Transnational Culture in the Internet Age 9780857931337

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Transnational Culture in the Internet Age
 9780857931337

Table of contents :
Contents
List of contributors
Introduction: navigating in the dark when bits have no borders • Sean A. Pager and Adam Candeub
1 The challenge(s) of cyberlaw • David G. Post
2 Copyright, culture and the Cloud • Daniel J. Gervais
3 Addressing “libel tourism” • Lili Levi
4 YouTube from Afghanistan to Zimbabwe: tyrannize locally, censor globally • Hannibal Travis
5 Balkanizing the Internet • Kevin W. Saunders
6 Timid liberalism: a critique of the process-oriented norms for Internet blocking • Milton Mueller
7 Internet creativity, communicative freedom and a constitutional rights theory response to “code is law” • Christoph B. Graber
8 Diminished, enduring, and emergent diversity policy concerns in an evolving media environment • Philip M. Napoli
9 Cultural protectionism 2.0: updating cultural policy tools for the digital age • Mira Burri
10 Copyright, complexity, and cultural diversity: a skeptic’s view • Michal Shur-Ofry
11 The Nigerian film industry and lessons regarding cultural diversity from the home-market effects model of international trade in films • Mark F. Schultz
12 Digital content production in Nigeria and Brazil: a case for cultural optimism? • Sean A. Pager
13 Decolonizing networked technology: learning from the street dance • Larisa Mann
14 Balancing act: the creation and circulation of indigenous knowledge and culture inside and outside the legal frame • Kimberly Christen
15 Localism as a production imperative: an alternative framework for promoting intangible cultural heritage • Jon M. Garon
16 Cross-country comparison of audience tastes in Hollywood movies: cultural distance and genre preferences • W. Wayne Fu
17 Protecting and promoting national cultures in a world where bits want to flow freely • Sang Yup Lee and Steven S. Wildman
Index

Citation preview

Transnational Culture in the Internet Age

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ELGAR LAW, TECHNOLOGY AND SOCIETY Series Editor: Peter K. Yu, Drake University Law School, USA The information revolution and the advent of digital technologies have ushered in new social practices, business models, legal solutions, regulatory policies, governance structures, consumer preferences and global concerns. This unique book series provides an interdisciplinary forum for studying the complex interactions that arise from this environment. It examines the broader and deeper theoretical questions concerning information law and policy, explores its latest developments and social implications, and provides new ways of thinking about changing technology. Titles in the series include: Copyright Law and the Progress of Science and the Useful Arts Alina Ng Transnational Culture in the Internet Age Sean A. Pager and Adam Candeub

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Transnational Culture in the Internet Age Edited by

Sean A. Pager Michigan State University College of Law, USA

Adam Candeub Michigan State University College of Law, USA

ELGAR LAW, TECHNOLOGY AND SOCIETY

Edward Elgar Cheltenham, UK • Northampton, MA, USA

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© The editors and contributors severally 2012 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2012930582

ISBN 978 0 85793 133 7

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Typeset by Servis Filmsetting Ltd, Stockport, Cheshire Printed and bound by MPG Books Group, UK

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Contents List of contributors

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Introduction: navigating in the dark when bits have no borders Sean A. Pager and Adam Candeub

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The challenge(s) of cyberlaw David G. Post

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Copyright, culture and the Cloud Daniel J. Gervais

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Addressing “libel tourism” Lili Levi

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YouTube from Afghanistan to Zimbabwe: tyrannize locally, censor globally Hannibal Travis

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Balkanizing the Internet Kevin W. Saunders

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Timid liberalism: a critique of the process-oriented norms for Internet blocking Milton Mueller

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Internet creativity, communicative freedom and a constitutional rights theory response to “code is law” Christoph B. Graber

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Diminished, enduring, and emergent diversity policy concerns in an evolving media environment Philip M. Napoli

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Cultural protectionism 2.0: updating cultural policy tools for the digital age Mira Burri

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Copyright, complexity, and cultural diversity: a skeptic’s view Michal Shur-Ofry

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The Nigerian film industry and lessons regarding cultural diversity from the home-market effects model of international trade in films Mark F. Schultz

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Digital content production in Nigeria and Brazil: a case for cultural optimism? Sean A. Pager

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Decolonizing networked technology: learning from the street dance Larisa Mann

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Balancing act: the creation and circulation of indigenous knowledge and culture inside and outside the legal frame Kimberly Christen

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Localism as a production imperative: an alternative framework for promoting intangible cultural heritage Jon M. Garon

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Cross-country comparison of audience tastes in Hollywood movies: cultural distance and genre preferences W. Wayne Fu

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Protecting and promoting national cultures in a world where bits want to flow freely Sang Yup Lee and Steven S. Wildman

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Index

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Contributors Mira Burri, World Trade Institute, Switzerland. Adam Candeub, Michigan State University College of Law, USA. Kimberly Christen, Washington State University, USA. W. Wayne Fu, Nanyang Technological University, Singapore. Jon M. Garon, NKU Chase Law and Informatics Institute, and Northern Kentucky University Chase College of Law, USA. Daniel J. Gervais, Vanderbilt University Law School, USA. Christoph B. Graber, University of Lucerne Law School, Switzerland. Sang Yup Lee, Michigan State University, USA. Lili Levi, University of Miami School of Law, USA. Larisa Mann, University of California Berkeley Jurisprudence and Social Policy Program, USA. Milton Mueller, Syracuse University School of Information, USA. Philip M. Napoli, Fordham University School of Business, USA. Sean A. Pager, Michigan State University College of Law, USA. David G. Post, Temple University Beasley School of Law, USA. Kevin W. Saunders, Michigan State University College of Law, USA. Mark F. Schultz, Southern Illinois University School of Law, USA. Michal Shur-Ofry, Hebrew University of Jerusalem, Israel. Hannibal Travis, Florida International University College of Law, USA. Steven S. Wildman, Michigan State University, USA.

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Introduction: navigating in the dark when bits have no borders1 Sean A. Pager and Adam Candeub I.1 INTRODUCTION Digital communications, it is often claimed, accelerate cultural convergence, disrupt local cultures and threaten the nation state itself.2 Whether termed a “Flat Earth” or “Global Village,” the planet’s shrinking and linking is widely accepted as a fait accompli.3 Many celebrate this supposed acceleration and integration, seeing freedom in globally networked communities or profit in the accumulation of eyeballs to monetize. Others fear a monocultural wasteland; the vision of global unity celebrated by Disneyland’s “Small World” is derided as a Potemkin village masking inequalities of access and influence. But the metaphors and pundits’ prognostications hide how little is understood about how the globe produces, consumes, and exchanges cultural media. For example, is it in fact true that the richness of cultural diversity has retreated in the Internet age? The evidence is mixed. Closer examination reveals both peaks and valleys in the “Flat Earth,” and the “Global Village” turns out to be as much “Cyberbalkans” as homogenized

1 The chapters in this volume were first presented as papers at a conference entitled Bits Without Borders: Law, Communications and Transnational Culture Flow in the Digital Age, held September 24–25, 2010, at the Michigan State University College of Law. We thank the Michigan State College of Law, the Quello Center for Telecommunication Management and Law at Michigan State University, and the Donald McGannon Communication Research Center at Fordham University for their support of the conference. The advice and support of our editor Tara Gorvine was invaluable in moving the inspiration to a reality. And, finally, we thank Jane Meland and the reference staff of the MSU College of Law Library for superb editorial assistance. 2 See, e.g. The Future is Another Country, The Economist, July 24, 2010, at 59. 3 Thomas Friedman, The World Is Flat: A Brief History of the TwentyFirst Century (2005); McLuhan, Marshall, Understanding Media 6 (1964) (describing the global village created by electric communications).

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McWorld.4 Far from impoverishing global diversity, digital technologies can empower local productions, opening audiences and reducing barriers to entry and distribution costs. Moreover, rather than passively watch their borders become obsolete, governments have reasserted themselves. Digital communications at every level are increasingly subject to state control from the explicit censorship of “content” (e.g. Internet filtering)5 to regulation of the “pipes” (e.g. communications standards)6 to restrictions on “speakers” (e.g. domestic content quotas and media ownership laws).7 Amidst this thicket of regulatory intervention, cyber-libertarian proclamations of independence today seem naïve.8 The normative basis for such interventions, however, is often murky. From Internet governance to intellectual property rights to trade policy and media regulation, we have inherited a patchwork of piecemeal, sometimes contradictory policies. Moreover, our regulatory framework relies on a tool box of shared concepts which is arguably outdated. The peculiar economics of digital production and network industries calls into question long-accepted models concerning industry concentration and international trade. Old goals of media regulation such as “diversity of viewpoint” seem antique given the Internet’s ability to provide access to near infinite content.9 The incentive theory undergirding intellectual property rights provokes similar skepticism; copyright laws are criticized as obsolete relics, rooted in analog-era assumptions of scarcity.10

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Marshall Van Alstyne and Erik Brynjolfsson, Global Village or CyberBalkans? Modeling and Measuring the Integration of Electronic Communities, 51 Management Science 851 (2005). 5 See Access Denied: The Practice and Policy of Global Internet Filtering (R. Deibert et al. eds, 2008). 6 Philip J. Weiser, Cyber Law: Issues Affecting the Internet and its Governance, 28 N. Ky. L. Rev. 822 (2001); A Plaything of Powerful Nations, The Economist, October 1, 2011, at 63. 7 See Sean Pager, Beyond Culture vs. Commerce: Decentralizing Cultural Protection to Promote Diversity Through Trade, 31 Northwestern J. Int’l L. & Bus. 63, 69, 82, 102–04 (2010). 8 Cf. John Perry Barlow, Declaration of Independence of Cyberspace, quoted in A Virtual Counter Revolution, The Economist, Sept. 4, 2010, at 75; Philip ElmerDewitt, First Nation in Cyberspace, TIME International, Dec. 6, 1993 (quoting John Gilmore) (“The Net interprets censorship as damage and routes around it”). 9 For an analysis, history, and critique of the FCC’s media diversity regulation, from its inception in the 1930s to the present, see Media Ownership Regulation, the First Amendment, and Democracy’s Future, 41 U.C. Davis L. Rev. 1547 (2008) (reprinted in The First Amendment Law Handbook 2009–10 (Rod Smolla, ed.)). 10 Eben Moglen, Anarchism Triumphant, First Monday, 2 Aug. 1999, available at http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/684/594.

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What are needed, therefore, are new paradigms for regulating cultural production and distribution in the digital age. This book attempts to fill this void, by shedding light on insufficiently examined issues and by highlighting connections that cut across the many different domains in which such regulations operate. In his contribution to this volume, David Post, one of the first and most prominent scholars of cyberlaw, offers a useful framework for conceptualizing the regulatory challenges posed by digital networks. He identifies three aspects in which Internet communication has brought fundamental change: (1) scale; (2) jurisdiction; and (3) identity. Many of the chapters in this volume grapple with issues consistent with Post’s framework.

I.2 SCALE First, the Internet has revolutionized scale. As Post says: We’re operating at a scale here that is orders of magnitude larger than anything that has ever come before it in human experience . . . the Internet is big, [and] it really matters that it’s big . . . The question of whether and how law operates at this scale is a very serious one, and yet we spend hardly any time thinking about it, because we have no framework or vocabulary to do so.

Several contributors take up Post’s challenge to explore the implications of the internet’s colossal scale. Daniel Gervais envisions a future in which “[e]verything digital will be in the Cloud. Almost every bit of human culture, every song, book, document, and movie ever made.” He argues that issues of access and control become critical to realizing the benefits of this new “amalgamation paradigm.” Similarly, Philip Napoli and Mira Burri question the premises of existing diversity regulation in an era of abundant content in separate contributions on media regulation that focus, respectively, on domestic and international contexts. Post himself questions the ability of copyright law to cope with the volume at which new content is being created and distributed. He calls for a fundamental re-engineering of current law. Daniel Gervais advances a similar critique in the context of cloud computing. He concludes that “copyright control may indeed be easier” in the digital Cloud but questions “[w]hether [it] makes sense . . . to put the brakes on the most powerful distribution network ever invented.” For Gervais, the scaling effects of cloud computing – which magnify by several orders the accessibility of creative content – argue for a new commercial paradigm in which the ability of users to locate content becomes the source of the content’s underlying value rather than an artificially induced scarcity of supply.

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However, the scale implications of the digital technologies go well beyond the “bigness” of the Internet. Digital networks have not only expanded capacity, they have also dramatically lowered costs: content distribution over the internet is virtually free. Digital content also tends to be much cheaper to create and edit than comparable analog media, lowering the capital requirements for cultural participation. Such radical downsizing of costs further explains the exponential growth of digital content that Post chronicles. Driving the economics of abundance are not only economies of scale, but also a related, but less examined attribute – economies of scope. Whereas scale economies involve lower marginal costs to produce additional content of the same kind, economies of scope are realized through reductions in the marginal cost of providing different types of content and services using shared infrastructure.11 The protean character of digital technology makes scope economies pervasive. For instance, cellphones provide access to movies, books, Internet access, gaming – and even voice communications. Rather than requiring expensive infrastructure dedicated to any one of these tasks, content providers can bundle complementary goods and services, creating value through integrated solutions. As a result, digitization has blurred the typical boundaries of media provision. This blurring, furthered by economies of scope and scale, results in regulatory confusion because it disrupts the FCC’s technology-specific, “silo”-type regulation. Title II of the United States (US) Communications Act regulates telephones, Title III regulates broadcast, and Title VI regulates cable. But, as telephones provide video and cable provides telephone service and the Internet provides everything, these categories teeter on their own irrelevance. The recent history of United States domestic telecommunications regulation seems like a “whack-a-mole” game. Regulators classify services provided on different technologies, creating rules that seem to work but are quickly outdated as those services migrate to yet another different technology.12 11

“[E]conomies of scale exist when the production cost of a single product decreases with the number of units produced; economies of scope are cost-saving externalities between product lines (e.g., the production of good A reduces the production cost of good B).” Jean Tirole, The Theory of Industrial Organization 16 n. 4 (2003). The expansion of Amazon’s product line from books to goods of all kinds offers an example of the potential for e-commerce platforms to exploit such economies of scope. 12 The legal challenges of the FCC’s regulation of competitor access to lastmile Internet provision reflect this challenge. The question of whether to regulate the Internet as an “information service,” “telecommunications service,” or “cable service” dominate the last decade of telecommunications regulation. See National

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Economies of scope underwrite the Internet’s content cornucopia in other ways. Digital technologies facilitate the creation of mash-ups and multimedia presentations. The ease with which digital media can be manipulated has blurred boundaries between users and producers. The result has been a radical decentralization and democratization of cultural production.13 The diversity of expression thereby generated represents yet another scale effect of the Internet. However, the story here is arguably as much about “smallness” as it is about “bigness.” By empowering “pajama bloggers” and digital pamphleteers of every stripe, the result has been a cacophony of voices catering to every conceivable audience, however tiny. The lower marginal costs of digital production and distribution are also changing the economics of commercialized content. E-commerce platforms typically have lower capital requirements than “bricks-and-mortar” equivalents. Search engines also make it easier to locate relevant content amidst the mountains of data. Contrary to standard narratives of media imperialism in which integration rewards scale economies, digital ecosystems therefore seem peculiarly hospitable to diverse forms of expression. Economies of scope underlie much of this diversification of content. Chris Anderson has popularized the concept of “long-tail markets” in which “the biggest money is in the smallest sales.”14 Long-tail markets exploit the reduced marginal costs of adding additional content, and different types of content, encouraging retailers to cater to niche audiences and potentially auguring a shift in consumer demand toward more diverse media offerings. Several contributors explore the implications of long-tail markets. Michal Shur-Ofry cites long-tail phenomena in her defense of copyright law against charges that it impoverishes media diversity. Napoli and Burri similarly argue that government diversity regulations need to take account of the diversity potential of long-tail markets. Burri offers policy suggestions to reinforce this potential. Napoli, however, notes debate as to whether “the resultant fragmentation of audiences into specialized ‘silos’ is ultimately beneficial.” Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005); AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000) – and, indeed, given the appeals recently filed challenging on jurisdictional grounds the FCC’s latest network neutrality order, will continue to dominate law and policy controversy. See In the Matter of Preserving the Open Internet Broadband Industry Practices, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order (rel. December 23, 2010). 13 Yochai Benkler, The Wealth of Networks 15 (2006); Madhavi Sunder, IP3, 59 Stan. L. Rev. 257, 262–64 (2006). 14 Chris Anderson, The Long Tail: Why the Future of Business is Selling Less of More, 23 (2006).

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Such “fragmentation” concerns arguably recede where the specialization of digital media tracks pre-existing fault-lines of communal identities. By unifying dispersed communities, digitally networked technologies help them to sustain their distinct identities within the Global Village.15 Larisa Mann explores this potential in her chapter on Jamaica’s dancehall. She shows how digital communications, such as cellphones and inexpensive playback media, have empowered Jamaican musickers to project their identities onto a global stage. Kim Christen similarly highlights ways in which indigenous peoples exploit digital platforms to project their identities and perpetuate their cultural heritage. Sean Pager offers additional examples from Brazil’s tecno brega music scene and Culture Points initiative. These case studies demonstrate how the downsizing of digital cost curves can sustain diverse subcultures and empower localized production. Nollywood, the Nigerian video film industry, offers an even more dramatic example of the empowering potential of digital technologies. The implications of Nollywood’s improbable emergence from guerilla filmmaking to global audio-visual powerhouse are explored in contributions by both Sean Pager and Mark Schultz. As Pager notes, the low-cost, highvolume production model pioneered by Nollywood has been imitated in several African countries. The implications for trade policy, copyright, democracy, and much else are worth considering.

I.3 JURISDICTION The Internet is not just big; it is also (allegedly) “borderless.” Early fantasies about evading government control have given way to a new assertion, however tentative and awkward, of state jurisdiction over activity conducted on and through the Internet. Given the ubiquitous nature of online content, such regulatory interventions raise novel issues concerning conflicts of law. Several contributors explore the problems arising from the Internet’s ability to project a “virtual presence” anywhere in the world. As Post explains, the “multiple overlapping jurisdictional assertions by state, international, and even nonstate communities” creates novel legal, analytic and policy challenges.16

15 See A New Sort of Togetherness, The Economist, May 22, 2010, at 64; A Cyber-House Divided, The Economist, Sept. 4, 2010, at 61. 16 Post here is quoting from Douglas Schiff Berman’s 2012 book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders.

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Lili Levi’s contribution addresses the issue of overlapping jurisdiction directly in the context of libel tourism, the phenomenon in which libel plaintiffs forum shop (or travel) to foreign jurisdictions, mostly prominently England, in order to press libel suits that would fail in the plaintiffs’ home. She analyzes the recently passed SPEECH Act that the United States (US) Congress enacted “in response to high profile libel lawsuits against American authors and publishers in England by plaintiffs with thin ties to the forum.”17 The Act responds to the scenario that “the Internet and the international distribution of foreign media [might en]danger .  .  . freedom of expression worldwide on matters of valid public interest.”18 Levi, however, raises serious concerns about the effectiveness of the SPEECH Act and proposes other approaches to protect against libel while still protecting free speech on the global Internet. Other contributors explore similar threats to free speech arising from such jurisdictional convergence. Daniel Gervais examines the possibility that the migration of Internet content to the Cloud could accentuate such threats. He worries that the move to a recentralized architecture, could make “control of digital files easier for copyright holders and governments.” Hannibal Travis paints a picture of nation-states using their power within their borders to chill speech beyond them. He details a long and detailed litany of national governments censoring and limiting online speech and describes their numerous strategies for doing so. He argues that this censoring can have a pernicious effect on Internet freedom worldwide – suggesting that nation states can “leverage” their jurisdiction over geographic boundaries into the Web. Given uneven protections of free speech globally, Travis argues for a multipronged policy response, concluding that in expression-restrictive countries, “self-help, defense of new public spheres, transborder cooperation, and voting with one’s feet are more likely to succeed than filing lawsuits or asserting constitutional rights.” Rather than express concern about the effect of strengthened national authority over the web, Kevin Saunders examines ways to strengthen

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See Lili Levi, Chapter 3 in this volume. See SPEECH Act, Pub. L. No. 111-223, § 2 (4), 124 Stat. 2380 (2010) (quoting UN Human Rights Comm’n Report); U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, United Kingdom of Great Britain and Northern Ireland, ¶ 25, U.N. Doc. CCPR/C/GBR/ CO/6 (July 30, 2008). 18

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national jurisdiction – for the purpose of protecting children. Saunders suggests in his chapter ‘Balkanizing the Internet’ that all Web address be required to have national demarcations. Parents could easily filter out sites from nations that do not adequately protect children from pornography and other harmful activity. In other words, Saunders proposes an innovative technological means to resolve the jurisdictional conflict conundrum. As nation-states expand their control of Internet content, an accompanying debate concerning the legitimacy of such control, from both a normative and an international law perspective, has developed. In an important addition to that debate, Milton Mueller makes an impassioned critique of process-oriented proposals to evaluate government internet blocking. He concludes that “advocates [of process-based blocking norms] are confused about the political determinants of censorship policies, and about how and why state power ever gets limited or moderated and concludes that “[f]ighting for process norms largely co-opts and diverts . . . political energy into less productive channels.” The regulatory challenges transcend state actors. To use Post’s language, “jurisdictional hybridity” has increasingly become a conundrum of private law, as well as public. Private Internet intermediaries, such as broadband service providers and backbone haulers have the power to act as private censors, controlling what content users can communicate and access. Several commentators examine legal responses to potential abuses by such intermediaries in a jurisdictionally hybrid Internet. The growing control over digital ecosystems exercised by a small number of private corporations raises concerns about potential censorship. As Christoph Graber observes, the code that regulates cyberspace empowers private bodies. Graber argues that threats to free-speech values on the Internet arise more often from private regulation rather than from state intervention. Graber makes the case for “‘constitutional rights in the private sphere’” in the digital networked ecology. He suggests that “[w]hat is required is a regulatory framework assuring transparency, presumption of innocence, judicial response and due process. Moreover, framework requirements would be necessary to regulate the design of the technological infrastructure where this is necessary to protect the associative link between creative user activities and the integrity of digital systems.” Daniel Gervais similarly worries about “defective or suboptimal intermediation in Cloud access and content generation.” He notes a role for competition law and other regulatory interventions to police such risks. Yet, he also worries that government intervention may itself invite potential abuses. Instead, Gervais argues for rethinking our current copy-

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right paradigm to realign the incentives of content providers. Without such restructuring, he warns that the increased control afforded to rights-holders in a centralized digital ecosystem will prove increasingly counterproductive. Even without centralized hosting of digital content, Larisa Mann argues that digital networks can bring an unwelcome extension of copyright enforcement. Drawing on Julie Cohen’s work on “pervasively distributed copyright enforcement,” she worries that networked technologies create a standardized geography of information space that disrupts communal norms and inhibits vital cultural expression. Mann also highlights the unequal ability of poorer communities to comply with the new requirements of legal formalism that networked information management regimes demand. At the same time, she takes comfort in the enforcement gaps that limit the reach of the new global order in developing countries such as Jamaica. In her view, such jurisdictional lacunae provide the space for diverse sources of creativity. The jurisdictional gaps that Mann welcomes represent part of a broader phenomena of evasion that the distributed nature of digitally networked media facilitates. In this regard, the original libertarian narrative of cyberspace as a lawless realm beyond the writ of governments retains some force. From the standpoint of commercial content producers, such lawlessness appears a vital threat in which lack of control trumps concerns about heavy-handedness, and enforcement gaps loom larger than the threat of overreach. As Gervais notes, the ease by which digital media can be pirated has spurred a sustained effort to expand global copyright norms. It is worth noting, however, that as both Schultz and Pager observe, demand for more effective enforcement is emanating from emergingmarket producers as well as those in developed markets. Rampant piracy inhibits investment in creative content industries that can themselves constitute diverse sources of expression. Jurisdictional gaps in the digital ecosystem thus stand a potential threat to diversity as well as its guarantor. Finally, Kimberly Christen offers an account of indigenous communities’ ability to bend technologies to their own needs in ways that arguably transcend existing paradigms. By transposing communal norms regarding information access into technologically mediated access controls, Christen argues that such communities have bypassed existing debates about openness versus closure and individuals versus groups in favor of pragmatic solutions. However, she notes that “what is missing is the same amount of openness and creativity from non-indigenous players to recognize, respect, and integrate indigenous models of information management into the mainstream.”

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I.4 IDENTITY Digital networks do not just spawn jurisdictional complexities, they also connect communities in novel ways that bring issues of identity to the fore. David Post focuses on the cyber-dimensions of such identity formation. He describes how the Internet has created new networks of individuals linked not by nation-state, geography, political persuasion, or religion – but rather united by the interests that the Internet itself defines and creates, that is, to use Post’s term, “Netizens.” Post emphasizes that such Internet allegiances exist on top of pre-existing commitments to national and local identities, rather than in lieu of them. However, he calls for such emerging constituencies to embrace their Netizen identities in order collectively to envision solutions to their common challenges. The cause of Internet freedom has long provided a rallying cry for Netizens to unite around. Travis, Graber and Mueller’s contributions all consider the extent to which free speech ideals provide a global paradigm for Internet regulation in ways that resonate with Post’s Netizen perspective. As Travis notes, Hilary Clinton’s elevation of Internet freedom to become an explicit goal of US foreign policy similarly reflects a Netizenlike vision of a global information commons.19 Yet, Travis also points to contradictions in the US position with regard to copyright liability that undermine its claim to universality. It remains unclear whether defining a shared Netizen identity can help us to resolve such normative impasses.20 For many policy-makers, however, the challenge posed by the Internet is less one of nourishing a shared Netizen identity than of safeguarding local identities against the centralizing pull of global media. As noted, there are reasons to think that the Internet differs from previous communications technologies that led to greater concentration and homogeneity of globalized expression. Several contributors to this volume consider the effects of digital networks on local identities, and in many respects the accounts presented here support an optimistic outlook.21 Contrary to

19 See also Noah Shachtman, Social Networks as Foreign Policy, The New York Times Magazine, Dec. 11, 2009. 20 Cf. A Cyber-House Divided, The Economist, Sept. 4, 2010, at 61. Similar problems bedevil the net neutrality principle adverted to by Mira Burri. While Netizens may embrace neutrality ideals in the abstract, implementing such ideals entails working through complexities in which such superficial consensus rapidly founders. See Adam Candeub and Daniel John McCartney, Law and the Open Internet, 64 Fed. Comm. L.J. (forthcoming). 21 See especially Chapter 13 by Mann, Chapter 11 by Schultz, Chapter 12 by Pager, and Chapter 14 by Christen.

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the standard narratives of media imperialism, digital technologies have in many respects served to empower local expression and reinforce cultural diversity. Yet, valid grounds for skepticism remain. The Jamaican dancehall might be flourishing, but other local cultures are clearly in decline.22 Some see the competition between global memes as a zero-sum game. For example, Nollywood’s success has prompted complaints about Nigerian cultural imperialism.23 Moreover, as Christen notes, the resourcefulness displayed by indigenous peoples in adapting technology to their cultural needs can only go so far in a world that “continue[s] to devalue indigenous knowledge systems.” Similarly, while debunking accusations that copyright law tilts consumer tastes toward mass-media consumption, Shur-Ofry identifies a multiplicity of causal influences that push toward precisely such an outcome. Part of the problem remains logistical. For all the Internet’s democratizing force, inequalities of access remain a persistent obstacle.24 Yet, even as efforts to erase the digital divide proceed, increased connectivity brings challenges of its own. Arguably, the lack of connectivity has preserved islands of diversity against an influx of homogenizing influences. While few would advocate imposing such a technological quarantine involuntarily, Jon Garon describes the proposals to regulate cultural exchange that push in analogous directions. Garon’s chapter chronicles the emergence of an ethic of cultural conservationism aimed at stemming potential losses to cultural diversity. He describes how international initiatives have advanced a novel form of intellectual property rights in intangible heritage aimed at preventing commodification of indigenous culture rather than encouraging it. Such rights seek to prevent “mass extinctions” of indigenous cultures through use-restrictions analogous to environmental conservationism. Yet, unlike a wilderness that can be preserved in its pristine state, cultures persist through human agency. Rather than “creating a museum out of culture,” Garon argues that to keep local cultures vital, they need the means to join in the global circulation of ideas. He advances a regulatory ideal of localism that focuses on increasing the supply of local content rather than restricting its distribution. Garon’s call for investment in local 22 See Jon Garon’s Chapter 15 in this volume for a description of the global threat to cultural heritage. 23 See Lights, Camera, Africa, The Economist, Dec. 18, 2010, at 85. 24 See William Wresch, Progress on the Global Digital Divide: An Ethical Perspective Based on Amartya Sen’s Capabilities Model, 11 Ethics Information Tech. 255, 256 (2009).

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creative capacity is arguably exemplified by Brazil’s Culture Points initiative. As Sean Pager describes, this innovative Brazilian program trains members of Brazil’s marginalized communities to produce original creative content and provides the technological means through communitybased sites. Such digital empowerment is also reflected in proposals to assist user-generated content considered by Mira Burri and Philip Napoli. Technological empowerment, while necessary, is arguably an insufficient basis to sustain culture diversity without other regulatory complements. Much of the debate in recent years has focused on the role of intellectual property rights. On the face of it, the contributions in this volume point to diverging prescriptions. Larisa Mann’s account of the positive effects of networked technology in supporting the vitality of Jamaica’s dancehall is tempered by the prospect of expanded copyright enforcement that chills local creativity. By contrast, Mark Schultz and Sean Pager offer a more sympathetic view of copyright’s potential to sustain creative investments in emerging culture industries. Yet, these views are not necessarily inconsistent. One can favor allowances for the kind of creative remixes that Jamaica musickers generate while still recognizing the importance of protecting commercial content producers such as Nollywood against wholesale commercial piracy.25 For her part, Shur-Ofry locates the real threats to cultural diversity outside the copyright system. To paraphrase Shakespeare’s Cassius, her argument, in essence, is that the fault lies not in our copyright system but in ourselves. While not denying that copyright plays a contributory role, she argues that policy attention should focus on other factors that reinforce mass-media hegemony. Shur-Ofry’s challenge is taken up by Mira Burri and Philip Napoli. In separate contributions, each takes a fresh look at cultural diversity in the digital environment. Both emphasize the need for a fundamental rethink of current policy. Burri notes that new technologies have eroded the effectiveness of existing tools; for example, supply-side quotas are meaningless in a world of on-demand content. Napoli similarly observes that some goals of diversity regulation, such as concentration on media ownership, have assumed a diminished importance in the digital era; while new ones, such as a focus on individual users, are emergent. Both consider a range of practical suggestions to retool diversity policy. However, their contribution is as much conceptual as pragmatic.

25

As Pager notes, differences between music and film in terms of capital intensiveness of production and feasibility of alternative performance revenues may also justify diverging treatment.

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Burri criticizes current conceptions of culture diversity as “absurdly ‘all-encompassing.’” Too often, she observes, diversity is treated merely as a proxy for national production, or else appears as a rhetorical flourish empty of any substance. She questions, for example, whether “[the] mere depiction of a French castle from the reign of Louis XIV in an online game” serves to perpetuate French heritage. Instead, she calls for more interactive elements to engage the creativity of users. Napoli, similarly, stresses the need to look beyond a theoretical diversity of content measured solely in terms of supply. While the Internet makes a broader range of content accessible, Napoli asks “to what extent should the existence of this diversity matter if it turns out that little of it is actually being consumed?” At the same time, Napoli observes that turning to a “‘demand side’ approach” raises novel challenges: it is easier to count Internet pages than to judge how often they are read or why. Moreover, in an era of user-generated content, “it is not just audiences’ consumption behaviors that [matter] . . . audiences’ production and distribution behaviors need to be factored into the analytical calculus as well.” Both Burri and Napoli conclude with a call for further research to understand the emerging dynamics of the digital media environment. Answering this call, this volume closes with empirical contributions by Wayne Fu and by Sang Yup Lee and Steven Wildman, respectively. Both analyze film box office data to explain global media flows. While film exhibition differs in several respects from the digital technology considered elsewhere in this volume, the conclusions these studies reach have important implications for the cultural diversity concerns described above. As noted, diversity policy often treats culture as a black box, either captured by proxy through national boundaries or simply left undefined. The two chapters here shed new light on the dynamics of diversity by exposing some of culture’s motive forces. Fu’s contribution shows how cultural differences shape audience preferences for Hollywood movie genres. Fu calculates intercountry cultural differences primarily by using a pre-existing measure developed by Geert Hofstede. He shows that the “cultural distance” between any two countries successfully predicts the extent to which the consumptive preferences of national audiences correlate. While the existence of such “cultural proximities” and “cultural discounts” have long been postulated theoretically, Fu demonstrates that such cultural factors can be modeled empirically with predictive force. Cultural affinities also figure in Lee and Wildman’s analysis of global film markets. They reveal the effect of linguistic affinities that “blur the economic boundaries between countries.” In particular, Lee and Wildman demonstrate the advantage enjoyed by English-language filmmakers in gaining access to the worldwide English-language film market, a benefit

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conferred disproportionately on small countries such as New Zealand. In doing so, Lee and Wildman push beyond the “standard model” that Wildman himself helped to develop, which explains global media flows in terms of national market size.26 Lee and Wildman offer suggestions as to how to frame cultural promotion policies in light of their empirical insights. However, perhaps the broader lesson that emerges from their analysis – in line with Burri and Napoli’s contributions above – is that policy-makers need to look beyond national boundaries in thinking about culture. The potential to profit from such cultural affinities has important implications in an era of digital content production. For example, Mark Schultz’s chapter on Nollywood explains the success of Nigerian films as based on a massive cultural discount that African audiences apply to imported films. He argues that such cultural discounts represent an opportunity for other upstart industries. Sean Pager builds on this insight, explaining how digital technologies have made it feasible for emerging content producers to tap into hitherto unexploited global demand for culturally diverse content.27 Framing specific policy measures to exploit such opportunities, however, remains a challenge. A clear theme running throughout this volume is uncertainty as to the complex interactions between policy, technology, and markets governing digital content. The Internet may loom large in scale and potential impact, yet we lack an understanding of its motive forces. Before venturing into the hazardous realm of normative prescription, we must therefore acknowledge the extent of our ignorance.28 Daniel Gervais compares the current digital transition to “the shift from mechanical to quantum physics.” On some levels, his analogy captures nicely the radical downsizing in digital costs toward a frictionless environment, in which the rules for commercializing creativity fundamentally change.29 Yet, given the depth of our ignorance, perhaps a better analogy

26

Cultural proximities are only one variable that affects market formation. Where Lee and Wildman understand markets as transcending national boundaries, Mark Schultz makes a reciprocal point: he argues that market potential should be measured by the size of non-pirate market from which content producers can viably extract revenues. For Nollywood producers, this means a much smaller market than GDP measures would predict. 27 See Sean Pager’s Chapter 12 in this volume; Pager, supra note 8, at 121–23, 128–29. 28 Donald Rumsfeld’s oft-quoted dictum about known unknowns and unknown unknowns seems apropos, http://en.wikipedia.org/wiki/There_are_known_knowns. 29 Cf. Chris Anderson, Free: The Future of a Radical Price (2009) (describing the psychological magic of zero price offerings); Anderson, supra note 17, at 18 (hailing brave new “world of abundance” vs. “scarcity”).

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is the quandary faced by physicists today. Even as particle accelerators smash together ever-higher energies of matter in their effort to perfect physics’ unified field theory, cosmologists are grappling with evidence that the observable universe described by this “theory of everything” in fact accounts for less than 5 percent of the universe.30 The other 95 percent of the universe is said to be composed of “Dark Matter” and “Dark Energy,” labels used to denote mysterious forces stemming from unknown causes.31 Like physics, the regulatory domains addressed in this volume have their standard models and well-rehearsed arguments. Yet, the Internet is forcing us to reckon with similarly “dark” realms for which existing paradigms offer little purchase. The challenge is partly definitional32 and partly normative;33 even descriptive issues pose surprisingly hurdles: as Adam Candeub has observed, a basic mapping of the Internet, the plumbing underlying our global communications networks, remains elusive. We know too little about how the Internet routes traffic.34 We also lack understanding as to who owns many of the key components. This stands in marked contrast to all previous communications networks, such as telegraph or telephone, which industry and regulators could map with relative ease.35 Like the physicists preoccupied with their observable 5 percent of

30

And They’re Off; Particle Physics, The Economist, July, 31, 2010, at 65 (describing the race to uncover the elusive “Higgs Boson,” postulated as the missing link needed to complete the standard model of physics that explains the effects and interactions of all known physical forces). 31 Id. 32 For example, copyright scholars have struggled to determine which rights are implicated by digital transmissions. Mark A. Lemley, Dealing with Overlapping Copyrights on the Internet, 22 U. Dayton L. Rev. 547, 549 (1997) (noting “[a] single act of transmission or browsing on the Net can potentially violate all of the exclusive rights listed in the Copyright Act”). International trade lawyers similarly argue as to whether online transactions constitute goods or services. See Sacha Wunsch-Vincent, Trade Rules for the Digital Age, in GATS and the Regulation of International Trade in Services 497, 498 (Marion Panizzon, Nicole Pohl, and Pierre Sauve eds, 2008). 33 For example, are intellectual property rights obsolete in the digital age? Do cultural diversity regulations make sense online? As the contributions in this volume demonstrate, viewpoints on these issues range across an entire spectrum. 34 Adam Candeub and Daniel John McCartney, Network Transparency: Seeing the Neutral Network, 8 Northwestern J. of IP and Tech. 228 (Spring 2010); Adam Candeub and Daniel John McCartney, Law and the Open Internet, Fed. Comm. L.J. (2011); see also k.c. claffy, Ten Things Lawyers Should Know About the Internet (Cooperative Association for Internet Data Analysis – CAIDA San Diego Supercomputer Center, University of California, San Diego, 2008), http://www.caida.org/publications/papers/2008/lawyers_top_ten. 35 See Candeub and McCartney, supra note 20.

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the universe, policy discussion in the United States has centered around market power in the last mile of telecommunication access. Yet, by ignoring market and technical dynamics in the infrastructural backbone that lies beyond such end-user connections, we forfeit an understanding of the structural forces which may ultimately drive the Internet’s evolution. Furthermore, digital architecture continues to evolve. As technology develops, some argue that the forces governing digital networks themselves are in flux. But how? In cosmology, Dark Matter and Dark Energy famously function as opposing forces: the former acts as a centripetal force that holds galaxies together, and the latter acts centrifugally, tearing the universe apart.36 Astrophysicists tell us that Dark Energy predominates in the physical universe, but which force prevails in the digital realm? Gervais, as well as other authors in this volume, points to cloud computing as a potentially transformative phenomenon that strengthens the hand of governments and platform owners. Does this entail a fundamental shift toward centralized control and away from the distributed end-to-end connectivity that has been the Internet’s hallmark? Pundits duly predict the growth of private intranets, walled gardens, and variable access.37 But an opposing view is also possible. The Cloud offers more than just a platform for hosting content; it also puts powerful processing capabilities within reach of anyone with an Internet connection. Access to such globalized utilities benefits small players who cannot afford in-house capabilities and allows “developing countries to leapfrog traditional information technology.”38 Likewise, the advent of the mobile Web has proved a game-changer for developing countries which have long lagged in wired infrastructure.39 As such, emerging technologies could push toward more distributed production of creative content, rather than greater centralization. Similar uncertainty clouds predictions on cultural diversity. Just as Dark Matter and Dark Energy tug in opposite directions, so two decades ago Benjamin Barber prophesized a political future driven by two similarly opposing forces: tribalism and globalism. Barber characterized this conflict as “Jihad vs. McWorld” – a clash between the centrifugal pull of

36

Liz Kruesli, Will Dark Energy TEAR the Universe Apart? 37 Astronomy 34 (2009). 37 Chris Anderson, The Web is Dead. Long Live the Internet, Wired Mag., September, 2010; A Virtual Counter Revolution, The Economist, Sept. 4, 2010, 76–77. 38 Tanks in the Cloud, The Economist, January 1, 2011, 49. 39 Digital Revolution, The Economist, April 9, 2011, 74.

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parochial identities and the centralizing logic of markets.40 These centripetal versus centrifugal tensions that Barber identified remain very much at play in cyberspace. However, the picture has grown more complex. Identity itself has become a globalized commodity, and diversity a selling point.41 Meanwhile, as Post observes, emerging Netizen allegiances cut across our existing “tribal” divisions. The net outcome of these crosscutting centripetal and centrifugal forces remains far from clear. Navigating this Brave New World of digital uncertainty does not absolve policy-makers of responsibility to act as best they can. Yet, it does suggest two things. First, we should be modest in our ambition. Burri calls for a Hippocratic approach to diversity policy that first “do[es] no harm.” Pager similarly advocates a multifaceted approach that hedges its normative bets, allowing for content producers to choose between different models. Second, and relatedly, we need to encourage experimentation. Indeed, if there is a common denominator running through these chapters, it is a call for fresh thinking and reconsidering received wisdoms in light of new realities. The works in this volume may not provide a complete answer to the challenges ahead. However, they represent an important step toward clarifying the issues we face and the choices that await us.

40 41

Benjamin Barber, Jihad vs. McWorld, The Atlantic, March 1992. See Pager, supra note 8, at 115–16; Sunder, supra note 16, at 275.

