Digital Pathways to Asia

Can law keep up with technology? Some Harvard lawyers are finding out.

Internet use in China is different than in most countries. There is less freedom. And there is more.

Chinese users have far greater access to unauthorized digital and software downloads—piracy is rampant, and many digital files are easily accessible without attribution or compensation for their creators.

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Credit: John Hersey

But if you try to access a pro-Tibetan independence Web site, your browser will likely give you an error message—the result of hidden censorship. Despite early predictions that the Internet would create open-ended access to information for all users everywhere, China’s rulers (as well as those in Burma, North Korea, Thailand and Singapore) have devised ways of filtering out content they deem harmful to the state. Through censorship, surveillance and aggressive filtering, these governments (and some outside of Asia) have achieved a high degree of control over what many had thought would be an uncontrollable medium.

Researchers at Harvard Law School’s Berkman Center for Internet & Society have documented both problems and are zeroing in on them.

The Berkman Center is approaching piracy through its Digital Media in Asia project, which, among other things, promotes a digital media exchange in China. Meanwhile, the center’s OpenNet Initiative is taking a hard look at filtering, aiming to create a body of empirical, legal and technical research showing the extent to which repressive regimes block access to the Internet and practice surveillance online.

And, in its Global Voices Online project, the center’s scholars and students are emphasizing the other side of the surveillance coin, highlighting the independent voices that manage to escape the censors through blogs, podcasts and other forms of “citizens’ media.”

“As of next year, China will have more people in the world using the Internet than any other place in the world,” said Harvard Law School Clinical Professor John Palfrey, the Berkman Center’s executive director. “China will be the most important market for Internet users. We believe that a relatively open Internet is helpful to economies, democratic activism, societal development and cross-cultural understanding, and a variety of other good things.” And, he said, with the Digital Media Project, “we are looking at how international treaties and legal systems affect the way people consume digital media and figuring out if there are alternatives to the traditional intellectual property regime which could make better sense for a digital world.”

The piracy problem

In 1995, Professor William Alford ’77 published his seminal work on intellectual property rights in China, “To Steal a Book is an Elegant Offense,” in which he discussed the relationship between traditional Confucian ideology and intellectual property rights. He argued that the veneration with which the Chinese have historically regarded fidelity to tradition has made China less receptive to the idea of intellectual property rights, particularly in artistic fields. That Alford turned out to be right is both good news and bad. Good because his accurate insights have helped make him an oft-cited authority on the subject. In fact, as Alford recently told a Senate subcommittee in his testimony on intellectual property infringement, parts of the book itself (the title of which comes from an old Chinese saying) have been pirated and made available without attribution in China. Therein lies the “bad news for those who have to live in the real world,” Alford explained. Intellectual property infringement is ubiquitous in China, and present elsewhere in Asia (and the U.S.) to varying degrees. And as the number of Internet users in the region grows—China is set to surpass the United States next year, and use in South Korea and Japan is skyrocketing—the problems, and the economic damage, will only get worse.

The Digital Media Exchange (known as DMX), which is part of the Berkman Center’s Digital Media Project, presents a possible solution to the problem of how to generate revenue when piracy is rampant, in the form of a file-sharing cooperative which, for a nominal fee, would give consumers “all-you-can-eat” access to digital entertainment files while providing for compensation of content-creators on a per-usage basis. The DMX, originally proposed by Professor Terry Fisher ’82 in his book “Promises to Keep,” evolved into a possible Chinese pilot program when then graduate student Eric Priest LL.M. ’05 pointed out its promise for a culture like China’s. Priest, who had worked in the Chinese music industry and is now a fellow at the Berkman Center, helped organize meetings on DMX with Fisher, Berkman Fellow and York University Adjunct Professor Paul Hoffert, various representatives from the Chinese entertainment and IT industries, and government officials in Beijing.

“China provides an excellent environment for developing the DMX service for a few reasons,” Priest reported in an e-mail from Beijing. “The piracy problem in China is severe—and growing. Companies are interested in talking with us because we might provide them with a substantial new revenue stream. Second, with the growing sensitivity to intellectual property issues, Chinese companies and the government are interested in exploring innovative ways to protect copyright. Third, Internet service providers and universities are beginning to worry about being held liable for the widespread copyright infringement on their networks. Last, due in part to the piracy problem, the major record companies that are reluctant to provide content to a DMX system in the U.S. may be less reluctant to do so in China, because they simply don’t have a viable alternative business model in China.”

Fisher points out that China is particularly fertile ground for a DMX pilot project because of the comparative flexibility of the group of rising innovative entrepreneurs there. “[They] have been developing with great speed China’s Internet systems and experimenting with various business models there. We met with many of them, and they are very impressive,” he said on his return from Beijing recently.

While Fisher couldn’t reveal any of the confidential conversations he’d had during his trip, he was able to say that “just about everyone with whom we discussed the general plan was, once they understood it, very enthusiastic about it as a solution for the logjam in China right now—in which basically no one is getting paid. But many of our official partners also emphasized the difficulties of engineering this solution because so many people have to agree simultaneously. I would say there’s a decent chance that it will work, but not certain.”

