and Economics approach help in analyzing what to do with respect to copyright from a policy perspective? Generally, the group seeemed to believe that Law and Economics could help a great deal, on some levels, though 1) the different drivers that are pushing Internet-based creativity — other than straight economic gains — and 2) the extent to which peer-production prompts benefits in terms of innovation make it tricky to put together an Excel spreadsheet to analyze costs and benefits of a given regulation. I left that room thinking that a Word document might be more likely to work, with inputs from the spreadsheet.

* * *

Barcelona

The UOC is hosting its third Congres Internet i Politica: Noves Perspectives in Barcelona today. JZ is the keynoter, giving the latest version of The Future of the Internet — and How to Stop It. The speech just keeps getting better and better as the corresponding book nears publication. He’s worked in more from StopBadware and the OpenNet Initiative and a new slide on the pattern of Generativity near the end. If you haven’t heard the presentation in a while, you’ll be wowed anew when you do.

– Jordi Bosch, the Secretary-General of the Information Society of Catalonia, calls for respect for two systems: full copyright and open systems that build upon copyright.

Prof. Lilian Edwards of the University of Southhampton spoke on the ISP liability panel, along with Raquel Xalabarder and Miquel Peguera. Prof. Edwards talked about an empirical research project on the formerly-called BT Cleanfeed project. BT implements the IWF’s list of sites to be blocked, in her words a blacklist without a set appeals process. According to Prof. Edwards’ slides, the UK government “have made it plain that if all UK ISPs do not adopt ‘Cleanfeed’ by end 2007 then legislation will mandate it.” (She cites to Hansard, June 2006 and Gower Report.) She points to the problem that there’s no debate about the widespread implementation of this blacklist and no particular accountability for what’s on this blacklist and how it is implemented.

– Prof. Edwards’ story has big implications for not just copyright, but also the StopBadware (regarding block lists and how to run a fair and transparent appeals process) and ONI (regarding Internet filtering and how it works) research projects we’re working on. Prof. Edwards’ conclusion, though, was upbeat: the ISPs she’s interviewed had a clear sense of corporate social responsibility, which might map to helping to keep the Internet broadly open.

For much better coverage than mine, including photographs, scoot over to ICTology.

Eric von Hippel in Internet, Law and Politics

Prof. Eric von Hippel has written one of my favorite books: Democratizing Innovation. Prof. von Hippel teaches at MIT’s Sloan School of Management and runs the Innovation Lab there. Our class of Harvard Law School students focused on Internet, Law and Politics have created a wiki page of questions for Prof. von Hippel in advance of his visit here.

We at Harvard have amazing neighbors at MIT, with whom we do not do enough collaboratively. I’m hugely grateful to Prof. von Hippel for coming through the rain to guest-lecture at HLS and help bridge the unnatural gap between 02138 and 02139.

The challenge for this class today is to find the connect points between von Hippel’s findings from the business world and Benkler’s findings in The Wealth of Networks and to draw conclusions from this intersection about the core themes of our course.

iTunes and EMI Breaking the DRM Barrier

Good news from Steve Jobs, Eric Nicoli, and company: EMI’s music now to be available without Digital Rights Management. A great move for consumers, innovation, interoperability and, one hopes, creative re-use of digital works. (Cory Doctorow at Boing Boing has the definitive post and list of links. Cory suggests that we help out with a thank-you gift for Mr. Jobs.)

Viacom Believes Fewer Than 60 Take-Down Mistakes

I’ve been e-mailing with Michael Fricklas of Viacom since I posted about Jim Moore’s home video that got caught in Viacom’s 100,000 take-down push on Friday. Mr. Fricklas wrote to me a few times during their process of assessing how many errors they made out of 100,000. Today, he wrote: “… we’re achieving an error rate of .05% – (we have under 60 errors so far)” and that “we’ll know more as users respond to communication from YouTube”. He noted also: “Wish it was zero.”

So, let’s take Viacom at its word for the moment. A few interesting questions of law pop out from here:

1) If Viacom is right 99,940 times out of 100,000. What rights do those 60 people have when they choose to push back? Just to have the file put back up? Do they have a further claim against Viacom? Or against YouTube, for that matter?

2) Mr. Fricklas asserts that “Under DMCA, I believe that YouTube needs to retain the material and repost it if an individual believes that the copyright notice was in error.” I suppose that Section 512(g) does include the presumption that YouTube (or similarly situated party) must hold on to the allegedly infringing material once taken down, since they may have to put it back up pursuant to counter-notification. But the process of what the intermediary has to do is not explicit.  What happens to the analysis if YouTube has retained nothing, and the original person who posted it retained nothing but has a very strong fair use case or an outright winner on copyright grounds? Does DMCA need to say more than it does by way of a process to protect users?  There’s also the question of what policy is required to handle repeat infringers, which has caused a lot of confusion on university campuses.
Some good exam questions buried here.