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The challenge(s) of cyberlaw1 David G. Post

1.1 INTRODUCTION Many years ago, when I was a practicing physical anthropologist, I spent a couple of years watching and studying a group of yellow baboons in the Amboseli National Park in Kenya. My research was focused on the baboons’ feeding and ranging behavior: what they ate, where they went to find the right food, how they decided to go one place rather than another, how they knew which food was “right” and which “wrong,” and, ultimately, whether there was any demonstrable relationship between the various things they ate and their survival and reproduction. I was very fortunate to be taken by a group of scientists from the University of Chicago who had, several years before, set up a research station in the park, one that they were hoping (successfully, as it turned out) to continue to operate for purposes of long-term study of this baboon population. Very wet behind the ears, I went to join them for my first summer in the field, and one of them, a fellow by the name of Glenn Hausfater, was assigned the task of orienting me, of helping me get my bearings in a new and very strange environment. I ended up spending the first three or four weeks that I was there just following Glenn around as he did his work. Glenn was studying “dominance” relationships – basically, who had sex with whom, when, how often, and how that did, or did not, reflect other social relationships (including family relationships) within the group. It was incredibly interesting stuff (and Glenn went on to write a fascinating and pioneering monograph on the subject2). One afternoon, while I was still following him around, he was describing, into a tape recorder, a particularly spectacular kerfuffle that had broken out among a number of the animals in the group

1

This chapter was originally presented as the Keynote Address at the Bits Without Borders conference at Michigan State University College of Law, September 24, 2010. 2 Glenn Hausfater, Dominance and Reproduction in Baboons (PAPIO CYNOCEPHALUS): A Quantitative Analysis (1975). 18

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– complete with chasing and hiding and sex and screeching and screaming and bared canines and all the rest – after which he turned to me and said: “Why in heaven’s name would anybody study anything else?” I know how he felt; I sometimes feel the same way, these days, when talking to colleagues working in other subfields of the law. Having now been working in “cyberlaw” since before there really was a “cyberlaw,” I thought that this would be a good time to take stock of where we’re at, as a field – on what we’ve learned over the past 15 years, and what we need to be thinking about over the next 15. It’s horribly presumptuous of me – I realize that nobody appointed me the official rapporteur for cyberlaw. But I’m counting on a friendly readership, one that will forgive me if I step out of line a little, and one that will at least consider (even if ultimately rejecting) what I have to say. One more baboon story, if I may. When I was working, many years later, on my book about Thomas Jefferson and the Internet,3 I had occasion to return to a number of the debates and controversies that had so preoccupied me, back in the late 1970s and early 1980s, in evolutionary biology and animal behavior. Nothing was more interesting to Jefferson than the natural laws governing the distribution and growth of animal and plant populations – “biogeography,” we’d call it today – and it seemed important to me, in trying to understand his ideas, to understand where they stood in relation to what we now know about the distribution and growth of animal and plant populations. And when I did so, I realized that over the previous 25 years or so those fields (biogeography, evolutionary biology, animal behavior) had made real and impressive strides. Some disputes that had been central to the fields had been resolved; ideas that had been disputed, or marginal, or simply too heterodox to be admitted into the “central canons” of the fields, were by 2005 firmly entrenched in the groundwork; other more widely accepted notions had, by 2005, been cast aside.4 Controversies had been resolved – spawning new controversies, of 3 David G. Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009). 4 The notion, for instance, that you could use evidence of the differences in DNA sequences between two living species as a means to assign a specific date to the time of their evolutionary divergence – in other words, that DNA evolution could function as a kind of evolutionary clock – deeply divided the physical anthropology and evolutionary biology communities in 1975, but was a widely accepted technique by 2005. Even more dramatically, Robert May’s challenge to an assumption that had been taken entirely for granted for decades – the assumption that complex ecosystems (like rainforests) are stable because they are complex, that complexity somehow breeds stability – published in his 1974 book on “complexity and stability in model ecosystems,” had not yet been digested by

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course, but different ones.5 (And all by means of the extraordinary-whenyou-think-about-it process involving thousands, sometimes hundreds of thousands, of researchers and scientists all around the globe, arguing with each other.) Progress in the study of legal systems is probably inherently less straightforward than in the physical or biological sciences; it’s easy to see how the astronomers, or physicists, or biologists of today know more than Galileo or Newton or Pasteur knew about the structure of their universe, but I’m really not at all sure that we know more about the fundamental structure of law and legal systems than, say, Cicero or Holmes or (one of Jefferson’s favorites) Pufendorf. But we have made some progress; I think the things that will occupy us for the next 15 years are different than the things that occupied us for the last 15 years precisely because we have made progress on some fronts. Here, then, is my take on what we have yet to sort out in this field: the big challenges that we should be thinking about for the next while.

1.2 CHALLENGE 1 Challenge 1 will not come as a surprise to those who’ve read In Search of Jefferson’s Moose: we need to think harder, and better, about the principles governing the way law scales. Whenever I say that, I expect to see raised eyebrows and even uncomprehending stares: “Principles governing the way law scales?” That’s precisely the problem; we don’t even have a vocabulary to ask the questions or to talk about the issue beyond a few very obvious points (which I’ll now make), and yet there may be nothing more important in understanding the fundamental nature of Internet legal problems than understanding their scale.

1980; indeed, I recall that many of us, to be candid, found May’s work entirely indigestible and incomprehensible. Fast forward 30 years, and his ideas have become canonical – not only have they been absorbed into the study of animal and plant populations, but they have helped spawn a number of new subfields (chaos theory, complexity) entirely unknown in 1980. 5 The process by which this occurs is rather astonishing, and worth marveling at, if only for a moment; that thousands, or even hundreds of thousands, of scientists around the globe, communicating with one another by means of journal articles, conference presentations, letters, email, and all the rest, can somehow reach a rough consensus on basic and contested questions about how the world actually works is something that we’d probably deem impossible were it not for that fact that it happens so often.

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James Grimmelmann put it wonderfully well: “The Internet is sublimely large; in comparison to it, all other human activity is small.” He continues: It has more than a billion users, who’ve created over two hundred million websites with more than a trillion different URLs, and who send over a hundred billion emails a day. American Internet users consumed about ten exabytes of video and text in 2008—that’s 10 000 000 000 000 000 000 bytes (that’s 10-with-18-zeroes-after-it bytes). Watching all the videos uploaded to YouTube alone in a single day would be a full-time job—for fifteen years. The numbers are incomprehensibly big, and so is the Internet.6

We’re operating at a scale here that is orders of magnitude larger than anything that has ever come before it in human experience. That’s what I learned from all that Jefferson stuff: not (obviously) that the Internet is big, but that it really matters that it’s big, that an understanding of size and scale will help us in understanding the new conditions in the world we’re living in here. Size and scale, after all, is why the Internet is “the Internet” – it’s not big because it’s “the Internet,” it’s “the Internet” because it’s big. There’s a reason we’re talking in this volume about Internet law and not Ethernet law, or Novell Netware law, or X.25 law, or OSI law, or IBM SNA law . . . It is because it was the Internet – one network among many, the one built around Transmission Control Protocol/Internet Protocol (TCP/IP) – and not any of the others that got to be so big, so fast. Does this matter for our understanding of law and policy and regulation? How could it not matter? It’s not just a fact about the place, it’s a constitutive fact about the place and must, inevitably, affect the law there. The question of whether and how law operates at this scale is a very serious one, and yet we spend hardly any time thinking about it, because we have no framework or vocabulary to do so. We need one, badly.7 It would be astonishing if, say, the copyright laws created in the early 1970s were able to cope at this new scale; that would be like expecting a bridge built to carry 1000 vehicles an hour to carry 10 billion vehicles an hour. It might work – but I’m not driving over that bridge until the engineers (who do, incidentally, understand a great deal about scale and scaling) tell me that it’s OK. 6

James Grimmelmann, The Internet is a Semicommons, 78 Fordham L. Rev 2799, 2803 (2010). 7 I should pause here to acknowledge Peter Swire’s pioneering early cyberlaw paper, Of Elephants, Mice, and Privacy: International Choice of Law and the Internet, 32 Int’l Law. 991 (1998), which was very much a push in this direction.

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And in fact, of course, the copyright law created in the early 1970s doesn’t cope at this new scale. I assume this point doesn’t need a great deal of elaboration for this crowd. In the last 20 minutes, tens of millions – possibly billions, for all we know – of new copyright-protected works were created on the Net. That’s how copyright law works these days; copyright protection begins the moment a work is created, without the necessity of the author doing anything: no registration, no copyright notice, no deposit with the Library of Congress, no nothing.8 Every blog posting, every email message, every Photoshop file, every word document, every video or mp3 file, etc. etc. created anywhere on the planet9 in the last 20 minutes has copyright rights already attached to it. And every time one of these 22.4 million, or 2.7 billion, copyrighted works created in the last 20 minutes is reproduced, an infringement has occurred – possibly excused by some exception or defense, but infringing unless excused. Now, the reproduction of information is fundamental to the Internet’s very existence – part of its nature, of the way things are, on this Internet. You don’t have an Internet – at least, not this Internet – without the reproduction of information on a vast scale. The Internet doesn’t really do anything other than reproduce information. That’s how it does its job – that is its job, getting information from one corner of the network to another. Each step a reproduction and a transmission; each step presumptively infringing, a violation of the copyright holder’s rights. So now we’re talking about truly colossal numbers, as the billions upon billions of copyrighted works created every hour of every day fly around the Internet, getting reproduced and transmitted billions and billions of times – each work protected, each reproduction presumptively infringing. Those are very odd rules to have, in a place where original works of authorship are being created and reproduced in such unimaginable numbers. You couldn’t keep track of 20 minutes’ worth of copyright ownership and infringement questions, of who owns what and whose rights are being violated by which acts, on the Internet if you wanted to – there’s no processor big enough or powerful enough to keep track of it all, not at

8 See 17 U.S.C. §§102(a) (“Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression”), 101 (setting forth that a work is “created” when it is “fixed . . . for the first time”), and 302(a) (setting forth the general rule that copyright in a work “subsists from its creation”). Requirements for copyright registration and copyright notice were eliminated as part of the accession of the United States to the Berne Convention on Literary Property in 1989. 9 See 17 U.S.C. §104.

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this scale, with these numbers.10 I think it is self-evident that these are not the rules we’d choose if we were starting a fresh, writing copyright law that makes sense for this place, for the Internet – making every act of reproducing and transmitting every file presumptively a violation of someone’s already-existing rights. It is a system that will be not just difficult, but impossible, to keep track of. Why in heaven’s name would we start there? Those are, however, the rules we have inherited, and those rules don’t scale. However well suited they may have been to the world of atoms, they’re ill-suited for the networked ecosystem of bits, because they don’t scale. The amount of processing you would need to manage this system is beyond imagining – truly astronomical; you’d need decades to keep track of the copyright implications of an hour’s worth of activity on the Internet. Why would we, if we were starting fresh, set the system up that way? It’s not, you may be thinking, a terribly profound point; so there are lots and lots and lots of copyright-implicating transactions, every second. Well, it’s not a terribly profound point until the bridge falls down. How are we to get copyright law to scale? That’s a good question11 – but we don’t yet have good ways of talking about that, because we don’t yet understand much about the principles by which law scales, so we don’t know what we’re looking for or how to talk intelligently about it. And speaking of scale, one other point: of all the astonishing things about the Net – and there are many – perhaps the most astonishing is the way in which its fundamental governing rules and protocols were developed. Talk about scaling! Who in 1980, say, would have believed that you could successfully complete what is by far the largest international engineering project of all time by allowing “rough consensus” to govern the design process! That you could allow anyone on earth to participate who was interested in participating, and reach agreement on the governing rules?! It’s astonishing that it worked – and I regard it as just an incidental benefit that what they came up with looks more like the Brooklyn Bridge 10 For another example (thanks to Lawrence Lessig) of the failure of copyright law to scale, take a look at the video REMIX: buy the remix, posted at http://www. lessig.org/blog/2009/03/remix_buy_the_remix.html (also available at http://www. youtube.com/watch?v=tprMEs-zfQA). Clearing the rights to create this work would take hundreds, perhaps thousands, of hours (if it could be accomplished at all), requiring tracking down the copyright owners of each of the sound recordings and musical works and audio-visual works mashed together in the final product – longer, almost certainly, than it took to create the work itself. (I thought copyright was supposed to empower creators?) Multiply that inefficiency by 100 million (or so). Every day. 11 See Annemarie Bridy, Is Online Copyright Enforcement Scalable?, 13 Vand. J. Ent. & Tech. L. 695 (2011).

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in its beauty and simplicity, than like, say, the FBI Building in Washington DC.

1.3 CHALLENGE 2 Challenge 2 has a pretty ugly name, but it’s deeply important. It’s what Paul Schiff Berman calls “jurisdictional hybridity.”12 We live in a world, Berman writes in his book Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge Univ. Press 2012), “where a single act or actor is potentially regulated by multiple legal and quasi-legal regimes:” Law often operates based on a convenient fiction that nation-states exist in autonomous, territorially-distinct, spheres and that activities therefore fall under the legal jurisdiction of only one legal regime at a time. Thus, traditional legal rules have tied jurisdiction to territory: a state could exercise complete authority within its territorial borders and no authority beyond it. In the twentieth century, such rules were loosened, but territorial location remains the principal touchstone for assigning legal authority . . . But a simple model that looks only to territorial delineations among official state-based legal systems is now simply untenable (if it was ever useful to begin with). Thankfully, debates about globalization have moved beyond the polarizing question of whether the nation-state is dying or not. But one does not need to believe in the death of the nation-state to recognize both that physical location can no longer be the sole criterion for conceptualizing legal authority, and that nation-states must work within a framework of multiple overlapping jurisdictional assertions by state, international, and even nonstate communities. Each of these types of overlapping jurisdictional assertions creates a potentially hybrid legal space that is not easily eliminated.13

This one looks a lot more familiar than the challenge of legal “scale.” Indeed, we’ve talked about this one for years, perhaps talked it to death – why, it’s our old friend the Yahoo! case! That we have been talking about the problem so much – in the law reviews,14 in the casebooks, in the blogs, in our classrooms and seminar 12

See, e.g. Paul Schiff Berman, From International Law to Law and Globalization, 43 Colum. J. Transnat’l L. 485 (2005); Paul Schiff Berman, Towards a Cosmopolitan Vision of Conflict of Laws: Redefining Governmental Interests in a Global Era, 153 U. Pa. L. Rev. 1819 (2005); and Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. Pa. L. Rev. 311 (2002). 13 Paul Schiff Berman, Law Beyond Borders: Jurisprudence for a Hybrid World (Cambridge Univ. Press 2012). 14 A search of the Lexis “Law review” database turns up 312 hits for the terms “(LICRA or Ligue) & Yahoo & Internet & jurisdiction.”

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halls – should not, however, lead us to conclude that we have actually solved it. I think we all would admit that we have not done so. I think we all say the same thing when our students ask, as they inevitably do, the simple, but hard, question: “What law, or whose law, applies here?” We say: “Well, that’s a really complicated question . . .” It’s a complicated and a genuinely difficult problem, because the questions at its core are not merely the ones (difficult enough) that ask: “Who can obtain a legal remedy in this circumstance? In what courtroom? Under what law?”; rather, they are also the ones that ask: “How do people interacting in this strange new way use ‘law’ to order their behavior and their lives online? What kind of ‘law’ is it, and how does it get made?” To pretend that we have put that problem to bed – that we can wave our magic lawyer’s wand and make it go away – doesn’t actually do so, and it diminishes the very richness and profundity of the problem to pretend that it does. That is not to say, though, that we haven’t made real progress towards unraveling it. I think that the conversation we’ve been having over the last 15 years on this score has been a very valuable one – maybe I have to think that, given that I was a participant in it. But I do think that at this point, we can say: we are all Exceptionalists, and we are all Unexceptionalists.15 No, the Internet is not a separate space, independent of the rest of the world as we know it, in which law will somehow spontaneously emerge to solve all problems. But neither is the Internet just like smoke signals, or the telephone, or the telegraph, and its legal and regulatory problems cannot all be crammed into existing pigeonholes developed to handle these earlier technologies. No, the hybridity problems the Internet presents to us are not entirely new; they’ve been slowly developing over the last 200 years or so, and we do have tools, legal and analytic, to bring to bear on them. But they have new features and present new problems, on the Net, if only because here they are operating at a different scale, a different order of magnitude; they’ve exploded in a way that we’ve never had to deal with before. The answers surely lie somewhere in between the polar Exceptionalist and Unexceptionalist positions. That makes it something of a mess, to be sure, with participation from state and non-state actors, extraterritorial assertions of law coming from many quarters, complex and

15 See David G. Post, Against “Against Cyberanarchy”,17 Berkeley Tech. L.J. 1365 (2002) (characterizing the two sides of the Yahoo! debate as “Unexceptionalist” and “Exceptionalist”); cf. Thomas Jefferson, First Inaugural Address (March 4, 1801) (“We are all Republicans, we are all Federalists”).

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evolving international norms and customs, difficult problems of personal jurisdiction, etc. all playing a role; but it’s a mess we must sort out if we are truly to understand the role that law plays and will play in Internet interactions.16

1.4 CHALLENGE 3 Challenge 3 also has an unfortunate label – but I do hope that we can get past the label to the very important principles underneath. Because the label may be so offputting to you, so encumbered by baggage (whether necessary or unnecessary baggage, I’m not sure) I won’t tell you what it is quite yet; let me first try to describe the idea, and why I think it matters. Let me start with an observation the great Lon Fuller made many years ago, an observation I like so much I’ve put it somewhere in probably half the things I’ve ever published. Fuller wrote, at the end of a discussion of the future of international law: [L]ike many other precious human goals, the rule of law may best be achieved by not aiming at it directly. What is perhaps most needed is not an immediate expansion of international law, but an expansion of international community, . . . When this has occurred – or rather as this occurs – the law can act as a kind of midwife; or, to change the [metaphor], the law can act as a gardener who prunes an imperfectly growing tree in order to help the tree realize its own capacity for perfection. This can occur only when all concerned genuinely want the tree to grow, and to grow properly. Our task is to make them want this.

What did he mean? And what does it have to do with what we’re doing? The tree can “realize its own capacity for perfection,” but only when “all concerned genuinely want it to grow properly,” and our task is “to make them want this”? What it means to me is this: our task, as lawyers and law professors 16

A number of the contributions to this Conference suggest that some have already begun taking up this challenge of finding a new and more nuanced framework for discussing these “hybridity” problems. The HavenCo – Sealand story in James Grimmelmann’s telling is a good deal more interesting than the cartoonish “Exceptionalism runs amok” story that most of us were content with during the early stages of the discussion. See James Grimmelmann, Michigan State University College of Law “Bits without Borders” Conference: Sealand and Havenco: A New Interpretation (Sept. 24, 2010). And for the efforts to deal with the implications of the “Cloud” for law and regulation, see supra Anupam Chander, Law in the Cloud and Daniel Gervais, Culture, Cloud(s), and IP, which similarly suggest the directions that this new scholarship could take us.

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and “experts” on these difficult matters, is not to solve the many problems bedeviling “Internet law” – problems of scale, of hybridity, and the many others that are lurking out there. Rather, our task is to help others to think about those problems and to galvanize them into doing so, to make them want the tree, as it were, to grow properly. If the Internet and its law – whatever that is, and whomever is responsible for making it in its many forms – is to evolve sensibly (whatever we may mean by that), everyone with a stake in it needs to care about it, and to attend to it – to give a damn, and to set the wheels in motion whereby sensible law might – might – get made. That happens, I’d suggest, when people start to think of themselves as “citizens” of this new place, this “imagined community.” Because that is what citizens do: they care – they have standing to care, a kind of entitlement to care – about events, especially legally significant events, transpiring in faraway places, because those events affect them as citizens of a common place. People may, of course, care about events affecting others with whom they do not share the bond of citizenship – about floods in Pakistan, and war in Darfur, and repression in Iran – but they care about those things in a different way, a non-participatory way. And the other thing that citizens do is to defend their place when it is threatened or under attack. I think, in short, that our task is to somehow help people to think of themselves as “Netizens.” There – I’ve said it. Like a lot of good ideas (and, I suppose, a lot of bad ones, too), this one will prove easy to ridicule, especially in its more ridiculous formulations. But we should resist the temptation. Just to be clear, here’s what I don’t mean by it. I don’t mean that we will or should cast off the shackles of this earthly existence, renounce our citizenship in the dinosaur-like nationstates we have been bequeathed, and begin building the New Jerusalem online. And I don’t mean that we should consider ourselves citizens of the Net in lieu of, or in contrast to, or in conflict with, our status as citizens of the United States (or France, or Brazil, or wherever). That’s not what being a Netizen means. What it does mean is that we are all now members of a global community with a very specific, very particular shared interest in the health and well-being of this network, and that we should begin thinking and acting as such; that we all have a stake, along with all the other members of that community, equally, in what happens on and to that network, and that we have a right, and possibly even a duty, to find ways to participate in shaping and governing it so that it remains as vibrant and open as we want it to be (whatever we collectively think that means). Citizenship on the Net will not look exactly like citizenship in real space, but something new – a kind of fragmented citizenship for a fragmented

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world. I’m not entirely sure what it does look like – but I think that’s for us to figure out, over the next decade or so. The idea actually has been around for awhile, and has a pretty distinguished pedigree, though it’s been in a kind of hiding. Larry Lessig’s Code and Other Laws of Cyberspace was surely a book – perhaps the book – that helped lay out the roadmap for the first 15 years of scholarship and analysis in cyberlaw; we all read it, and we all took from it the (important) idea that “code is law,” and all that entails. But less commented upon was the idea Lessig advances at the very end of Code, where he tells the story of Daniel Webster who, in the midst of the fight over the Missouri Compromise, made a speech on the Senate floor which he began with the words: “Mr. President, I wish to speak today, not as a Massachusetts man, nor as a Northern man, but as an American .  .  .” Lessig wrote: When Webster said this – in 1850 – the words “not a Massachusetts man” had a significance that we are likely to miss today. To us, Webster’s statement seems perfectly ordinary . . . But these words came on the cusp of a new time in the United States. They came just at the moment when the attention of American citizens was shifting from their citizenship in a State to their citizenship in the nation. Webster spoke just as it was becoming possible to identify yourself, apart from your State, as a member of a nation . . . It is easy to forget these moments of transformation, and even easier to imagine that they have happened only in the past . . . We stand today just a few years before where Webster stood in 1850. We stand on the brink of being able to say, “I speak as a citizen of the world,” without the ordinary person thinking, “What a nut.” We stand just on the cusp of a time when ordinary citizens will begin to feel the effects of the regulations of other governments, just as the citizens of Massachusetts came to feel the effects of slavery and the citizens of Virginia came to feel the effects of a drive for freedom . . . As we, citizens of the United States, spend more of our time and money in this space that is not part of any particular jurisdiction but subject to the regulations of all jurisdictions, we will increasingly ask questions about our status there. We will begin to feel the entitlement Webster felt, as an American, to speak about life in another part of the United States. For us, it will be the entitlement to speak about life in another part of the world, grounded in the feeling that there is a community of interests that reaches . . . into the hearts of ordinary citizens. What will we do then? When we feel we are part of a world, and that the world regulates us? What will we do when we need to make choices about how that world regulates us, and how we regulate it?”17

Jonathan Zittrain sounds much the same theme in his recent book – again, at the very end:

17

Lawrence Lessig, Code and Other Laws of Cyberspace 226 (1999).

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The deciding factor in whether our current infrastructure can endure will be the sum of the perceptions and actions of its users . . . Our fortuitous starting point is a generative device in tens of millions of hands on a neutral Net. To maintain it, the users of those devices must experience the Net as something with which they identify and belong. We must use the generativity of the Net to engage a constituency that will protect and nurture it.18

And still more recently, Rebecca Mackinnon has taken up this charge. We need, she writes, to be asking questions like these: What do people need to know in order to be informed participants in shaping the future of our global network? What do people need to know in order to determine what their own interests are within the network, and to understand who and what is affecting those interests either negatively or positively? What do people need to know in order to figure out what kind of Internet they want? What do people need to know in order to understand and debate what is possible? What do people need to know about the players, institutions, companies, and politics so that they can figure out how they as citizens of the network can take action?19

Those are really hard questions, hard enough so that I’m not even sure I can envision the shape the answers might take. But I believe that our progress over the next decades will be measured by our ability to help the 18

Jonathan Zittrain, The Future of the Internet – and How to Stop It 246 (2008). 19 Rebecca McKinnon, In Search of Internet Freedom, RConversation (May 20, 2010, 2:46 PM), http://rconversation.blogs.com/rconversation/2010/05/insearch-of-internet-freedom.html. Similar sentiments are expressed in The Internet Human Rights Declaration Issued by 15 Chinese Intellectuals, GFW Blog (Oct. 26, 2009, 10:03 PM) http://www.chinagfw.org/2009/10/blog-post_1344.html (translation available at http://rconversation.blogs.com/rconversation/2009/10/happyinternet-human-rights-day.html): “We acknowledge the arrival of netizen activism and regard it as an irreversible trend . . . We believe it is a citizen’s responsibility to be concerned about public affairs, and a netizen’s responsibility to care about freedom of speech on the Internet. Netizens are exercising their civil rights when they legally express their opinions or when they report the truth of what has actually happened. The best way to rejuvenate an ancient civilization is to inject it with new core values based on the advancement of happiness and of basic human rights for individuals. It is also the best way to improve well-being for everyone in China. For these reasons, freedom of speech on the Internet should be encouraged, nurtured and tolerated.” See also Center for Democracy and Technology, The Defense and Celebration of the Online Commonwealth, http://petition.cdt.org/ (last visited April 27, 2011).

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people of the world find answers to them. And, like my colleague Glenn Hausfater said – why in heaven’s name would anyone want to work on anything else?

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Copyright, culture and the Cloud Daniel J. Gervais*

Imagine for a moment that electricity was used only to power one kind of computer known as an electricity computer. That is what computer power is like now: it mainly powers devices that sit on our desks with qwerty keyboards attached. As computing becomes a utility, it will power many more devices, many of them with no user interface, more of them mobile and handheld. The Cloud should also encourage collaboration. Different people, using different devices should be able to access the same documents and resources more easily. (Charles Leadbeater, Cloud Culture)1

2.1 INTRODUCTION Everything digital will be in the Cloud. Almost every bit of human culture, every song, book, document and movie ever made.2 This portentous change

* The author wishes to acknowledge the significant contribution of Daniel J. Hyndman (J.D., Vanderbilt) in particular to section 2.2 on the technical and infrastructural aspects of cloud computing. All errors are my own. 1 Charles Leadbeater, Cloud Culture, 15–16 (2010). 2 Access to media on the Cloud, particularly music, has become one of the most popular uses among normal users. Services like iTunes (http://www.apple. com/itunes) allow for users to pick and choose which tracks they want to buy and download, while Grooveshark (http://www.grooveshark.com) allows for direct streaming of many tracks directly from the user’s Internet browser. Most banks have their own sites for online banking (for example, http://www.bankofamerica. com), and now users can monitor personal finances in the Cloud using something like Mint (http://www.mint.com). Amazon (http://www.amazon.com) keeps track of your purchases and uses that information to make recommendations on other things you might like. In the social part of the Cloud, Facebook (http://www.face book.com) is perhaps the most important player, but simple services like Twitter (http://www.twitter.com) are increasing in popularity where they are able to find the right niche to fill. Google (http://www.google.com) has a wide variety of ways to store personal media in the Cloud and share it with others, including YouTube (http://www.youtube.com) for videos and Picasa (picasa.google.com) for photos. Dropbox (http://www.dropbox.com) offers a service that allows users to store their files online so they can be accessed anywhere while behaving as just another part 31

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will have significant advantages, such as access to all those resources much more easily and on any digital device, an approach illustrated by Apple’s recent platform paradigm uniting all Apple devices belonging to the same user.3 The Cloud will reduce the perceived need for individual copies and serve as a general depository for both commercial and private content, and of course admixtures of both such as user-generated content.4 The Internet was a major shift from a central or mainframe architecture to a client–server architecture. Pre-Cloud, the Internet was used to transport data and allows hundreds of millions of individual and corporate computers on which content was stored to exchange using their Internet identity (an Internet Protocol, IP, address).5 Abandoning this connection paradigm, in which the Internet was essentially a network connecting to an amalgamation paradigm where user computers and devices are merely access tools used with private and commercial content amalgamated on server farms operated by major intermediaries, is not a benign change.6 Will major content providers such as record labels and film studios gain greater control of how we access and use commercial copyrighted content? Who will have jurisdiction over the Cloud? If countries adopt different tests (headquarters of Cloud operator, location of servers, etc.) multiple jurisdictional conflicts are just around the corner.7 In this chapter, I consider the application of copyright rules to the of the user’s hard drive to create a seamless integration of the home computer and the Cloud. 3 Apple’s (http://www.apple.com) push for unifying the use of all its products into one experience reflects its general attempt at providing a simple-to-use experience without requiring a lot of computer knowledge. When the iPod first appeared, it was a simple, but revolutionary, MP3 player. Now, the iPod can access the Internet to synchronize with the user’s iTunes profile, allowing access to a lot of music at any time. The iPhone contains a lot of similar functionality. The iPad, Apple’s newest gadget, seems to bridge the gap between a smart phone and a netbook, allowing users to do a lot of the stuff they would do on a computer, but through the touch screen interface similar to the iPhone. All of these products use Internet access to sync with the user’s media and data they have stored in the Cloud, unifying the user’s experience. 4 See Paul Resnikoff, The Cloud: It’s Not an Evolution . . ., Digital Music News, March 2, 2011, http://www.digitalmusicnews.com/stories/030211cloud?utm_ source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+digitalmusic news+%28Digital+Music+News%3A+Top+Stories%29. 5 This is usually described as the Transport Layer and the Internet Layer. See Nicholas Carr, The Big Switch: Rewiring the World, From Edison to Google 54–55 (2008). 6 See supra note 2. 7 See Levi herein for a discussion of multiple jurisdictional conflict in libel law, which the Internet has furthered.

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Cloud, and the impact that the Cloud, within or without the confines of copyright law, may have on global cultural flows.

2.2 2.2.1

DEFINING CLOUD COMPUTING A New Global Infrastructure

Cloud computing is a term used to describe a global technological infrastructure in which the user of a computer accesses and uses software and data located outside of the user’s personal computer or other digital device. The user connects to these external devices by way of an Internet connection, but typically has no knowledge of the nature or even location of the server on which the data and software are located. This anonymous, external and often unidentifiable technology is known as cloud computing or simply “the Cloud.” As already noted, this is not a benign change. Before the advent of cloud computing, users mostly ran software and processed data on their own computers. The Internet was used to transmit processed data between two or more computers. In contrast, with cloud computing, users store (upload) and access (download) data located on external computers that users neither own nor control, and cannot locate. They only know (hopefully) which entity ostensibly provides access to the service, whether it be storage (backup), data processing (access to a program) or both. One of the main reasons for the rise in popularity of cloud computing has been the increase in Internet download and upload speeds. The use of the Cloud as a backup storage facility is only practical if it is possible to get large amounts of data transferred to the Cloud at reasonable speeds. On the slow Internet connections that were available 15 years ago, it would simply not have been practicable to upload a large collection of files to a server over the Internet. The 56 kilobit/second modems of the 1990s have given way to the much faster cable modems and other modern networking devices offering speeds 1000 times faster or more. At some point in this progression of Internet speed, a threshold was crossed. It marked Internet users’ ability to access services offered in the Cloud just as easily as running software on their computer. The process began with relatively low bandwidth services that didn’t require a constant flow of information, like email services that store the messages on their own servers (e.g., Yahoo!, hotmail, and more recently Gmail). With recent ameliorations in bandwidth (broadband) availability, those services have expanded to the point of streaming high-quality video and audio media

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directly over an Internet connection (e.g. Netflix), with little or no waiting time. It seems reasonable to predict that as the network infrastructure becomes capable of providing new kinds of services and user experiences reliably, the Cloud will expand to new areas. The end game is one in which all digital content is either stored exclusively on or at least backed up on the Cloud. Another important factor in the growth of cloud computing has been the expansion in number and type of digital devices. In the early years of personal computing, a single computer was a luxury item, and few people owned more than one. However, with advances in hardware design and the shrinking of processor chips,8 it is now normal for a household to have multiple desktop computers. In parallel, portability increased (laptops) and small devices (phones and tablets) became more powerful and able to transmit and process digital data files. The very existence and relative affordability (at least in industrialized countries) of these devices has created an enormous demand for services that can be used in a crossplatform way, allowing a user to check email, download/listen, watch a YouTube video, etc. whether the user is at home or riding a train to work. Net books are perhaps not just a cause of cloud computing but also an effect. Many devices take advantage of the fact that a lot of processing and storage of information is done on the Cloud. In fact, the rapid rise in computing power may be slowed dramatically, as the focus shifts to smaller and less expensive devices. By using the Cloud, netbook and phone manufacturers are able to use cheaper, smaller, less power-hungry hardware to create tiny devices with long battery life. Everyone is using the Cloud it seems, from the basic, casual user to the large corporation. Casual users use cloud computing to stay connected with their friends and to maintain a persistent presence on the Internet. Access to Facebook has connected millions of normal people who may have otherwise lost touch with each other or never met. Digital stores allow users to shop easily from anywhere. At the beginning of 2010, iTunes 8

Moore’s Law is a trend that was described first by Intel co-founder Gordon E. Moore that stands for the proposition that the number of components in integrated circuits will double every year. He originally proposed this in 1965, and said it would likely continue for ten years, but it has been an accurate prediction for much longer than that. The decrease in size and increase in number of components on a chip has correlated closely with the increase of speed and power of computers. This exponential increase in computing power allows for the Cloud to exist. Though we are approaching a limit to the decrease in size of transistors that may cause Moore’s Law no longer to be accurate, it has served as an important way to predict future computing power for the past 40 years.

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crossed the line of 10 billion songs sent to users. Services like Steam allow users to purchase computer games that are then tied to an online account. This allows users to access their account and games from any device without CDs, etc. In fact, the Cloud may just mark the end of the CD as a vehicle to sell software. For casual users the Cloud is not just about media, however. There are myriad ways to use the Cloud for productive interaction. For example, Google Docs allows for sharing of documents and multiple people can edit a paper or spreadsheet. More generally, the Cloud offers opportunities to share and transform content collaboratively, thus offering new modes of expression for creativity.9 2.2.2

NIST Definition

The National Institute of Science and Technology (NIST) has created a definition and description of the term “cloud computing”, allowing for a more coherent conversation on the topic. The definition states: Cloud computing is a model for enabling convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications, and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction. This cloud model promotes availability and is composed of five essential characteristics, three service models, and four deployment models.10

NIST admits that, along with most topics regarding cloud computing, this definition and the terms used are subject to rapid change due to the relatively recent explosion in advancement and popularity of the model. However, it does provide a jumping-off point for detailed discussion about the attributes, advantages, and disadvantages of cloud computing. The five essential characteristics mentioned in the definition are:11 ● ● ●

on-demand self-service; broad network access; resource pooling;

9 See Daniel Gervais, The Tangled Web of UGC: Making Copyright Sense of User-Generated Content, 11 Vand. J. Ent. & Tech. L. 841 (2009); William W. Fisher III, The Implications for Law of User Innovation, 94 Minn. L. Rev. 1417 (2010). 10 See Peter Mell and Tim Grace, The NIST Definition of Cloud Computing v15, National Institute of Standards and Technology (October 7, 2009), http://csrc.nist.gov/groups/SNS/cloud-computing/cloud-def-v15.doc. 11 Id.

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rapid elasticity; Measured service.

Let us look at each of these features briefly. On-demand self-service defines the importance of automated access to the services and resources provided in the Cloud. The user needs to be able to interact with cloud services without the need for a human intermediary. This factor is mostly taken for granted in the current state of the Internet. The convenience inherent in this factor is one of the most important requirements for a successful cloud service. Broad network access means that the service should be accessible across a variety of devices. This factor, like the previous one, is important but now mostly obvious. If a user’s access to an email service were limited to that user’s home computer, it would be no different from the user simply downloading email and storing it on that computer. Part of the key of the success of cloud services is their interoperability with a variety of devices, using a cross-platform user interface. Resource pooling is a characteristic that exists behind the scenes and is less obvious to users, but no less important. It reflects the necessity of the cloud service provider monitoring the using of computing resources and controlling the allocation of those resources. For instance, when a user uploads a video to YouTube, to some extent it appears that one can upload an endless number of files. YouTube does not assign a hard drive or part of a specific server to a user. Videos are merely allocated a certain amount of space that exists in the provider’s large pool of video storage space, known as a “server farm.” It is up to the provider to control properly and efficiently the allocation of that storage pool. The user remains on the outside with no real knowledge of which particular physical resource he’s using or accessing, including its actual location. Rapid elasticity is related to resource pooling. While resource pooling is about abstracting the user away from knowledge of which resource they are using, rapid elasticity requires that the service provider be able to handle changes in resource allocations quickly. The provider needs to be able to scale up quickly to the needs of users and to scale down just as quickly to keep the maximum amount of resources free for use. In this way, the service provider retains what one might call the “cloud effect,” that is, keeping the user insulated from knowledge of the behavior and limitations of the system’s capabilities as much as possible. Measured service is a factor that defines the interaction between user and provider. Allowing users to pay per unit of service is attractive in that it allows users to obtain up-to-date computer services without investing in new hardware and software. With a “measured service,”

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companies or individuals can contract to get only the services they want or need. The NIST definition of cloud computing also describes several service models and several deployment models which, for the most part, are beyond the scope of this chapter. However, they highlight an important idea that resurfaces repeatedly, namely the Software as a Service (SaaS) model.12 This model describes the interaction of most users with cloud services. It is represented in many popular websites, including Gmail and YouTube, Facebook, Picasa, Google Docs, and Amazon.com. Even search engines could arguably be placed under the SaaS model. Each of these websites offers a service in the form of a relatively simple website where processing is done outside of the user’s view. These services behave like a black box: the user inputs information and receives a result, but what happens between the two is hidden. Two other models, Platform as a Service (PaaS) and Infrastructure as a Service (IaaS), also described by NIST, allow users to stack their own software on top of a cloud platform, giving the user progressively more control over their information.13 These types of models are not as commonly used by average Internet users, and thus will not be discussed further in this chapter. The NIST definition of cloud computing is probably the most precise definition that is currently possible, despite its fairly broad scope. This is due to the nature of the cloud itself. In most basic of terms, the Cloud is the Internet. Almost everything that an average computer user does occurs at least in part in the Cloud. The scope of the impact of this infrastructural shift is something that one grasps almost intuitively. Let us look at it more closely.

2.3 2.3.1

COPYRIGHT, CULTURE AND THE CLOUD Regulating the Internet

Looking at copyright protection online means asking basic technological and normative questions: can and should governments control the flow of material on the Internet? Peer-to-peer file-sharing has been under relentless legal pressure, to no avail it seems. In some cases, “success” is at hand. In China, Internet control seems to have been far from successful, but

12 13

Id. Id.

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interestingly based much more on technology to fight technology than on (theoretical) legal remedies.14 In the first few weeks of 2011, the Egyptian government tried to shut down some or all of the Internet, but given the interconnected and transnational nature of the beast had limited success.15 More importantly, perhaps, the global outcry was both immediate and extremely loud. The principal difficulty of regulating the Internet stems from the fact that the Internet was architected using packet switching technology and the ubiquitous Internet Protocol (IP). This makes it independent of the underlying hardware and thus makes it much harder to control than a mainframe-based or hub-and-spoke network with a single brain.16 In fact, the Internet was precisely that: a shift from a central or mainframe architecture to a client–server architecture in which the Internet basically serves to transport data and allow computers to have an identity (an IP address).17 The last 15 years were thus attempts to regulate what amounted “only” to a communication system, a neutral infrastructure to transmit packets of bits from one computer to another. Controlling that Internet meant controlling information as it was moving between the computers of individual users. Attempts to control the internet raise a number of issues. For example, when trying to enforce copyright in content stored in files on those computers, copyright law must often spar with privacy considerations. Servers stored data, but private data and most data processing functions took place on individual computers in our homes and offices, often within our private sphere, protected by our reasonable expectations of privacy.18 Now the attention has turned to Web 2.0 and the increasing importance of social networking sites and the use of the network to connect

14

See Jonathan Zittrain, The Fourth Quadrant, 78 Fordham L. Rev. 2767, 2773–75 (2010). 15 See Christopher Williams, How Egypt Shut Down the Internet, The Telegraph, Jan. 28, 2011, available at http://www.telegraph.co.uk/news/world news/africaandindianocean/egypt/8288163/How-Egypt-shut-down-the-internet. html. 16 See generally James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. Cin. L. Rev. 177 (1997). 17 This is usually described as the “Transport Layer” and the “Internet Layer.” See Nicholas Carr, The Big Switch: Rewiring the World, From Edison to Google 54–55 (2008); Boyle, supra note 15. 18 The Sony Rootkit debacle comes to mind. See Lilian Edwards, Coding Privacy, 84 Chi.-Kent L. Rev. 861, 869 (2010); William Jeremy Robison, Free At What Cost? Cloud Computing Privacy Under The Stored Communications Act, 98 Geo. L.J. 1195, 1233–35 (2010).

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people according to their affinities.19 Web 2.0 is a sign of things to come. More content is stored on FaceBook, Flickr, or YouTube’s servers and, increasingly, use of all manner of new devices are used to connect to and modify that content. Indeed, as noted in the introduction, the Internet has radically transformed itself. It is no longer a connection among millions of computers on which data is stored and processed. The data – and the software to process it – increasingly reside on the network and are thus part of the new network, a communication infrastructure linked to servers with exabytes of content available to all. This scalable virtual smorgasbord of resources is a by-product of the ease of access to remote computing sites, a technology known as cloud computing.20 Access to massive amounts of cultural content in the Cloud and ways to manipulate it may be viewed as a positive development leading to an increase in global cultural – and possibly economic – welfare. It may open cultural access beyond borders and become a great equalizer. There are more troubling possibilities, however. Governments might like the fact that data and software will reside not on our home computers but on a smaller number of servers.21 In the Cloud, there is a finite number of intermediaries, and those intermediaries are often commercial (though the emergence of a public-interest, non-profit part of the Cloud should not be discounted), and they may not have the consumers’ privacy as much at heart as individual users themselves. As such, those intermediaries present an easier set of regulatory and, particularly, enforcement targets. While this is not a chapter on the Fourth Amendment dimension of the Cloud, a recent case illustrates the difficulty at hand.22 If a user’s data is on the Cloud then, even assuming a search warrant is required, the warrant can hardly be cabined because “digital devices are not just repositories of data, but access points, or portals, to other digital devices and data, typically obtained through the internet or stored on a network 19 I noted several years ago in an unpublished piece that this had profound social justice implications, as citizens are no longer confronted with information about all sides of an issue, but rather look for information sources that too often reaffirm preconceived notions and possibly prejudiced views. This makes for a much poorer political and public debate. See Daniel Gervais, Democracy, Technology and Social Justice (2003), http://aix1.uottawa.ca/~dgervais/publica tions/Gervais%20DemocracyTechnology%20and%20Social%20Justice.pdf. 20 See supra note 9 and text accompanying note 12. 21 See supra Section 2.2. 22 In Re United States of America’s Application For A Search Warrant To Seize and Search Electronic Devices from Edward Cunnius, 770 F.Supp.2d 1138 (W.D. Wash. 2011).