The filtering challenge

One of the Berkman Center’s missions is to promote a more open version of the Internet. To that end, the OpenNet Initiative, a joint project among the University of Toronto, Cambridge University, Oxford University and HLS, supported by grants from the MacArthur Foundation and the Open Society Institute, among others, has studied about a dozen countries, many in Central and East Asia, revealing their extensive use of filtering methods to limit their citizens’ access to content online.

“The really essential issue involves these questions of how is control being exercised by states on the Internet, how is that changing over time, and what are the policy and legal ramifications of it,” Palfrey said. “The answers to those questions can help figure out how if at all we are going to govern the Internet. People like [HLS Professor] Jack Goldsmith have done some of the leading work in defining how states participate in that control, and we seek to amplify that work.”


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Sections of Goldsmith’s new book, “Who Controls the Internet?” [see sidebar], rely on data drawn from OpenNet’s research in Asia, exactly the kind of cross-disciplinary application that Palfrey and his Berkman colleagues hope to foster.

This year, OpenNet has received another MacArthur grant, $3 million over four years, to expand its research into three dozen countries (Internet filtering is not a problem just in Asia) and to publish an annual roundup of the state of Internet access worldwide. The new grant will also be used to develop applications to make the data accessible in many different forms—enabling researchers to render, slice and dice the numbers as needed for their own projects.

“By expanding across different states and across time,” Palfrey said, “we will be able to do much better comparative work, to better judge what the trends are and better inform foreign policy-makers and others who are involved with countries who are filtering.” And the center will itself be able to do more ambitious analytical work: comparing one state to another, showing changes over time, and tracing the effects of legal, political and technical changes.

Palfrey and his colleagues and students have already identified some disturbing trends. Censorship is becoming more extensive and more sophisticated. Countries like China that already do online filtering and surveillance are getting better at it, while countries that didn’t filter have begun to do so.

Another trend—which has involved some American companies—is the increased extent to which states are relying on private actors to carry out censorship and surveillance. One of the more efficient ways to filter Internet content and watch its users is through the service providers, search engines and cyber cafés—private companies that can be subjected to pressures from the states in which they operate. (Representatives of Microsoft, Yahoo, Cisco and Google came before Congress recently to explain how they are participating in Internet filtering and surveillance in China.)

In light of this development, Palfrey and Berkman Center Co-director and Visiting Professor Jonathan Zittrain ’95 have been working on creating a set of ethical principles that could guide the actions of U.S. corporations doing business in repressive regimes. And OpenNet continues investigating allegations of filtering in new countries (Thailand, for example) and making sure research methodologies keep step with the ever more ingenious methods of filtering and surveillance.

Global voices

jh_chinafilter3 Amid the statistics on censorship and surveillance, it’s easy to lose sight of the fact that even a filtered Internet provides vastly greater opportunities for freedom of expression than no Internet at all. Founded by Berkman Fellow Ethan Zuckerman and former CNN Beijing and Tokyo Bureau Chief and current Berkman Fellow Rebecca MacKinnon, Global Voices Online amplifies the words of people who are speaking out online, many of them in Asia, and helps them reach a broader audience through its blog (www.globalvoicesonline.org), which compiles and distills entries from blogs around the world.

The idea for the project grew out of an international bloggers’ meeting held at Harvard in December 2004. Since then, the Berkman Center has sponsored a 2005 conference in London, and it plans another this December in India. In China, for example, Global Voices has fostered contacts among Berkman scholars, bloggers, Internet technologists, dissidents and others interested in citizens’ media.

But there is a fear that Global Voices could make some unwanted connections for bloggers, focusing government attention on their activities. Hao Wu, a Beijing-based independent filmmaker who had been a core contributor to Global Voices Online and was serving as its Northeast Asia editor, was detained in February—and as of this writing was still being held without charges. He was making a documentary film about underground Christian churches that are not recognized by the Chinese government. Meanwhile, “Free Hao Wu” appeals have begun circulating online, one at www.ethanzuckerman.com/haowu/, featuring posts from his sister and a roundup of the stories about him picked up by mainstream media.

The OpenNet Initiative raises similar concerns. “We’ve been quite worried that if we test sites that [the governments] turn out not to be blocking, and we say, ‘Hey, they’re not blocking these sensitive sites on X issue,’ they’ll turn around and start blocking them,” said Palfrey. “We also worry that by highlighting the censorship and surveillance approach of some states, we may lead other states to copy that approach.”

While it’s difficult to calculate the effects of Global Voices’ efforts to amplify dissenting views, or of OpenNet’s revelations about censorship and surveillance in repressive regimes, Alford points to the larger picture. “I think it’s good that the people at the Berkman Center are pushing these things—demonstrating empirically what the Chinese government is doing,” he said. “Even if the government’s response is to try harder to censor more, there’s a huge political cost in its doing so, as the censorship does damage to the image the Chinese government would like to project.”