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[. . .] once the government has all passwords, it is able to access a defendant’s most sensitive information.”23 In addition, “[u]nlike information in a file cabinet that can simply be taken out and destroyed, [Electronic Stored Information] is present after attempts to destroy it . . . [It] can be recovered from ‘unallocated space’ on a hard drive, which ‘contains deleted data, usually emptied from the operating system’s trash or recycle bin folder, that cannot be seen or accessed by the user without the use of forensic software’.”24 Access to the Cloud will more often than not be obtained via proprietary devices and private networks that can much more easily regulate the type of traffic they allow. Whether the Internet remains “neutral” is at the heart of this debate.25 As users increasingly switch to device-based access (from game consoles to cellphones to PDAs, etc.), the open nature of the Internet Protocol will be veiled by layers of proprietary code designed to maximize income, not access. 2.3.2

The Cloud: The Global Meme Factory

Human culture include songs and stories and but also habits, skills, technologies, scientific theories, bogus medical treatments, financial systems, and organizations.26 All these bits of human culture tend to be imitated and adapted. As such, they are what Dawkins referred to as memes, that is, “something imitated.”27 The Cloud – once the necessary bandwidth is there to empower it fully – will link all our computers and other digital devices to a virtually infinite array of content and ways to access, process, and add to that content, whether as information, entertainment, or both.28 Naturally, digital availability is a prerequisite to enter the (digital) Cloud. However, the ongoing digitization of large swaths of our pre-digital culture means that most

23

Id. at 1145. Id. at 1146. For a discussion of Fourth Amendment issues, see David A. Couillard, Defogging the Cloud: Applying Fourth Amendment Principles to Evolving Privacy Expectations in Cloud Computing, 93 Minn. L. Rev. 2205, 2216 (2009). 25 See Dawn C. Nunziato, Virtual Freedom: Net Neutrality And Free Speech In The Internet Age (2009). 26 See Susan Blackmore, The Third Replicator, N.Y. Times, Aug. 22, 2010, at 2. 27 Richard Dawkins, The Selfish Gene 192 (2d ed. 1989). 28 See Bernard Golden, The Skinny Straw: Cloud Computing’s Bottleneck and How to Address It, CIO Drilldowns, Aug. 6, 2009, http://www.cio.com/article/499137/ The_Skinny_Straw_Cloud_Computing_s_Bottle neck_and_How_to_Address_It. 24

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cultural products will be available.29 This type of generalized access to entire repertories of cultural products is not new, but the Cloud makes it a reality, a de facto rule, for almost all cultural production and anyone with Internet access on a mobile phone, computer, or other device.30 There will be more to imitate, and more ways to imitate. Hundreds of millions of Internet users are downloading, altering, mixing, uploading, and/or making available audio, video, and text content on personal Web pages, social sites, or using peer-to-peer technology to allow others to access content on their computer.31 On the positive side of the technology ledger, therefore, cloud availability means that a new space is open for almost all cultures to access and adapt cultural artifacts from their own sphere and most if not all others. They can speak, and share. Indeed, the Cloud is structurally meant to share. Whether one is looking for Just Before the Battle by Mother Campbell, the latest Carrie Underwood video, or a picture (and discussion by local experts) of the Hammurabi Code at the National Library of Iraq, it is all there. And so are, increasingly, your neighbor’s summer vacation photos (on Flickr, Picasa, or FaceBook), your cousin’s attempt at playing his new song on YouTube, and a discussion on the best hot dog in Cleveland (I vote for Old Fashion Hot Dogs on Lorain Avenue). Culture is the store of meanings that we have available to make sense of our world (meanings embedded in films, music, books, and newer formats of cultural dissemination). At no point in history has there been a wider and more open store. This should lead to more global or at least nongeographically bounded memes to emerge.32 Songwriters and designers have access and are influenced by “foreign” memes in a way that might make “foreignness” itself a very different – and much more relative – notion. Internet blogs and other dematerialized cultural scenes will lead to

29

The Google Book project is a good example. See Pamela Samuelson, Google Book Search and the Future of Books in Cyberspace, 94 Minn. L. Rev. 1308 (2010). 30 A Bedouin should be connected to the same web of communications as people in Cairo, New York, and London. In the space of a decade, mobile phones, Wi-Fi, broadband Internet, satellite, and digital television have become commonplace, if not ubiquitous. That has brought in its wake a culture of mass self-expression on a scale never seen before, which has the potential to touch and connect us all and to change how we relate to one another through culture . . . We will also be equipped with more tools to allow us to make our own contribution, to post our photograph or composition (Leadbeater, supra note 1, at 19–23). 31 See Gervais, supra note 8, at 845–46. 32 See Jeb Fowles, Advertising and Popular Culture 23 (1996).

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small memes, such as catch-phrases, but also more portentous ones, such as beliefs, emerging and spreading. For example, perceived oppression of a cultural group such as Falun Gong is information easily acquired in North America, where it may have lead to a significant increase in Falun Gong membership.33 Yet, as any trip to a warehouse-type store will teach us, in a world with fewer familiar or at least traditional landmarks to guide us, the role of intermediation in our process to interpret and define our life and our world will increase exponentially. To take a concrete example, in theory the Cloud should make it easier for students, who by now are all born digital, to apprehend their world and fashion a personality reflecting a more global or “ageographic” perspective, if they so wish.34 The intermediation tools they use may not help them to get there. Still, global should be the natural order of things on the Internet – though language and geographical preference software are fighting this infrastructural ability truly to offer the world to us on any device.35 Another entry on the positive side of our ledger, cloud content can be manipulated, “mashed up” or remixed, and new forms of creation are thus increasingly possible.36 Then the modified and adapted cloud content adds to the Cloud, where it also resides, snowballing into billions of new creations. On the negative side, obviously “available” does not mean free, nor does it mean universal access. Copyright and/or technology can restrict access, and/or price something beyond one’s reach, especially if price discrimination is absent. A $10 book download is not quite the same product for the average Netizen in Luxembourg and Ouagadougou, because $10 is not the same amount of money in relative terms when the per capita gross domestic product (GDP) goes from $78 000 to

33 See Claire Wright, Censoring The Censors In The WTO: Reconciling The Communitarian And Human Rights Theories Of International Law, 3 J. Int’l Media & Ent. L. 17, 35–36 (2010). 34 Whether current educators and parents, many of whom were not born digital, help develop the desire in their students to go global and celebrate difference rather than fear, is quite a different matter of course. This will greatly influence whether access to the Global Meme Factory “becomes a protective enclosure for endangered identities rather than something that unfolds and opens out.” 35 There is another reason to limit our traveling to distant servers. Data costs fractionally more when retrieved from distant locations, but this is usually not reflected in the monthly (flat) subscription rate we pay for online access. 36 See generally Lawrence Lessig Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008); Henry Jenkins, Fans, Bloggers, and Gamers: Exploring Participatory Culture (2006).

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$1200 (65:1).37 The absence of price discrimination in developing countries – that is, the sale of cultural products at “Western” prices – corrals access to culture to the financial “elite,” and adds grist to the “culture as elitist” mill. In an ironic twist in the emergence of a supposedly global Cloud, technology increasingly limits access to a number of cultural products with a higher commercial value based on where the user is physically located.38 This should allow companies to price-discriminate and broaden access, but in my anecdotal experience at least, very few actually do.39 2.3.3

Regulatory Challenges

Regulating any technology that is still inchoate is a hard challenge. Hence, one of the factors that makes cloud regulation difficult is that the target is moving and may evolve in response to, and resist, attempts to regulate it.40 As noted above, however, a countervailing force is that the Cloud may in some ways be easier to regulate because access to it, and its operation, require huge investments. Internet Service Providers, server farms, and, more importantly perhaps, companies that will lead us to content, including Google and other search engines, are easier to locate. Regulations would seem easier to enforce than when the targets are hundreds of millions of individual personal computers. Cloud construction is mostly financed by private investments, and those investors will want to design the Cloud to recoup those investments and

37

For GDP country comparisons see Central Intelligence Agency, The World Factbook 2010, https://www.cia.gov/library/publications/the-worldfactbook/rankorder/rankorderguide.html (last visited Oct. 4, 2010). The Berne Convention for the Protection of Literary and Artistic Works (Sept. 9, 1886, S. Treaty Doc. No. 99-27, 331 U.N.T.S. 218) is the main copyright treaty with 164 member countries (as of January 2011; see www.wipo.int) and has reflected this need for differential treatment since the addition in 1971 of an Appendix allowing developing countries to reproduce and translate books to make them available at a lower price. 38 For example NetFlix which is unavailable outside the US and Canada. See http://www.netflix.com. 39 This seems a sad yet highly intuitive market reality. Building a pricing system that can efficiently price-discriminate will cost more, and likely target lower capacity markets. Why would Amazon want to spend money to develop the ability to sell $1 Kindle downloads to readers in poorer countries? If this is true it would support the need for non-commercial digital libraries, perhaps with government support, at least in the form of regulation. See Leadbeater, supra note 1, at 15–16. 40 See Daniel Gervais, The Regulation of Inchoate Technology, 47 Hous. L. Rev. 665 (2010).

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generate appropriate returns for their shareholders.41 From this perspective, the major public interest regulatory challenge linked to the growth of the Cloud will likely be reconciling commercial interest and free markets with the fact that a small number of major companies will be the guardians of the Cloud, which in turn is the repository of our digital culture. Companies, not governments, will control our day-to-day interaction with the Cloud. Because one might fear the emergence of de facto monopolistic tendencies – even though not all monopolies are abused – governments might want to intervene from a competition policy perspective to ensure that there are several “clouds.” There will be, as one can plainly see, a major tension between two regulatory objectives: (1) supporting a reduction in the number of control points on the Internet (a few Guardians of the Cloud as easier targets); and (2) ensuring a sufficient degree of competition (i.e., multiple clouds). The enormous importance gained by intelligence and national security-related controls of the Internet since 9/11 would seem to support the former (fewer and larger players).42 In large part it will be up to civil society and non-profit entities to ensure that the second objective (competition and a reasonable degree of openness and access) remains present in the minds of policymakers. The desired result might take the form of public or non-profit clouds, and commercial clouds developing in parallel. The risks are real, and some observers are already close to a call to digital arms. Referring to the proposed though now defunct Google Book Settlement as a precursor of a future Google-dominated Cloud, Charles Leadbeater noted that: “this possibility, a vastly enhanced global space for cultural expression, is threatened by intransigent vested interests, hungry new monopolists and governments intent on reasserting control over the unruly web. Judge Chin’s court is a microcosm for the arguments that will rage over the control of culture globally in the decades to come.”43 At this juncture, the potential abuses that might arise if the Cloud is left entirely unchecked have yet to materialize on a scale that would warrant massive intervention. Additionally, the nature of the optimal remedies may not be easily determined. If, for instance, one were to decide that Google is abusing its de facto monopoly on digitized books, would compulsory access be the best solution? Or should public libraries digitize their own books? While the former seems easier, the optimality of remedies may 41 The paradigmatic nature of the shift is best illustrated by the fact that access to a book (other than by purchasing a copy) will no longer be provided by a public library; it will be provided by Google Books. 42 See Laura K. Donohue, The Shadow of State Secrets, 159 U. Pa. L. Rev. 77, 139–52 (2010). 43 Leadbeater, supra note 1, at 16.

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reside in the latter. For example, public librarians around the world may be far better equipped to determine which books or other content to make available from their own culture. Librarians – non-judicial public resources – might greatly improve not just access but also the quality of the Cloud in ways that a “cloud capitalist” and judges might not. Still, to defeat its critics Google would have to perform to a probably impossibly high degree of global corporate citizenship and show unparalleled cultural sensitivity. The most significant risk I see is defective or suboptimal intermediation in Cloud access and content generation. Because everything is or will be available in the Cloud, technology will necessarily be used to locate and manipulate content. Some of it seems benign, like a Google search results page, but even that implies a neutrality and efficiency of the results. Google already uses AdWords to complement “natural” search results. Should neutrality (or the “naturalness”) of search results be regulated? If so, how? Some might suggest that having multiple intermediaries might be a better option, trusting competition to lead users to intermediaries offering better results.44 Several technologies used to manage our relations with the Cloud are not quite as benign as search engines. In fact, some are inherently problematic. First, as Amazon and Google users know all too well, the Cloud knows you. And the more one uploads to and interfaces with the Cloud, the more it knows you. FaceBook and LinkedIn suggest “friends” and contacts. Is this is a problem or a positive development? Clearly, the major users of this knowledge are providers of targeted advertising. Whether getting more targeted ads is a benefit for consumers is debatable. One can see the advantage of being informed of the availability of a new product. By the same token, this may lead to overspending. This is mostly beside the point, however. The real concern is that when those technologies suggest content, they may interrupt a chain of events (initiated by a user’s search) that might have led one to a completely different place. They reinforce the past, but at the potential expense of different futures. When Amazon suggests a book, for instance, one may end up buying that book and not wander in a different cultural “direction.” Then again, it may be that those suggestions will incrementally broaden a consumer’s cultural geography. Whether this a positive development overall should be tested empirically. However, because “cloud suggestions” (and default choices made for users) are based on one’s past actions and preferences, intuitively they will tend to reinforce what one already knows and who that person is, rather than allow one to take a different path. In other words, they

44

See Samuelson, supra note 29.

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might expose each of us to “more of the same.” The risk is that this may, in time, impoverish the social and cultural discourse.45 The undeniable fact remains, however, that when every bit of culture and digital content is in the Cloud, the key will be to locate and access content that one is interested in. In McLuhanesque terms, intermediation is the new content, and intermediates the Guardians of the Cloud. The commercial paradigm of the Cloud (that lawmakers and many others, including the music industry, still do not understand) is not one of scarcity of supply. It is in fact exactly the opposite.46 What is happening is a shift similar to the shift from mechanical to quantum physics. Let us call it “quantum market economics” for the content industries. The first “law” of the new environment is probably that the value of an information object on the Internet is not derived from its scarcity but rather from the fact that those who value it most will find it. The preference-dictating algorithms mentioned above are based on a user’s past. They assume that a user will value what they valued in the past. However, serendipitous cloud wanderings–à la Thoreau in his woods – might have led the user to value cultural products they did not know. The Cloud, like park rangers, wants you to stay on the marked path, where it knows you. This is not necessarily bad. In a world where everything is in the Cloud, the inescapable truth is that the value of a particular cultural artifact is an amalgamation derived from the number of users connected with that content which they themselves value individually. Networks effects create huge value. And the individual connections that lead to the emergence of cloud value are established by the intermediaries. Whether they are benign and “natural” in establishing those connections or whether they will guide 45

See Gervais, supra note 19. In an unpublished note, I had argued the following: “While opinions and studies – both the data they use and their analysis–are open to disagreement, the fact remains that the laws of physics that applied to the sale of physical copies of records, CDs and the like do not seem to apply to the Internet, which seems counterintuitive to market experts trying to apply traditional rules such as scarcity of supply. There is no scarcity of supply here. Nor are traditional laws of pricing of physical goods directly applicable because the market for authorized music is competing with ‘free.’ What is needed, then, is a shift similar to the shift to ‘quantum physics.’ Let us call it ‘quantum market economics’ for the music industry. The first law of this new environment, as I have argued in a number of past publications, is that value of an information object on the Internet is not derived from its scarcity but rather from the fact that those who value it most will find it. This explains the tremendous value of companies like Google, at least as far as its traditional role as ‘finder’ of information objects is concerned.” Daniel J. Gervais, Remarks at the 2007 WIPO Conference: The Role of Copyright Collectives in Web 2.0 Music Markets (Oct 18, 2007), http://works.bepress.com/daniel_gervais/11. 46

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you according to (completely understandable) revenue-maximizing goals, intermediaries will become the true Guardians of the Cloud, the Global Meme Factory, our culture. There are other challenges ahead. Let us take a less US-centric perspective. In the United States, while a certain degree of governmental control and monitoring is accepted, subject to court supervision, the tendency is to assume that freedom of speech is a key value in the policy equation of cloud control. That is gravely mistaken. The Cloud is at risk of control by authoritarian governments. The Internet, whether structured as a pure communications network or designed as a Cloud, is intensely political. In fact, in the words of Evgeny Morozov, “information becomes the most politicized of global commodities.”47 China’s attempt to control the Cloud are well documented. 48 In Russia, social networking sites are used to criticize political leaders.49 And Egypt and other Arab countries recently tried to gain control of what could be transmitted. The list is long and will get longer. Has the Cloud added resilience to information? While information stored on a personal computer is at risk and evanescent, once firmly rooted in the Cloud information is much harder to delete. Law may seem powerless, but technology that prevents access might achieve a similar result. If the Cloud does prove easier to control than the current Internet, we will have taken an important step backwards for freedom of speech. But for the average Cloud user, the most direct form of regulation might well be intellectual property, and copyright primus inter pares. 2.3.4

Copyright and the Cloud

Copyright emerged as a policy lever to organize the market for books. Its first modern incarnation is probably the Statute of Anne of 1710.50 The explanation is simple enough: if a publisher can just sit and wait to see which new books do well and then copy them, the incentive to invest in the production of new books is diminished and cultural output might suffer.51 47

Evgeny Morozov, The 20th Century Roots of 21st Century Statecraft, Foreign Policy (Sep. 7, 2010, 11:20 AM), http://neteffect.foreignpolicy.com/ (last visited Sept. 9, 2010). 48 See Jonathan Zittrain and Benjamin Edelman, Documentation of Internet Filtering Worldwide, Berkman Center for Internet & Society (October 24, 2003), http://cyber.law.harvard.edu/filtering (last visited Jan. 9, 2011). 49 Nik Gowing, Skyful of Lies and Black Swans (2009), available at http:// reutersinstitute.politics.ox.ac.uk/publications/risj-challenges/. 50 See Mark Rose, Authors and Owners: The Invention of Copyright (1993). 51 See Samuelson, supra note 29.

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A similar reasoning applies to music and to several other products. A film studio might want to decide through which medium a film is to be released and when.52 The paradigm of this type of cultural commerce is the welldocumented phenomenon of scarcity: new products are relatively scarce and must be obtained from an authorized source.53 It seems self-evident (at least to observers not part of the entertainment industry) that the Cloud is not the commercial equivalent of selling physical goods. Yet, laws are called upon to try to maintain the scarcity paradigm online. Let us consider why this makes little sense. In a store, one browses a finite selection. The store typically sells a limited number of categories of goods. There is usually signage to help the consumer make their selection. Advertising and product placement may be used to “guide their hand.” Some of this is replicated online of course.54 However, the impact is different, and so should the metrics be. Aggregate (commercial) value on the Internet, as I noted in the previous section, is derived from connecting people with content they value individually. An MP3 track downloaded on a computer may be counted as a form of piracy worth $2, but the reality is that the user assigns the value. They may have downloaded a song “just because” and never listened to it. Perhaps it was recommended by a friend, downloaded, listened to once, and then quickly forgotten. This music has little or no cloud value if all users treat it that way and if those who might like it are not connected to it. Conversely, if the Cloud can connect a user with a song (and/or an artist) – whether from down the street or the other side of the planet – that has value for that user and that they did not know, then that user becomes a fan and value-generator. They may buy music, tickets, merchandise, and ultimately become a social site spokesperson for the artist. Then, and only then, does the music have “cloud value.” 2.3.5

International Intellectual Property Rules

The main set of international intellectual property rules are contained in the TRIPS Agreement.55 The Agreement was part of a package of trade

52

See Bruce M. Owen and Steven S. Wildman, Video Economics 29–30 (1992). 53 See Claus Thustrup Hansen and Sóren Kyhl, Pay-Per-View Broadcasting of Outstanding Events: Consequences of a Ban, 19 Int’l J. Indus. Org. 589, 601–04 (2001). 54 Online advertising is at least as prevalent as it is in other media. 55 Agreement on Trade-Related Aspects of Intellectual Property Rights, art 27.1, Apr. 15, 1994, 108 Stat. 4809, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, THE LEGAL TEXTS: THE RESULTS OF THE

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rules signed at Marrakech in April 1994. It entered into force on January 1, 1995.56 It was negotiated between 1986 and 1994, though mostly completed by the end of 1991.57 The World Wide Web emerged in the public sphere in 1993 with the release of the Mosaic browser.58 It was not until a few years later, some might say not until the Napster lawsuits, that the size of its potential impact on the market for copyrighted goods became fully visible.59 It is not surprising, then, that TRIPS is not expressly equipped to deal with the Internet. The World Intellectual Property Organization (WIPO) tried to fill the gap in December 1996 with the adoption of its two “Internet” treaties.60 The treaties provide a right of making available, but also, and more importantly it seems, a right to prevent the circumvention of technological protection measures (TPMs) used to restrict use of copyrighted content.61 In the United States, the treaties were implemented by the Digital Millennium Copyright Act (DMCA).62 Part of the negotiated DMCA package was that Internet Service Providers (ISPs) and search engines would not have liability for letting users access infringing material.63 The regulatory effort here has a clear direction: limit access and use. In other words, the aim was to reinstate the scarcity paradigm for industries that still count “units” sold.64

URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 320 (1999), 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) (hereinafter TRIPS Agreement). 56 Id. at art. 65.1. 57 See generally Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, 11–27 (3rd ed. 2008). 58 See J.R. Okin, The Internet Revolution: The Not-For-Dummies Guide to the History, Technology, and Use of the Internet 110 (2005). 59 See, e.g. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). 60 WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 36 I.L.M. 65 (1997), available at http:// http://www.wipo.int/treaties/ en/ip/wct/pdf/trtdocs_wo033.pdf (hereinafter WCT); WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997); 36 I.L.M. 76 (1997), available at http://www.wipo.int/export/sites/www/treaties/en/ip/wppt/ pdf/trtdocs_wo034.pdf (hereinafter WPPT). 61 WCT, supra note 56 at arts. 8, 11; WPPT, supra arts. 10, 14, 18. 62 Digital Millennium Copyright Act, 17 U.S.C. §§ 1201-05 (2004). On the intent, see S. Rep. No. 105–190, at 2 (1998). 63 See Jessica Litman, Digital Copyright 127–45 (2d ed. 2006). Services hosting content that a copyright holder considers infringing would, however, have to set up a contact point for notices sent by the copyright holder to take down such content. See 17 U.S.C. 64 The International Federation of the Phonographic Industry (IFPI) still considers units sold as a key statistical component in their annual reports. See The International Federation of the Phonographic Industry, The Recording Industry

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There is little doubt that the best way to maximize value on the Internet is not to try to control all individual uses. Value is created when connections are made between content and those who value it, not when content is locked up and pseudo-scarcity created. But old habits die hard indeed, and this one (control) may not die – at least not until the entertainment industry as we know it is gone and replaced. A number of important stakeholders, including songwriters, seem to agree.65 A search for an optimal solution would leverage networks effects and maximize value by maximizing connections between content and those who value it, which includes allowing no-value or low-value connections to be established probably as a multiple of the connections that do bring value. In very concrete terms, it may be that ten people will download a file for one who will truly appreciate it. But to find that one, it is often necessary to allow the ten. This is hardly reconcilable with copy-control models trying to replicate physical scarcity of supply online. Yet many sectors of the entertainment industry still aim to convince policymakers to stamp out unauthorized uses, all labeled “piracy,” which includes every unauthorized access or download of copyrighted content. Unfortunately for right-holders, a lot of this piracy is without actual value to anyone. It is also piracy based on the current model of downloads and storage on one’s computer.66 This may disappear both because devices may have less storage – this is in all likelihood an epiphenomenon – and because the Cloud is designed to provide constant access to “everything,” in a world that is always online, thus avoiding the need for local copies. We are not there yet, and “Internet everywhere” is far from being a reality. But access is also possible using cellphones and other proprietary networks. As we move away from an open architecture based on the Internet Protocol to more proprietary access and access on demand as a rule, it will become easier for the entertainment industry write large to live its ultimate dream, complete

in Numbers 2010, at 31 (showing the decline in sales between 2005 and 2009 from 14 to 10.7 million CD “units” in Belgium). 65 See The Songwriters Association of Canada’s Proposal to Monetize the Non-commercial Sharing of Music, Songwriters Association of Canada (January 2011), http://www.songwriters.ca/Proposaldetailed.aspx. In parallel, one of the four remaining labels, EMI, was taken over by a creditor. See Dana Cimilluca and Ethan Smith, Citigroup Takes Control of EMI, Wall St. J., February 2, 2011, available at http://online.wsj.com/article/SB10001424052748703 445904576118083710352572.html. 66 A basic computer now sells with somewhere between 500GB and 1 TB of content. Even in CD quality format, this allows for the storage of tens of thousands of songs.

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“fared use:”67 a dream in which each use is ultimately linked to a micropayment, or possibly part of a contractually and strictly technologically cabined subscription-based pricing model. Ironically, the repeated suggestions to license file-sharing in a environment that the music industry could have set up and loosely controlled, but which has been continuously scorned by the recording industry, will likely be the outcome, but with control wrestled away from the content provider and into the hands of the real Guardians of the Cloud, the intermediaries. Google Music is coming.68 An open question is whether users, especially the under-30, most of whom have learned to access music and a number of other cultural products via peer-to-peer networks first, will easily abandon the “try to see if you like it” model and willingly jump onto an obsolete bandwagon, a world in which what matters is not how many people enjoy a particular song or artist but how many copies of a file are in existence at any point in time. They may not, and oddly enough personal computers and other IPbased (i.e., non-proprietary) devices may be used more because they can defeat a pure fared use world. By the same token, device manufacturers might respond to that demand and provide devices that do not force users to take steps to continue to enjoy cultural products the way they want. There is an effort afoot to multilateralize the DMCA, increase penalties, and generally add layers of enforcement access and use controls. Newspaper taxis waiting to take you away, as the Beatles might say.69 But, the song continues, “climb in the back with your head in the clouds, and you’re gone.”70 This is an apt metaphor. The old copyright paradigm is perhaps best epitomized by fast-disappearing newspapers.71 But climb in the Cloud, and you’re gone. Gone into a different access paradigm, one in which trying to connect to what matters is what matters. These efforts apparently include an attempt to rewrite the rulebook on ISP and search engine safe harbors. This attempt, the Anti-Counterfeiting Trade Agreement (ACTA), is the application of Statute of Anne scarcity 67

See Tom W. Bell, Fair Use vs. Fared Use: The Impact of Automated Rights Management on Copyright’s Fair Use Doctrine 76 N.C. L. REV. 557 (1998). 68 Actually it started as an experiment in China, but in market with basically no authorized market and still requiring behavior modifications. Not surprisingly it was not a huge success. See David Barboza and Brad Stone, China, Where U.S. Internet Companies Often Fail, N.Y. Times, Jan. 15, 2010, available at http://www. nytimes.com/2010/01/16/technology/16failure.html. 69 Lyrics from Lucy in the Sky with Diamonds. 70 Id. 71 Based on anecdotal data, law students think of the New York Times mostly as a website and source of information, not as a physical thing (newspaper).

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to a 21st-century Cloud where a copyright holder should seek to maximize access (and the number of people who pay, in one form or another) for such access, and not to minimize the number of “units” accessed without payment, because that is not how value is derived. The futility of this attempt (so far) as an empirical matter is compounded by the fact that access restrictions tend to reduce commercial value in the Cloud. The music industry’s attempt to funnel every music lover to a single-download, time, place and manner (TPM)-restricted download is similarly suboptimal. In fact, any major behavior change such as dropping peer-to-peer clients for systems imposing controls overuse and offering a more limited repertory have not done well. The industry’s bottom line is exhibit 1.72 The Cloud is a repository of content and users will want access to that content whenever and on whatever device they happen to have at that point in time, not units to store. They will want to experience as many of the cultural products that they value as possible, and they likely will value intermediaries who lead them to more (in spite of the limiting effects that this may have, as discussed earlier). Cultural industries that will do well in the Cloud will be sherpas, not park rangers. Intellectual property rules make this possible, but the solution is licensing and more access, and enforcement limited to professional pirates. Recent efforts such as the Anti-Counterfeiting Trade Agreement (ACTA), are not necessarily negatives; it all depends on how they are used and implemented.73 ACTA is, however, a symbol of how a number of industries wish the Cloud to develop, tailored to a desire to control access to cultural products as “controlled units,” instead of acknowledging that the Cloud is amorphous and ultimately everywhere. Control makes little sense, at least if the aim is to maximize income. The Cloud is a formidable distribution vector. Value will not be derived from counting (or limiting) units but by connecting people, wherever they may be, to content they value. Each connection adds value.74 Deleting or limiting copies (i.e., rep72

See International Federation of the Phonographic Industry, Digital Music Report 2011, http://ifpi.org/content/section_resources/dmr2011.html. 73 See United State Trade Representative, ACTA Fact Sheet (2011), http://www.ustr.gov/acta-fact-sheet-march-2010. 74 The so-called network effects. Those effects are “a characteristic of a product by which its value to the consumer is defined or enhanced by virtue of other consumers adopting the same product. The identifying characteristic of a product with network effects is its ability to connect one consumer, or ‘user,’ to other users of the same product.” John McGaraghan, A Modern Analytical Framework For Monopolization In Innovative Markets For Products With Network Effects, 30 Hastings Comm. & Ent L.J. 179, 189 (2007).

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licating scarcity of supply) in such an environment seems an anachronism at best. Yet it arguably informs current attempts to beef up enforcement against individuals and, more tellingly, intermediaries.75 At this critical juncture, it would be unfortunate if a major policy development effort were to be based on a misguided strategy with erroneous assumptions about what motivates consumer behavior. Policymakers cannot be rainmakers in the age of the Cloud. ACTA cannot be an alternative to a real discussion on optimal access to cultural products and ultimately a stand-in for new thinking on business models.

2.4 CONCLUSION The Cloud will not replace individual storage of files, including copyrighted material, but much more content will be streamed from the Cloud, and many of the personal files we create and use will be backed up on the Cloud. The Cloud will be an increasingly appealing alternative to store and access content. Will the move to a recentralized architecture make control of digital files easier for copyright-holders and governments? The Internet was a move from mainframe architecture to a decentralized network of hundreds of millions of computers. We are moving back to a much more limited number of servers, or server farms, owned not by Internet users but by intermediaries. Will privacy rules apply to those servers, and how will they affect the enforcement of copyright? Will it be easier to locate and delete copyrighted files? Will this really spur new business models? Copyright control may indeed be easier, and recent efforts, such as the Anti-Counterfeiting Trade Agreement, continue to vindicate efforts to prevent any unauthorized access to copyrighted material. Whether this makes sense, as major right-holders try to put the brakes on the most powerful distribution network ever invented, is an open question. It is similarly doubtful that existing copyright-holders will regain control of distribution, as they had when they were selling “units,” such as compact discs and DVDs. The real control will be in the hands of intermediaries that will determine what one sees, or at least suggest what one gets to read, listen to, or watch. Because of the oversupply of information and the finite amount of time one can devote to finding content that one values most, this role will be critical. It makes efforts to recreate scarcity using copyright seem even stranger. In breaking corporate distribution barriers, the Cloud can

75 See Shur-Ofry, Chapter 10 in this volume, for a discussion of the role of copyright law in maximizing cultural output.

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also empower creators from every country in making their material available, and export their cultural memes to others. Business models remain unclear, but if truly successful ones emerge, they will necessarily involve intermediation.

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3.

Addressing “libel tourism” Lili Levi*

3.1 INTRODUCTION On August 10, 2010, United States (US) President Obama signed into law the SPEECH Act – the first federal “libel tourism” statute.1 While there is no single definition of “libel tourism,” the term is used to refer critically to a particular example of forum shopping: defamation plaintiffs choosing to sue in jurisdictions with claimant-favorable libel law but insignificant ties to the dispute.2 The SPEECH Act prohibits recognition and enforcement within the United States of foreign defamation judgments unless the foreign court applied law providing at least as much speech and press

* This chapter is based on a paper presented at the Bits Without Borders Conference, Sept. 24–25, 2010, Michigan State Univerity. I owe a great debt of gratitude to Adam Candeub, Bernie Oxman, Steve Schnably, Ralph Shalom, and Nicolò Trocker for comments and conversations about the conference paper. Many thanks also to Derek Bambauer and Anupam Chander for their thoughtful questions and comments at the Conference. Andy Beaulieu provided able research assistance. All remaining errors are my own. 1 Securing the Protection of our Enduring and Established Constitutional Heritage Act, Pub. L. 111–223, 111th Cong., 28 USC § 4102 (2010) (SPEECH Act). 2 See, e.g. Trevor C. Hartley, “Libel Tourism” and Conflict of Laws, 59 Int. & Comp. L.Q. 25 (2010) (noting that even Wikipedia defines the term). The phrase is admittedly glib, but intended as a serious critique of foreign courts “that assume jurisdiction in respect of publications that have a minimal impact in that court’s jurisdiction.” David F. Partlett, The Libel Tourist and the Ugly American: Free Speech in an Era of Modern Global Communications, 47 U. Louisville L. Rev. 629, 640 (2009) (noting adoption of the phrase, inter alia, by Professor Deborah Lipstadt, who successfully defended a libel suit brought against her in England by David Irving over her claim that he was a Holocaust denier). The term has also been used more generally to refer to all foreign defamation suits against American speakers in jurisdictions with speech protections less robust than the First Amendment. See Robert L. McFarland, Please Do Not Publish This Article in England: A Jurisdictional Response to Libel Tourism, 79 Miss. L.J. 617, 625 (2010) (“the libel tourist is ordinarily attempting to circumvent the First Amendment by suing the American speaker in a foreign court”). 55

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protection as would be provided by the First Amendment and state law,3 or the party opposing recognition would have been found liable under United States law,4 and the foreign court’s exercise of personal jurisdiction would comport with United States constitutional due process requirements.5 The SPEECH Act also provides for declaratory judgment actions to be brought for a declaration that the foreign judgment is “repugnant to the constitution or laws of the United States.”6 In addition, reasonable attorney’s fees are to be paid “absent exceptional circumstances” to the party opposing recognition or enforcement of the foreign judgment if he or she prevails.7 The SPEECH Act was enacted apparently in response to high-profile libel lawsuits brought in England against American authors and publishers by plaintiffs with thin ties to the forum. Congressional findings concluded that the threat of such foreign libel actions was increasing dramatically and having a marked chilling effect on the American and international press – threatening free speech and the “the interest of the citizenry in receiving information on matters of importance . . .”8 Most observers agree.9 The United Nations Human Rights Committee

3

SPEECH Act, 28 USC § 4102(a)(1)(A) (2010). 28 USC § 4102(a)(1)(B) (2010). 5 28 USC § 4102(b) (2010). There is also a specific provision extending the Section 230 Internet provider immunity to ISPs found liable for defamation in foreign courts. 28 USC § 4102(c) (2010). Thus, foreign defamation judgments against the providers of interactive computers services, such as the hosts message boards and blogs, would not be recognized or enforced if inconsistent with Section 230 of the Communications Decency Act (which protects against liability for user generated content). This provision was adopted in response to a suggestion from Public Citizen. 6 28 USC § 4104(a) (2010). A judgment would be repugnant to the constitution or laws of the US when it would not be enforceable under the provisions of the Act. For declaratory judgments, the burden of establishing non-enforceability is on the party bringing the declaratory judgment action. Legislative history suggests that the reason for this provision was to allow American defendants to “clear [their] name[s]” even if the judgment holder did not seek to enforce the judgment here. The statutory provision for such declaratory judgments also establishes nationwide service of process. 7 28 USC § 4105 (2010). 8 SPEECH Act, 28 U.S.C. 4102 Findings, Sec. 2(4) (2010). See also id. at Sec. 2(2). The term “American” is used in this chapter to refer to the United States. 9 The phenomenon of “libel tourism” has led to a great deal of academic and popular commentary. See, e.g. Robert Balin, Laura Handman & Erin Reid, Libel Tourism and the Duke’s Manservant, 3 MLRC Bull. 97 (2009); Ellen Bernstein, Comment, Libel Tourism’s Final Boarding Call, 20 Seton Hall J. Sports & Ent. L. 205 (2010); Hartley, supra note 2, at 32; Heather Maly, Note, Publish At Your 4

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released a report in 2008 concluding that British defamation law has “served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work.”10 This effect arises, perhaps principally, because the traditional geographic and territorial constraints that permitted inconsistent defamation regimes to coexist worldwide have been exploded by technology. These days, publication is global rather than local. Now, countries

Own Risk or Don’t Publish at All: Forum Shopping Trends in Libel Litigation Leave the First Amendment Un-Guaranteed, 14 J.L. & Pol’y 883 (2006); Todd W. Moore, Note, Untying Our Hands: The Case for Uniform Personal Jurisdiction Over “Libel Tourists,” 77 Fordham L. Rev. 3207 (2009); R. Ashby Pate, Blood Libel: Radical Islam’s Conscription of the Law of Defamation into a Legal Jihad Against the West – And How to Stop It, 8 First Am. L. Rev. 414 (2010); Doug Rendleman, Collecting A Libel Tourist’s Defamation Judgment? 67 Wash. & Lee L. Rev. 467 (2010); Sarah Staveley-O’Carroll, Note, Libel Tourism Laws: Spoiling the Holiday and Saving the First Amendment? 4 N.Y.U.J.L. & Liberty 252 (2009); Tara Sturtevant, Comment, Can the United States Talk the Talk & Walk the Walk When It Comes to Libel Tourism: How the Freedom to Sue Abroad Can Kill the Freedom of Speech at Home, 22 Pace Int’l L. Rev. 269 (2010); Daniel C. Taylor, Note, Libel Tourism: Protecting Authors and Preserving Comity, 99 Geo. L.J. 189 (2010); Michelle A. Wyant, Confronting the Limits of the First Amendment: A Proactive Approach for Media Defendants Facing Liability Abroad, 9 San Diego Int’l L.J. 367 (2008); Timothy Zick, Territoriality and the First Amendment: Free Speech at – and Beyond – Our Borders, 85 Notre Dame L. Rev. 1543 (2010). While a few of the commenters question the chilling effect of foreign libel actions (see, e.g. Partlett, supra note 2 at 647–48), most recognize the problem and explore various different ways of resolving the trans-border tensions in these suits. For examples of the chilling effect claimed by authors, see Libel Tourism: Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 111th Cong. 14 (2009) (hereinafter Libel Tourism Hearing) (statement of Rachel Ehrenfeld); id. at 41 (statement of Laura R. Handman). 10 Concluding observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, Human Rights Comm., 93d Sess., Jul. 7–25, 2008, CCPR/C/GBR/CO/6 ¶ 25 (Jul. 30, 2008), http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/G08/433/42/PDF/G0843342.pdf?OpenElement. See also SPEECH Act, 28 U.S.C. § 4101, Findings, Sec. 2 (4) (quoting UN Human Rights Committee Report). In fact, Paragraph 47 of the United Nations Human Rights Committee’s General Comment No. 34, Article 19: Freedoms of opinion and expression specifically addresses defamation and supersedes the earlier comment (No. 10) that had not addressed defamation at all. General comment No. 34, Article 19: Freedom of opinion and expression, United Nations Human Rights Committee, 102d sess., Jul. 11–29, 2011, CCPR/C/GC/34 (Advance Unedited Copy Jul. 21, 2011), http:// www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf. See also General Comment No. 10: Freedom of expression (Art. 19), (June 29, 1983), http://www.unhchr.ch/ tbs/doc.nsf/%28Symbol%29/2bb2f14bf558182ac12563ed0048df17?Opendocument (Comment No. 10).

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with the most speech-repressive libel laws can effectively set the limits on what can be said worldwide: “the Internet and the international distribution of foreign media .  .  . create the danger that one country’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest.”11 The chilling effect of such actions on the international press is not the only consequence of libel tourism, however. Perhaps just as significant, albeit less subject to public discussion, is the effect of foreign libel suits against academics and scientific researchers concerning professional critiques and opinions they have expressed. These threats to academic freedom are particularly worrisome now – at a time of particular fragility in the economics of book publishing. Those who decry libel tourism characterize foreign defamation suits as strategic exercises. Several of the high-profile cases seem to have been designed primarily to censor international discussion of criminal activity. The legislative history of the SPEECH Act suggests particular Congressional concern about the defamation claims made, primarily in England, by billionaire Saudi Arabian banker Khalid bin Mahfouz against those (primarily American) authors who accused him of financing terror.12 Specifically, the primary impetus for the SPEECH Act was bin Mahfouz’s English libel suit against Rachel Ehrenfeld, a New York-based journalist, who had asserted in her book Funding Evil: How Terrorism is Financed and How To Stop It that bin Mahfouz had been involved in financing terrorism.13 Ehrenfeld’s book had not been published or marketed in England or targeted to the English audience. However, 23 copies of the book had been ordered from Amazon for distribution in England.14 11

SPEECH Act, 28 U.S.C. § 4102, Findings, Sec. 2 (4) (quoting UN Human Rights Comm’n Report). U.N. Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Concluding Observations of the Human Rights Committee, United Kingdom of Great Britain and Northern Ireland, ¶ 25, UN Doc. CCPR/C/GBR/CO/6 (July 30, 2008). See also McFarland, supra note 2, at 628–29 (Berezovsky’s “reasoning would allow England to regulate and police all speech viewable on the Internet”). The problem of libel tourism is part of the challenge posed by Internet-enabled communications to existing borders and their jurisdiction; see David Post, Chapter 1 in this volume, at 18–30; and their ability vastly to increase worldwide access to information. See Daniel Gervais, Chapter 2 in this volume, at 31–54. 12 S. Rep. No. 111-224 at 3 (2010). See also Peter King, 155 Cong. Rec., H6773 (2009). 13 King, supra note 12. See also sources cited in n. 9, supra. 14 Ehrenfeld, who claimed that she could not financially afford to defend the English action, did not appear before the British court. Accepting jurisdiction on the basis of the 23 copies in England, the British court issued a default judgment

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Ehrenfeld was not the only American author sued for libel in England by bin Mahfouz; he had apparently filed or threatened to file at least 29 defamation lawsuits against authors who tied him to funding terror.15 In fact, he had a website detailing the defamation actions he had commenced or threatened in response.16 For example, prior to the Ehrenfeld story, bin Mahfouz had threatened Cambridge University Press with a defamation suit in England in connection with a similar claim about him in Alms for Jihad, a book by two Americans. Although the authors stood by their book, the Cambridge University Press apologized and paid a significant settlement to Bin Mahfouz, pulped all the remaining copies of the book, and asked libraries worldwide to remove the book from their shelves.17 Other commonly cited examples of suits principally aimed at international press discussion are defamation claims brought in England by

against Ehrenfeld. Bin Mahfouz v. Ehrenfeld, [2005] EWHC 1156 (QB). She thereupon sued Mahfouz in the Southern District of New York, seeking a declaration that the English default judgment would be unenforceable in the United States. Ehrenfeld v. Bin Mahfouz, F. Supp 2d. 2006 WL 1096816 (S.D.N.Y. 2006), aff ’d in part, 489 F.3d 542 (2d Cir. 2008). Ehrenfeld’s American action was dismissed for lack of personal jurisdiction over bin Mahfouz. Ehrenfeld v. Mahfouz, 518 F.3d 102 (2d Cir. 2008) (on the basis of the New York Court of Appeals’ response to a certified question on the jurisdictional issue in Ehrenfeld v. Mahfouz, 9 N.Y.3d 501, 851 N.Y.S.2d 381, 881 N.E.2d 830 (N.Y. 2007)). The Ehrenfeld story led to a legislative reaction in New York, which passed the Libel Terrorism Protection Act in 2008, informally known as Rachel’s Law. Libel Terrorism Protection Act, N.Y. C.P.L.R. 302(d) and 5304(b)(8). Other jurisdictions – such as Illinois, Florida and California – followed suit, but there was no state unanimity. See Are Foreign Libel Lawsuits Chilling American’s First Amendment Rights? Hearing Before the S. Comm. on the Judiciary, 111th Cong. 36 (2010) (hereinafter SPEECH Act Hearing) (statement of Bruce D. Brown) (noting that in addition to New York, Illinois, California and Florida – which passed libel tourism laws to prevent enforcement of foreign libel judgments – Hawaii, New Jersey, Utah and Arizona also introduced such bills). See also Stavely-O’Carroll, supra note 9 at 252 (2009). 15 Balin et al., supra note 9, at 102–03. See also King, supra note 12. Several of Bin Mahfouz’s libel actions against other publishers are detailed in Justice Eady’s opinion in Bin Mahfouz v. Ehrenfeld, [2005] EWHC 1156 (QB). 16 The Bin Mahfouz web site, which contains separate pages for “US Civil Suits” and “Litigation,” can be found at http://www.binmahfouz.info/faqs_4.html (last visited Jan. 31, 2011). 17 See, e.g. Balin et al., supra note 9, at 102–03; Richard Garnett and Megan Richardson, Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases, 5 J. Priv. Int’l L. 471, 478 (2009); Stavely-O’Carroll, supra note 9 at 267–68. The American Library Association refused to comply with the request to pulp the book. See SPEECH Act Hearing, supra note 14, at 4 (statement of Kurt Wimmer).

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Hollywood celebrities,18 and by “international business moguls”19 (such as Russian oligarchs20 and other powerful businessmen seeking to deflect charges of criminal activity and corruption in their home countries.)21 British courts have generously opened their doors despite the plaintiffs’ and defendants’ limited connections to England in those cases as well.22 18 Balin et al., supra note 9 at 99 (citing to libel suits brought in England by celebrities such as Britney Spears, Sylvester Stallone and Cameron Diaz); Bernstein, supra note 9, at 206. (“Analysts estimate that one-third of the libel suits brought in England and Wales during the period of October 2007 to October 2008 were filed by celebrities, many of whom were Americans on libel holiday.”) 19 McFarland, supra note 2, at 625 n. 35. 20 See, e.g. Berezovsky v. Michaels, [2000] 1 WLR 1004; [2000] 2All ER 986 (HL)(E). See also Bernstein, supra note 9, at 212. 21 See, e.g. Partlett, supra note 2, at 654–55 (describing lawsuits in London by Ukrainian billionaire Rinat Akhmetov against two Ukrainian news organizations with very few subscribers in England). See also Balin et al., supra note 9, at 110; Libel Tourism: Writ Large, The Economist, Jan. 8, 2009, at 48; Hartley, supra note 2, at 32 (“It has been said that wealthy businessmen in East European countries have found the threat of libel proceedings in England to be an effective means of securing the removal from websites in their countries of material that reveals corrupt activities on their part”). The Washington Times was apparently sued in an English court by an international businessman with a contract to sell cellphones in Iraq even though there had been only a minimal number of hits from England on the paper’s website. Balin et al., supra note 9, at 109–10. An Icelandic bank sued a Danish newspaper in England over reports criticizing the bank’s tax advice, even though the paper’s website on which the articles were posted had very limited traffic. Id. at 110. The case was settled for significant damages, reimbursement of legal costs, and a public apology on the paper’s site. Id. Older cases brought in England by non-residents against non-British publications include a suit by former Greek Prime Minister Andreas Papandreou against Time magazine. See Douglas W. Vick and Linda Macpherson, Anglicizing Defamation Law in the European Union, 36 VA. J. Int’l L. 933, 935 (1996) (noting such early cases of what came to be called libel tourism). See also McFarland, supra note 2, at 625 n.35 (“Three main groups have emerged as frequent libel tourists. First, celebrities .  .  . The second group . . . is international business moguls . . . The third group . . . is . . . citizens of Middle Eastern countries with alleged ties to terrorism”). 22 There is, of course, variability in the degree of connection between England and both foreign plaintiffs and foreign defendants. There is also variability in the degree of connection deemed sufficient by British courts. It could be argued that at least in some cases characterized as libel tourism, the claimants did have some connections with the English forum. But the combination of the plaintiffs’ and defendants’ ties to England and the focus of the disputed speech in these cases suggests that the ties should not be considered sufficient for the exercise of jurisdiction by the English courts. For example, although the lower court in Boris Berezovsky’s libel action against Forbes magazine for an article accusing him of corruption had found that Berezovky’s connections to England were tenuous, a divided House of Lords reversed that finding on appeal and concluded that Berezovsky’s English

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There are also striking examples of suits designed to constrain scientific and academic debate. One is the criminal action for defamation brought in France against the American editor of a pre-eminent European international law journal whose affiliated website published a critical book review by a German author of an Israeli writer’s book.23 Although sharp criticism

connections were sufficient to justify exercise of the English court’s jurisdiction. Berezovsky v. Michaels, [2000] 1 W.L.R. 1004 (HL) (E). Berezovsky traveled frequently to London, had an ex-wife and children living in England, and had a business reputation there. Nevertheless, as the dissenting judges noted, those English connections should not weigh heavily in the jurisdictional analysis. Berezovsky’s reputation in England was based on his activities in Russia and “[h]is reputation in England is merely an inseparable segment of his reputation worldwide.” Id. at 1022–23 (Lord Hoffman). The allegedly defamatory statements were made in an American magazine with relatively small English circulation and concerned Berezovsky’s Russian – and not English – activities. The dispute as a whole had little to do with England. Id. at 1025. As Lord Hoffman put it, “The plaintiffs are forum shoppers in the most literal sense.” Id. at 1024. In his view, the trial judge was “entitled to decide that . . . the English court should not be an international libel tribunal for a dispute between foreigners which had no connection with this country.” Id. at 1025. See also id. at 1026 (opinion of Lord Hope of Craighead). A similar argument can be made with regard to the English connections the Court of Appeal found sufficient in King v. Lewis, [2004] EWCA Civ. 1329, in which American boxing promoter Don King was permitted to sue American lawyer Judd Burstein for accusations of anti-Semitism he had leveled at King on a boxing website. King was deemed to have an English reputation that could have been harmed by Burstein’s accusations because he had managed English boxers. Id. See also Balin et al., supra note 9, at 111. 23 See, e.g. France v. Weiler, Citizen Media Law Project, available at http:// www.citmedialaw.org/threats/france-v-weiler; Kevin J. Heller, Criminal Libel for Publishing a Critical Book Review? Seriously? OpinioJuris Blog, Feb. 12, 2010, available at http://opiniojuris.org/2010/02/12/criminal-libel-for-publishing-acritical-book-review-seriously/. A criminal libel action was brought against New York University (NYU) Professor Joseph Weiler, editor in chief of the eminent European Journal of International Law, on the basis of an academic book review Professor Weiler uploaded to Global Law Books and European Law Books, two journal-affiliated book review websites he edits. The book review was written by Professor Thomas Weigend, Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne. When Professor Weiler refused to take down the offending review and instead offered the author of the underlying book, Dr. Calvo-Goller, the opportunity to post her own reply, she brought the criminal defamation action in France. NYU Law Professor Charged With Criminal Libel in French Court for Refusing to Take Down Critical Book Review, Citizen Media Law Project, available at http://www.citmedialaw.org/blog/2010/nyu-law-professor-chargedcriminal-libel-french-court-refusing-take-down-critical-book-rev. France permits private individuals to commence criminal proceedings in the French court system. The plaintiff in the French action was subject to much academic criticism (see,

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of authors’ ideas has been a part of academic book review culture, and although the plaintiff in the French action has been subject to much academic criticism, the defendant was subjected to a full criminal trial before the Tribunal de Grande Instance de Paris.24 The fact that the criminal charge was ultimately dismissed25 cannot eliminate the threat to academic freedom from the lengthy, expensive, and public process leading to the dismissal.26 The threat of a foreign libel suit in this kind of circumstance27 is even more powerful than the threat of defamation actions against the insti-

e.g. Lori Fisler Damrosch, Bernard H. Oxman, Richard B. Bilder and David D. Caron, Editorial Comment, Book Reviews and Libel Proceedings, Amer. J. Int. L. 226 (2010), available at http://www.asil.org/ajil.cfm (last visited Sept. 7, 2010), but did not withdraw her complaint. See also Kate Sutherland, Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate, 11 German L. J. 656 (2010). 24 See Joseph Weiler, In the Dock, in Paris, EJIL: Talk!, Jan. 25, 2011, available at www.ejiltalk.org/In-the-dock-in-paris/ (last visited Jan. 29, 2011) (describing the trial of The French Republic v. Weiler). 25 Jennifer Howard, French Court Finds in Favor of Journal Editor Sued for Libel Over Book Review, The Chronicle of Higher Education, March 2, 2011, available at http://chronicle.com/article/French-Court-Finds-in-Favor-of/126599/ (last visited March 16, 2011); Joseph Weiler, In the Dock, In Paris – The Judgment, EJIL Talk!, March 4, 2011, available at http://www.ejiltalk.org/in-the-dockin-paris-%E2%80%93-the-judgment-by-joseph-weiler-2/ (last visited March 16, 2011). Admittedly, the Tribunal de Grande Instance required the claimant to pay Prof. Weiler € 8000 in punitive damages. The extent of the deterrent effect of such an award on claimants is not entirely clear, however. 26 See Editorial, Book Reviewing and Academic Freedom, 20 EJIL 967 (2009). See also Howard, supra note 27; Adam Liptak, From a Book Review to a Criminal Trial in France, NY Times On-line, Feb. 21, 2011, available at www.nytimes. com/2011/02/22/us/22bar.html (last visited Feb. 23, 2011); Kevin J. Heller, Criminal Libel for Publishing a Critical Book Review? Seriously? OpinioJuris Blog, Feb. 12, 2010, available at http://opiniojuris.org/2010/02/12/criminal-libel-for-publishinga-critical-book-review-seriously/; France v. Weiler, Citizen Media Law Project, available at http://www.citmedialaw.org/threats/france-v-weiler; Kate Sutherland, Book Reviews, The Common Law Tort of Defamation, and the Suppression of Scholarly Debate, 11 German L. J. 656 (2010). 27 Other examples of “libel chill in the academy” are noted in Sutherland, supra note 22, at 666–67. There are also examples of commercial attempts to squelch scientific criticism, both on libel tourism facts and in recent domestic English cases as well. See Vick & Macpherson, supra note 21, at 935 (describing an action brought by the American pharmaceutical manufacturer of Halcion against a retired academic for critical statements reported in the New York Times). On the domestic front, much public attention has been paid to the British Chiropractic Association’s libel action against science writer and critic Simon Singh. See, e.g. Sarah Boseley, Simon Singh Libel Case Dropped, The Guardian, Guardian.

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tutional press. Even though the institutional press is currently operating under significant economic pressure, and even though many newspapers have fired journalists, newspapers and television networks stand behind their journalists and support the litigation defenses of their employees. Authors of books, by contrast – particularly if they do not have university affiliations – are entirely at the mercy of their publishers. Publishers’ relationships with authors are not akin to the employment relationships in the journalistic world. And publishers are likely to avoid authors who have been defendants in libel suits.28 On the academic front, libel tourism is likely to be most inhibiting to academic researchers who are independent of large, heavily endowed institutions, those who choose to focus their scholarly work on controversial public issues, and those who use anonymous sources. Both academic speech and investigative, “accountability” journalism are particularly vulnerable to the threat of defamation actions in countries with plaintiff-friendly libel laws. Libel tourism is particularly pernicious for resource-intensive investigative journalism, which is already threatened by the dire economic circumstances currently facing the commercial press.29 In addition, legal regimes requiring the libel defendant to prove the truth of her statement create structural problems for investigative journalism which relies on confidential sources whose identities could not be revealed.

co,uk, April 15, 2010, available at www.guardian.co.uk/science/2010/apr/15/ simon-singh-libel-case-dropped (last visited Jan. 31, 2011). 28 It is also to be expected that academic publishers will likely be easily intimidated by threats of foreign libel actions in receptive jurisdictions. First, because of the limited markets for their books, academic publishers are not highly profitable. There are only a limited number of such publishers. Even if the ability to selfpublish through the Internet would theoretically constrain the possible behavior of such publishers, the unwritten rules of advancement in academic life still endow high-ranking university presses with significant power vis-à-vis authors: more wish to publish with Harvard or Yale University Press than the presses can handle. Also, the relationship between author and academic publisher is not at all like the relationship between newspaper and journalist, as noted above in text. In the realm of the mainstream press, journalists are employed by their newspapers or television stations, develop reputations that enhance the institutional reputation of their employers, are elements in complex reporting structures including editors. They are unlikely to be fired simply because of what they did on one particular story. And they doubtless receive litigation support from their employers, so long as they were acting in the course of their employment. By contrast, authors who seek to have their books published by an academic press are not in such a web of relationships. They are not employees. It is very easy for the press to refuse to publish their next work, even if they help defend a libel suit against the book they have already published. 29 Countless articles, studies, and academic conferences have been devoted to the decline of newspapers and the future of journalism since 2008.

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England has been the most common forum choice for libel tourists. In fact, British defamation lawyers arriving in the United States apparently quip in a homage to Johnny Cash that they have just arrived from “a town named Sue.”30 This is because English libel law “is generally regarded as the most claimant-friendly in the world.”31 In stark contrast to United States defamation law, English law provides that the plaintiff has made out a prima facie case of defamation simply by establishing that the defendant has published a defamatory statement about her.32 Falsity is presumed, and the defendant has the burden of defending as to truth.33 The American “actual malice” rule has no English counterpart.34 While recent British case law developments have expanded defenses to defamation – including adoption of a qualified privilege for “responsible reporting” on matters of public interest35 – the privileges are limited

30 See Libel Tourism Hearing, supra note 9, at 3 (statement of Bruce D. Brown). See also Reforming Libel Law: A City Named Sue, The Economist, Nov. 14, 2009, at 59. 31 Hartley, supra note 2, at 26. 32 See Libel Tourism Hearing, supra note 9, at 46 (statement of Laura Handman). For a summary comparison of American and English defamation law, see, e.g. Balin et al., supra note 9, at 102–07; Michael Socha, Comment, Double Standard: A Comparison of British and American Defamation Law, 23 Penn. St. Int’l L. Rev. 471 (2004). See also Nick Braithwaite, The International Libel Handbook: A Practical Guide for Journalists 85 (1995) (describing English libel law). 33 See, e.g. Balin et al., supra note 9, at 102–03; Maly, supra note 9, at 900; Stavely-O’Carroll, supra note 9. 34 See Balin et al., supra note 9, at 103–04. 35 Reynolds v. Times Newspapers, [1999] UKHL 45, [2001] 2 A.C. 127 (H.L. 1999); Jameel v. Wall Street Journal, [2006] UKHL 44, [2006] 3 W.L.R. 642 (2006). See also Balin et al., supra note 9, at 104; Marin Roger Scordato, The International Legal Environment for Serious Political Reporting Has Fundamentally Changed: Understanding the Revolutionary New Era of English Defamation Law, 40 Conn. L. Rev. 165 (2007); Russell L. Weaver, Andrew T. Kenyon, David E. Partlett and Clive P. Walker, Defamation Law and Free Speech: Reynolds v. Times Newspapers and the English Media, 37 Vand. J. Transnat’l L. 1255 (2004) (describing empirical assessment of the effect of the Reynolds rule on British press); Michael Socha, Comment, Double Standard: A Comparison of British and American Defamation Law, 23 Penn. St. Int’l L. Rev. 471, 482–84 (2004) (describing liberalizations in the Defamation Act of 1996). See also Kyu Ho Youm, Liberalizing British Defamation Law: A Case of Importing the First Amendment? 13 Comm. L. & Pol’y 415, 444 (2008) (discussing “growing receptiveness of English courts to more press freedom by modernizing their traditional strict liability rule”). Liberalization of defamation rules has occurred in other Commonwealth countries as well. See, e.g. Lange v. Australian Broadcasting Corp., 189 C.L.R. 520 (1997) (Australia); Lange v. Atkinson, [1997] 2 N.Z.L.R. 22 (H.C.) (New Zealand).

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and English courts still apply them conservatively.36 Damage awards “can be high by international standards.”37 Because English law is both pro-claimant and shifts fees to the losing party, foreign defendants reasonably fear liability for extensive costs and fees, and because barristers are permitted to represent libel plaintiffs on a “no win, no fee” basis, libel plaintiffs have no disincentive to sue.38 English courts will also issue injunctions on publication.39 And English law firms with specialized libel expertise have been accused of soliciting the interest of potential libel tourist plaintiffs abroad.40 In addition, both English choice of law in defamation cases and British courts’ approaches to personal jurisdiction in such suits are claimantfriendly in transnational cases. English courts will apply English law to torts committed in England, including publication of defamation in England. But because England applies the multiple publication rule in defamation cases, publication occurs in England “each time an item is communicated to another person” there, and each publication constitutes a distinct tort.41 Even if publication outside England is significantly more extensive, English courts will apply English law and ignore the law of the other publication loci. Moreover, because English courts take the position that expression on the Internet is published in England whenever it can be

36

Although the House of Lords expanded the application of the responsible reporting privilege in Jameel v. Wall Street Journal, the burden of proof is still on the defendant, the court must find the reporting fair, reasonable, and necessary to the article, and the notion of the public interest is more narrowly interpreted than in the United States. See Libel Tourism Hearing, supra note 9, at 80–81 (Handman testimony). See also O’Carroll, supra note 9, at 259; Free Speech Is Not For Sale: The Impact of English Libel Law on Freedom of Expression, A report by English PEN & Index on Censorship 9 (2009) (hereinafter English PEN Report) (“There is no robust public interest defence in libel law”). 37 Hartley, supra note 2, at 26. 38 Libel Tourism Hearing, supra note 9, at 6 (Statement of Laura Handman); Balin et al., supra note 9, at 102; McFarland, supra note 2, at 626–27. 39 Balin et al., supra note 9, at 106. 40 See, e.g. Bernstein, supra note 9, at 220, 222–23. See also Partlett, supra note 2, at 655 (on specialized British bar). 41 See O’Carroll, supra note 9, at 261; Hartley, supra note 2, at 26–27. See also Berezovsky v. Forbes, [2000] 1 W.L.R. 1004, 1012 (per Lord Steyn) (each communication is a separate libel under English precedent). In the United States, by contrast, Keeton v. Hustler Magazine, 465 US 770 (1984) established the single publication rule in defamation cases. For a history of the multiple publication rule, see Itai Maytal, Libel Lessons From Across the Pond: What British Courts Can Learn From the United States’ Chilling Experience With the “Multiple Publication Rule” in Traditional Media and the Internet, 3 J. Int’l Media & Ent. L. 121 (2010).

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downloaded in England, “all material on the Internet is regarded as being published in England.”42 There are also significant practical differences to litigating defamation in England. Most importantly, the cost of litigating a defamation case in England is enormous – reportedly 140 times higher than the European average in 2008.43 London is not alone as a desirable libel litigation locale, however. Among others, France, Singapore, and Australia have seen their share of libel claims against defendants with limited ties to the fora.44 Notably, France and several Eastern European countries have criminal libel actions that can be brought by private parties – and even by private parties described as “politically connected.”45 Moreover, members of the European Union will recognize and enforce other member states’ judgments.46 Thus, defamation judgments under even the most onerous of European Union members’ libel laws would presumably be recognized and enforced elsewhere in the European Union. Against this background, how robust an assertion of United States constitutional law extraterritorially is the SPEECH Act? And how effective is it in protecting journalistic and academic speech? Legislation like the SPEECH Act has been criticized as constituting an undue extra-

42

Hartley, supra note 2, at 30. See also Balin et al., supra note 9, at 100 (“As a result, any book, article or broadcast found online, even those published exclusively in the U.S. for a U.S. audience, can subject the American author and publisher to the jurisdiction and libel laws of the U.K. and other countries”). In Mardas v. New York Times Co., [2008] EWHC 3135, the court concluded that even if it accepted defendant New York Times’s claim that the challenged articles had been limited to four Internet hits and 177 hard copies in England, “there is no basis for concluding there was no real and substantial tort” in the United Kingdom. 43 See Free Speech Is Not For Sale: The Impact of English Libel Law on Freedom of Expression, A report by English PEN & Index on Censorship 5 (2009) (hereinafter English PEN Report) (citing to A Comparative Study in Defamation Proceedings Across Europe, Programme in Comparative Media Law and Policy, Centre for Socio-Legal Studies, University of Oxford, December 2008). 44 See, e.g. Balin et al., supra note 9, at 99 n.4; Sturdevant, supra note 9, at 280–82. 45 Allen Edward Shoenberger, Connecticut Yankee Speech in Europe’s Court: An Alternative Vision of Constitutional Defamation Law to New York Times v. Sullivan? 28 Quinnipiac L. Rev. 431, 463 (2010). A recommendation to shift most criminal libel cases to the civil courts in France was made in 2008 in the Guinchard Report. Rapport 2008 “L’ambition raisonnee d’une justince apaisee,” available at http://www.ladocumentationfrancaise.fr/rapports-publics/084000392/index.shtml, at 290 et seq. (last visited Jan. 31, 2011). 46 Council Regulation 44/2001, On Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2001 O.J. L 12 1 (EC) (2001) (Brussels I).

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territorial application of US law.47 Yet the SPEECH Act is a more moderate response to concerns about “libel tourism” than other proposed legislation considered by Congress since 2009.48 Regardless of one’s view about whether the degree of extraterritorial application of US law by the SPEECH Act is appropriate, however, the most significant problem with the SPEECH Act may well be that it is unlikely to be very effective in achieving its stated goals. While having federal legislation provides the benefit of clarity and consistency with respect to how American courts should treat foreign defamation judgments, the statute does not eliminate the chilling effect of plaintiff-friendly libel law abroad. In fact, because so many of today’s mainstream news organizations have international connections and assets, it is likely that the very entities whose hard-hitting journalism we would like to foster will be less protected by this legislation than the sloppy blogger with few if any assets abroad and a “So sue me!” impudence. Instead of simply relying on the SPEECH Act to curb libel tourism, a two-pronged strategy should be deployed to reduce the chilling effect of defamation litigation on the kind of speech valued in democracy. First, the United States should support changes to English law – principally with respect to jurisdiction, forum non conveniens, and choice of law. Second, but no less importantly, a variety of private, “self-help” remedies to minimize the threat of libel tourism should be explored.49

3.2

CHANGES TO ENGLISH LIBEL LAW

Powerful objections have already been raised in England itself to London’s status as the destination of choice for libel tourists.50 Efforts are now

47 See, e.g. Mark D. Rosen, Exporting the Constitution, 53 Emory L.J. 171, 172(2004); Mark D. Rosen, Should “Un-American” Foreign Judgments Be Enforced? 88 Minn. L. Rev. 783 (2004); Partlett, supra note 2; Zick, supra note 9. 48 For example, the Free Speech Protection Act of 2009 would have allowed American citizens sued for defamation abroad for communications that would not be considered defamatory under US law to bring actions against the foreign libel plaintiffs for injunctions, treble damages and attorney’s fees. Free Speech Protection Act, S. 449, 111th Cong., 1st Sess. (2009). See also Balin et al., supra note 9, at 101; Bernstein, supra note 9, at 214–15, 224; Taylor, supra note 9, at 205–07. 49 Similarly, Hannibal Travis examines self-help remedies for government internet censorship. See Travis, Chapter 4 in this volume, at 76–106. 50 One member of Parliament called libel tourism “an international scandal,” while another referred to English libel laws as “Soviet-style.” Bernstein, supra note 9, at 225 and sources cited therein.

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ongoing to reform English libel law. Among others, members of the British Cabinet,51 public officials,52 government committees,53 legislators,54 the British press,55 and the Libel Reform Campaign spearheaded by English PEN and the Index on Censorship,56 have all called for libel reform.57 A draft defamation bill was released for public consultation and pre51 Nick Clegg Commits to Libel Reform in Speech on Civil Liberties, The Libel Reform Campaign, Jan. 7, 2011, available at http://www.libelreform. org/news/484-nick-clegg-commits-to-libel-reform-in-speech-on-civil-liberties, last visited Jan. 31, 2011. See also Patrick Wintour, Jack Straw to Review Britain’s Libel Laws, The Guardian Online, Dec. 27, 2009, available at http://www. guardian.co.uk/politics/2009/dec/27/jack-straw-review-libel-law (last visited Sept. 7, 2010). Jack Straw was Lord High Chancellor of England in the Brown government. 52 Dennis MacShane, a Member of Parliament, characterized libel tourism as “an international scandal” and likened British courts to “Soviet-style organ[s] of censorship.” O’Carroll, supra note 9, at 283. See also Garnett and Richardson, supra note 17, at 477; Libel Tourism: Writ Large, supra note 21. 53 See, e.g. Hartley, supra note 2, at 25, n. 2 (noting that responses to libel tourism are already being considered by a committee of the House of Commons). See also House of Commons Culture, Media and Sport Committee, Press Standards, Privacy and Libel: Press Complaints Commission’s Response to the Committee’s Second Report of Session 2009–10, Vol. 1, H.C. 362-1 (24 Feb. 2010), available at http://www.publications.parliament.uk/pa/cm/cmcumeds. htm (last visited Jan. 31, 2011); UK Ministry of Justice, Report of the Libel Working Group, March 2010, available at http://www.justice.gov.uk/publications/ libel-working-group-report.htm (last visited Jan. 31, 2011); Brid Jordan, The Modernization of English Libel Laws and Online Publication, 14 No. 7 J. Internet L. 3 (2011). 54 See, e.g. Jordan, supra note 49 (describing Lord Lester’s defamation private bill); Rachel McAthy, Government to lead libel reform with new Defamation Bill, Online Journalism News, journalism.co.uk, available at http://www.journalism. co.uk/2/articles/539552.php (July 9, 2010) (describing Lord Lester’s bill, heard by the House of Lords for the second time in July). 55 See, e.g. Editorial, Libel Reform: A Good Start, The Guardian, guardian. co.uk, Jan. 8, 2011, available at http://www.guardian.co.uk/commentisfree/2011/ jan/08/libel-reform-good-start-editorial (last visited Jan. 31, 2011); National Union of Journalists, NUJ Welcomes Clegg Libel Reform Plans, Jan. 7, 2011, available at http://www.nuj.org.uk/innerPagenuj.html?docid=1873 (last visited Jan. 31, 2011). 56 http://www.libelreform.org/ (quoting Jonathan Heawood, Director of English PEN as follows: “Our libel laws allow people accused of funding terrorism or dumping toxic waste in Africa to silence their critics whilst ‘super-injunctions’ stop the public from even knowing that such allegations exist. We need to reform our libel laws now, and that’s why we’re launching a national campaign to persuade our politicians to do so”). 57 See Jordan, supra note 49 (summarizing current proposals for reform of English defamation law).

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legislative review by the Ministry of Justice on March 15, 2011.58 Recently, the Joint Committee of the House of Lords and the House of Commons issued its Report on the Draft Defamation Bill, concluding that “the Government’s current draft may be thought modest.” 59 The Report establishes “four core principles” that would likely result in more protection for the press.60 It would be useful for the United States to applaud liberalizing developments and to engage in sustained efforts to persuade British lawmakers and courts to adopt American approaches to free speech and defamation.61 The United States could also seek to exert diplomatic pressure on the United Kingdom. This could be done in various ways. If foreign law changes are not addressed in good faith in light of the circumstances, admittedly controversial legislative ammunition – such as claw-back provisions (similar to those adopted by Britain and other European jurisdictions in other contexts) – are still available to Congress.62 The SPEECH Act is not necessarily Congress’s last legislative word, although what has been condemned as American legal imperialism could backfire as well.63

58 Ministry of Justice, Draft Defamation Bill Consultation, Consultation Paper CP3/11, March 2011, available at http://www.justice.gov.uk/consultations/ draft-defamation-bill.htm (last visited March 16, 2011). 59 Joint Committee on the Draft Defamation Bill, Draft Defamation Bill, Session 2010–12, HL Paper 203, HC 930-1, at 3 (U.K.) (Joint Committee Report). 60 The four principles are: that “some aspects of current law and procedure should provide greater protection to freedom of expression”; that “the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen”; that “defamation law must be made easier for the ordinary citizen to understand and afford”; and that “defamation law must adapt to modern communication culture;” Joint Committee Report, supra note 59, at 3. 61 See Zick, supra note 9 at 1580 (“The process of norm transmission is an important aspect of the First Amendment’s territorial dimension.”); id. at 1589 (“The federal government may use its foreign affairs and spending powers to encourage other nations to adopt First Amendment principles and standards. Rather than impose First Amendment standards on foreign actors, the government may attempt to persuade other nations to adopt First Amendment norms . . . Diplomatic activities, including application of various types of international pressure and persuasion, may gradually result in exportation of US free speech principles”). 62 King, supra note 12, at H6772-3. 63 See, e.g. McFarland, supra note 2. Professor Zick has recently argued that “The US response to libel tourism has placed significant pressure on British officials to shift the nation’s libel standards toward the Sullivan regime.” Zick, supra note 9, at 1610. Nevertheless, he concludes that “in the long run, meaningful

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While changes to English law that would fully harmonize substantive defamation law to American First Amendment standards would obviously solve the libel tourism problem, less radical change can also help. English courts should limit the transnational defamation cases they hear by changing their approaches to the exercise of jurisdiction in cases with thin British connections. They could also liberalize their use of forum non conveniens in actions involving American defendants.64 In addition, when British courts do hear such defamation cases, they should limit the circumstances in which they apply English libel law (requiring changes in their choice of law analysis). Because of the importance of free speech and the free press to the American conception of democracy, this interest should weigh heavily when the forum court concludes that the libel action would be likely to suppress open debate in the United States salient to political and academic discourse. In other words, adjustments in English conflicts practice, rather than fundamental revision of English substantive law or global harmonization of defamation law, would likely be sufficient to address American authors’ and publishers’ concerns about libel tourism in England.65

protection from foreign libel laws will only result from foreign regimes amending their libel laws.” Id. 64 See Hartley, supra note 2. 65 Some argue for global harmonization and international treaties as the best way to deal with trans-border defamation claims. See, e.g. Zick, supra note 9, at 1588 (multilateral treaties regarding enforcement of foreign judgments might produce a more coherent and legitimate approach to the treatment of foreign libel judgments”). See also Partlett, supra note 2, at 657. Some also see a more cosmopolitan First Amendment extending its influence beyond American borders, (see, e.g. Zick, supra note 9, at 1588 and 1626) and developments in Europe that “may result in greater sensitivity to principles akin to the First Amendment” (Thomas S. Leatherbury, ALI Takes Position on Foreign Judgments (Including Those Against the Media), 23 Comm. Law. 25, 27 (2005), quoting American Law Institute proposed draft on recognition and enforcement of final judgments). Nevertheless, it is unlikely that global substantive harmonization of libel laws would extend the American conception of freedom of speech worldwide. The opposite is likely to occur. Zick, supra note 9, at 1622 (“processes and mechanisms associated with transnationalism, including multinational treaties that establish global speech standards, may pose some threat to First Amendment protections currently available within US borders”); id. at 1611. See also Justin S. Hemlepp, “Rachel’s Law” Wraps New York’s Long-Arm Around Libel Tourists; Will Congress Follow Suit? 17 J. Transnat’l L. & Pol’y 387, 391 (2008) (“Persuading a world wary of “American legal hegemony” . . . to abandon its traditions and instead embrace American-style press freedoms is a mammoth, if not impossible, task indeed”); Micelle A. Wyant, Comment, Confronting the Limits of the First Amendment: A Proactive Approach for Media

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In the meantime, given the complexities of diplomatic agendas and the often glacial course of legal change, strategies for addressing the impact of libel tourism must also include private “self-help” solutions.66

3.3

REDUCING LITIGATION COSTS

As a practical matter, one of the principal problems with strategic libel tourism cases is the chilling effect of their expense. How, then, can expenses be reduced sufficiently to reduce that threat? A recent non-governmental organization (NGO) report67 suggested that press organizations collectively fund a global libel defense fund. However, while the proposal is certainly attractive in theory, it is not particularly realistic. Having proposed a press-funded scheme, the report does not address the likelihood that many successful and responsible media companies would likely avoid voluntary participation in such a fund. Proposals for libel insurance also face similar incentive-based critiques. How can we increase the availability of insurance if speech risk is hard to value? Despite these difficulties, however, those who call for financial solutions are right that the expense of litigating is a key to the chilling effect of libel tourism – both for journalists and for academics and scientists. Four alternative expense-focused solutions are worth exploring.

Defendants Facing Liability Abroad, 9 San Diego Int’l L.J. 367 (2008) (arguing against harmonization). In any event, substantive harmonization is likely to be difficult to achieve when different countries have historically balanced freedom of speech and reputation differently. International treaties are not easy to conclude, particularly in those circumstances. The history of the recently-proposed Hague convention on the recognition of foreign judgments – which apparently “fell apart due, in part, to differences regarding libel actions” – suggests skepticism about a treaty-based solution in the near future, even if only with respect to jurisdiction and choice of law. Garnett and Richardson, supra note 17, at 481; McFarland, supra note 2, at 631. 66 One suggestion that appears in the literature for such self-help responses in the context of Internet publishers is website disclaimers, visitor agreements, and the use of geo-location technology to prevent access to their sites. See, e.g. Wyant, supra note 9 at 411–15 (discussing these options). These suggestions are not further explored here, as contract-based solutions will not predictably be effective (see id. at 412–13) and access-blocking technology is neither foolproof (see id. at 413–14) nor desirable as a policy matter. 67 Drew Sullivan, Libel Tourism: Silencing the Press Through Transnational Legal Threats, A Report to the Center for International Media Assistance (Jan. 6, 2010) (hereinafter SULLIVAN, LIBEL TOURISM REPORT).

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TARGETED LIBEL DEFENSE FUND

The first – and preferable – solution is a targeted libel defense fund alternative. Instead of calling for an unrealistic libel defense fund financed by media organizations themselves, this alternative seeks to match speaker and funder incentives. Economic pressure on libel tourists could more realistically come from targeted (and publicized) libel defense funds supported by grants from individuals and organizations with interests in promoting public discussion on particular issues that have become or are likely to become targets of strategic libel actions abroad. This is a notion akin to interest group support, crowd-sourcing of journalism, and foundation financing. So, for example, if organizations outside the press or the academy were to organize a libel defense fund for free speech in terror writing – a funding scheme more likely to develop than an undifferentiated and press-based global libel defense fund – the existence of such a fund might deter strategic suits to deflect attention from that political issue. The same kind of funding might be found to support scientific critique. The key to this proposal is the alignment of funding sources with participant incentives. The proposal poses little or no risk of government censorship. The principal negative of this approach is that it might lead to narrow and politicized protections for speech, and skew the kinds of investigative journalism or academic critique in which speakers would engage.

3.5

LIBEL DEFENSE GOVERNMENT SUBSIDY FUND

Another – although more worrisome – financial option is a governmentfunded libel defense war-chest available for libel tourism cases where the speakers at issue have insufficient funds to fight the action abroad. In order to create the right incentives, the government libel defense fund should operate only during the transition period – before private sources develop as suggested above, and before relevant changes are made in the laws of libel tourism destinations. This option is troubling, however, because of concerns about government censorship in the allocation of such funds. The central issue posed by this funding option is how to structure the government subsidy in order to minimize the dangers of government speech selection. While we can imagine devising institutional structures to enhance insulation of distribution decisions from government, this option is problematic from the point of view of those skeptical about the effectiveness of such insulation mechanisms.

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INSURANCE SUPPORTED BY INDEPENDENT CREDIBILITY REVIEW

The third financing-focused alternative is an amended version of the insurance alternative mentioned in the literature. To the extent that there has been a reduction of coverage and an increase in premiums in libel insurance because the insurance companies do not believe they can properly assess the risk of speech, a proposal that would enhance the insurers’ comfort with their risk assessment might increase their willingness to insure. One possible mechanism that would help is the availability of one (or several) independent fact-checking institutions or consortia to work with libel insurers. Insurers could provide insurance (perhaps on a per-story basis) if speakers availed themselves of such an independent review. This is a less desirable alternative than the targeted libel defense fund because it would make insurers and independent fact-checkers the arbiters of journalistic process and accuracy – a result that is itself in significant tension with free speech and press norms. Would journalists ever participate and reveal their notes and sources to the independent reviewers? Under what circumstances would such institutions arise? Precisely how would they be paid? How could such entities maintain their independence when their credibility assessments would become the basis of insurance company judgments?

3.7

PRO BONO PRE-PUBLICATION REVIEW AND LIBEL LITIGATION

Another solution focused on reducing defamation expenses is pro bono legal assistance by local lawyers in the foreign suit forum.68 Such assistance might include not only defamation litigation once a suit is brought, but also pre- and post-publication libel review for those who do not have access to such vetting. One can imagine a worldwide consortium of libel law experts whose pro bono efforts could be coordinated by an institution such as a bar association and accessible via online communication.69

68 The recent Libel Tourism Report recommends pro bono libel defense and pre-publication review. See SULLIVAN, LIBEL TOURISM REPORT, supra note 68, at 33. 69 Some pro bono libel assistance already exists in England. See SULLIVAN, LIBEL TOURISM REPORT, supra note 68, at 33. The London-based Media Libel Defence Initiative (MLDI) provides financial help for journalists in defamation cases and trains journalists and lawyers. Id. The International Senior Lawyers Project Media Working Group also defends journalists in individual cases and helps push law reform efforts. Id. The Center for Global Communication Studies

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Whether such a program could be adequately staffed is an empirical question. At a minimum, we can expect that such pro bono efforts would be more likely for publication reviews than for full-fledged trials. Perhaps most importantly, however, it must be recognized that such efforts can themselves exert subtle censorship effects. It is possible that this type of legal involvement – particularly prior to publication – might lead to excessive risk-aversion on the part of authors, journalists and publishers.

3.8 PROMOTING ACCURACY In addition to financial solutions to libel tourism, the principal NGO report on the issue contains recommendations for increasing journalistic accuracy – namely suggestions for expanded education initiatives for journalism “best practice,” particularly for journalists in developing countries.70 We should certainly expand education initiatives for journalism “best practices,” not only for journalists in developing countries, but also to bloggers, citizen journalists, and any reporters with little experience in investigative journalism. In addition to best-practice education, innovations promoting selfcriticism and professional monitoring are likely to be helpful. In turn, such monitoring and professional review could be significantly more robust with enhanced electronic access to data. Professional scrutiny could promote higher professional standards. Thus, more general deployment of ombudsmen or “public editors” and an increase in journalism selfcriticism could help content quality. Moreover, accuracy would likely be improved with increased online access to government data at all levels – to be used both by journalists to develop stories and by those assessing story credibility. Perhaps most importantly, we should endeavor to keep the issue in the news, so that public discussion and interest can forestall declines in lawmakers’ attention. The impact of media campaigns on politicians should not be underestimated. Media discussion can also serve to clarify, for those from less speech-protective cultures, the nature of American

at the University of Pennsylvania’s Annenberg School of Communication has created globalmedialaw.com to provide legal resources and information on media law issues. Id. However, the LIBEL TOURISM REPORT notes that “[m]any of the organizations facing transnational legal threats have sought and received assistance for free from attorneys” but “[i]n Europe, pro bono legal assistance is less common [than in the United States]” Id. at 33. 70 See, e.g. SULLIVAN, LIBEL TOURISM REPORT, supra note 68, at 34–5.

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concerns about the threats posed by libel tourism to domestic democratic values. Particularly in cases in which the foreign jurisdiction does not have a significant interest in applying its less protective defamation law, persuasion about the significance of the free speech norm to American legal culture might help sway the foreign courts’ jurisdictional or choice of law decisions. In sum, libel tourism is a problem both for American journalists and academics. Yet the SPEECH Act, Congress’s most recent solution, does not significantly resolve the issue. It is possible that future changes in substantive British libel law will remedy the problem, but the nature and extent of those changes is not yet clear. Rather than waiting for the British to adopt substantive American defamation standards, or passing legislation designed to be more effective against libel tourism at the cost of further raising European ire against American legal “imperialis[m],”71 jurisdiction and conflict of laws-focused proposals might be more fruitful. Perhaps more important than proposals for legal change in this area, however, is the need to develop extra-legal techniques – self-help solutions designed both to reduce the costs of libel and to promote professional norms of accuracy. Thus far, the legal discourse on libel tourism has not gone beyond doctrine to address and assess these types of solutions. At best, there have been reflexive calls for financial support and increased journalistic training. A more nuanced analysis – focusing carefully on the incentives of all the parties – would generate, one hopes, more realistic alternatives. From targeted libel defense funds, to professional education and scrutiny, to improved access to data, various such approaches to reducing the chilling effect of libel tourism bear further exploration.

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Garnett and Richardson, supra note 17, at 474 (arguing that unavailability of recovery under US law “is itself a powerful reason to adjudicate not only to afford the claimant a right to redress but also to prevent US free speech law having global or ‘imperialist’ effect”). See also Zick, supra note 9, at 1588 (“The extraterritorial application of Sullivan may be viewed by other nations as a form of rights imperialism”); Rosen, Exporting the Constitution, supra note 45, at 172 (2004) (“Categorically refusing to enforce such Un-American Judgments is tantamount to imposing US constitutional norms on foreign countries”); Rosen, Should “Un-American” Foreign Judgments Be Enforced?, supra note 45.

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YouTube from Afghanistan to Zimbabwe: tyrannize locally, censor globally Hannibal Travis

4.1 INTRODUCTION This chapter attempts to map global patterns by which local tyrannies become sources of potentially global infringements on freedom of expression, particularly but not exclusively on the YouTube website. It illustrates certain parallels between the efforts to force copyright filters on YouTube and the Web in the West, and to harden the Great Firewalls of China, Arabia, and Persia in the East.

4.2

YOUTUBE AS SUPERNODE OF GLOBAL ONLINE FREEDOM

YouTube has transformed the nature and quality of the flow of information across the globe.1 No longer is a subscription to CNN or Al Jazeera required to keep up to date on foreign elections, wars, or singing competitions. Incredibly varied videos and stories are available on YouTube, from

1 See, e.g. Jim Macnamara, The 21st Century Media (R)Evolution: Emergent Communication Practices 163 (2010); Craig Allen Smith, Presidential Campaign Communication: The Quest for the White House 164 (2010); Ryan Lizza, The YouTube Election, N.Y. Times, Aug 20, 2006, at pg. 1 www.nytimes.com/2006/08/20/weekinreview/20lizza.html; Jessica Ramirez, The Big Picture, The Daily Beast, Nov 10, 2008, www. thedailybeast.com/newsweek/2008/11/09/the-big-picture.html; Ian Ward, Labor’s Pitch to Generation YouTube, 27 Soc. Alternatives 11 (2010); Lindsay Zimmerman, 2008 US Presidential Election: Persuasive YouTube Interactions About War, Health  Care, and the Economy, Georgia State University Digital Archive (2009), http://digitalarchive.gsu.edu/cgi/viewcontent. cgi?article=1066&context=psych_theses.

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breaking news to leaked combat footage, to music videos, to mash-ups.2 YouTube videos range from vintage to filmed yesterday, obscure to massively popular, and strictly artistic to the scientific and political. From the perspective of Wikipedia and what one author has called “Wikinomics,” YouTube is a gift economy in which a babbling bazaar contributes bits from all over the planet to paint a picture of our world in moving images.3 Like Wikipedia itself, it assembled this picture much quicker than the top-down projects organized by geniuses did. As a result of Web 2.0 services such as Facebook, Twitter, and YouTube, even if all the newspapers and television stations went out of business tomorrow, journalism would continue as raw evidence met the collective intelligence of humanity. Most of the flow of information across borders, measured in bandwidth or gigabytes, may eventually take place over the YouTube platform. In 2007, Ellacoya Networks estimated that YouTube made up about a fifth of Web traffic.4 Regulators in Pakistan stated in May 2010 that YouTube and Facebook together made up a fourth of traffic there.5 Bytemobile announced in July 2010 that YouTube made up a third of mobile phone Web traffic.6 Users have uploaded over 1000 years’ worth of video to YouTube, with another 34 000 hours daily.7 YouTube traffic’s growth propelled HTTP traffic back over P2P traffic in volume in 2007.8 About 12 billion YouTube videos were viewed monthly at the start of 2010.9 2

Cf. Robyn Longhurst, YouTube: A New Space for Birth, 93 Feminist Rev. 46 (2009). 3 See Don Tapscott and Anthony Williams, Wikinomics: How Mass Collaboration Changes Everything (2008); Jose Van Dijck and David Nieborg, Wikinomics and its Discontents: A Critical Analysis of Web 2.0 Business Manifestos, 11 New Media & Soc’y, 855 (2009); Wikinomics, www.wikinomics. com (last visited 10/14/2011). 4 Nate Anderson, The YouTube Effect: HTTP Traffic Now Eclipses P2P, Ars Technica (June 19, 2007), http://arstechnica.com/old/content/2007/06/theyoutube-effect-http-traffic-now-eclipses-p2p.ars. 5 Agence France Presse, Pakistan to Monitor Websites for “anti-Islam content,” Voice of America News, June 26, 2010, www.voanews.com/english/ news/asia/Pakistan-to-Monitor-Websites-for-Blasphemy--97159349.html. 6 Frank Michael Russell, Biz Break: Forget 3-D; Consumers Want Their Internet, San Jose Mercury News, July 28, 2010, www.mercurynews.com/news/ ci_15623304. 7 Emma Barnett, Top 10 Facts You Didn’t Know About YouTube, The Telegraph (U.K.), May 17, 2010, www.telegraph.co.uk/technology/ google/7733419/Top-10-facts-you-didnt-know-about-YouTube.html. 8 Compare William Boyes and Michael Melvin, Microeconomics 292 (7th ed. 2008) with Anderson, supra n. 4. 9 Jeff Clabaugh, Online Video Hits New Record, Wash. Bus. J., January 6, 2010, www.bizjournals.com/washington/stories/2010/01/04/daily49.html?jst=b_

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YouTube is a series of nodes made up of videos or accounts connected by citations or links. The site itself operates as a supernode which connects and organizes the nodes for us according to citation patterns (often called video responses), authors or channels, relevance to keyword searches, popularity by view count or other metrics, and date of upload.10 Network theory uses a virus metaphor to visualize how memes or advertisements spread through social networks.11 In what have been called “Macaca moments” humorous or revealing videos spread through both realspace and virtual networks to trigger cascades of public attention and often condemnation or outrage.12 From immigrants’ rights protests in the United States, to the electoral protests in Iran, to the anti-government rallies in Egypt and Libya, cellphone videos uploaded to YouTube have disseminated messages and grievances globally.13 From the perspective of the founders of Napster and Limewire, YouTube no doubt looks like a file-sharing website. Videos may be ripped from DVD or converted from VHS tape to a variety of file formats and then posted to the site, just as sounds may be ripped from CD or converted from cassette tape to MP3 and copied into a “Shared Music” folder

ln_hl. But see Helen A.S. Popkin, Facebook Traffic More Ginormous Than You Thought, MSNBC, May 28, 2010, www.msnbc.msn.com/id/37398110/ns/technology_and_science-tech_and_gadgets/?ocid=twitter (570 billion pageviews per month on Facebook.com). 10 Although “supernode” has a technical meaning in the programming of peer-to-peer software such as KaZaa or Skype, the term has a metaphorical or informal meaning of a center of “clustered assemblies that concentrate” nodes, such as “a manager who knows thousands of people, or an ISP that links directly to an international hub, which in turn connects to all the major cities on the planet.” Peter Cochrane, Six Degrees of Separation and Super Nodes, ZDNet, Aug. 26, 2004, www.zdnet.com/news/ six-degrees-of-separation-and-super-nodes/138104. 11 Alan Montgomery, Applying Quantitative Marketing Techniques to the Internet, 31 Interfaces, March–April 2001, at 9. 12 See David Karpf, Macaca Moments Reconsidered: Electoral Panopticon or Netroots Mobilization? (2009), davekarpf.files.wordpress.com/2009/03/macacamoments-vfinal.pdf. 13 See Richard Winton, LAPD to Videotape Major Incidents, L.A. Times, Aug. 3, 2007, available at www.policeone.com/training/articles/1296911/; McClatchy Newspapers and The Washington Post, Mideast Uprisings Spur New Protests in Iran, Seattle Times, Feb. 14, 2011, at A1, available at http://seattletimes.nwsource. com/html/nationworld/2014227044_arabunrest15.html; Jennifer Preston and Brian Stelter, Cellphones Become the World’s Eyes and Ears on Protests, MDG Group Paris, Feb. 18, 2011, http://mdgparis.typepad.com/global_media_and_ world_ev/2011/03/cellphones-become-the-worlds-eyes-and-ears-on-protests.html.

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for transfer to other Napster users.14 Viacom pressed the analogy into a potentially crippling lawsuit against YouTube, now on appeal.15 From the perspective of the US Telecommunications Act of 1996, YouTube is an information service with no universal service or nondiscrimination obligations.16 Similarly, under the US Digital Millennium Copyright Act of 1998, YouTube is a provider of information location tools, storage, and transmission services, a provider which enjoys special immunities not offered to book publishers or many bloggers.17 It has often been pointed out that the Internet is only neutral compared to television or radio.18 YouTube and Google exercise great power over a slice of the Internet. Do they incur great responsibility as a result? is my 14

Cf. Michael Liedtke, Google Betting that YouTube Will Turn into the Next Google, Associated Press/Kentucky New Era, Oct. 11, 2006, at A9 (“Google must now hope that the 20-month startup doesn’t morph into the next Napster – a disruptive innovator by a legal avalanche triggered by rampant copyright infringement”); Eric Bangeman, Google, YouTube Finding Rights-holder Navigation Tricky, Ars Technica Nov. 3, 2006, http://arstechnica.com/business/news/2006/11/8144.ars. 15 See Viacom Int’l v. YouTube Inc., 718 F. Supp. 2d 514 (S.D.N.Y. (2010); Andrew Baum and David Copland, YouTube Wins Safe Harbor in Viacom Copyright Suit, Mondaq (June 29, 2010), www.mondaq.com/unitedstates/article. asp?articleid=104056 (“Although Viacom analogized YouTube to Grokster (which had distributed software to facilitate copyright infringement via file sharing after the early Napster site was closed down), the District Court noted that Viacom did not disagree with YouTube’s position that YouTube’s purpose is not ‘solely to provide the site and facilities for copyright infringement.’”). The Second Circuit U.S. Court of Appeals has ordered a potential jury trial into whether YouTube had knowledge or awareness of specific videos that infringed valid copyrights so as to be liable for its users’ infringements. See Viacom Int’l v Youtube Inc, F.3d, 2012 WL 1130851 (2d Cir. Apr. 5 2012). 16 See Federal-State Joint Board on Universal Service, 13 F.C.C.R. 11501, 11571–72 ¶ 32 (1998) (characterizing a website as an information service that need not contribute to universal service fund). 17 See 17 U.S.C. 512(b)–(c) (2006). 18 See Christopher S. Yoo, Free Speech and the Myth of the Internet as an Unintermediated Experience, 78 Geo. Wash. L. Rev. 697, 727–28 (2009) (the Supreme Court has held that unlike common carriers, television stations exercise editorial judgment in deciding which journalism to accept or reject); Mark Weisbrot, “Net Neutrality” Is Vital to Free Speech in the Internet Age, Sacramento Bee, Sept. 18, 2010, available at www.zcommunications.org/netneutrality-is-vital-to-free-speech-in-the-internet-age-by-mark-weisbrot (“[D]uring the last two decades the Internet has introduced a degree of competition in the world of mass communications, which although still quantitatively small, is nonetheless unprecedented . . . This is rare in the history of technology, and especially in the technology of communications. Almost all prior innovations – radio, television, and motion pictures – have mostly made it easier for the few to control the many – like pilotless drone military planes.)”

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question. Most nations have alleged that they do; what politicians and judges currently debate is the extent of the responsibility, and the remaining scope of individual and corporate power. Generally speaking, blasphemy and seditious libel are the dominant forms of censorship in the impoverished and/or dictatorial societies of Africa and Central and Southern Asia, with insulting the great leader similarly controversial at the fringes of Asia and including China, Thailand, and Turkey, and countries such as Colombia, Honduras, and Zimbabwe. By contrast, intellectual property is prompting most of the website takedowns for political and cultural speech in Europe and the United States. The resistance to censorship around the world employs both legal and extra-legal tactics. Internet freedom has worked its way into our constitutional and statutory law in North America and Europe, and parts of Africa, Latin America, and Asia. But in large swaths of Africa and Asia, constitutions often do not mandate robust judicial protection of freedom of expression, so public intolerance of censorship presents a more direct battle of forces. In these societies, self-help, defense of new public spheres, transborder cooperation, and voting with one’s feet are more likely to succeed than filing lawsuits or asserting constitutional rights.

4.3

YOUTUBE CONFRONTS RELIGIOUS CLEANSING BY PENAL CODE IN SOUTHERN ASIA

Although freedom of the press in Afghanistan has made great strides since 2001, the Afghan constitution of 2004 has empowered judges to apply religious law directly in cases before them.19 An Afghan criminal court sentenced a student to death for downloading an article on the treatment of women in Muslim societies; the charge was insolence to the Prophet of Islam.20 Christian speech is subject to the death penalty in Afghanistan; a 19

See generally Hannibal Travis, Freedom or Theocracy? Constitutionalism in Afghanistan and Iraq, 3 Nw. U. J. Int’l Hum. Rts. 4 (2005); Ran Hirschl, The Theocratic Challenge to Constitution Drafting in Post-Conflict States, 49 Wm. & Mary L. Rev. 1179 (2008). 20 Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, 2008 Human Rights Report: Afghanistan, 2008 Country Reports on Human Rights Practices (February 25, 2009), www.state.gov/g/drl/rls/hrrpt/2008/sca/119131.htm (“In October 2007, police arrested Sayed Perwiz Kambakhsh, a student at Balkh University and a journalist for Jahan-e Naw (New World) daily, after he downloaded and distributed information from the Internet regarding the role of women in Islamic societies. On January 22, Balkh primary court sentenced Kambakhsh to death for

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spokesman for the ministry of the economy confirmed this reading of the law in May 2010 in threatening to close down an aid group and refer its members for prosecution for the speech.21 The Iranian Penal Code severely restricts freedom of expression. The constitution guarantees free speech except when it may be “detrimental to the fundamental principles of Islam or the rights of the public.”22 Article 23 of the constitution forbids attacking minorities because of their religious beliefs, but Article 168 allows political crimes to be defined based on Islamic principles.23 The Penal Code is frequently invoked to deny political and religious freedom, and the widespread use of torture and show trials aggravates the situation.24 It states that “anyone who undertakes any form of propaganda against the state” can be imprisoned up to a year; the law does not define “propaganda.”25 Iranian security forces arrested and tortured 20 bloggers in 2004.26 Between 2005 and 2007, the Iranian government and courts banned 42 publications.27 In 2007, the courts convicted three students of collaborating to “print inflammatory and derogatory materials.”28 Between 2006 and 2007 the government claimed to filter out 10 million immoral websites and reduced the speed of Internet service to residences and Internet cafes to an eighth of a megabit per second.29 During the Iranian electoral recount protests of 2009, a reporter for Newsweek was arrested, and sentenced in 2010 to two years in prison for insulting the Supreme Leader, six months for insulting the President, one year for propagandizing against an Islamic republic, four years for possessing classified documents, and five

‘insolence to the Holy Prophet.’ Kambakhsh appealed, and the Supreme Court transferred the case to a Kabul appeals court. On October 21, the appeals court commuted Kambakhsh’s death sentence to 20 years in prison. Kambakhsh appealed to the Supreme Court, and he remained incarcerated at year’s end”). 21 See Reuters, Afghanistan to Investigate Aid Groups for “Spreading Christianity,” The Guardian (U.K.), May 30, 2010, www.guardian.co.uk/ world/2010/may/30/afghanistan-investigate-aid-groups-christianity. 22 U.S. Dep’t of State, 2 Country Reports on Human Rights Practices 1843 (2007). 23 See Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics 181–85 (2007). 24 See United Kingdom of Great Britain and Northern Ireland, Annual Report on Human Rights 2009, at 115. 25 U.S. Dep’t of State, supra note 22, at 1843. 26 See Omid Memarian, International Human Rights Day: Internet Yearns to be Free in Iran, S.F. Chron., Dec. 9, 2005, at B7. 27 See U.S. Dep’t of State, supra note 22, at 1843. 28 Id. at 1845. 29 See id.

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years for conspiring against state security.30 These laws and others have affected many protesters, bloggers, journalists, and bystanders, who have been targeted, beaten, detained, and sometimes killed.31 Without comment in late 2006, the Iranian government added YouTube to the pornographic or seditious websites it filters, citing “Islamic Republic of Iran laws.”32 The Associated Press linked the action to the closure of newspapers critical of the government in recent years.33 Reporters Without Borders described the government’s campaign as one to create a “digital border to stop news and culture coming from abroad.”34 The New York Times noted the addition of Amazon.com and Wikipedia to the banned list in 2007.35 CNet described Facebook, MySpace, Flickr, and the BBC as also prohibited in 2009.36 In 2010, the intelligence ministry invited many of the country’s journalists to in-person meetings to get commitments not to cover the anniversary of the protests in favor of electoral recounts.37 Interestingly, rather than Iran distorting YouTube for US residents as Pakistan and Turkey are doing, the US government has impeded efforts by US residents to communicate with Iranians over Web 2.0. Since 2009, YouTube and Facebook have made a point of retaining and showcasing protest videos and commentary from Iran. The State Department conceded in December 2009, however, that US sanctions on Iran are deterring Google and Microsoft from providing Internet platforms to Iranian protesters.38 It wasn’t until nearly a year after the launch of the Green

30

See Maziar Bahari, Justice, Iranian Style, Newsweek, May 10, 2010, at http://www.thedailybeast.com/newsweek/2010/05/10/justice-iranian-style.html. 31 See Hillary Clinton, U.S. Sec’y of State, Hillary Rodham Clinton Delivers Remarks at the Human Rights Council in Geneva, Switzerland, (Feb. 28, 2011), in CQ Transcriptions, 2/28/2011, at 2011 WLNR 3910068. 32 Ali Akbar Dareini, YouTube Blocked in Iran, Watchdogs Say, Milwaukee J. Sentinel, Dec. 6, 2006, at 51, available at http://news.google.com/newspapers ?id=RScqAAAAIBAJ&sjid=nkUEAAAAIBAJ&pg=1843,3536983&dq=iran+yo utube&hl=en. 33 See id. 34 Id. 35 See Roby Alampay, You Block Youtube at Your Peril, Int’l Herald Trib., April 13, 2007, at 6. 36 Declan McCullagh, Iranians Find Ways to Bypass Net Censors, CNet, June 17, 2009, http://news.cnet.com/8301-13578_3-10267287-38.html?tag=mncol;txt. 37 Imprisoned Journalists in Great Danger, Reporters Without Borders, (May 11, 2010), http://en.rsf.org/iran-imprisoned-journalists-in-great-11-05-2010,37443. html. 38 See Nadia L. Luhr, Iran, Social Media, and U.S. Trade Sanctions: The First Amendment Implications of U.S. Foreign Policy, 8 First Amend. L. Rev. 500, 530 (2009–2010).

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Movement protests that the Office of Foreign Assets Control removed Web 2.0 speech platforms from a list of restricted exports. In lifting the ban, the Office noted that sanctions restrict “the universal right of free speech and information.”39 Pakistan famously blocked Facebook and YouTube in 2010 on charges of blasphemy. The Penal Code prohibits defiling the Qur’an, making derogatory use of extracts from it, using innuendo or visual representation of the Prophet of Islam, or defiling the medieval Caliphs of Islam.40 YouTube deleted the blasphemous videos and the Pakistani director of telecommunications received promises from the Chief Security Officer of Facebook and President Obama’s envoy to Pakistan that blasphemous accounts would be deleted and the incident would never happen again.41 In June 2010, a Pakistani judge extended the ban to many other websites containing content contradictory to Islamic principles, including any qualifying content on Amazon, Bing, Google, Hotmail, MSN, and Yahoo!42 Pakistani law restricts far more than blasphemy, however. The Penal Code criminalizes sedition, libel of foreign powers, malicious acts that insult religion or outrage religious feelings, promoting enmity or ill-will on grounds of race or religion, or other acts that undermine social harmony.43 Persecution of minorities using anti-blasphemy laws also afflicts Pakistan.44 As the State Department wrote in 2007, judges used blasphemy laws to target Christians, Ahmadis, and unorthodox Muslims.45 Saudi Arabia has no penal code, and its judges are empowered to mete out the death penalty for being a member of a religious minority.46 The Basic Law of Saudi Arabia, hailed by some as progress when it debuted in 39

Id. at 501. See Pakistan Penal Code (Act 45 of 1960) §§ 295, 298; T. John O’Dowd, Pilate’s Paramount Duty: Constitutional “Reasonableness” and the Restriction of Freedom of Speech and Assembly 4–5 (2010), in Comp. Const. S. Asia (forthcoming), available at http://ssrn.com/abstract=1583181. 41 See Court Lifts Facebook Ban, The Dawn (June 1, 2010), available at www. dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/front-pa ge/court-lifts-facebook-ban-160. 42 See Kit Eaton, Pakistan Dials Its Islamic Net Censorship Up to 11, Shutters Yahoo and Bing, Fast Company, June 25, 2010, www.fastcompany.com/1663977/ censorship-pakistan-internet-islam. 43 See Pakistan Penal Code (Act 45 of 1960) §§ 124A, 130B, 153A, 295, 298, 505. 44 See Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century 180 (2005). 45 U.S. Dep’t of State, supra note 22, at 2294. 46 See Rights Groups Calls for Saudi Penal Code, Reuters, Mar. 25, 2008, www.reuters.com/article/idUSL2547962920080325. 40

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1992, is no more specific than saying: “All acts that foster sedition or division or harm the state’s security and its public relations or detract from man’s dignity and rights shall be prohibited.”47 The King also has cause to fear that his subjects might sow sedition or political divisions between pro- and anti-monarchists. His wealth is pegged at over $17 billion.48 He also has a stake in the $27 billion King Abdallah Economic City.49 Historically, Saudi Arabia has banned all religions other than Islam, proscribed criticism of Wahhabi Islam, and persecuted and tortured Christians on religious grounds.50 The Saudi courts and Internet monitors prohibit, in addition to fraud, defamation, and terrorism, all “pornography” (in practice all sexuality),51 “violation of religious values,” and “offensive content or violating the principles of the Islamic religion and social norms.”52 The country postponed public Internet access until the late date of 1999 in order to perfect a regime for blocking and unblocking websites.53 As Taylor Boas of Boston University argues, since then all Saudi “traffic to the global Internet has been filtered through a set of proxy servers managed by the [Internet Services Unit], aiming to block information that authorities consider socially or politically inappropriate.”54 The State Department reported in 2009 that the government blocked anti-government, “human rights,” Christian, Jewish, Hindu, “radical,” or sexual minority sites.55 Saudi Arabia and Pakistan are now seeking to export their laws prohibiting criticism of fundamentalist Sunni orthodoxy to the entire world via the United Nations. In 2003, they succeeded in pressing the Commission

47 Basic Law of Saudi Arabia, art. 39, http://en.wikisource.org/wiki/ Basic_Law_of_Saudi_Arabia. 48 Devon Pendleton, Tatiana Serafin and Cristina von Zeppelin, In Pictures: World’s Richest Royals, Forbes.com, www.forbes.com/2009/06/17/monarchswealth-scandal-business-billionaires-richest-royals_slide_5.html. 49 Id. 50 See Persecution of Christians Worldwide: Hearing Before the Subcomm. on Intl. Operations and Human Rights of the Comm. on Intl. Relations of the House of Representatives, 104th Cong., 2d Sess., at 58 (1996), available at www.archive. org/stream/persecutionofchr00unit/persecutionofchr00unit_djvu.txt. 51 See Taylor C. Boas, Weaving the Authoritarian Web, Current Hist. 438, 440 (2004). 52 RSF, Saudi Arabia (2009), http://en.rsf.org/report-saudi-arabia,146.html. 53 See Boas, supra note 51, at 440. 54 Id. 55 Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, 2009 Human Rights Report: Afghanistan, 2009 Country Reports on Human Rights Practices (March 11, 2010); webcache.googleusercontent.com/ search?q=cache:3tgs5eN7cfoJ:www.state.gov/g/drl/rls/hrrpt/2009/nea/136079. htm.

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on Human Rights to pass a resolution deploring defamation and stereotyping of religions, but naming Islam out of all religions as the victim, and calling for the UN Special Rapporteur on racism and xenophobia to examine only “the situation of Muslim and Arab peoples in various parts of the world with special reference to physical assaults and attacks against their places of worship, cultural centres, businesses and properties in the aftermath of the events of 11 September 2001.”56 Nevertheless, in 2009 Saudi Arabia submitted a report to the UN Human Rights Council remarking that “it might still be difficult to permit the establishment of houses of worship for other religions on holy territory.” The report described all of Saudi Arabia as holy territory, banning all other houses of worship.57 Such a cynical policy of establishing one-sided protections for some religions only reveals a strategy of exporting globally the burdens borne by Saudi religious minorities.58

4.4

EXPORTING UNFREEDOM BY APPLICATION OF SEDITIOUS LIBEL LAWS TO YOUTUBE

Seditious libel is the doctrine that every citizen or resident is “a libeler who outrage[s] the sentiments of the dominant party.”59 Everyone is familiar with stories in newspapers and on television about Internet censorship in China, particular in connection with the 2008 summer Olympics. China’s Internet censorship operation is widely described as the largest in the world, and as one of the more effective.60 Chinese law prohibits “uncovering .  .  . or disclosing State secrets,” “inciting others to overthrow the State,” “subversion,” “inciting subversion,” circulation of “counter-revolutionary information,” and “circulation of

56 U.N. Doc. E/CN.4/Res/2003/4, at ¶ 14. See also Jean-Paul Buhrer, UN Commission on Human Rights: Reporters Without Borders Calls for Drastic Overhaul of How the Commission Works, Nonviolent Radical Party Transnational and Transparty (2003), www.radicalparty.org/en/content/un-commission-humanrights-reporters-without-borders-calls-drastic-overhaul-how-commission-w. 57 U.N. Doc. A/HRC/11/23 (2009), at 5. 58 Compare Comments of Head of International Organizations Department of Saudi Ministry of Foreign Affairs (2003), http://goliath.ecnext.com/coms2/ gi_0199-2635098/Senior-officials-from-10-countries.html, and A/HRC/11/23, at 8, with id. at 9, id. at 11, and Buhrer, supra note 56. 59 Irving Brant, Seditious Libel: Myth and Reality, 39 N.Y.U. L. Rev. 1, 18–19 (1964). 60 See John Palfrey, Turkey at the Edge, John Palfrey Blog (Feb. 7, 2008, 10:32 AM), http://blogs.law.harvard.edu/palfrey/2008/02/07/turkey-at-the-edge.

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anti-governmental information over the Internet.”61 In the late 1990s, the Chinese government confirmed that it criminalized “engaging in subversive activities” and “fomenting subversion of State power and the overthrow of the socialist system by rumour-mongering [or] slander,” with imprisonment, forced prison labor, surveillance, or loss of political rights.62 Organizing a cult and being a threat to national security are charges used to persecute Buddhists and neo-Taoists.63 One expert on China argues that in occupied Tibet, “nameless multitudes still languish in prison camps.”64 Thailand has come to distort the freedom of expression of all YouTube users. The Thai Penal Code bans defaming or insulting the King or Crown Prince of Thailand.65 The King has reason to be concerned. Forbes estimated his net worth at $30 billion in 2009, a figure that could well be 10 to 20 percent higher given how Asian markets are doing.66 The Thai Ministry of Information and Communications filters offensive websites, going beyond those insulting the King.67 More than 10 000 are blocked on grounds of national security, and nearly 6000 more on cultural grounds.68 YouTube has agreed to delete videos critical of the Thai King after a fourmonth ban of the site in 2007.69 Thailand is a case study in the abuse of national security letters as well. The Thai Computer Crime Act permits the army and police to access Internet histories without a court order. The authorities use this power to imprison those whose IP addresses are linked to the posting of material insulting the King.70 Bloomberg News reported in 2009 on the systematic

61

Greg Walton, China’s Golden Shield: Corporations and the Development of Surveillance Technology in China 10 (2001), 62 Xue Deyun and Xiong Jinren v. China, Working Group on Arbitrary Detention, ¶ 6 U.N. Doc. E/CN.4/2000/4/Add.1 at 26 (1999), www1.umn.edu/ humanrts/wgad/1-1999.html. 63 See Maria Hsia Chang, Falun Gong: The End of Days 12 (2004). 64 Id. at 132. 65 See Countries Under Surveillance: Thailand, Reporters Without Borders, http://en.rsf.org/surveillance-thailand,39775.html, July 16, 2010, http://en.rsf.org/ surveillance-thailand,36673.html (“Article 112 of the Thai Penal Code provides for jail terms of three to fourteen years for anyone who “defames, insults or threatens the king, the queen, the heir to the throne or the Regent.”). 66 See Tatiana Serafin, The World’s Richest Royals, Forbes.com, June 17, 2009, www.forbes.com/2009/06/17/monarchs-wealth-scandal-business-billionairesrichest-royals.html. 67 See Countries Under Surveillance, supra note 65. 68 See id. 69 See id. 70 See id.

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persecution and blocking of pro-democratic speech in Thailand, including about 8000 websites in 2009.71 In some countries, threats on the lives of journalists from paramilitaries and gangs with links to the government, or from the government itself, result in widespread self-censorship.72 Although Cuba and Venezuela are well-known for shuttering television stations or blogs (the latter mostly in the case of Cuba), reporters are actively hunted in some countries, notably Colombia, Honduras, Mexico, and Zimbabwe. The climate of violence may be inhibiting the use of YouTube and other online video platforms for political advocacy, as in the United States and elsewhere. The population of Colombia suffers from the most human rights abuses in the Americas, has the largest number of people displaced by violence in the Western Hemisphere, and dozens of indigenous peoples are confronting literal extinction.73 A law passed in Colombia in 2004 reinforces private violence by permitting security forces linked to the violence to engage in wiretapping and monitoring of private correspondence, without a court order or judicial oversight.74 The UN Special Rapporteur on Freedom of Expression and Opinion reported in 2005 that: “By

71 See Daniel Ten Kate, Thai Bloggers Face Jail Without Bail for Discussing Monarchy, Bloomberg News, Mar 11, 2009, www.bloomberg.com/apps/news?pid =newsarchive&sid=am736GWTy5dQ. 72 See Ronald Diebert, Access Denied: The Practice and Policy of Internet Filtering 197–98 (2008); Innocent Anaba, Africa: Report Says Attacks on Journalists on the Rise, The Vanguard, Feb. 18, 2010, available at http:// allafrica.com/stories/201002181181.html; Reporters Sans Frontières, Month of Violence turns Honduras into World’s Most Dangerous Country for Journalists (Apr. 2, 2010), http://en.rsf.org/honduras-month-of-violence-turns-honduras-0204-2010,36850.html; Zimbabwe in Top Ten of Worst Places for Journalists, The Dispatch, May 4, 2002, www.dispatch.co.za/2002/05/04/foreign/BZIM.HTM. 73 Compare YouTube (2010), www.youtube.com/results?search_query=colom bia+alvaro+uribe&aq=f, with Human Security Project, Human Security Brief 2007, at 47, James J. Brittain & James Petras, Revolutionary Social Change in Colombia: The Origin and Direction of the FARC-EP 24 (2010), Global IDP Project, Colombia IDP Crisis Worsens (May 15, 2003), www.reliefweb.int/w/rwb. nsf/6686f45896f15dbc852567ae00530132/fb6a21e49279092cc1256d2700309a31% 3FOpenDocument, Internal Displacement Monitoring Centre, Colombia: New Displacement Continues, Response Still Ineffective (Dec. 31, 2009), www.internaldisplacement.org/8025708F004BE3B1/(httpInfoFiles)/18EFD5E90A66EA75C 1257725006524C1/$file/GO2009_Colombia.pdf, and U.N. High Commissioner for Refugees (UNHCR), Q&A: UNHCR Seeks Prevention, Protection and Solutions for Colombia’s Displaced (Aug. 25, 2010), www.reliefweb.int/rw/rwb. nsf/db900SID/VDUX-88NSM6?OpenDocument. 74 See U.N. Economic and Social Council, Commission on Human Rights, Report of the Special Rapporteur on the right to freedom of opinion and

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granting judicial police powers to security forces, the new Anti-Terrorism Law poses a serious threat to freedom of expression and may increase the impunity surrounding the murders of journalists and other professionals in Colombia.”75 He noted that in 15 years, only 35 of 112 murders of journalists were charged.76 Reporters Without Borders declared in late 2009 that the Colombian government bore some responsibility for “the prevailing violence that leads to self-censorship and subjects being placed off-limits.”77 Mexico has suffered a similar wave of journalistic deaths as some drug cartels are linked to the government and enjoy impunity.78 In Honduras, since a military coup in 2009, Reporters Without Borders has documented “an almost unprecedented degree of harm to fundamental rights and freedoms, especially the right to receive and impart news and information,” resulting from “acts of censorship against media opposed to the coup, including sabotage, use of violence and military occupation.”79 The United States has historically provided the Honduran military with “training, equipment, and base construction, which dramatically improved their ability to .  .  . protect the country against terrorist threats.”80 One of the coup leaders, Roberto Micheletti, curtailed freedoms of speech and assembly, including by ordering or allowing security forces to beat and kill journalists.81 A September 2009 decree empowered police to “shut news media for ‘statements . . . which offend

expression, Ambeyi Ligabo, Addendum: Mission to Colombia, E/CN.4/2005/64/ Add.3, at 3 (2005). 75 Id. at 9. 76 Id. at 13. 77 Quoted in George Neavoll, Free Press Taking Hits around the Globe, The Register-Guard, Nov. 15, 2009, at G53. 78 See Jonathan J. Levin, Mexico Journalists Kidnapped as Drug Cartels Threaten Freedom of Speech, Bloomberg Business Week, July 29, 2010, at www. bloomberg.com/news/2010-07-29/mexico-journalists-kidnapped-as-drug-cartelsthreaten-freedom-of-speech.html (about 30 Mexican journalists murdered since 2005, many suspected killed by drug cartels); John Burnett, Marisa Peñaloza and Robert Benincasa, Mexico Seems to Favor Sinaloa Cartel in Drug War, NPR, May 19, 2010, www.npr.org/templates/story/story.php?storyId=126906809&ps= cprs. 79 Reporters Without Borders, Rule of Law and Civil Liberties Founder in Year Since Coup, UNHCR Refworld (June 28, 2010), www.unhcr.org/refworld/ country,,,,HND,,4c2d9cf2c,0.html. 80 US Dep’t of State, 2009 Country Reports on Terrorism – Honduras, www. unhcr.org/refworld/country,,,,HND,,4c63b642c,0.html. 81 See US Dep’t of State, 2009 Human Rights Report: Honduras, www.state. gov/g/drl/rls/hrrpt/2009/wha/136117.htm.

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the human dignity of public officials . . .’”82 As one blogger recounted, the Micheletti regime erected a cyber-blockade against dissent: “The online newspaper voselsoberano [sic] was the target of cyber-blockade. The control of communication, like all strategic entities of thermal and water energy; are under control of the military leaders who participated in the coup.”83 Zimbabwe suffers from the legacy of the racist regimes of the Rhodesian and South African apartheid era. Due to the deportations and degradation of indigenous Africans in Rhodesia, the UN Human Rights Commission charged Rhodesia with elements of genocide in the 1970s.84 In 1960 the racist regime enacted the Law and Order Maintenance Act, which restricted freedom of expression.85 The law punished possession of, making, uttering, writing, printing, distributing, or recording any statement critical of the President, promoting feelings of hostility or contempt or ridicule for any group or class, encouraging active or passive resistance to any law or administrative measure, and the like.86 Robert Mugabe and Joshua Nkomo led a Patriotic Front to end the genocidal acts and liberate the Africans of the country from racist rule and British colonialism.87 Zimbabwe won its independence and ended the former regime under the leadership of Robert Mugabe in 1980.88 After two decades in power, the Mugabe government released the Public Order and Security Act of 2002, which “criminalizes the making of virtually any negative comment about the president in his professional or personal capacity.”89 It also prohibits “making any false statements

82

Associated Press, Honduras Suspends Civil Liberties Amid Protests, Springfield News-Leader, Sept. 29, 2009, at A9. 83 See Luis Carlos Diaz, Honduras: 7 Journalists Killed and Others Threatened, Global Voices (May 2, 2010), at webcache.googleusercontent.com/ search?q=cache:rM9GPAtbU20J: globalvoicesonline.org/2010/05/02/honduras- 7journalists-killed-and-others-threatened/. 84 See U.N. Rights Team Reports on Africa; Sees ‘Elements of Genocide’ in White-Ruled Nations, N.Y. Times, Feb. 24, 1971, at 9, http://select.nytimes.com/ gst/abstract.html?res=F10910F73B5F127A93C6AB1789D85F458785F9. 85 See Law and Order Maintenance Act of 1960 (LOMA), webcache.google usercontent . com / search ? q = cache : YFzIsvmOsPQJ : www . issafrica . org / cdct / main pages / pdf / Terrorism / Legislation / Zimbabwe / Zimbabwe % 2520Law % 2520and % 25 20Order%2520Maintenance%2520Act.pdf. 86 Id. art. 44. 87 Associated Press, Rhodesia’s Smith Declared Whites Will Fight “For Years,” The Modesto Bee, Oct. 24, 1976, at B11. 88 Jamal Jafari, Attacks from Within: Zimbabwe’s Assault on Basic Freedoms through Legislation, 10 Hum. Rts. Br. 6, 6 (2003). 89 Id. at 7.

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prejudicial to the government, or any oral or written false statements that may, inter alia, adversely affect Zimbabwean defense or economic interests, or undermine public confidence in defense and law enforcement agencies.”90 The Access to Information and Protection of Privacy Act of 2002 threatened journalists with harsh penalties for publishing “false” reports.91 The Mugabe dictatorship followed this up with the Interception of Communications Act of 2006, which silenced many bloggers by unmasking them or threatening to do so.92 The law permits security forces to snoop on Internet communications without seeking court orders.93 The result has been not only a stifling of freedom but also a dramatic reduction in living standards approaching a famine.94 Zimbabweans’ life expectancy stands at only 43 years.95 Turkish law is focused on seditious libel in practice, but also prohibits blasphemy or “reviling Islam.” Christians are frequently charged with insulting Turkey, Turkishness, the Turkish Army, or Turkish dictator Mustafa Kemal Atatürk.96 Christian converts and those engaged in Christian speech are equated with terrorists by Turkish prosecutors.97 The persecution extends beyond the Internet to newspapers and Christian religious institutions or other property owned by Christians.98 In 2010, a survey revealed that Turkey filtered nearly 4000 websites including YouTube on political grounds. The Organization for Security and Co-operation in Europe blamed Turkey’s Law 5651, basically the Internet Law of Turkey.99 John Palfrey argued that the government gained a “broad mandate to filter the Internet” under Law 5651, and

90

Id. See id. at 8. 92 See Dibussi Tande, Scribbles from the Den: Essays on Politics and Collective Memory in Cameroon 209 (2009). 93 See Julian Pain, Dictatorships Get to Grips with Web 2.0, www.wan-press. org/IMG/pdf/RSF.pdf. See also U.S. Dep’t of State, 1 Country Reports on Human Rights Practices, 631 (2007). 94 See also Human Rights Watch, Zimbabwe: Reverse Ban on Food Aid to Rural Areas (June 4, 2008), http://www.hrw.org/en/news/2008/06/04/ zimbabwe-reverse-ban-food-aid-rural-areas. 95 See United Nations Development Programme, Human Development Report 2009, at 183–84 (2009). 96 See John Flynn, Christianity on Trial in Turkey: Killings and Persecution Continue, Zenit (Apr. 30, 2007), www.zenit.org/article-19504?l=english301. 97 Id. 98 See id. 99 See Reuters, Turkey Blocking 3700 Websites, Reform Needed, OSCE, Jan. 18, 2010, www.dailytimes.com.pk/default.asp?page=2010/01/19/story_19-1 -2010_pg4_3. 91

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forced YouTube to delete several videos critical of Atatürk, a man blamed for the deaths of at least 50 000 Greek civilians in the 1920s.100 Palfrey described Law 5651 as being so powerful because instead of a notice-andtakedown scheme, it is a “shut down and pass a content test for restoration of access to the Internet” scheme.101 Requiring registration for website publishers on pain of losing Internet access is a common tactic in Asia. A similar tactic has been used in dictatorships and emerging democracies for newspapers and non-governmental organizations.102 A fear is often expressed or hypothesized that Western spy agencies will set up newspapers and civil society groups to bring down the government103 as in several countries in Eastern Europe in 1989, Russia and China in 1991, Yugoslavia in 2000, and the various color revolutions of the 2000s.104 Most recently, both Egyptian government and US media sources have blamed Western governmental and non-governmental organizations for the Tahrir Square or “Papyrus” revolution of early 2011. Egypt traditionally barred access to some websites and arrested, attacked, imprisoned,

100

Palfrey, supra note 60. See id. 102 See, e.g. Clement Chu S. Lau, The Role of NGOs in China, Q. J. Ideology (2009), https://docs.google.com/viewer?a=v&q=cache:kIxmEmYjAGcJ:www.lsus. edu/Documents/Offices%2520and%2520Services/CommunityOutreach/JournalOf Ideology/NGOsinChinaarticle.pdf. 103 See Carroll Bogert, A Photo-op for Putin: Russia and NGOs, Int’l Herald Trib., July 7, 2006, at 4, available at www.nytimes.com/2006/07/07ihtedbogert.2142310.html. See also Alison Kamhi, The Russian NGO Law: Potential Conflicts with International, National, and Foreign Legislation, 9 Int’l J. Nonprofit L. 34 (2006). 104 One observer highlights the role of the National Endowment for Democracy and US Agency for International Development in at least one of the “color revolutions,” the Rose Revolution in Georgia in 2003. See Lincoln Abraham Mitchell, Uncertain Democracy: U.S. Foreign Policy and Georgia’s Rose Revolution 117 (2009). Another scholar argues that “the color revolutions in Georgia (Rose, 2003), Ukraine (Orange, 2004), and Kyrgyzstan (Tulip, 2005)” reveal “external support” and that “those who make US foreign policy frequently utilize indirect pressure to advance policy objectives.” Brian Grodsky, Lessons (Not) Learned: A New Look at Bureaucratic Politics and U.S. Foreign Policy-Making in the PostSoviet Space, 56 Problems of Post-Communism 43, 43 (2009). A third emphasizes planning and coordination by US Secretary of State Madeleine Albright and her German counterpart Joschka Fischer, as well as NGOs like the Open Society Institute, for the revolution in Yugoslavia in 2000, and previously in Poland and Bulgaria. See Gerald Sussman and Sascha Krader, Template Revolutions: Marketing U.S. Regime Change in Eastern Europe, 5 Westminster Papers Comm. Culture 91, 93, 95–96 (2008). 101

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and fined bloggers and other Web users for criticism of the government or the established Muslim religion.105 Public protests without permits were proscribed, and many permits were denied, particularly those involving foreign policy or religious protests.106 The government detained thousands of persons without trial for prohibited political or religious activity, without charge or trial.107 An Internet café regulation required handing over identification and telephone number information to use a computer,108 which affected the nearly 90 percent of households without high-speed home Internet access.109 Some of the same US organizations intervened in support of democracy in Egypt, including the National Democratic Institute and the International Republican Institute.110 Egypt responded with a total shutdown of the Internet, but soon relented under pressure.111 Experts reconstructing what happened concluded that: “Cutting off the Internet at the routing level (powering down the Internet exchange point, going after the remaining providers with secret police to enact a low-level shutdown) . . . signalled to the world that the Egyptian government . . . [was] ready to cut off internal communications and external dialogue, looking for a last chance to turn off all the cameras and clean out the Square.”112 Even after the revolution replaced President Hosni Mubarak with a military regime, thousands remained in detention 105 See U.S. Dep’t of State, 2009 Country Reports on Human Rights Practices: Egypt (Mar. 11, 2010), http://state.gov/g/drl/rls/hrrpt/2009/nea/136067.htm. 106 See id. 107 See id. 108 See id. 109 See International Telecommunc’ns Union, World Telecommunication/ ICT Development Report 2010, at 16–17, 205 (2010). 110 See Craig Whitlock and Mary Beth Sheridan, Free, Fair Egyptian Elections Still a Distant Prospect, Wash. Post, Feb. 9, 2011, at A01. 111 See James Cowie, Egypt Leaves the Internet, Renesys Blog (Jan. 28, 2011, 7:56 PM), www.webcitation.org/5w51j0pga; Tiffany Hsu, Internet Restored in Egypt, L.A. Times, Feb. 3, 2011, at 2; Jennifer Preston David D. Kirkpatrick, Kaseem Fahim and Anthony Shadid, Movement Began With Outrage and a Facebook Page That Gave It an Outlet, N.Y. Times, Feb. 6, 2011, at A10; see also Jeremy Kirk, With Wired Internet Locked, Egypt Looks to the Sky, IDG News/PC World (Jan. 28, 2011), www.pcworld. com/article/218064/with_wired_internet_locked_egypt_looks_to_the_sky.html; Internet Censorship, Wikipedia (2011), http://en.wikipedia.org/wiki/Internet_ censorship#cite_note-jamescowie_techdetails_Egyptfullblock-4. 112 James Cowie, What Libya Learned from Egypt, Renesys Blog (Mar. 5, 2011, 5:58 AM), www.renesys.com/blog/2011/03/what-libya-learnedfrom-egypt.shtml; see also Gregg Keizer, How Egypt Pulled Its Internet Plug, Computerworld/ITworld (Jan. 28, 2011), www.itworld.com/internet/135223/ how-egypt-pulled-its-internet-plug.

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without trial, including bloggers, and the detainees reported widespread torture.113 In Libya, the government had an advantage in that it had not authorized private Internet service providers (ISPs), as Egypt had.114 The state-owned telecommunications authority routed all wireline Internet connections into Libya.115 Therefore, on March 4, 2011, the authority flipped the “kill switch.”116 This prevented persons in government-held territory such as Tripoli from receiving messages of support for the revolution from the outside world, and slowed images of the revolution from getting out.117

4.5

THE FREEDOM TO SPEAK WITHOUT QUOTING?

In Europe, the major threat to Internet freedom in recent years has been the prospect of Internet copyright filtering, not only at the level of websites or IP addresses but of filtering out actual users. In the Tiscali cases, Internet service providers were found liable in Belgium and France for websites or P2P music files, as a “publisher” earning a profit, and in one case ordered to deploy filtering technology.118 In France, MySpace and DailyMotion.com similarly incurred liability as publishers who control and profit from infringing content posted by their users.119 Lacking a

113

See Egypt’s Political Prisoners, PRI’s The World (Mar. 8, 2011), www. theworld.org/2011/03/egypt-political-prisoners-jan25/. 114 See Cowie, supra note 111; Cowie, supra note 112. 115 See Cowie, supra note 112. 116 See id. 117 See Dana Wollman, Internet Traffic in Libya Goes Dark Amid Upheaval, MSNBC, Mar. 4, 2011, www.msnbc.msn.com/id/41911692/ns/ technology_and_science-security/. 118 See Jeremy Kirk, Belgian ISP Appeals Content-Filtering Mandate, InfoWorld, July 23, 2007, www.infoworld.com/d/security-central/belgian-ispappeals-content-filtering-mandate-338; Lionel Thoumyre, Intermediaries Web 2.0 Are Hosts or Publishers?, ZDNet.fr, December 18, 2007 [need url]; Nicolas Jondet, The Silver Lining in Dailymotion’s Copyright Cloud 9–11 (Apr. 19, 2008), www. juriscom.net/documents/da20080419.pdf. 119 See Jondet, supra note 118. For example, in 2007 the High Court of First Instance of Paris ruled that despite serving as a host, MySpace really acts as a publisher and may therefore be held liable for copyright infringement. The court ordered Dailymotion to pay 23 001 Euros ($33 400) in damages for the infringement of the movie Joyeux Noel, which had been made available by an internet user. The court asserted that because MySpace had enabled and thrived on piracy, it was under a general obligation to implement technical means to prevent unlawful

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general-purpose fair use defense, the French courts have began to outlaw universal digital libraries such as Google Book Search by applying French law and requiring a prior authorization to reproduce or display content in a search engine, even in short snippets.120 This sets the stage for holding all fragmentary reproduction, distribution, and display of portions of other authors’ content to be a copyright infringement, which will inhibit all search engines and Web 2.0.121 The Internet itself is a giant copying machine that resists efforts to build in prior written consent for posting links, taking fragments, or displaying images. European law is at risk of becoming much more censorious if the AntiCounterfeiting Trade Agreement passes in a form similar to the texts that have been leaked to the public. The White House has asked much of the world to agree to ban copyright infringers from the Internet, and impose a notice-and-takedown scheme on ISPs.122 Analyzing one leaked draft, 90 academics and civil society leaders concluded that it encourages the termination of users’ Internet access after three allegations of copyright infringement and would “hold . . . internet providers responsible for the actions of subscribers.”123 In the United States, censorship occurs in a complex and even postmodern fashion in which the regulation of public discourse often disappears behind a veneer of private freedom and control.124 Here, media corporations portray themselves as precious sources of accurate reporting to a news-starved public, but vulnerable to far-flung bloggers and online video sites that steal their content. This campaign of theft, they argue, will

activities. See Condamnation de Daily Motion – Joyeux Noel (Apr. 19, 2008), www. juriscom.net/documents/da20080419.pdf. 120 See Rick Mitchell, French Court Declines to Apply Fair Use, Finds that Google Book Project Infringes, Pat., Trademark & Copyright L. Daily, Dec. 24, 2009. 121 See Hannibal Travis, Opting Out of the Internet in the United States and the European Union: Copyright, Safe Harbors, and International Law, 84 Notre Dame L. Rev. 331, 379–81 (2008). 122 See Sean Flynn, Legal Experts Analyze Controversial U.S. Intellectual Property Treaty Released Wednesday: Concerns Still Loom (Apr. 21, 2010), www.wcl.american.edu/pijip/go/pdf04212010; Declan McCullough, European Parliament slams digital copyright treaty, CNet News.com, Mar. 10, 2010, http:// news.cnet.com/politics-and-law/?keyword=European+Parliament. 123 Jan Philipp Albrecht et al., International Experts Find that Pending AntiCounterfeiting Trade Agreement Threatens Public Interests (June 23, 2010), www. wcl.american.edu/pijip/go/acta-communique. 124 See Hannibal Travis, Postmodern Censorship of Pacifist Content on Television and the Internet, 25 Notre Dame J. of L. & Pol’y 47 (2011); available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1809103.

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diminish their revenue and replace reliable journalism with mob-like rantings by the public at large. The solution, they tell US telecommunications and international trade regulators, is to implement automatic copyright filtering enforcing pre-publication licensing for blog postings, news aggregators, and video sites. Granting large corporations a degree of control over online video analogous to their control over television via the Federal Communications Commission (FCC) will restrict the opportunities for effective Internet speech on politics and culture. This would reconcentrate the social and geographic distribution of political speech circulated in the United States and dispatched from it across the world through corporate gatekeepers in New York, Hollywood, and Texas, and their favored speakers such as Bill O’Reilly, Wolf Blitzer, Jon Stewart, and Chris Matthews.125 These limitations will extend to fiction and fantasy, which is often produced or distributed by movie studios reliant on government assistance in procuring locations and vehicles for action scenes, as well as non-fiction, often produced by editorial staffs closely connected in social and economic terms with defense contractors, government officials, and foreign governments. Internet copyright filtering technology such as Audible Magic CopySense threatens to frustrate the potential of the Internet to enable robust political speech from diverse and antagonistic sources. Internet copyright filtering will deny to bloggers and owners of YouTube “channels” the same rights enjoyed by media corporations to engage in fair use commentary, quotation, parody, and satire. By automatically deleting quotations of audio and video content, Internet copyright filtering makes Internet versions of the network news and radio and television talk shows illegal and impossible. When backed by federal regulations or international treaties, such filtering will prevent large investments from being made in uninhibited political discourse over the Internet. Filtering in the US thereby grants control over speech back to media corporations based in New York or Hollywood, such as Fox, NBC/ Comcast, and Viacom. They may decide to allow rampant cutting and pasting of quotations and images by their favored speakers such as Jon Stewart or Bill O’Reilly, while deleting videos quoting corporate content

125

As Vint Cerf, Internet pioneer and Chief Internet Evangelist at Google Inc., testified in 2006, “the broadband carriers propose to transform the Internet into something akin to a closed and proprietary system of centralized control.” Vint Cerf, Testimony to the Senate Judiciary Comm., Hearing on Reconsidering our Communications Laws (June 14, 2006), webcache. googleusercontent.com/search?q=cache:uDAI2VEfY5wJ:judiciary.senate.gov/ hearings/testimony.cfm.

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to make a statement that these speakers would not make. There is a long record of such discrimination in the mass media. The effort to require Internet copyright filtering will inevitably extend beyond music and television shows. The Associated Press demanded in 2008 that bloggers never quote more than five words from one of its news reports without paying for a license.126 Twitter received demands in 2010 to take down copyrighted material coming in at 140 words or less.127 Suits against Google, Amazon, and Yahoo! based on the copying of short stories, news articles, and images are proliferating.128 Even politicians such as President George W. Bush and Secretary of State Clinton have used intellectual property claims to attempt to silence their online critics.129 Justices William Brennan and Thurgood Marshall warned strongly against granting media corporations veto power against subsequent authorship by means of copyright litigation against partial copying, or qualitatively but not quantitatively “substantial” similarity.130 Judge Alex Kozinski of the Ninth Circuit has persuasively made a similar case for fair

126

See Cory Doctorow, Who are the “Media Bloggers Association” and What Gives Them the Right to Negotiate Copyright with the Associated Press?, Boing Boing (June 19, 2008), http://boingboing.net/2008/06/19/who-are-the-media-bl. html. 127 See Mike Melanson, Twitter, DMCA Take-Downs & the Prior Restraint of First Amendment Speech, ReadWriteWeb (April 26, 2010), www.readwriteweb. com/archives/twitter_dmca_takedowns_the_prior_restraint_of_first_amendment_ speech.php. 128 See Perfect 10, Inc. v. Amazon.com, Inc., 494 F.3d 809 (9th Cir. 2007) (images); Parker v. Google, Inc. 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff ’d, 242 Fed.Appx. 833 (3d Cir. 2007) (poems); Field v. Google, Inc., 412 F. Supp 2d. 1106 (D. Nev. 2006); Newborn v. Yahoo, 437 F. Supp. 2d 1 (D.D.C., 2006) (short story); Kahari v. Amazon.com, No. 08-1258 (E.D.N.Y. complaint filed Mar. 2, 2008), http://docs.justia.com/cases/federal/districtcourts/new-york/nyedce/1:2008cv01258/279065/1/; Clark v. Amazon.com, CIV S-05-2187 (E.D. Cal. Def ’s motion for summary judgment granted May 10, 2007), http://docs.google.com/viewer?a=v&q=cache:p1gwsWBS9PUJ:pub.bna. com/ctlr/052187_051007.pdf; Hammer v. Amazon.com, 392 F. Supp. 2d 423 (E.D.N.Y., 2005); Associated Press, Gates’ Corbis Sues Amazon.Com, Partners Over Copyrights, AP Worldstream, July 1, 2003, www.highbeam.com/doc/1P175005368.html; Mike Masnick, Author Sues Amazon and eBay For Having Used Copies of His Books for Sale, Techdirt (Apr. 3, 2008, 10:55 a.m.), www.techdirt. com/articles/20080328/163148691.shtml. 129 See Hannibal Travis, Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right, 35 HOFSTRA L. REV. 1519, 1533 (2007). 130 See Harper & Row Publishers v. Nation Enters., 471 U.S. 539 (1984) (Brennan, J. joined by Marshall, J., dissenting); id.

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use imitation.131 Scholars like Christina Bohannan and Rebecca Tushnet, among others, have shown that extensive quotation and imitation of copyrighted work is often needed to convey a message.132

4.6

PROTECTING BITS BEYOND BORDERS BY LAW

The absence of freedom of expression is at the root of a great many evils. The United Nations and its cultural arm in particular blamed nationalistic censorship of school textbooks in the early twentieth century for the world wars that killed over 50 million people.133 Without democratic oversight or effective judicial review, dictators in Germany, France, Poland, the Soviet Union, China, and Pakistan killed millions of people and delivered nearly mortal blows to entire communities.134 The principle of freedom of expression holds that it should be a law that the people have the right to censor their governors, rather than the other way around. The immunity of diplomats as regards their words dates back to ancient times, but modern freedom of expression is often dated to parliamentary immunities from prosecution as a result of speech or debates in seventeenth-century England.135 In the United States, the freedom of

131 See Rebecca Tushnet, Kozinski on Fair Use And Injunctions, 43(b)log, (Sept. 27, 2006, 1:13 a.m.), http://tushnet.blogspot.com/2006/09/kozinski-on-fairuse-and-injunctions.html. 132 See Christina Bohannan, Copyright Infringement and Harmless Speech, 61 Hastings L.J. 1083-1159 (2010) (copyright restricts speech); Christina Bohannan, Taming the Derivative Works Right: A Modest Proposal for Reducing Overbreadth and Vagueness in Copyright, 12 Vand. J. Ent. & Tech. L. 699 (Summer 2010) (quotation of copyrighted material conveys a message); Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 537–86 (2004) (quotation of copyrighted material conveys a distinct message). 133 See Edward Marsden, The School Textbook: Geography, History, and Social Studies 165-66 (Routledge, 2001) (U.N. Educational, Scientific, and Cultural Organization blamed school textbooks in part for outbreak of World War II); Gilbert Allardyce, Toward World History: American Historians and the Coming of the World History Course, 1 Journal of World History 23, 30 (1990). More recently, Secretary of State Clinton argued that “asymmetrical access to information is one of the leading causes of interstate conflict.” Hillary Clinton, U.S. Sec’y of State, Speech on Internet Freedom (2010), www.state.gov/secretary/ rm/2010/01/135519.htm 134 See R.J. Rummel, Death by Government (1997). 135 See United States v. Johnson, 383 U.S. 169, 177–79 (1966).

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speech or of the press which is not to be abridged is an amorphous and still undefined concept, but has a core meaning which is widely understood. Government should not selectively penalize similar speech based on ideology or politics.136 Abstract ideas and certain public documents should be free for common use without prior permission.137 Quotation or imitation of other speakers cannot be completely prohibited.138 Overbroad attempts to protect legitimate interests in morality or public safety will not stand.139 Requiring registration or disclosure of the identity of anonymous speakers is unconstitutional as a harbinger of tyranny and thought police.140 Internet filtering of the type practiced in China, Iran, and Saudi Arabia and urged by Audible Magic and its customers violates many of these principles.141 Specifically, filtering may restrict quoting government documents or the news to disseminate political or social commentary or criticism.142 This is why the very motion picture and television firms urging

136

See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). See Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) (First Amendment right of access to trials); Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) (access to trials); Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984) (access to jury selection); Press Enterprise Co. v. Superior Court (Press Enterprise II), 478 U.S. 1 (1986) (access to preliminary hearings); Nixon v. Warner Commc’n, Inc., 435 U.S. 589, 597 (1978) (access to other court records and documents); Harper & Row Publishers v. Nation Enter., 471 U.S. 539, 556 (1985) (copyright law accommodates freedom of expression by ensuring that no one may copyright facts or ideas narrated); New York Times Co. v. United States, 403 U.S. 713, 726, n. (1971) (Brennan, J., concurring) (Copyright laws would abridge freedom of speech if copyright protected the ideas expressed). 138 See Harper & Row, 471 U.S. at 560. 139 United States v. Stevens, 559 U.S. ___ ; 130 S.Ct. 1577 (2010); ACLU v. Reno, 929 F. Supp. 824, 882 (E.D. Pa. 1996), aff ’d, 521 U.S. 844 (1997). 140 See Doe v. 2themart.com, 140 F. Supp. 2d 1088 (W.D. Wash. 2001) (collecting cases); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Greenbaum v. Google, Inc., 845 N.Y.S.2d 695, 698–99 (N.Y. Sup. Ct., N.Y. Cty. 2007). But see Sony Music Entertainment v. Does, 326 F. Supp. 2d 556, 565 (S.D.N.Y. 2004); Krinsky v. Doe, 72 Cal. Rptr. 3d 231 (Cal. Ct. App. 2008). 141 See UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1116–18 (C.D. Cal. 2009) (describing overbreadth and unreliability of Audible Magic filtering). 142 See Doug Lichtmann, YouTube’s Future – And Yes, It Has One, 2 Progress & Freedom Foundation Academic Advisory Council Bulletin 2, 3 (2007) (suggesting that YouTube make use of movie titles and character names to remove videos; Fred von Lohmann, YouTube’s Copyright Filter: New Hurdle for Fair Use?, Electronic Frontier Found. Deeplinks Blog (Oct. 15, 2007), www. eff.org/deeplinks/2007/10/youtubes-copyright-filter-new-hurdle-fair-use; Joris van Hoboken, Audible Magic Has Its Own Copyright Law Definitions, Joris van Hoboken Blog (Feb. 13, 2009, 10:51 AM), www.jorisvanhoboken.nl/?m=200902. 137

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automatic copyright deletions on YouTube would never countenance the installation of software on their computers to delete footage originating from other companies. Human rights law strives to achieve a balance between the freedom of expression, including the freedom to send and receive information regardless of frontiers or form of government, and private or societal interests in property, security, health, or morals.143 The courts in the Netherlands and other member states of the European Union have ruled that private interests in reputation or property must yield at times to “freedom of information.”144 The European Convention on Human Rights and Fundamental Freedoms, and its sometime guardian the European Parliament, have partially recognized the threat to freedom from ‘three strikes and you’re out’ as a model for cleansing the Internet of its bad apples. In 2008, the Parliament passed amendment 138 to the EU Telecommunications Reform Package.145 After the French constitutional court cited amendment 138 in an opinion striking down the French law creating a Star Chamber for Internet copyright infringement allegations called the HADOPI,146 French opposition to amendment 138 softened and it became law.147 The text of the amendment is a model for the fight against Internet filtering worldwide, coming as it does from one of the few, if not the only, supranational parliament with real legislative powers.148 It states: 143

See Uma Suthersanen, Towards an International Public Interest Rule? Human Rights and International Copyright Law, in Copyright and Free Speech: Comparative and International Analyses 107–08 (Jonathan Griffiths and Uma Suthersanen, eds, 2005). 144 See Church of Spiritual Tech./Dataweb B.V., Gerechtshof [Hof] [ordinary court of appeal], Hague, 4 September 2003, [2004] E.C.D.R. 25, §§ 8.2-8.4 (quoting The Sunday Times Case v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) at 35–36 (1979)); Andre Lucas et al., France, in 1 International Copyright Law and Practice, at FRA-123 n. 56 (Paul Edward Geller and Melville B. Nimmer, eds, 2007) (French court has held that “Article 10 of the Convention of Human Rights [E.C.H.R.] legitimizes the full reproduction of a previously published paper”) (citation omitted). 145 Nate Anderson, EU Adopts “Internet Freedom” Provision on Internet Cut-offs, Ars Technica (Nov. 5, 2009), http://arstechnica.com/tech-policy/ news/2009/11/eu-adopts-internet-freedom-provision-on-net-cut-offs.ars. 146 See Johnny Ryan, Three Strikes, Copyright and Copytight?, Assorted Materials: Johnny Ryan (Apr. 24, 2010), webcache.googleusercontent. com/search?q=cache:q3ctn4OV2zcJ:johnnyryan.wordpress.com/2010/04/24/ three-strikes-copyright-and-copytight/. 147 See Anderson, supra note 145. 148 See European Parliament, How Parliament Is Organised (2010), www. europarl.europa.eu/parliament/public/staticDisplay.do;jsessionid=71ED21B62E3 141998FCA2366945206B4.node1?language=EN&id=45; Nicholas Moussis, The

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Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.149

The merit of this language is that it fully applies human rights law to all measures regarding Internet access or future services delivered over electronic communications networks. In the United States, as in other countries, the constitution provides a collection of tools with which to combat Internet copyright filtering or other censorship of the Web. The substantial overbreadth of a law, for example, may justify a court in finding it void as in violation of the First Amendment.150 Attempting to silence criticism of the government by discriminating among speakers or disfavoring the expression of such criticism is similarly unlawful.151 The vague standard imposed by a law which may invite discriminatory treatment may violate the Due Process Clause of the Fifth Amendment.152 Laws or court judgments requiring YouTube or other online communications platforms to filter out quotations warrant analysis for substantial overbreadth, vagueness, and silencing dissent. As Gigi Sohn has argued, pre-emptive filtering as a method of preventing infringement restricts protected speech, including fair use of political footage: Even assuming we considered it reasonable to subject internet traffic to unwarranted search in a manner we would never permit of our physical mail, telephone conversations, and physical premises, imposing such an obligation on ISPs (or allowing them to assume it voluntarily) would engender enormous cost for little gain. Employing techniques to “filter” broadband connections to look for unlawful behavior would require ISPs to examine every bit of information a subscriber puts on the web, in an email, in an instant message, or remixed into

European Parliament (2010); European Journalism Centre, Elections 2009, Eu4Journalists Dossier, www.eu4journalists.eu/index.php/dossiers/english/ C90/385. 149 Directive 2009/140/EC on a common regulatory framework for electronic communications and services, art. 1, http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:32009L0140:EN:NOT. 150 See ACLU v. Reno, 521 U.S. 844, 896–97 (1997); Erzoznick v. City of Jacksonville, 422 U.S. 205, 210–11 (1975); Broadrick v. Okla., 413 U.S. 601, 615 (1973). 151 See Citizens United v. Federal Election Com’n, 130 S.Ct. 876, 898–89 (2010); Christian Legal Soc’y v. Martinez, 130 S.Ct. 2971, 2998 (2010) (Kennedy, J., concurring). 152 See United States v. Williams, 553 U.S. 285, 304 (2008).

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a video, in order to find an illicit act, all without probable cause. Technologies that enable filtering, like “deep packet inspection” are flawed for being overinclusive (and thus unconstitutional for their chilling effect on free speech) and under-inclusive (and thus a waste of government and private resources). If the alleged act is copyright infringement, not only may unauthorized copying be lawful and critical to free speech, but only a court can determine whether a use is infringing. Additionally, monitoring subscribers’ network traffic would be an invasion of privacy, done at the request of a minority industry, and violating the rights of everyone who is online.153

She analogizes the threat of copyright filtering in the US to that of extrajudicial political and moral filtering in Iran, and indeed both types of filtering conflict with the same human rights laws: As the Iranian government maintains a monopoly on telecommunications services, the goal of omnipresent Internet surveillance was easily met, as it simply required the deployment of filters, powered by Deep Packet Inspection (DPI) technology, at “a single choke point” in the government network, through which all inbound and outbound traffic passes. Apparently, the Iranian government first installed this hardware for the purported purpose of blocking pornography, citing “lawful intercept” – an internationally-recognized concept that “relates to intercepting data for the purposes of combating terrorism, child pornography, drug trafficking and other criminal activities carried out online.” This example illustrates that the act of filtering is a slippery slope. While filtering technology might be deployed to serve a legitimate purpose – be it to stem the flow of child pornography or copyrighted content – when placed in the wrong hands, that same technology can become a highly effective instrument of private or governmental censorship.154

An obvious way to prevent deep-packet inspection by broadband providers or search engines is by finding these players not to be responsible for reviewing and approving their users’ Internet communications. This is the solution embodied in the Agreed Statement with Art. 8 of the WIPO Copyright Treaty, which states that: “It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty or the Berne Convention.” It is also the solution selected by recent US court decisions holding that the provider of facilities for digital or Internet-enabled communication do not necessarily incur copyright

153

Gigi Sohn, Comments of Public Knowledge, Media Access Project, the New America Foundation, and U.S. PIRG In The Matter of a National Broadband Plan, 993 PLI/Pat 149, 165–66 (January–March, 2010). 154 Mehan Jayasuriya et al., Forcing the Net Through a Sieve: Why Copyright Filtering Is Not a Viable Solution for U.S. ISPs, 993 PLI/Pat 221, 254–55 (2010).

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liability for their role in setting up a system that automatically forwards bits from place to place.155 Failing a domestic legal regime that already recognizes this solution as a general principle of law,156 many countries are considering safe harbors such as the US Digital Millennium Copyright Act (DMCA) to do that.

4.7

INTERNET FREEDOM AS SELF-HELP

Even without legal reform, popular evasion of government censorship through anonymity and protest remain effective tactics in many instances. Internet users in China are known to overwhelm keyword-based filters with large volumes of traffic.157 Proxy and encryption services are also in common use to evade the filters.158 Many users in Pakistan have turned to the Hotspot Shield virtual private network program to access YouTube.159 In Egypt, as elsewhere, users turned to dial-up access and satellite phones once Egypt shut down the Internet.160 In the United States, public outcry helped reverse C-Span’s decision to demand the removal of its clips from YouTube.161 The reposting of deleted audio and video to YouTube, the Web, or file-sharing services is probably as old as the Web itself, and if Audible Magic makes fair use impossible

155 See Cartoon Network LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008); CoStar Group Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004); Viacom Int’l v. YouTube Inc., 718 F. Supp. 2d 514 (S.D.N.Y. June 23, 2010); Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1148 (N.D. Cal. 2008). 156 See Cartoon Network, 536 F.3d 121. 157 See Jacqui Cheng, Great Firewall of China More Like Chain-link Fence, Ars Technica (Sept. 12, 2007), http://arstechnica.com/tech-policy/news/2007/09/greatfirewall-of-china-more-like-chain-link-fence.ars. 158 See Bennett Gordon, Censorship by Frustration, Utne Reader Arts Blog (Jan. 16, 2009, 4:25 PM), webcache.googleusercontent.com/ search?q=cache:TzNPFcAll2AJ:www.utne.com/blogs/blog.aspx%3Fblogid%3D3 2%26tag%3Dcensorship+%22Zahavah+Levine%22+pakistan&cd=18&hl=en&ct =clnk&gl=us. 159 See Marie Boran, Pakistan Web Users Get Round YouTube Ban, Silicon Republic, Feb. 27, 2008, web.archive.org/web/20080629065235/http://www.sili conrepublic.com/news/news.nv?storyid=single10381. 160 See Peja Bulatovic, Busting Egypt’s Web Blackout, CBC, Jan. 28, 2011, www.cbc.ca/news/technology/story/2011/01/28/f-egypt-web-blackout.html. 161 Xeni Jardin, Why Was Colbert Press Corps Video Removed from YouTube?, Boing Boing, (May 4, 2006), www.boingboing.net/2006/05/04/why_was_colbert_ pres.html.

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on YouTube,162 users will simply repost many videos on a site based in Africa, Asia, Europe, or elsewhere. Flight is an age-old remedy available to victims of tyranny. An Afghan put on trial for possessing a Bible fled to Italy.163 An Iranian journalist charged with insulting the leadership returned to the United States.164 Many Chinese Buddhists and neo-Taoists have sought asylum elsewhere,165 as have Iranian democracy activists, journalists, and bloggers.166 Millions of Afghans, Iraqis, and Sudanese have fled systematic ethnic, religious, and sectarian persecution over the past several decades.167 They are being joined by tens of thousands of Tunisians, Libyans, and Yemenis.168 US policy on the Internet, blogging, and trade reveals some inner contradictions. In 2010, Secretary of State Clinton gave a major speech arguing that “countries that restrict free access to information or violate the basic rights of internet users risk walling themselves off from the progress of the next century.” She condemned those creating “a fragmented planet in which access to information and opportunity is dependent on where you live and the whims of censors,” and called for “one internet, one global community, and a common body of knowledge that benefits . . . us all.”169 Yet a fragmented Internet is a predictable result of imposing copyright 162 Cf. UMG Recordings, Inc. v. Veoh Networks, Inc., 665 F. Supp. 2d 1099, 1116–18 (C.D. Cal. 2009) (warning that Audible Magic filter “does not meet the standard of reliability and verifiability required by the Ninth Circuit in order to justify terminating a user’s account”). 163 Italy Grants Asylum to Afghan Christian, Australian Broadcasting Corp., Mar. 30, 2006, www.abc.net.au/news/newsitems/200603/s1604184.htm. 164 See Bahari, supra note 30; Maziar Bahari, Wikipedia (2010), http:// en.wikipedia.org/wiki/Maziar_Bahari. 165 See Tibet Justice Center, Tibetan Refugees in Nepal (2002), www.tibetjustice.org/reports/nepal.pdf; U. S. Comm’n on Int’l Religious Freedom, WHY ARE U.S. MAYORS AND GOVERNORS APOLOGIZING TO CHINA? Press Release (Dec. 15, 1999), www.uscirf.gov/news-room/press-releases/23-december-15-1999-why-areus-mayors-and-governors-apologizing-to-china.html. 166 See Josh Shahryar, Can the U.S. Help Iran’s Green Movement?, The Huffington Post, www.huffingtonpost.com/josh-shahryar/can-the-us-help-iransgre_b_524168.html. 167 See Major Source Countries of Refugees, Toronto Star, Oct. 24, 2010, at 5, available at 2010 WLNR 21267426. 168 See Caravan of Aid for Refugees from Libya, Agency Tunis Afrique, Mar. 8, 2011, at 2011 WLNR 4502269; Italy On the Receiving End of Tunisian Refugees, NPR Morning Edition, Feb. 16, 2011, at 2011 WLNR 308210; Laura Kasinof, Yemen’s Strikes Against Shiite Rebels Leave 30 000 Refugees, Christian Science Monitor, Oct. 8, 2009, at 6, available at 2009 WLNR 19875241. 169 Clinton, supra note 133.

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liability on ISPs for failure to filter out copyright infringement. The only difference between these large firms and the average Internet user is the large-scale harm done by the former when they routinely rip-off storylines for films or link to infringing content. Some American copyright scholars adopt a view of secondary liability that could lead to the closure of YouTube.170 Statutory damages for the infringements could run into the billions of dollars.171 Such proposals could lead to the complete shutdown of YouTube or smaller imitators, worldwide, making temporary bans on YouTube in Egypt or Pakistan seem generous and protective of free speech by comparison. What if NBC or CNN had been shut down for repeated instances of copyright infringement? If it happened in Russia or Venezuela, surely the US government would condemn the overreaction.172

4.8

CENSORSHIP AS A CRIME

To condemn censorship, the United States, international criminal tribunals, and human rights organizations invoke the series of concepts and doctrines referred to as “crimes against humanity.” Applied against tyrannical regimes such as those headed by Jean Kambanda in Rwanda and Saddam Hussein in Iraq,173 the idea of “crimes against humanity” 170

See UCLA School of Law, Professor Lichtman Discusses Copyright Ruling in Favor of YouTube, Press Release (June 29, 2010), www.law.ucla.edu/home/ News/Detail.aspx?recordid=2976; Doug Lichtman, Editorial, The Case Against YouTube, L.A. Times, Mar. 20, 2007, at 19, available at http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1472198. 171 See Michael Driscoll, Will YouTube Sail Into the DMCA’s Safe Harbor?, 6 J. Marshall Rev. Intell. Prop. 536, 557 (2007); Reevaluating Copyright In The YouTube Age, IPLaw360 (Mar. 27, 2007), webcache.google usercontent.com/search?q=cache:JsZDH2CBT8QJ:www.bakerbotts.com/files/Pub lication/d4908397-f7f7-4ade-b9d3-a7a78c0b429a/Presentation/PublicationAttach ment/27dce0b3-62e0-41fe-90a6-a9738a3fd548/Hengl%2520Ragusa%2520IP%2520 Law360%2520March%25202007.pdf (arguing that YouTube “makes hundreds of thousands of infringing videos available to its users daily”). 172 See, e.g. Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Advancing Freedom and Democracy Report – 2008 Country Report: Russia, Part 1, Reports on Russia (May 23, 2008), http://moscow.usembassy.gov/ afdr2008.html. 173 See Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Trial Judgement (4 September 1998) (describing acceptance of guilty plea by Kambanda relating to crimes against humanity of murder and extermination); Eric H. Blinderman, The Conviction of Saddam Hussein for the Crime against Humanity of “Other Inhumane Acts,” 30 U. Pa. J. Int’l L. 1239 (2009) (describing Saddam Hussein’s guilty verdict for crimes against humanity of murder, deportation, and torture).

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is codified in the Rome Statute of the International Criminal Court. Although that statute has not been ratified by the United States, the crimes it defines are punishable in US courts as violations of the customary “law of nations” under the Alien Tort Statute.174 Civil society organizations and human rights groups regularly invoke the idea to defend minority rights.175 The idea is so powerful because it triggers universal jurisdiction to counteract the most serious violations of international law, violations which, unlike some other human rights abuses, offend all states.176 The crime against humanity of “persecution” describes the severe deprivation of fundamental rights to persons targeted by reason of their belonging to a political, ethnic, racial, cultural, religious, or national group or

174 See Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 286 (2d Cir. 2007); John Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002), vacated for rhrg en banc, 395 F.3d 978 (9th Cir. 2003); Krishanthi v. Rajaratnam, No. 09-CV05395, 2010 WL 3429529, at *9–11 (D. N.J. Aug. 26, 2010). 175 See, e.g. Amnesty International, Amnesty International Report 2010: Foreword, report2010.amnesty.org/foreword; Amnesty International, Colombia: Extradition of Paramilitary Leaders Must Not Lead to Closure of Investigations into Human Rights Violations, Press Release (May 13, 2008), www.amnesty.org/ en/for-media/press-releases/colombia-extradition-paramilitary-leaders-must-notlead-closure-investig; Amnesty International, Former Argentine President Jailed for Crimes Against Humanity, Press Release (Apr. 21, 2010), www.amnesty. org/en/news-and-updates/former-argentine-leader-gets-25-years-crimes-againsthumanity-2010-04-21; Benjamin Zawacki, Myanmar’s 2010 Elections: A Human Rights Perspective, Remarks at the Royal Institute of International Affairs (Chatham House) in London (May 11, 2010), in Amnesty Int’l Briefing Document, www.amnesty.org/en/library/asset/ASA16/007/2010/en/38ec32d1d538-45df-8359-fd09cbe84373/asa160072010en.html; Amnesty International, Open Letter to Iraq’s Political Leaders, Press Release (Feb. 22, 2010), www. amnesty.org/en/news-and-updates/open-letter-iraqs-political-leaders-2010-02-22; Human Rights Watch, World Report: Abusers Target Human Rights Messengers, World Report 2010 (Jan. 10, 2010), www.hrw.org/en/world-report-2010/newsrelease; Iranian Regime Accused of Crimes against Humanity, Reporters Without Borders, (Jan. 20, 2010), www.rsf.org/Iranian-regime-accused-of-crimes.html; cf. also Amnesty International, Recommendations to the New Honduran Government Following the Coup of 2009, at 20, available at www.amnesty. org/en/library/info/AMR37/003/2010/en (Jan. 28, 2010); Amnesty International, Honduran Government Must Take a Stand against Killing of Journalists, Press Release (April 29, 2010), www . amnesty . org / en / news - and - updates / hon duran - government - must - take - stand - against - killing - journalists - 2010 - 04 - 29; Amnesty International, Investigate Attacks on Journalists in the Kurdistan Region of Iraq, Activism Center (May 2, 2010), www.amnesty.org/en/appeals-for-action/ investigate-attacks-journalists-kurdistan-region-iraq. 176 See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 305–6 (S.D.N.Y. 2003).

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collectivity, assuming the deprivation was in connection with a widespread or systematic attack on a civilian population that included such abuses as arbitrary detention, torture, or murder.177 The crime reflects such postwar trials of Nazi officials as the “Case of R.,” which involved a Nazi stormtrooper who was sentenced to death for criticizing the Nazi leadership; the “Case of H.,” which involved a German submarine commander sentenced to death for criticizing Adolf Hitler; and the “Case of V.,” which involved a German mother sent to a concentration camp and injured there after being denounced to the authorities for having criticized Hitler and the Nazi system.178 Other crimes against humanity include “other inhumane acts” and torture.179 The US federal courts have applied the former concept against a member of the Chilean military junta who executed and tortured the regime’s political opponents,180 and the latter against provincial and local officials of the People’s Republic of China who arbitrarily detained and tortured members of the neo-Taoist Falun Gong religion.181 The merit of using “crimes against humanity” as a framework of analysis is the prospect of deterring violent and arbitrary action by dictatorships and their security forces with criminal and civil liability. Such persecutions waged against the politically powerless deserve an equally uncompromising response.

177

See Elements of Crimes, International Criminal Court (ICC) Doc. ICCASP/1/3 (part II-B), arts. 7(1)(a)(d)–(e), (h), (i) (Sept. 9, 2002), available at http:// www.icc-cpi.int/NR/rdonlyres/9CAEE830-38CF-41D6-AB0B-68E5F9082543/0/ Element_of_ Crimes_English.pdf. 178 See Prosecutor v. Tadic, Case No. IT-94-1-A, Appeal Judgment, ¶¶ 262, 290 n.351 (July 15, 1999) (summarizing Case of V., Decision of the Supreme Court for the British Zone dated 22 June 1948, S. StS 5/48, in Entscheidungen des Obersten Gerichtshofes für die Britische Zone, Entscheidungen in Strafsachen, vol. I, pp. 19–25 (hereinafter Entscheidungen), Case of R., Entscheidungen, vol. I, pp. 45–49 at p. 47, and Case of H., Entscheidungen, vol. II, pp. 231–46). 179 See Blinderman, supra note 173, at passim; Bernard Kuschnik, The Legal Findings of Crimes Against Humanity in the Al-Dujail Judgments of the Iraqi High Tribunal: A Forerunner for the ICC?, 7 Chinese J. of Int’l Law 459–83 (2008); Michael Newton, A Near Term Retrospective on the Al-Dujail Trial & (and) the Death of Saddam Hussein, 17 Transnat. L. & Contemp. Probs. 31, 63 (2007). 180 See Estate of Cabello v. Fernandez-Larios, 157 F. Supp. 2d 1345 (S.D. Fla. 2001), aff ’d, 402 F.3d 1148 (11th Cir. 2005), questioned on other grounds by Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005). 181 See Doe v. Qi, 349 F. Supp. 2d 1258, 1265–71, 1312–28 (N.D. Cal. 2004).

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5.

Balkanizing the Internet Kevin W. Saunders

5.1 INTRODUCTION “Bits Without Borders,” the title of the conference on which this volume is based, sounds as though it would have to be a good thing, perhaps totally good with no downside. After all, in a borderless Internet, information is available everywhere. Even in a country such as the United States, where the transmission of information is largely unrestricted, understanding of the news can be broadened through the Internet. Reading news from nonUnited States sources can provide a different slant. Additionally, topics not covered by sources in the United States may draw extensive coverage in countries that, for example, have a colonial era tie to a particular part of the world. There is also a benefit from the borderless Internet in the difficulties it raises for totalitarian regimes.1 People in countries that are less than free and in which more traditional sources of news have been restricted may enjoy access to Internet-based news from the outside world. Events within the country, such as political protest, that might not have been seen on the state-controlled media and the occurrence of which might have been denied by the government, may become widely known from cellphone videos uploaded to the Internet. Disaffected citizens realize that they are not alone in their feelings toward the government, and their willingness to engage in pro-democracy protest may increase. While all this is clearly good, there is also a downside to an Internet lacking borders. It is not only the totalitarian regime that has an interest in limiting certain material on the Internet. Fully functioning democracies may also have legitimate reasons to limit Internet content, or at least the audiences that content may reach. Where an Internet content provider is within the borders of the country, limits might be imposed. When the provider is outside the physical borders of the country, the borderless

1 For a discussion of the role of the Internet in combatting repressive regimes, see Hannibal Travis, Chapter 4 in this volume.

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aspect of the Internet seemingly makes it impossible for a country to impose limits on the information that electronically crosses its physical borders. This chapter will examine two interests in limiting Internet access that are at least arguably legitimate, one from the United States and one that raises a problem for much of the rest of the democratic world. After looking at the problems the borderless Internet raises in addressing those interests, a solution will be suggested. The solution is the Balkanization of the Internet, the re-establishment of some sort of borders. The existence of those proposed borders will be seen to provide potential solutions to the concerns raised. While the approach suggested may appear to be draconian, it does show that there are solutions. Those who favor an open Internet can, then, no longer rely on a belief that the Internet is ungovernable and should offer alternative solutions.

5.2

THE UNITED STATES CONCERN OVER CHILDREN AND PORNOGRAPHY

The United States has long had concerns over the availability of pornography to minors. In the age of more traditional media, the Supreme Court, in Ginsberg v. New York, 2 recognized a right to restrict children’s access to material that was pornographic but not obscene for an adult audience. With the advent of the Internet, Congress perceived a need to address the same concerns in that medium. Its response was the Communications Decency Act of 1966 (CDA), enacted as a part of the Telecommunications Act of 1996.3 The CDA amended sections 223(a) and 223(d) of Title 47 of the United States Code. As amended section 223(a)(1)(B) provided criminal penalties for any person who used a telecommunications device to transmit knowingly “any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age.” The amended section 223(d)(1) made it a crime to use any “interactive computer service” to send to a person under 18 “any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as

2

390 U.S. 629 (1968). Pub. L. No. 104-104, § 652, 110 Stat. 56. The Communications Decency Act is Title V of the Telecommunications Act. It is found at section 502, 110 Stat. at 133–35. 3

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measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication.” The Supreme Court held the CDA unconstitutional in Reno v. American Civil Liberties Union.4 The statute had a number of constitutional flaws. It did not make an exception for parents’ communication to their own children,5 and it did not exempt material with serious value for minors.6 The statue was also seen as being ambiguous in its use of two different definitions for the material addressed. The result was a potential chilling effect on material that is protected speech for adults.7 Beyond these flaws, and even accepting the government’s interest in shielding children, the impact on adult communication could not be tolerated in the face of less restrictive alternatives.8 After the seemingly well-deserved death of the CDA, Congress made a second attempt in the Child Online Protection Act (COPA).9 COPA was more limited than the CDA, with application only to those who post to the Web for commercial purposes sexually indecent material.10 There was a defense available for those who restricted access by requiring the use of a credit card or other indicator of age. COPA was also declared unconstitutional, although it took two trips to the Supreme Court to reach that 4

521 U.S. 844 (1997). Id. at 865. 6 Id. 7 Id. at 870–74. 8 The restriction on sending such material to a person known to be a minor might not seem to present this problem, but if, for example, any member of a chat room is known to be a minor, adult communication would have to be limited to what was suitable for that minor. 9 112 Stat. 2681-736. The Act was codified as 47 U.S.C. § 231. 10 The statute used the phrase “harmful to minors” for the restricted material and went on to define the phrase as: 5

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. Id. § 231(e)(6).

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final conclusion. The first trip, while extremely important with regard to the regulation of obscenity on the Internet,11 is not all that important for the issues addressed here. On its second trip through the courts, after remand, the Supreme Court found fault with the statute on grounds of more relevance here. The Court recognized the government’s compelling interest in shielding children but suggested that there might be available less restrictive but still effective alternatives to meet that interest. In particular, blocking and filtering software could be even more effective than COPA’s restrictions, without the impact on adult access that might result from an unwillingness to identify oneself as a recipient.12 In this approach, the Court was in agreement with the reasoning of the trial court, but because that lower court opinion was already five years old in a rapidly evolving electronic medium, the Court remanded for trial on that issue. With the guidance of two Supreme Court opinions, the District Court and the Third Circuit took a last look at the issues and permanently enjoined the enforcement of the statute.13 In doing so, the court reached conclusions that bear directly on the issue of borders, as well as more domestic concerns. Since COPA is content-based, the court applied strict scrutiny. Given the compelling interest in shielding children, the issue became whether a significant amount of adult communication would be suppressed and whether there was a less restrictive alternative. Under that test, COPA was held unconstitutional. Starting with the conclusions that are less relevant to the issue of borders, the Third Circuit determined that the statute reached far more than the targeted commercial provider of pornography, since no actual profit was required, and selling ads on a site might bring it within the

11

In its first examination of the statute the United States Court of Appeals for the Third Circuit found problematic the reference to “contemporary community standards” in COPA’s definition of “harmful to minors.” See American Civil Liberties Union v. Reno, 217 F.3d 162 (3d Cir. 2000), rev’d sub nom., Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002). The Supreme Court’s reversal reflected a position that the lack of the geographical community for material on the Internet did not in itself prohibit prosecution. While there was a majority for that position there was a split among the justices as to the proper approach. Some suggested that those who did not wish to be judged by the standards of a particular community not make their materials available in a way that would reach that community; others suggested the development of a more national standard for the Internet community. 12 See Ashcroft v. ACLU, 542 U.S. 656, 666–69 (2004). 13 See American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 129 S.Ct. 1032 (2009).

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ambit of the statute. The court also concluded that the available statutory defenses would impose costs that could make publication unprofitable, would not actually verify the age of the Internet user, and could cause adults not to access the material out of concern that they would identify themselves. The court also expressed concern over the application of the statute’s test to a variety of ages in the shielded class. The court said that material that has serious value for a 16-year-old minor may lack such value for a three-year-old.14 While that is true, it is less clear that it should counsel invalidation. The phrase “lacks serious value for minors” would seem to protect, or at least could be interpreted to protect, material having value for 16-year-olds, without regard to a lack of value for those who are younger. There seems no reason to conclude that Congress intended to prohibit material that lacked serious value for a three-year-old but had value for older minors. The court also found a difference between the Internet and other media in the application of the requirement that material be considered as a whole.15 The phrase “as a whole” has more obvious application to a magazine, book or film. It lacks such clear meaning with the Internet. Not knowing whether the “whole” referred to an image on a Web page, the whole Web page, the whole website, the site with all the sites it links to, or the entire Internet “endangers a wide range of communication, exhibits, and speakers whose messages do not comport with the type of harmful materials legitimately targeted by COPA . . . [and] impermissibly burdens a wide range of speech and exhibits otherwise protected for adults.”16 Since the court’s concern seemed aimed at the effect of the statute on adults, an approach the effect of which is limited to children might not be seen as raising this concern. Turning to the issue that is relevant to borders, the court said that the statute was underinclusive, because it had only a domestic effect. Websites outside the United States were not covered by COPA and would remain free to post pornographic material that could reach children. The court also indicated that such non-domestic sites were a significant source of the pornography on the web.17 Thus, the borderless Internet kept the statute from accomplishing its goals, while still significantly chilling adult speech within the United States. 14

534 F.3d at 205. See id. at 191. 16 Id. 17 See id. at 195 (suggesting that COPA failed to reach 50 percent of the commercial pornography available). 15

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The court’s candidate for a less restrictive alternative was the use of filters. Filters would operate as well on non-domestic sites as they would on those sites originating in the United States.18 As to the efficacy of filters, the court said: “the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web.”19 That conclusion may express more confidence than is warranted, and filters may not work particularly well on sites from any location. Blacklist filters have to rely on lists that, given the regular growth of the Web and the changes in content for existing sites, cannot keep up to date. Objectionable material will find its way through such filters. “White lists” do not face that problem, but there will be many valuable sites not on such lists. Filters may search text for objectionable strings, but they are likely to be under- or overinclusive. Materials with no sexual content, but containing some suspect string, will be filtered out; while material with sexual content that manages to avoid the particular strings may come through. Furthermore, filters seem incapable of adequately judging the images, other than by file names, that may be of the greatest concern. Even accepting the 95 percent success of filters asserted by the court,20 that leaves 5 percent unfiltered. While this is clearly better than the 50 percent suggested for COPA, there may still be a better alternative. Before leaving the COPA case, it is worth noting a statement by the Supreme Court on improving the availability of filters. In its second COPA opinion, the Court discussed filters and said that Congress could encourage their use and “take steps to promote their development by industry, and their use by parents.”21 That statement may support a solution to the problem of children and pornography that I offered a number of years ago,22 in fact prior to the adoption of COPA. That approach lacks the constitutional flaws of CDA and COPA, but as will be seen, the lack of borders in the Internet still presents a problem, a problem that would be solved by the Balkanization to be proposed. The approach suggested was to place the Internet content provider in the same position faced by the magazine vendor in Ginsberg. This can

18

See id. at 203. Id. 20 See id. at 201. 21 Ashcroft v. ACLU, 542 U.S. 656, 669-70 (2004). 22 See Kevin W. Saunders, Electronic Indecency: Protecting Children in the Wake of the Cable and Internet Cases, 46 Drake L. Rev. 1 (1997). See also Kevin W. Saunders, www.Sam’s_Stationery_and_Luncheonette.com: Bringing Ginsberg v. New York into the Internet Age, 2007 B.Y.U. L. Rev. 1661. 19

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be done by requiring that all software used to post any material to the Internet has the capacity to provide the content provider with an option. The default setting on the option would attach a signal to whatever was posted to the Internet capable of activating a filter that parents could choose to have on their home computers. A simple toggle would allow the content provider to post the material without the signal attached. Parents who choose to have a filter that recognizes the signal on their computers would have their children shielded from material on the Internet, unless the content provider had toggled off the signal. It was proposed to be a criminal violation to post to the Internet pornographic material, defined in a way similar to that in COPA, while having toggled off the signal. The approach would have no impact on adult-to-adult communication. Adult material would be required to have the signal attached, but a potential adult recipient would certainly not be required to have the filter that would recognize the signal attached. Furthermore, any adults who wish to receive pornographic material and choose not to activate the filter would not have identified themselves. The only chilling effect would be on the provider who was unsure whether the material being posted was suitable for children. That provider, out of an abundance of caution, might choose to leave the signal attached when the material would have been found acceptable for children. That is, in fact, a chilling effect, but it is a chilling effect that has no impact on adult-to-adult communication. Its impact is limited to what children might receive and, even then, only on children whose parents decide to activate the filter. Parents who believe their children are sufficiently mature for more adult material would not have expression to their children so limited. This approach should pass constitutional muster. The government interest in shielding children from pornographic depictions has been recognized as compelling, and the shortcoming in other approaches has been in the impact on adult-to-adult communication. With no impact on adult-to-adult communication, this approach would seem to be the least restrictive alternative available; it is, in fact, a non-restrictive alternative where adults are concerned. While the other constitutional objections are addressed by this approach, the problems with the borderless Internet faced by COPA are still present. Just as only domestic websites would face the content limitations in COPA, so only domestic providers could face legal sanctions for toggling off the filter-activating signal and making their material available to children. Indeed, the requirement that software contain that capacity would not be enforceable outside the United States. This problem could be resolved by Balkanizing the Internet and re-establishing borders.

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THE CONCERNS OF THE REST OF THE WORLD OVER HATE SPEECH

The United States and much of the rest of the world have starkly different views over the free-speech protections that should be afforded hate speech. While at one time United States law might have been seen as prohibiting hate speech,23 it seems clear from later cases that hate speech is protected. The Supreme Court, in Virginia v. Black,24 addressed cross burning, a particularly strong form of hate speech through communicative conduct. While the Court would have allowed the state to prosecute those who burn crosses with the intent to intimidate, the Court said that without the prosecution having to prove the intent to intimidate there was a danger that political speech would be suppressed. Thus, a strong form of hate speech was seen as meriting protection. Other countries, even fully functioning democracies with constitutional protections for free expression, do not grant this protection to hate speech. Canada serves as an example, and its Supreme Court’s examination of a hate speech statute provides a good explanation as to why such speech should be restricted in a free and democratic society. The case, Regina v. Keegstra,25 grew out of the activities of a high school teacher in Alberta, who in his teaching asserted that Jewish people are treacherous, subversive, sadistic, money-loving, power-hungry, and child killers, that they were out to destroy Christianity and had created the Holocaust to gain sympathy. He was charged and convicted under a Canadian statute prohibiting such hate speech. The Supreme Court of Canada affirmed the conviction, despite a provision in the Canadian Charter of Rights and Freedoms seeming to provide the same sort of protection to expression afforded by the First Amendment. Section 2 of the Charter provides: “Everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of Association.” Importantly, another provision in the Charter makes it clear that these rights are less than absolute. Section 1 provides: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable

23 See Beauharnais v. Illinois, 343 U.S. 250 (1952) (allowing a prosecution for group libel). 24 538 U.S. 343 (2003). 25 [1990] 1 C.R. (4th) 129 (Can.)

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limits prescribed by law as can be demonstrably justified in a free and democratic society.” The task set for the Court in Keegstra was to determine whether or not this suppression of expression otherwise protected by Section 2 could be justified under Section 1. In doing so the Court followed the analytic approach it had established in Regina v. Oakes.26 That required determining whether the restriction addressed a pressing and substantial concern. The Court found a substantial presence of hate speech in Canada having a negative impact on target groups and creating discord. Because Canada takes pride in tolerance and diversity, this concern was seen as pressing and substantial. The Court also had to examine the harm the restriction did to the values protected by Section 2. One such value is the protection of the search for truth and the common good. To that point, the court said: “There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.”27 While free expression can also serve to protect self-fulfillment, hate speech has a negative impact on the self-fulfillment of its targets. Thus, a restriction that harms the self-fulfillment of hate speakers is offset by a positive impact on potential targets.28 Lastly, looking to the function of free expression in the political process, the court recognized its importance but concluded that hate speech undermines political participation: [E]xpression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.29

Canada is by no means the only democratic country taking this sort of stand, nor is its Charter the only constitutional provision for the protection of free expression matched by a limiting clause. The German Basic Law provides in Article 5(1): “Every person shall have the right freely to 26 27 28 29

[1986] 1 S.C.R. 103 (Can.), 50 C.R. (3d) 1. 1 C. R. (4th) at para. 92. Id. at para. 93. Id. at para. 95.

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express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources . . . There shall be no censorship.”30 The limitation is found in the same article; Section 2 provides: “These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.” The legal provision most regularly invoked in this area and which, by its position, is considered the most important of constitutional values is found in Article 1(1): “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” Its relevance to hate speech is obvious, and it has been used to restrict anti-democratic, anti-Semitic, and pro-Nazi expression.31 The European Convention for the Protection of Human Rights and Fundamental Freedoms seems in accord with the German approach. Article 10, Section 1 protects free expression: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” But, Section 2 of the same article provides: the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Countries within Europe have recognized this exception and, along with countries outside Europe, have restricted hate speech. These countries include, in addition to those already mentioned, Austria, Belgium, Brazil, Cyprus, England, France, India, Israel, Italy, the Netherlands, and Switzerland.32 30

The German Basic Law may be found in translation at www.iuscomp.org/ gla/statutes/GG.htm. 31 German free-expression law is examined in Edward J. Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, 1997 Utah L. Rev. 963; Ronald J. Krotoszynski, A Comparative Perspective on the First Amendment: Free Speech, Militant Democracy, and the Primacy of Dignity As a Preferred Constitutional Value in Germany, 78 Tulane L. Rev. 1549 (2004). 32 See Alexander Tsesis, Hate in Cyberspace: Regulating Hate Speech on the Internet, 38 San Diego L. Rev. 817, 858 (2001).

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At least some of the impact of those laws is lost, because of the position taken by the United States. Countries may seize hate material found physically within their borders, and such countries may prosecute those who convey such sentiments when they are subject to such countries’ jurisdictions, but Internet hate speech presents a problem. Hate sites that would no longer be allowed to operate in Europe, Canada, and other countries have simply moved to the United States. In terms of content, they operate as though they had never moved, continuing to provide materials in the language of their former host countries. But legally they operate outside the jurisdiction of the laws of those countries.33 The United States is unwilling to match the restrictions on those sites that would be present in the countries they seem to be targeting. Furthermore, should the target country attempt to try the operator of a hate site hosted in the United States, the First Amendment would seem to operate as a bar to any United States cooperation toward that end.34 While the United States may take a different view with regard to the protection that should be afforded hate speech, it should be recognized that the countries that have restricted hate speech have legitimate concerns and the right to address those concerns in their domestic law. The United States position, coupled with the borderless nature of the Internet, has, however, frustrated the implementation of these hate speech restrictions. This is another area in which Balkanization could serve to further national interests.

5.4

BALKANIZATION AND ITS IMPACT

The solution to problems brought about by a lack of borders would seem, quite obviously, to be the imposition of borders. That might seem difficult in the virtual world of the Internet, since information posted in one place is available everywhere. But it may not be as difficult as it sounds. Individual content providers and Web hosts are located in the real world. As such, they are subject to the laws of the countries in which they are located. The key is to provide a way to tie websites to countries. The suggestion here is that the Internet Corporation for Assigned Names and Numbers (ICANN) change the way in which Uniform Resource 33

See Russell Working, Illegal Abroad, Hate Websites Thrive Here: 1st Amendment Lets Fringe Groups Use U.S. Sites to Spread Their Message Around the World, Chi. Trib., Nov. 13, 2007 at A1, available at 2007 WLNR 22413864. 34 For a discussion of a similar issue concerning national jurisdiction over libel, see Lili Levi, Chapter 3 in this volume.

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Locators (URLs) are assigned. As it stands now, each URL, each Web address, contains a suffix. Commonly, particularly in the United States, the suffixes are “.com”, “.org”, “.edu,” or the like. Outside the United States, websites are more likely to have a suffix that indicates a particular nation, “.fr” for France, “.uk” for the United Kingdom, or “.ca” for Canada. In fact, websites may contain a combination of suffixes indicating the nature of the website and the country. For example, the website of the University of Oxford is “www.ox.ac.uk,” where “.ac” indicates a site of the same academic or educational nature as “.edu” does in the United States. The change suggested would be for ICANN to require that all URLs registered under its authority include a two-letter country code suffix.35 For example, a site in the United States that had ended in “.com” would now end in “.com.us.” Furthermore, an entity registering a website would not simply be allowed to choose just any country code. In registering a URL, the country designator would indicate the location of the registrant and the acceptance of that country’s laws as governing the operation of the website, and of that country’s courts as having jurisdiction over the website operator. This provision would clearly help in the suggested United States approach to shielding children from pornography. The help would come from the possibility of filters not only recognizing the signal that the proposal would require be attached, unless toggled off, but also the country code. If a website has the “.us” code, parents know that the site is subject to United States law. If they have the filter activated, they can be confident that the material their children access will be suitable or at least that, if it is not, the content provider will be liable. If a site has another country designator, it might be filtered out and not be of concern to parents. There is also the possibility of finer tuning. If another country also has laws that are protective of children, for example laws requiring a similar filter-activating signal, the filter might be set to allow sites from that country to be accessed. Again, there is no limit on adult-to-adult communication. International sites remain available to adults who do not have a filtered computer. It is true that there may be times when a child could benefit from access to a non-United States site that the child might find blocked. But, the control over the filter is in the hands of the parent. If the parent agrees, the filter can be turned off. 35 If ICANN is thought not to have this authority, it could seemingly be granted by the same entities that established the corporation, or we will have reached the science-fiction point of being unable to turn off something we created. If we have in fact reached that point, countries might simply choose to require that access be blocked to websites without a country code extension. Market forces would then lead content providers to adopt such URLs.

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The application to hate speech might have a stronger impact if other countries should choose to use the “.us” country code as an indication that sites need to be excluded from access within their borders. The most damage to the Internet would be the result of any decision to require that Internet service providers block access to United States sites. If that were to occur, residents of the countries that do so would no longer have access to content on United States sites. A somewhat less drastic approach would be for a country to let its ISPs know that they would be liable for any hate speech available on the websites to which they provide access. The ISPs themselves might decide to block all United States sites, but presumably the market value of maintaining United States sites would lead ISPs to allow access to as many sites as they could. The result would be likely to be a “white list” approach, with ISPs inspecting the content of United States sites to determine that they may be safely included among the sites to which they provide access. That approach is likely to allow access to many major United States sites. One can be reasonably sure that WebMD, for example, will not contain hate speech. Even some large sites, however, could end up blocked. If eBay or Amazon offers for sale a copy of Mein Kampf, an ISP might be taking a risk in providing access to that site. The question remains as to just how serious other countries are in their concerns and whether or not they will take a step that matches the effectiveness of those suggested. Some skepticism may be reasonable, but there are indications that some action might be taken. Perhaps the best indication that countries might choose to take action against extraterritorial hate sites is the fact that they have already done so. Spain has required the blocking of websites that violate its laws.36 It would appear, then, that Spanish ISPs would have to take some steps to identify sites that violate Spanish law. They could, of course, try to rely on reported violations to add sites to a blacklist. But if Spain wished to enforce its laws strongly, ISPs might have to go to a “white list” approach, at least for sites with country codes from countries with laws that are not as strong as those of Spain. France has also taken action against a non-domestic website.37 Yahoo! is a United States company operating the website www.yahoo.com. A 36 See Christopher D. Van Blarcum, Internet Hate Speech: The European Framework and the Emerging American Haven, 62 Wash. & Lee L. Rev. 781, 824 (2005). 37 The best English-language source for the facts of this case may be Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 433 F.3d 1199 (9th Cir.) (en banc), cert. denied, 547 U.S. 1163 (2006).

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subsidiary, Yahoo! France, operates a French website. Yahoo maintains an auction service on its website, and available for auction were goods related to the Nazis and the Third Reich. A French court found that the approximately 1000 such items available for sale were in violation of French law prohibiting exhibiting and selling Nazi propaganda and artifacts. Yahoo! was directed to deny French residents access to such material. Yahoo! responded that it could do so with regard to its French site but could not so limit its main site, nor could it direct French residents away from its main site to the French site. The court was unmoved and ordered Yahoo! to comply with its orders with significant daily monetary penalties for failure. Moreover, the penalties would be assessed against Yahoo! rather than the French subsidiary. It is unlikely that any judgment would be enforced by United States courts, since the same protection that allows the operation of hate sites in the United States would seem to protect Yahoo! from the enforcement of foreign judgments based on its expression. Yahoo! did seek a declaratory judgment to that effect in federal district court. The court recognized that France had the right to enforce its own laws within its own territory but concluded that United States courts would be unable to enforce any penalties France might assess.38 On appeal, the Ninth Circuit concluded that the case should be dismissed, because of a combination of problems with jurisdiction and ripeness.39 There was, however, a group of judges who would have heard the suit and would have found the enforcement of the French judgment to be a violation of the First Amendment. It is clear, as the district court noted, that the French court could assess judgment against the French subsidiary and could, presumably, proceed against any other assets Yahoo! might have in France. The question is, if France finds itself lacking such targets and finds foreign websites frustrating its efforts regarding hate speech, what actions might it take? In addition to the actions of a couple of countries, there are international agreements under which countries may be required to take action. The most important United Nations convention on this issue is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).40 Article 4 of CERD provides:

38

Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 169 F. Supp. 2d 1181 (N. D. Cal. 2001), dismissed, 433 F.3d 1199 (9th Cir.) (en banc), cert. denied, 547 U.S. 1163 (2006). 39 433 F.3d 1199 (9th Cir.) (en banc), cert. denied, 547 U.S. 1163 (2006). 40 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature March 7, 1966, S. Treaty Doc. No. 95-18 (1978), 66 U.N.T.S. 195.

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States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard for the principles embodied in the Universal Declaration Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offense punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof . . .41

Articles 6 and 7 go on to require that states provide effective protection against racial discrimination, take effective measures combating prejudices that lead to racial discrimination, and promote understanding and tolerance. This would seem to speak to the need to take steps to limit the impact of hate sites. More specifically with regard to Internet hate sites, the Committee of Ministers of the Council of Europe has adopted a protocol directed at the use of computer systems to disseminate racist speech.42 The protocol defines the material addressed as: any written material, any image or other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors.43

This clearly includes the sort of material found on hate websites. In terms of action, the Protocol requires that: “Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offenses under its domestic law, when committed intentionally and without right, the following conduct: distributing or otherwise making available, racist and xenophobic material to the public through a computer system.”44 41 Id. at Art. 4. Article 5, referred to in Article 4, contains rights to the freedoms of thought, conscience, religion, opinion and expression, and peaceful assembly and association. 42 See Additional Protocol to the Convention on Cyber Crime, concerning the Criminalization of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, Jan. 28, 2003, Europ. T.S. No. 189. 43 Id. at Art. 2, § 1. 44 Id at Art. 3, § 1.

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While this provision most clearly requires that member states proceed against content providers within their jurisdictions,45 states might be inclined to see their duties more widely. They could proceed against ISPs allowing access to hate sites. While the Protocol provision demands action against those who distribute such material intentionally, the Protocol sets out the minimal action required. There is no reason why member states, seeing encouragement in the Protocol, might not go after ISPs who fail to take all possible steps to bar access to hate sites.

5.5 CONCLUSION The Balkanization of the currently borderless Internet will allow countries to further legitimate interests in limiting the availability of certain material. Admittedly, it may also allow countries to further interests that might be seen as illegitimate, but it is not clear that countries with such illegitimate interests are not already limiting material they find objectionable. A country that provides a mandatory blacklist to its ISPs can do so without regard to the presence of country codes, although its task may be made marginally easier by indicating for inspection sites originating in particular countries. Given the widespread acceptance of, for example, pro-democracy speech, there would seem to be little gain in focus for a country seeking to suppress such sites, since such sites could originate in almost any country.46 I recognize that the approach suggested here may well be seen as extreme, but it still has some value in providing an incentive for those with more technological expertise to develop solutions that have less impact on the Internet. There seems to be an attitude on the part of those who have the greatest enthusiasm for the medium that the Internet is essentially ungovernable, and this is at least in part due to its essentially borderless 45 The Protocol does allow member states not to criminalize this material, if the free expression provisions of their own constitutions do not allow such laws or if they provide other effective remedies. See id at Art. 3, §§ 2, 3. But, as seen, such constitutions seem to allow restrictions on this sort of speech. Moreover, given the difficulties involved in enforcing civil judgments against hate sites in the United States, the kinds of measures discussed here may not have adequate alternatives. 46 Iran reportedly began, some time ago, a Balkanization effort that would establish an alternative, national Internet. See Kevin Maney, Net Access Could Knock down Barriers to Freedom in Iraq, USA Today 4B (Nov. 10, 2004), available at 2004 WLNR 6901199. The national network would include material generated in Iran and selected international material. While Iran’s motives may be noncommendable, it shows that borders may be re-established.

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nature. Arguing that it is possible, even if perhaps not optimal, to reestablish borders, refutes the assumption of ungovernability. If the costs that would attach to the suggested approach are to be avoided, other solutions must be suggested. Perhaps we are nearing the solution to the problem of Internet pornography and children. Filters do seem to be improving, and it may be possible that they will reach the point where any parent who is so inclined can shield their children. There would seem to be no reason why a similar filtering regime could not address hate sites. Technology advocates who wish to avoid Balkanization need to devote some effort toward that end, knowing that if other solutions are not forthcoming, there could be the re-establishment of borders.

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6.

Timid liberalism: a critique of the process-oriented norms for Internet blocking Milton Mueller*

6.1 INTRODUCTION The Internet made a major contribution to global society by disrupting the regulation of media content by nation-states. It took the libertarian principle of “absence of prior restraint” and globalized it: no one had to ask for permission, or be licensed, to make their ideas and publications globally accessible. Open access took states by surprise. The explosion of ideas, services and expression associated with the Internet’s growth in the 1990s happened because states weren’t prepared for it and because states weren’t in charge. Yet even if many of us accept the value of this regulatory breakdown, certain kinds of expression are still considered taboo, and public authorities want to censor them. The flat, global nature of Internet access, and the ease with which content can be created and posted in any jurisdiction, mean that effective prosecution and removal of illegal content can no longer be restricted to one territory.1 Thus, there is a growing trend for national governments to block access to websites.2 This chapter is intended to contribute to an argument against all blocking of Internet content. It focuses in particular on a new kind of rationale for internet blocking: what I call the “process-oriented approach.” This argument, which has been put forward most systematically by legal * This is an excerpt and adaptation of Chapter 9 in my new book Networks and States: The Global Politics of Internet Governance (MIT Press, 2010). 1 See Lili Levi and Kevin Saunders, Chapter 3 and 5 in this volume, for analyses of how state actors can respond with the internet’s challenge to their jurisdictional authority. 2 See Access denied: The practice and policy of global Internet filtering (Ronald Deibert et al., eds. 2008); see also Hannibal Travis, Chapter 4 in this volume. 124

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scholar Derek Bambauer,3 does not oppose blocking on principle, but calls for transparency and appropriate procedures in its execution. It accedes to territorial states’ demands to reborder the Internet with content blocking and filtering regimes; but it holds out the promise that the global Internet can avoid intractable disputes over divergent values and norms by making those regimes more transparent, narrowly focused and fair. The growing popularity of this approach is predictable: we can, it implies, have our global Internet cake – and allow governments to eat away at it through territorial censorship, too. This chapter mounts an argument against the process-oriented approach to Internet content blocking. It demonstrates that its promise to avoid intractable value-disputes regarding open expression is a hollow one. There is a basic logical flaw in the argument, one with severe practical consequences. If one examines the four criteria of “legitimate” censorship advanced by Bambauer, one discovers that three of them are relatively trivial and the fourth is not a process oriented criterion at all, but a bundle of profound political choices about the degree to which a society respects individual rights. In this regard, the process-oriented norms prove to be grounded on liberal-democratic concepts of individual rights and democracy, just as a principled opposition to censorship is. The difference is that process-oriented recognition of individual rights is timid and tacit, and thus lacking in political force. Its advocates are confused about the political determinants of censorship policies, and about how and why state power ever gets limited or moderated. National governments will never carefully limit censorship, make it transparent, or otherwise moderate its use until and unless they are subject to political mobilizations for free expression and individual rights to access information. Fighting for process norms largely co-opts and diverts this political energy into less productive channels.

6.2

INTERNET CONTENT REGULATION

The analytical literature on Internet content regulation techniques and policy is now over a decade old. The earliest studies came from freeexpression advocates and focused on exposing absurd mistakes made by the primitive filtering software packages of the time.4 The emphasis

3

Cybersieves, 59 Duke L.J. 377 (2009). Seth Finkelstein’s attack on the first-gen blocking software (CyberPatrol, etc.) showed how it overblocked based on crude technical design and highly 4

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was on the gap between the promise of technology-enabled, individualized control over access to information and the reality of crude over- and underblocking. The role of the private sector and of co-regulatory or self-regulatory schemes was also a prevalent theme in early research – and remains so today. As early as 1996 fears were expressed about the possibility of censorship by unaccountable private actors: “When censorship is implemented by government threat in the background, but run by private parties, legal action is nearly impossible, accountability difficult, and the system is not open and becomes undemocratic.”5 The contemporary literature focuses more on the growing role of the state in Internet censorship, in particular on the successful use of blocking by authoritarian regimes.6 Academic studies and journalistic accounts show the spread of the practice to many Western, democratic countries. These studies document filtering on blocking as a form of hierarchical control; the emphasis is no longer on voluntary adoption and use of flawed commercial filtering products by end users, but on the mandated use of blocking as an extension of public policy by states. In this new situation, ISPs and domain name registrars are intermediaries that have been reluctantly pressed into service because of their leverage over what users can access. Concerns expressed about the role of private actors shift accordingly. As before, some of the more central private actors, the ones with governance responsibilities, are seen as assuming state-like powers in content regulation while being exempt from the state’s due process and constitutional constraints (e.g., the National Center for Missing and Exploited Children, Internet Watch Foundation, and the Internet Corporation for Assigned Names and Numbers – ICANN).7 Others are value-laden assumptions about what was “objectionable” – for example, feminist discussion groups, gun-rights advocates. According to Finkelstein, “It’s a bait and switch maneuver. The smut- censors say they’re going after porn, but they quietly restrict political speech.” Cyberwire dispatch, archived on the “Interesting-People Listserv July 3, 1996. http://www.interesting-people.org/archives/interestingpeople/199607/msg00009.html. See also C. Watters, M. Shepherd and M. Conley, 2000, Internet Content Control Mechanisms, Proceedings of the International Conference Know Right 2000 and InfoEthics 2000, Australian Computer Society, Sept 25–29, Vienna, pp. 9–17. 5 Cyber-Rights & Cyber-Liberties (UK) Report, “Who Watches the Watchmen: Internet Content Rating Systems, and Privatised Censorship,” November 1997, http://www.cyber-rights.org/watchmen.htm. 6 Deibert et al., supra note 2; Nart Villeneuve, Evasion tactics: Global Online Censorship is Growing, But So Are the Means to Challenge It and Protect Privacy, 4 Index on Censorship 71 (2007). 7 See Milton M. Mueller, Networks and States: The global politics of internet governance, Ch. 10 (2010).

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seen as hapless intermediaries stuck between users’ desire for freedom and public and private governance authorities’ desire to regulate content (e.g., the Internet service providers). Still others are perceived as accomplices in the task of repression, either snared into complicity by their desire to do business in certain territories (e.g., Yahoo!, Google) or as profiteers in repression (e.g., the equipment and service producers who sell sophisticated content management and blocking tools to states such as Saudi Arabia, Iran, and China). Much of the new literature is empirical and takes a studied apolitical, academic posture. It purportedly seeks only to understand how state-based blocking works technically, the rationales and policies that support it, and how much content is successfully blocked.

6.3 THE PROCESS-ORIENTED APPROACH Out of this new approach has emerged a process-oriented method of assessing Internet content regulation. This approach does not critique Internet blocking and filtering per se, but focuses on how “well” it is done. It raises the issue, for example, of how transparent the censors are. Do they openly acknowledge that they are engaged in censoring the Internet? Do they tell users that the site they are trying to reach is banned, or do they merely supply a generic error message that falsely signals a technical problem? Legal scholar Derek Bambauer has developed a systematic processoriented framework to apply to the governance of Internet blocking.8 Conflicts over the substantive issues around censorship and content regulation, he implies, are intractable because of the tremendous variation in standards from state to state. So we should focus instead on applying process criteria to the practice of censorship to make sure it is done in a “legitimate” manner. “Legitimate” censorship, he claims, should meet four criteria: First, is a country open about its Internet censorship, and why it restricts information? Second, is the state transparent about what material it filters and what it leaves untouched? Third, how narrow is filtering: how well does content actually blocked – and not blocked – correspond to those criteria? Finally, to what degree can citizens participate in decisionmaking about these restrictions, such that censors are accountable? Legitimate censorship is open, transparent about what is banned, effective yet narrowly targeted, and responsive to citizens’ preferences (but not overly so).9 8 9

See supra note 3. See supra note 3 at 386.

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As a framework for the analysis and assessment of Internet content governance, Bambauer’s framework appears to have some value. If we apply the framework, he claims, we know whether we are objecting to a “poor implementation of filtering” or are actually debating a “country’s larger values and policy choices.”10 But let us take a closer look at that fourth criterion. It is evident that the biggest, most important Internet governance issues revolve around the fourth criterion. Restated more directly, that criterion asks: ● ● ● ●

Who decides what is censored? How reflective of actual public preferences are those decisions? How difficult is it for public pressure to change censorship policies? How do we ensure that the preferences of a majority don’t suppress the legitimate airing of differences among subsections of the population?

Those questions are so big and so fundamental that the other criteria fade to near triviality next to them. Bambauer’s fourth criterion is not really a “process” issue at all – it is a political issue of the highest order. That is, it involves a major series of political and value choices a society makes regarding representation and individual rights. And that is why process-oriented approaches to blocking can be a dangerous diversionary tactic. A processoriented framework may legitimize and encourage Internet censorship because it is based on the assumption that state-based blocking can be done fairly and appropriately, and that we should optimize it rather than resist it. Worse, it contains a hidden assumption with huge political consequences: that the nation-state is the appropriate institution for making decisions about global access to information. Bambauer’s framework tacitly makes the “country” its unit of analysis, as do most other discussions of the issue. But this begs one of the most important political questions around Internet content regulation. The “country” is neither the only available decision-making unit, nor is it necessarily the most appropriate one. Other methods and other Internet-based collectivities could be used, and are being used, to make decisions about what information is accessible under various conditions. As part of his fourth criterion, Bambauer posits that states make their censorship more legitimate by giving citizens the right to participate in shaping its scope and application. It is hard for any Western liberaldemocrat to disagree with this assertion, but it should be obvious that we have left the realm of process and we are now discussing “a country’s

10

See supra note 3 at 387.

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larger values and policy choices.” In essence, Bambauer is advocating democracy. But many politicians and political philosophies in various countries are explicitly anti-democratic; they do not believe that citizens should have the right to shape the scope and application of censorship policies. Do the advocates of process really believe that China, Saudi Arabia, or Myanmar will try to make their censorship regimes “more legitimate” by implementing representative democracy? If so, why not just bite the bullet and advocate that these countries not block the Internet at all? Moreover, Bambauer’s call for democratic representation is further qualified by liberalism. The dictum that citizens have the right to participate in shaping the scope and application of censorship is accompanied by the warning that content regulation should not be “overly responsive” to public preferences. He says this, presumably, because he recognizes that individuals in any society have some right to express ideas and opinions not in accord with those of the majority or dominant view. (If the German Social Democrats win a 52 percent majority in an election it shouldn’t mean that the government now has a right to censor the Greens and the Free Democrats.) But this need for “counter-majoritarian constraints” is not a process issue; it is a substantive political one. And it indicates why the “country” (i.e., the state) cannot be the sole decider of what is allowed. If one adheres strictly to the idea of national sovereignty, to the idea of the state as the supreme authority over communication policy, then minority or individual protections, and even basic democratic methods, are completely subordinate to the question of who is the ruling political authority in a territory. Conversely, if one puts individual rights first, as I believe we should, the scope and authority of sovereignty become subordinate to the human right to communicate, and the global Internet polity must engage in an ongoing dialogue and debate about what kinds of expression should and should not be suppressed. In short, the process-oriented approach to Internet blocking really does not extract us from the debate over a nation’s larger values and policy choices. Bambauer and other proponents of process-oriented approaches have rather naively reversed the order of causality here. They imply that we can get countries to make their Internet censorship open, transparent, suitably narrow, and appropriately limited by elevating those values to the status of guiding norms for the exercise of Internet blocking. But countries will adopt those norms if and only if they also respect individual rights to self-determination and freedom of expression.11 States will not suddenly

11 For an excellent case study of the relationship between political development and censorship in South Korea see E.S. Fish, 2009. Is Internet Censorship

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choose to respect such rights in order to make their Internet censorship more respectable and legitimate. States that practice systematic political or cultural censorship typically do so precisely because they do not recognize individual rights and do not want certain preferences or ideas to have any effect. Telling them to make their censorship regimes more accountable by making them more transparent, or by granting a suppressed citizenry more influence, is no different and no easier than asking them to change their basic values and policy choices. The whole idea of deference to individual or minority rights reflects liberal-democratic norms. In practice and in law, many sovereigns do not recognize those norms. Unless we challenge national sovereignty over Internet content on the basis of liberal norms, Internet blocking is unlikely to be effectively limited. Just as it is legitimate and necessary to insist on citizens’ procedural rights with respect to the exercise of content regulation by their states, so it is legitimate, necessary – and far more important – to insist on eliminating as much censorship as possible in line with substantive free expression rights. Communication policy advocates who care about freedom of expression should uphold that concept explicitly, and insist on the right of individuals to access information and communicate with others regardless of what state they reside in. They must, in other words, question the scope of national sovereignty over communications. If citizens have a right to be informed that their government is blocking access to external information, then perhaps it is not too crazy to ask whether they also have a right to get that information without interference by their national government. If people have rights and expectations regarding the procedural mechanisms by which censorship is exercised, then perhaps they should also have rights and expectations about minimizing the scope of censorship, or about eliminating it altogether. The governance of the Internet needs explicitly to recognize and embrace the principle that there are limits to national sovereignty over the flow of information. This claim is based on the truth that there are many transnational communities or polities, created by global electronic communications, whose individual members have their own intrinsic rights to communicate among themselves. This basic human right transcends states. The principle is already embodied in Article 19 of the UN Declaration, the US First Amendment, and Article 10 of the European Convention of Human Rights, which guarantees “the right to freedom of

Compatible with Democracy?: Legal Restrictions of Online Speech in South Korea, Asia-Pacific Journal On Human Rights And The Law. Available at SSRN: http://ssrn.com/abstract=1489621.

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expression and information without interference by public authorities and regardless of frontiers, irrespective of the means of mass communication used.” The only exceptions to these clear protections of freedom are when such communications violate the rights of others.

6.4

AGAINST ALL BLOCKING

Going further, it is possible to argue that a commitment to these internationally accepted human rights requires states to abandon completely their attempts to impose national blocking on access to Internet content. There is still a role for illegal content regulation, of course. But states should rely on notice-and-takedown within their own jurisdiction and abstain from trying to interfere with the operation of the network to block things outside their jurisdiction. States can establish clear, explicit guidelines for what constitutes illegal content in their territory; based on that they can establish a lawful process for requiring ISPs and hosting companies to take down such content when it resides in their own jurisdiction.12 There is also no reason to object to the development, by states, of binding international agreements that enable cooperation among states in the takedown of content that is jointly deemed illegal, or that enable the transborder prosecution of the illegal content’s creators or users. The saving grace of this option, of course, is that it is only available when a strong international consensus about the status of the content exists, such as those around the sexual exploitation of young children. What must be strongly opposed is the attempt by states to require ISPs to install filters in the network that pre-empt efforts to access content. This viewpoint thoroughly rejects – on moral, political, and practical grounds – a realignment of Internet access with territorial states in order to permit all of them to act as information gatekeepers for their populations.

6.5 NEUTRALITY Blocking is rejected, first, because state-mandated, compulsory blocking as a method of content regulation fatally undermines the basic operational and 12

Note that even notice and takedown, while greatly preferable to in-network blocking, has its own abuses. See Jennifer M. Urban and Laura Quilter, Efficient Process or “Chilling Effects”? Takedown Notices under Section 512 of the Digital Millennium Copyright Act, 22 Santa Clara Computer and High-Technology Law Journal 621 (2006).

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architectural principles that made the Internet so productive and successful in the first place. As many others have argued, the stunning success of the Internet as a medium of expression and engine of economic development was based on the end-to-end principle. The network was designed to be as neutral a platform as possible; it is a mover of bits that leaves the definition of applications and regulation of content to the end users or their chosen intermediaries. A neutral intermediary platform eliminates gatekeepers and similar barriers to access. This in turn optimizes the chances that an important new idea will be heard, that new collectives can associate and mobilize at will, and that a valuable innovation will have an opportunity to succeed. Such a platform maximizes access to the public and minimizes the ability of an intermediary to substitute its own judgments for those of end users. The Internet neutrality concept is usually associated with the bandwidth management policies of ISPs, but it was also introduced into the ICANN or domain name area during the development of its new top-level domain policy. In reaction to ICANN’s more restrictive approach to new top-level domain (TLD) authorizations, free-expression groups started a campaign to “Keep the Core Neutral.”13 The adoption of the language of “neutrality” was not, initially, derived from domestic net neutrality campaigns focused on broadband policy. It emerged more from the Internet technical community’s belief in the end-to-end principle. An early paper by Michael Palage and Avri Doria argued that “ICANN actions in adding entries into a database should be a politically neutral technical function.”14 Similar to activism promoting network neutrality, opposition to ICANN’s new generic top-level domain (gTLD) regulations was based on the belief that imposing a layer of prior review and standards of “morality and public order” on the selection of top-level domains is inimical to freedom of expression and to innovation. Opponents wanted ICANN’s coordination of identifiers to be “neutral” in the same way and for the same reasons that Net neutrality advocates want broadband networks to be “neutral.” If a central authority or (equally restrictive) a global plebiscite or collective mobilization decides what names, business models, and standards of appropriateness must be applied at a global level, then diversity will be narrowed, unpopular and controversial concepts or people will be suppressed, and innovative ideas will never get a chance. 13 The “Keep the Core Neutral” campaign was organized by the Noncommercial Users Constituency with support from IP Justice and The Internet Governance Project. See the campaign website: www.keep-the-core-neutral.org/. 14 Avri Doria and Michael Palage, Please Keep the Core Neutral: An Essay on ICANN’s Proposed Policy to Introduce New Top-Level Domains, Mar. 25, 2007, available at http://www.bloggernews.net/15463.

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Even if we recognize that some content will be illegal and that there may be no right to produce or access it, regulation by nation-states should stay congruent with the end-to-end principle and target its enforcement activity at the edges. If we try to engineer the network itself to police and censor content, we give states and network operators too strong a gatekeeping role.

6.6

TRANSPARENCY AND ACCOUNTABILITY

It is ironic that Bambauer’s framework would seek to make Internet blocking more transparent and accountable. Research indicates that blocking is an inherently less transparent and accountable form of censorship than takedown and prosecution of the responsible parties. The ongoing tension between the need to maintain secrecy around a list of banned sites and the requirements of accountability means that the risk of abuse is high.15 Overblocking is also a well-documented problem with this kind of censorship.16 In contradiction to Bambauer’s claim that blocking can be made accountable, the Dutch Ministry of Justice had to conclude that a blacklist approach was inherently illegal because of its propensity to overblock and the lack of transparency inherent in the system.17 Further, ISP-based blocking can put the entire telecommunications infrastructure on a slippery slope toward increasing centralization and control. The best way to optimize the effectiveness of national filtering is to institute a costly, comprehensive Chinese-style “Great Firewall” that integrates the control of access to Internet content with regulation of the physical telecommunications infrastructure. That is, ISP blocking pushes countries in the direction of creating centralized gateways and more monopolistic or oligopolistic industry structures in order to preserve the network’s ability to act as a chokepoint for controlling and monitoring traffic. In summary, the costs, overblocking mistakes, lack of transparency, and potential for abuse inherent in this type of technical intervention outweigh the benefits.

15

In Finland and the Netherlands, blacklists purporting to filter illegal sites have been exposed as including many legal sites. See Electronic Frontier Finland, Finnish Internet Censorship, Feb. 18, 2008, available at http://www.effi.org/blog/ kai-2008-02-18.html; see also W.P. Stol et al., Governmental Filtering of Websites: The Dutch Case, 25 Computer Law & Security Report 251, 258 (2009). 16 Mark Glaser, Vodafone’s Child Porn Filter Blocks Innocent Czech Tech Blogs, Jan. 15, 2009, available at http://www.pbs.org/mediashift/2009/01/-vodafoneschild-porn-filter-blocks-innocent-czech-tech-blogs015.html. 17 Stol et al, supra note 5.

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To conclude, if academics support freedom of expression and want to counter increasingly intrusive and arbitrary efforts by states to limit it on the Internet, they need to be explicit, open, and transparent about their own objectives. If we want freedom of expression, advocate for it and openly promote policies that minimize state interference with it. It is counterproductive to offer advice to dictatorships and authoritarian regimes, or to encourage repressive and authoritarian elements within democratic countries, on how to do a better job of exercising censorship.

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7.

Internet creativity, communicative freedom and a constitutional rights theory response to “code is law” Christoph B. Graber1

7.1 INTRODUCTION “Code is law” is the famous formula coined by Lawrence Lessig to describe that the technological architecture of the Internet functions as a regulator – in addition to state law, social norms and the market.2 Joel Reidenberg was one of the first to emphasize that the technological architecture of the network imposes rules on access and use of information.3 Technological architectures may prohibit certain actions on the network, such as access without security clearances, or may impose certain flows, such as mandatory address routing data for electronic messages. Technology may also offer policymakers a choice of information flow rules through configuration decisions.

Reidenberg called these rules Lex Informatica. Accordingly, Lex Informatica is a rule system that is embedded in technological standards and that exists parallel to the law of the state.4

1

The author would like to thank William Gallagher, Shubha Ghosh, Peter Yu and Thomas Steiner for comments on an earlier draft of the chapter. 2 Lawrence Lessig, Code and other Laws of Cyberspace, New York, USA: Basic Books, 1999. Lawrence Lessig, ‘Code is Law. On Liberty in Cyberspace’ (January–February 2000) Harvard Magazine, available online at http://harvard magazine.com/2000/01/code-is-law.html (all online sources were accessed 25 September 2010). 3 Joel R. Reidenberg, ‘Lex Informatica: The Formulation of Information Policy Rules Through Technology’ (1998) Texas Law Review, 76, pp. 553–84, at p. 568. See also Joel R. Reidenberg, ‘Governing Networks and Rule-Making in Cyberspace’ (1996) Emory Law Journal, 45, pp. 911–30. 4 Reidenberg, ‘Lex Informatica: The Formulation of Information Policy Rules Through Technology’, supra note 3, at pp. 568–69. 135

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For many lawyers it is difficult to accept that code fulfils regulatory functions which are similar to the law of the state. This is due to an understanding of regulation that is based on John Austin’s state-centred concept of the law.5 For Austin, “all law derives directly or indirectly from the state”.6 According to this concept, the law can be recognized by the way it is enacted and enforced. Law is enacted by an elected legislative body that observes prescribed procedures and it is enforced through the threat of state sanctions.7 This theory of law as “commands backed by threats” is not of much use on the Internet. In cyberspace, an Austinian concept of law is too limited and a two-step enlargement would be necessary. First, it should be expanded from narrow state-centrism towards the inclusion of social norms and other private forms of regulation. Such a concept of lebendes Recht (living law) was postulated by Eugen Ehrlich at the beginning of the 20th century.8 Similarly, Niklas Luhmann’s concept of law is not limited to state law but includes regulations that emanate from private entities as well.9 On the Internet, living law is omnipresent, for instance in self-regulatory activities of net communities such as the exclusion of misbehaving participants from a chat forum or a multiplayer online game,10 or where Internet service providers (ISPs) administer blacklists of servers disseminating spam-containing electronic mail.11 More recent examples – that will be further discussed below – include Internet intermediaries throttling peer-to-peer (P2P) traffic in order to reserve bandwidth for the distribution of more lucrative content,12 or agreements

5 John Austin, The Province of Jurisprudence Determined (1832), reprinted in London: Weidenfeld & Nicolson, 1954. 6 Roger Cotterrell, The Sociology of Law. An Introduction, 2nd edn, London: Butterworths, 1992, at p. 26. 7 Austin, supra note 5, at pp. 13–20. 8 Eugen Ehrlich, Fundamental Principles of the Sociology of Law, translation by Walter L. Moll, New Brunswick: Transaction Publishers, 2002 (first published 1913 in German, 1936 in English), at pp. 486–98. 9 Niklas Luhmann, Law as a Social System, translation by Klaus A. Ziegert, Oxford: Oxford University Press, 2004, at pp. 291–96. 10 See Gregory Lastowka and Dan Hunter, ‘Virtual Worlds. A Primer’, in Jack Balkin and Beth Simone Noveck (eds), The State of Play. Law, Games and Virtual Worlds, New York: New York University Press, 2006, pp. 13–28; and Vagias Karavas, ‘Rechtssoziologie auf Probe’, in Jürg-Beat Ackermann and Felix Bommer (eds), Liber Amicorum für Dr. Martin Vonplon, Zürich: Schulthess, 2009, pp. 193–202, at p. 194. 11 See Lawrence Lessig, Code Version 2.0, New York: Basic Books, 2006, at p. 112. 12 Sonia K. Katyal, ‘Filtering, Piracy, Surveillance and Disobedience’ (2009) The Columbia Journal of Law and the Arts, 32 (4), pp. 401–426, at pp. 420–21.

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between the entertainment industry and Internet intermediaries to fight copyright piracy by the means of filtering technology.13 Second, a more thorough understanding of how technology regulates behaviour on the Internet would be necessary. Lessig’s formula “code is law”, suggesting that “law” and “code” are identical, is more appealing than precise. A close reading of Lessig’s writings reveals, however, that he does not equalise “law” and “code” as the formula would suggest. Lessig rather defines “code” as a form of co-action between software and hardware on the Internet constituting an architecture of technology. 14 We are coming to understand a newly powerful regulator in cyberspace . . . This regulator is what I call “code” – the instructions embedded in the software or hardware that makes cyberspace what it is. This code is the “built environment” of social life in cyberspace. It is its “architecture”.

This architecture of technology is a structure that conditions regulation on the Internet. Hence, code does not directly regulate the Internet but prestructures the form that regulation on the Internet may take to be effective in determining social behaviour. As Vagias Karavas observed, the main purpose for Lessig in using the formula “code is law” was to “sensitise his readers towards the fact that in the digital environment nothing is natural, as it appears to be, but instead, everything is the result of technological solutions, in other words, of the code”.15 Code is so powerful because it may fulfil legislative and executive functions at the same time without being constrained by any type of a “digital separation of powers”. With regard to its legislative functions the code of cyberspace is different from the law of real space in at least one important manner. In real space, the law is a form of communication. It is deliberated over in a discursive political process and is enacted by the constitutionally competent legislative body. This is different for the code of cyberspace. Here, the actor who reigns over the architecture of technology also defines the rights and constraints existing within this architecture. Since on the Internet this actor is often a private company, this raises serious concerns from a constitutional perspective. With regard to its executive functions code is different from law since it is “self-executive”. In real space, compliance with (state) law depends on 13

Infra, note 36, and accompanying text. Lessig, Code Version 2.0, supra note 11, at p. 121. 15 Vagias Karavas, ‘Governance of Virtual Worlds and the Quest for a Digital Constitution’, in Christoph Beat Graber and Mira Burri-Nenova (eds), Governance of Digital Game Environments and Cultural Diversity, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, 2010, pp. 153–69, at p. 157. 14

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both enforcement by state power and acceptance by the addressees of the regulation. Acceptance is a precondition for compliance not only for state law but also for social norms.16 For Lessig, “Law and norms are more efficient the more subjective they are, but they need some minimal subjectivity to be effective at all.”17 In cyberspace, however, the situation is different. Effects of code are not dependent on enforcement at all, nor is there any subjective constraint. The code of cyberspace even works when the person constrained does not know that the constraint exists. This is due to selfexecution, which is a key feature of the technological architecture of the Internet.18 Lessig uses the example of copyright protection in the online virtual world Second Life to better explain how code executes itself independently of any threats of state sanctions or any subjective constraints.19 In real space, intellectual property (IP) legislation regulates any use a person may make of a copyright-protected work. For instance, IP legislation will decide whether a third person is allowed to take a picture of the copyrightprotected sculpture in the garden of my house. In cyberspace, however, the constraint is not in the law, it is in the code. If the sculpture is in the garden of my Second Life house, then taking a picture will simply not be possible for anybody who is not in possession of a licence to do so. Since the technological infrastructure of the Internet can be as easily manipulated by private persons as by states and governments, this poses the question of whether such private action should be subject to constitutional scrutiny.20 From a law and society perspective, this chapter will focus on threats to free-speech values arising from code that is controlled by private actors. More specifically, it will look at technologies that are used by private companies to filter content on the Internet in order to fight copyright piracy. Often, filter technologies rely on automated methods to detect copyright infringements and, in some cases, such interference is even not visible to the user. These are concerns that advocates of communicative freedom on the Internet should take seriously. 16

Locus Classicus is Eugen Ehrlich’s recognition theory of law (“Anerkennungstheorie”). See Ehrlich, supra note 8, at pp. 164–67. See also Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, translation by William Regh, Cambridge, MA: MIT Press, 1996, at p. 448. 17 Lessig, Code Version 2.0, supra note 11, at p. 344. 18 Ibid., at pp. 342–44. 19 Ibid., at pp. 110–11. 20 Paul S. Berman, ‘Cyberspace and the State Action Debate: The Cultural Value of Applying Constitutional Norms to “Private Regulation”’ (2000) University of Colorado Law Review, 71, pp. 1263–310, at p. 1271.

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Filtering technologies are used by the entertainment industry in its battle against copyright infringements. The industry argues that such technologies are necessary to protect creativity on the Internet. 21 Critics object that filtering endangers free-speech values, including user creativity. Hence, creativity is used by both sides as a catchword to defend their respective ideological standpoint. What is hidden behind ideology is a collision between economic and non-economic values. In this chapter, I will argue that such a conflict of values should be discussed within a constitutional framework. Finally, the chapter will explore from a transnational legal perspective whether a theory of “constitutional rights in the private sphere”, as developed in a European context, might have a case in a digital networked ecology.

7.2

PRIVATE REGULATION OF INTERNET SPEECH

Recent developments show that threats to free-speech values on the Internet arise more often from private regulation rather than from state intervention.22 According to Hans-Jürgen Papier, President of the German Constitutional Court until March 2010 and renowned guardian of civil liberties, the basic rights of the German Grundgesetz (i.e. the German Constitution) related to the integrity and confidence in computer systems (including the Internet) today are threatened not only by the state, but also by private persons and corporations.23 What holds true for network and PC infiltration applies even more to content filtering, which is increasingly used by private entities particularly to fight copyright piracy. 7.2.1

Paradigm Change in Copyright Enforcement

Content filtering executed by private entities is on the rise.24 According to observers, this is a consequence of a new global trend in copyright 21 For an analysis of the role of copyright in promoting innovation, with particular attention to complexity theory, see Michal Shur-Ofry, Chapter 10 in this volume. 22 For examples of nominally private actors wielding regulatory power on the Internet see Patricia L. Bellia, Paul S. Berman and David G. Post, Cyberlaw. Problems of Policy and Jurisprudence in the Information Age, 3rd edn, St Paul, MN: Thomson West, 2007, at pp. 308–27. 23 See interview W. Janisch and H. Kerscher, ‘Verfassungsrichter Papier gegen die Totalkontrolle’, Süddeutsche Zeitung (6 March 2010), available online at http:// www.sueddeutsche.de/politik/1/505205/text/. 24 Content filtering relies on a technology that is known as “Deep Packet Inspection“ (DPI). DPI allows the network to make decisions about how to handle

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enforcement, shifting the lead management in the combat against piracy from the content owners to Internet intermediaries. The new trend started in the second half of 2007. As a broad survey by De Beer and Clemmer shows, many industrial countries worldwide have been tightening the conditions under which ISPs and other Internet intermediaries may benefit from copyright safe harbours.25 Judicial authorities, policymakers and government lawmakers alike have been reconsidering intermediaries’ responsibilities in copyright enforcement and now require them actively to fight copyright infringement in order to escape liability. The consequence is a shift in the model of copyright enforcement. Whereas, under the old model, intermediaries were only required to react ex post to a right-holder’s notice of copyright infringements, the new model puts them into an active role of ex ante filtering copyright infringements. This policy shift from “passive-reactive to active-preventive schemes for communication intermediaries” is mainly a result of strong lobbying by the entertainment industries, which apparently convinced many governments “of the importance of creative industries to their nations’ cultural and economic well-being”.26 Since the recording industries’ global lawsuits have proved ineffective to fight piracy,27 “Copyright holders and governments realize that Internet intermediaries are technologically and commercially well positioned to assist with copyright enforcement.”28 The “notice-and-takedown” framework29 of the United States (US) Digital Millennium Copyright Act (DMCA) serves well to exemplify the

a certain type of content in network data streams, including filtering or slowing down certain packets based on the recognition of a specific pattern of the datagram. For technical details see Ralf Bendrath and Milton Mueller, ‘The End of the Net as We Know It? Deep Packet Inspection and Internet Governance’, (2011), New Media and Society, 13 (7), pp. 1142–1160. 25 Jeremy De Beer and Christopher D. Clemmer, ‘Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?’ (2009) The Journal of Law, Science and Technology, 49, pp. 375–409, at p. 376. The survey covers 12 diverse jurisdictions including Australia, Canada, China, the European Union, France, Germany, Japan, New Zealand, Singapore, South Korea, the United Kingdom, and the United States. 26 De Beer and Clemmer, supra note 25, at p. 404. 27 According to Sonia K. Katyal (supra note 12, at p. 420), the Recording Industry Association of America (RIAA) in the last months of 2008 changed its copyright enforcement strategy from law suits (35 000 altogether) to notifying ISPs and calling them to act in their respect. 28 De Beer and Clemmer, supra note 25, at p. 405. 29 According to De Beer and Clemmer (ibid., at p. 386), a notice-and-takedown system exists in almost every jurisdiction where legislation details ISPs‘ obligations when hosting information.

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functioning of the old model and its eventual shift from a low standard of liability for ISPs towards enhanced liability.30 Under the DMCA, as crafted by Congress, it was the copyright holders’ responsibility to search for infringing behaviour. In order to escape liability, intermediaries were only obliged either to identify the subscriber or to take down the illicit content after having been noticed by the right-holder.31 Hence, under the DMCA, intermediaries were in a passive-reactive role and were not required actively to detect copyright-infringing behaviour. However, as Sonia Katyal has shown, a common law-based reinterpretation of ISPs’ liability by US courts has asked ISPs to play increasingly a more active role in copyright enforcement.32 Although the DMCA does not require intermediaries actively to detect copyright infringements, “a common law trend . . . tends to indirectly expand the boundaries of secondary liability for ISPs”.33 As a result, this new case law has been prompting Internet intermediaries to employ content-filtering methods actively to search affirmatively for evidence of infringement in order to protect themselves from secondary liability. In addition to judicial decisions, three-strikes type legislative enactments and industry self-regulation emanating from voluntary collaboration have been major drivers of the paradigm shift in copyright enforcement. Three-strikes laws are being debated almost everywhere in the developed world.34 The exception is the United States, where Internet intermediaries are cooperating quietly with the entertainment industry. A telling example to illustrate the new collaboration between the entertainment industry and Internet intermediaries in the US is the Principles for User-Generated 30

Katyal, supra note 12, at p. 405. De Beer and Clemmer, supra note 25, at p. 385. 32 Katyal, supra note 12, at p. 408. 33 Ibid., at p. 408. 34 The most famous legislative enactment under the new paradigm is the French law “for the distribution and protection of creative content on the Internet” that entered into force on 1 January 2010. This law, known also as the “three strikes” law, “graduate response” or “loi HADOPI,” is designed to protect business models of the creative economy by sanctioning copyright violations with Internet access cut-offs. HADOPI is the French acronym for the Higher Authority for the Distribution of Works and the Protection of Copyright on the Internet that is in charge of implementing the new law. For a reference to the French “three strikes model” and HADOPI, see Jane Winn and Nicolas Jondet, ‘A “New Deal” for End Users? Lessons from a French Innovation in the Regulation of Interoperability’ (2009) William & Mary Law Review, 51 (2), pp. 547–76, at pp. 560–61. The first “three strikes” laws were introduced in spring of 2009 in Taiwan and South Korea. See also De Beer and Clemmer, supra note 25, at pp. 389–90 and at p. 393, and Katyal, supra note 12, at p. 409. 31

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Content, negotiated between major players of the entertainment industry (including several Hollywood studios and broadcasting networks) and intermediaries (including Crackle, Dailymotion, Microsoft, MySpace and Veoh).35 According to the drafters, the Principles are designed to “foster . . . creativity while respecting the rights of copyright owners”.36 The Principles require the operators of sites hosting user-created content (UCC) to utilize filtering and identification technology to block copyrightinfringing uploads before they are made public.37 Intermediaries subscribing to the Principles are exempt from secondary liability. From a legal perspective, the Principles are non-binding guidelines. Despite their voluntary character, they are regulations that may strongly interfere with users’ communicative freedom on the Internet. They are followed by content owners and intermediaries alike because they are the expression of the shared antipathy of both parties toward P2P activities on the Internet. Whereas the content industry perceives file-sharing in social networks as a major source of copyright piracy, many intermediaries feel that UCC congests the tubes of the net in a way that will ultimately prevent more lucrative economic development.38 According to De Beer and Clemmer: “Intermediaries care about network efficiency; copyright holders care about online infringements. File sharing is perceived as a threat to both.”39 Since certain customers would be willing to pay higher rates for preferential distribution, commercial reasons are the main incentive for intermediaries to shape traffic on the Internet.40 Accordingly, filtering P2P traffic and distinguishing between commercial and non-commercial content is a shared goal of Internet intermediaries and the entertainment industries. Self-regulatory activities emanating from collaboration between copyright owners and Internet intermediaries seem to be very dynamic beyond the “Principles”. Comcast, for example, has been covertly constraining the flow of data from customers using BitTorrent, a file-sharing service. According to Comcast, this step was necessary because BitTorrent was used to communicate huge files of data illegally, including pirated films.41 35

De Beer and Clemmer, supra note 25, at p. 399. See CBS Corporation, DailyMotion, Disney et al., ‘Internet and Media Industry Leaders Unveil Principles to Foster Online Innovation While Protecting Copyrights’, Press Release (18 October 2007), available at http://www.daily motion.com/press/CP_principlesofUGC.pdf. 37 See ‘Principles for User-Generated Content Services’ as quoted by De Beer and Clemmer, supra note 25, at p. 399; and Katyal, supra note 12, at p. 421. 38 Katyal, supra note 12, at pp. 420–21. 39 De Beer and Clemmer, supra note 25, at pp. 405–06. 40 See ibid., at p. 406. 41 Katyal, supra note 12, at pp. 416–17. 36

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Since this made the Internet slower, Comcast’s other customers had complained to the service provider. Slowdown practices have been used by other ISPs as a reaction to video portals such as YouTube, and social networks such as Facebook, which swell the amount of data in the net.42 Slowdown practices and other Internet traffic-shaping strategies are in violation of the principle of net neutrality. “Net neutrality” (sometimes also network neutrality) is a term originally coined by Tim Wu,43 which is used to defend the openness and freedom of the Internet architecture. However, the principle of net neutrality stands on shaky legal ground, as recent case law in the US demonstrates. In 2008, the US Federal Communications Commission (FCC) required Comcast to respect net neutrality and prohibited the intermediary from throttling P2P traffic on its network. However, the FCC decision was reversed by the 6 April 2010 decision by the United States Court of Appeals for the District of Columbia Circuit.44 The Court of Appeals found that the FCC acted beyond its authority to regulate the Internet and was not allowed to sanction Comcast’s network management practices. Finally, on 9 August 2010, Google and Verizon published an agreement lobbying for Congress to exempt wireless services on the Internet from regulation on net neutrality. This would have the effect of leaving those services open for data discrimination, allowing Verizon to distribute some online content to Internet users more quickly if the content’s creators are willing to pay for the privilege.45 7.2.2

Consequences of the New Paradigm from a Communicative Freedom Perspective

When people think of dangers to free speech they usually think of government censorship. What may be right in the offline world is wrong on the Internet. On the Internet, as we have demonstrated above, threats to communicative freedom often stem from private rather than state action. Filtering and traffic management practices are normally a consequence

42 For further information on notice and slowdown practices see De Beer and Clemmer, supra note 25, at pp. 391–93. 43 See Tim Wu, ‘Network Neutrality, Broadband Discrimination’ (2003) Journal on Telecommunications and High Technology Law, 2, pp. 141–79. 44 Comcast v FCC (6 April 2010) USCA 08-1291 (DC Circuit). 45 See ‘No, these are special puppies’, The Economist (12 August 2010). On 21 December 2010, the FCC set down new rules on Internet traffic management that come close to the agreement between Google and Verizon. The new rules are likely to be challenged in the courts and in Congress. See ‘FCC Approves Net Rules and Braces for Fight’, New York Times (21 December 2010).

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of decisions taken at the level of the architecture of the Internet, and this architecture is mostly in the hands of private actors. From the perspective of free-speech values, the most important implication of the paradigm change in copyright enforcement is certainly the shift from ex post to ex ante methods of surveillance. In the offline world, ex ante surveillance of communication exerted by governments would be considered as censorship and, thus, as something that rips into the heart of communicative freedom. On the Internet, however, where ex ante surveillance is practised by private parties, policymakers and regulators do not seem to be fully aware of the problem and there exists very little substantive judicial oversight or intervention.46 Intermediaries surveying the Internet ex ante rely on automated methods to detect copyright infringements.47 Because it is difficult to assess whether certain content is fair use, such automated methods are often overbroad.48 Automated control tends to overblock, and conflicts with the principle of proportionality.49 This amounts to a particular problem for com46

Katyal, supra note 12, at p. 416. Often, automated filtering will take place without the user’s knowledge. However, as the German Constitutional Court held in its recent data retention judgment (see infra, note 129) non-transparent interferences with data flows may harm users’ expectations of the network’s confidentiality and integrity and leave users “with a diffusely threatening feeling of being observed that may impede an unbiased exercise of fundamental rights in many areas.” (Para. 212, German in the original). 48 For a distinction between manual and automated review in its impact on UCC see Katyal, supra note 12, at p. 422. 49 Thomas J. McIntyre and Colin Scott, ‘Internet Filtering: Rhetoric, Legitimacy, Accountability and Responsibility’, in Roger Brownsword and Karen Yeung (eds), Regulating Technologies, Oxford: Hart Publishing, 2009, pp. 109–25, at p. 116. The principle of proportionality is well established as a general principle of law in the European countries, in the European Union and in the framework of the European Convention on Human Rights. In EU law it is enshrined as a general principle in Article 5 of the Treaty on European Union (EU, Treaty on European Union, (30 March 2010) Official Journal of the European Union, C 83, pp. 13–46, at p. 15,) and provides that action by the Union shall not go beyond what is necessary to achieve the objectives of the Treaty. The proportionality principle has been further fleshed out in the case law of the European Court of Justice (ECJ). Before the ECJ, the proportionality principle allows applicants to challenge Union action as well as action by EU member states that falls within the sphere of application of EU law. It normally requires a Union or government measure to be: (i) suitable; and (ii) necessary to achieve the desired end; and (iii) to respect a reasonable relationship between the measure taken and the objective sought to be achieved. See Paul Craig and Gráinne de Búrca, EU Law, 4th edn, New York: Oxford University Press, 2008, pp. 544–51; and Junko Ueda, ‘Is the Principle of Proportionality the European Approach?’ (2003) European Business Law Review, 14 (5), pp. 557–93. On the proportionality principle in the realm of the European Convention on Human Rights see infra note 127. 47

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municative freedom, especially if one considers the impact on UCC of a non-commercial origin. In cases of appropriation of content, including “mash-up” or remix creations, this uncertainty of what is allowed by fair use “often risks chilling the transformative work of artists who seek to incorporate the work of others”.50 Under the new paradigm, users will often not know that their movements on an Internet intermediary’s platform are filtered and – hence – no response against this interference will be available. This is a critical issue from a transparency perspective. In cases where possibilities for consumers to respond to an intervention exist, there is a change in the burden of proof. Whereas under the old paradigm it was the copyright owner who had to prove that a consumer had violated copyright, ex ante surveillance requires consumers wanting to oppose blocking, slowing down or deletion to show that certain content posted on the Internet is legal. Any shift of piracy surveillance from copyright owners to the intermediaries is particularly dangerous from a free-speech perspective since the interests of the entertainment industry to prompt filtering, as a means of copyright enforcement, converge with the interests of intermediaries to discriminate between types of content on their networks. As we have highlighted above, commercial interests may induce intermediaries to employ even more restrictive controls of P2P traffic. Accordingly, such an alignment of interests directed against P2P and UCC may raise deeper structural concerns about net neutrality and creativity on the Internet.51

7.3

CREATIVITY, COMMERCIAL INTERESTS AND COMMUNICATIVE FREEDOM IN A CONSTITUTIONAL SETTING

Creativity has been the magic word in any discussion regarding the protection of intellectual property rights (IPRs) on the Internet in recent years. Amazingly, creativity has been the battle cry on the sides of proponents and opponents of a strong institutionalization of IPRs alike. On the one side, the entertainment industries successfully lobbied

50 As Katyal, supra note 12, at p. 412, notes, “an overinclusive approach to piracy surveillance risks not only chilling some forms of valuable speech, but it also risks having a deleterious effect on the technologies that distribute content as well, making it even more costly for new technologies to develop unless they devote substantial resources to the perfection of such strategies.” 51 Ibid., at p. 416.

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governments to raise the standard of protection of IPRs at the national52 and international level.53 The argument was consistently that this is necessary for the sake of creativity and the creative industries on the Internet.54 Creativity has also been a central term in the entertainment industries’ rhetoric in the context of copyright enforcement – be it in the Recording Industry Association of America’s (RIAA) 35 000 lawsuits,55 the defence of the above-mentioned Principles for User-Generated Content,56 or in the debate related to the creation of ACTA, the new international AntiCounterfeiting Trade Agreement.57 On the other side, critics of an overbroad protection of IPRs have been arguing that, in a digital networked environment, creativity depends on an IP system providing for a fair balance between the private interests of right-holders and the public interest in enjoining broad access to their productions. According to these views, networked digital technologies have radically changed not only the way in which content is produced, disseminated and consumed, but have also led to the development of participatory technologies, including blogs, social networks, wikis etc. Hence, IPR systems must be flexible enough not to criminalize or suffocate these new expressions of creativity on the Internet. 7.3.1

The Participative Web and the Change of Communicative Freedom

The participative Web blurred the frontiers between creators and consumers and democratized the production of art. In the view of Jonathan Zittrain:58

52

In the United States, Congress has lengthened the copyright protection term several times over the last decades. Section 8 of the US Constitution empowers Congress to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” What started in the 18th century as a renewable 14-year term now lasts for the life of the artist plus 70 years. For company copyrights it has even been extended to 95 years. See Ruth Towse, ‘Copyright and Creativity: An Application of Cultural Economics’ (2006) Review of Economic Research on Copyright Issues, 3 (2), pp. 83–91, at p. 88. 53 Internationally, copyright has been strengthened above all in the framework of the World Intellectual Property Organization (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO). 54 For references see Towse, supra note 52, at p. 87. 55 Katyal, supra note 12, at pp. 419–20. 56 Supra note 37 and accompanying text. 57 See De Beer and Clemmer, supra note 25, at p. 404. 58 Jonathan Zittrain, ‘The Generative Internet’ (2006) Harvard Law Review, 119, pp. 1974–2040, at p. 2028.

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Today, thanks to networked information technology and the recursively generative code produced in large part by amateurs, art can be produced and shared by people other than professional artists, citizens can engage in far-ranging dialogues with others whom they would not otherwise encounter, and people can work together from the four corners of the globe to produce intellectual projects of social and economic significance.

Jack Balkin argues that the participative Web changed the right of free speech. In his view, “the point of free speech is to promote a democratic culture”. “Democratic culture” he understands as: 59 a culture in which people can participate actively in the creation of cultural meanings that in turn constitute them. A democratic culture is democratic not in the sense that everyone gets to vote on what is in culture. It is democratic in the sense that everyone gets to participate in the production of culture. People are free to express their individuality through creativity and through participation in the forms of meaning-making that, in turn, constitute them and other people in society.

The value of free speech must be interpreted in a new light because of technological developments in the digital ecosystem. Although the social institutionalization of this value is similar in most Western societies, there exist differences with regard to its legal institutionalization as a constitutional right. Dependent on the respective legal order, this right has different names, including, for example, free speech (US context) or freedom of expression and information (European and international human rights law). For the purpose of the transnational research approach underlying this chapter, I will use the term “communicative freedom” as a general term capturing the central features of the right at issue across the mentioned legal orders. Whereas, in the age of broadcasting, communicative freedom was interpreted by courts as something passive, the participative forms of meaningmaking on the Internet would arguably require communicative freedom to be interpreted as an active concept. As an active concept, communicative freedom would acknowledge UCC being a typical new phenomenon of creativity on the Internet. Digital technologies on the Internet offer consumers the possibility of appropriating content produced by mass media, to “mash-up” and remix pre-existing works and to create new forms of content as collages.60 Although there is no generally accepted definition of 59

Jack Balkin, ‘How Rights Change: Freedom of Speech in the Digital Era’ (2004) Sydney Law Review, 26, pp. 5–16, at p. 8. 60 Jack Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’ (2004) New York University Law Review, 79, pp. 1–55, at p. 9.

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UCC,61 the central feature of the concept for our context is that amateur users express their creativity by adding something new to pre-existing works, without necessarily respecting the narrow fair-use limits of copyright law. The possibility of UCC thus requires redefining the constitutional relationship between the values of communicative freedom and intellectual property. As Balkin’s concept of “democratic culture” suggests, there is a need for the right to free speech on the Internet, to protect not only political communication, but also non-political communication, including popular culture. Judicial authorities have traditionally preferred political speech to “cultural” speech. This is true not only for US First Amendment doctrine62 but also for European categorizations in the interpretation of the freedom of expression and information. The reasons for these value judgements date back to the emancipation of the bourgeois society in the 18th century.63 In the age of the participatory Web, however, political speech should no longer be preferred to “cultural” speech of Netizens. The Internet is a public space64

61 The OECD’s definition of UCC provides three criteria: (i) “content made publicly available over the Internet”, (ii) “which reflects a certain amount of creative effort”; and (iii) “which is created outside of professional routines and practices” (OECD, ‘Participative Web: User-created Content’, (OECD Doc. DSTI/ICCP/IE(2006)7/FINAL, 2007), at p. 9). This definition is also used by the European Commission, see, e.g. CEC, Green Paper, ‘Copyright in the Knowledge Economy’ (CEC Doc. COM (2008) 466/3), at p. 19. 62 Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’, supra note 60. 63 As described by Jürgen Habermas in 1962, the liberal model of the bourgeois public sphere emerged in 18th-century Europe as a counterweight to the absolute state. The public sphere was conceived as an arena for debating and deliberating issues of political rather than economic or cultural interest. See Jürgen Habermas, The Structural Transformation of the Public Sphere. An Inquiry into a Category of Bourgeois Society, translation by Thomas Burger and Frederick Lawrence, Cambridge: Polity Press, 2007 (first published in 1962 as “Strukturwandel der Öffentlichkeit”). The idea that free discursive relations in the public sphere constitute the fundament of a democratic society strongly influenced contemporary formulations of constitutional rights protecting freedom of expression and information in Europe. According to the classic formula used by the European Court of Human Rights, “Freedom of expression constitutes one of the essential foundations of a democratic society”. See European Court of Human Rights, Handyside v United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, para. 49. 64 According to Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’, supra note 60, at p. 50: “Communications networks are public in nature even if their technological infrastructure is privately owned. Therefore they must grant fair access to their networks.”

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that must not be “propertised”65 by the entertainment industries in order to control – by the means of IPRs – how ordinary people use digital content.66 Balkin is right that constitutional rights must adapt to this value change and establish a new balance between creativity, as a free-speech value, and the exclusive commercial interests of digital business and the entertainment industries. At the international level, arguments for a reconsideration of the relationship between IP values and free-speech values are supported by the new United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD). The CCD says more on the relationship between commercial values and cultural values in general than on IP in particular.67 Although the CCD suffers from considerable normative weaknesses,68 its almost unanimous adoption and rapid and broad ratification69 is a political signal from a large group of governments worldwide that economic values should no longer be preferred to values of creative expression.70 Since the CCD affects not only the external relations of a state party 65

“Propertization” has been used in recent socio-legal literature as a term to describe and criticise processes limiting access to commons, public goods and public domains by the means of property-like legal tools in the areas of economics, technology, culture and communication. For an overview see the various contributions in Hannes Siegrist (ed.), Entgrenzung des Eigentums in modernen Gesellschaften und Rechtskulturen, Leipzig: Leipziger Universitätsverlag, 2007. 66 Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’, supra note 60, at pp. 21 and 26. 67 Although the CCD does not address the relationship between IP and values of cultural diversity explicitly, Article 7(1) CCD obliges parties to “create .  .  . an environment which encourages individuals and social groups: (a) to create, produce, disseminate, distribute and have access to their own cultural expressions [and] (b) to have access to diverse cultural expressions from within their territory as well as from other countries of the world”. On UCC from a cultural diversity perspective see Mira Burri-Nenova, ‘User Created Content in Virtual Worlds and Cultural Diversity’, in Christoph Beat Graber and Mira Burri-Nenova (eds), Governance of Digital Game Environments and Cultural Diversity, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, 2010, pp. 74–112. 68 For an analysis see Christoph Beat Graber, ‘Substantive Rights and Obligations under the UNESCO Convention on Cultural Diversity’, in Hildegard Schneider and Peter van den Bossche (eds), Protection of Cultural Diversity from an International and European Perspective, Antwerp: Intersentia, 2008, pp. 141–62. 69 The CCD, which entered into force on 18 March 2007 (available at http:// portal.unesco.org/la/convention.asp?KO=31038&language=E&order=alpha), has been ratified as of 1 August 2010 by more than 110 countries. 70 Christoph Beat Graber, ‘Trade and Culture’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press, 2010, online edition, available at www.mpepil.com.

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but also its internal ones, the state needs to undertake measures contributing to the attainment of the goal of protecting and promoting cultural diversity in order to fulfil its obligations under the Convention. 7.3.2

Communicative Freedom and the Network Grid

It is an important step for constitutional theory to postulate that the technological changes of the participative Web bring particular features of communicative freedom to the forefront, requiring a re-evaluation of the relationship between political and cultural speech within a constitutional setting. This, however, is not sufficient. As I have argued above, on the Internet, implications of code must be considered as potential threats to free-speech values in addition to implications of an overbroad IP system. Accordingly, considerations over communicative freedom on the Internet must also encompass the specific technological implications of networked digital communication. As the discussion on network neutrality shows, the openness and freedom of the Internet directly depend on decisions taken at the level of the technological architecture.71 Technology is used to differentiate between various data transmissions and to make the quality and speed of the transmitted information contingent on financial rates of return or other unilaterally set criteria. Network neutrality has been used during recent years as a slogan to combat any such models and to convince regulators that the network should stay neutral to the passing content.72 Whereas the legal basis of the concept has been contested by a district court in the US,73 the European Union (EU) package has included network neutrality as a policy objective and regulatory principle in Directive 2009/140/EC,74 amending the European

71

According to Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’, supra note 60, at p. 50, communication networks “must grant fair access to their networks, they must not act as chokepoints or bottlenecks, and they must not unfairly discriminate against content from other sources”. 72 See Susan P. Crawford, ‘Network Rules’ (2007) Law and Contemporary Problems, 70, pp. 51–90, at p. 51; Wu, supra note 43, at p. 141. 73 See supra note 44, and accompanying text. 74 EC Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services, (18 December 2009) Official Journal of the European Union, 337, pp. 37–69. See recitals 34–38 and 40.

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Union’s package of communication law, including the framework, access and authorization directives. In an annex, Directive 2009/140/EC provides for a “Commission declaration on net neutrality” that reads as follows: The Commission attaches high importance to preserving the open and neutral character of the Internet, taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities, alongside the strengthening of related transparency requirements and the creation of safeguard powers for national regulatory authorities to prevent the degradation of services and the hindering or slowing down of traffic over public networks. The Commission will monitor closely the implementation of these provisions in the Member States, introducing a particular focus on how the “net freedoms” of European citizens are being safeguarded in its annual Progress Report to the European Parliament and the Council. In the meantime, the Commission will monitor the impact of market and technological developments on “net freedoms” reporting to the European Parliament and Council before the end of 2010 on whether additional guidance is required, and will invoke its existing competition law powers to deal with any anti-competitive practices that may emerge.

Since Directives must be implemented by EU member states at the level of domestic legislation, the principle is not self-executing. The Commission made it clear, however, that it will closely monitor how member states implement this principle. In addition, the Commission has announced its willingness to use its competition law powers to ensure adherence to the principle in competitive relationships between market players. Zittrain has criticized the concept of network neutrality as still not being sufficiently comprehensive.75 He argues that the discussion on freedom of the Internet must not be limited to constraints of network connectivity and protocols, but must include any information technology systems involved between PC and PC.76 The PC and the Internet are so inextricably intertwined that it is “not enough for network engineers to worry only about network openness and assume that the endpoints can take care of themselves”.77 Hence, in addition to the network itself, it is important to look also at the endpoints.78 In his view, end-to-end neutrality does not fully capture all aspects that safeguarding Internet freedom would require to be taken into account. Consequently, the

75

Zittrain, ‘The Generative Internet’, supra note, at p. 2029. Ibid., at p. 1978. 77 Ibid., at p. 2031. 78 Jonathan Zittrain, The Future of the Internet and How to Stop It, New Haven: Yale University Press, 2008, at p. 8. 76

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distinction between middle and endpoints, which underlies the rhetoric of end-to-end neutrality, should be replaced with the concept of Internet generativity: 79 It remains correct that from a network standpoint, protocol designs and the ISPs that implement them are the “middle” of the network, as distinct from PC “endpoints”. But the true import of a vernacular of “middle” and “endpoint” for policy purposes relates to individuals’ power to control their experiences on the network . . . Now that the network’s endpoints are controllable by faraway entities, abandoning the end-to-end debate’s simplistic divide between middle and endpoint will enable us to identify and respond better to the emerging threats to the Internet’s generativity.

The term “Internet generativity” stands for the potential of individual Internet users to tinker creatively with the technology of both their PC and the network. Internet generativity can be endangered by so-called trusted systems, that is, by decisions taken at the level of code.80 Hence, in the networked digital environment, social spheres of action are determined by technology. As Vagias Karavas argues, technological media prestructure the social sphere of action, “thus transforming the whole social sphere into a hybrid entity of technosocial character“.81 He argues that on the Internet basic constitutional rights can no longer be conceived as existing only in a sphere of normative communication independent from technology. Arguably, the law’s dependency on technological media paves the way for the emergence of what Karavas calls “technodigital normativity”, that is, “the amalgamation of normative and digital expectations inside the digital medium”.82 For Karavas, the specific function of basic rights on the Internet consists of safeguarding the integrity of digital systems. The German Constitutional Court has come to a similar conclusion in a recent leading case. In the judgment, resulting in the annulment of legislation regulating online investigations, the Court developed unwritten constitutional guarantees protecting “the integrity and confidentiality of informa-

79

Zittrain, ‘The Generative Internet’, supra note, at p. 2031. Zittrain, The Future of the Internet and How to Stop It, supra note 78, at p. 105. 81 Vagias Karavas, ‘The Force of Code: Law’s Transformation under Information Technological Conditions’ (2009) German Law Journal, 10 (4), pp. 463–81, at p. 471; see also Vagias Karavas, Digitale Grundrechte. Elemente einer Verfassung des Informationsflusses im Internet, Baden-Baden: Nomos, 2007, at p. 155. 82 Karavas, ‘The Force of Code: Law’s Transformation under Information Technological Conditions’, supra note 81, at p. 478. 80

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tion technology systems”.83 Inspired by Bruno Latour, Karavas has lately argued that protecting the integrity of information technology systems would also encompass an “associative link” between creative user activities (so-called Web 2.0 activities) and the information technology system.84 To conclude, communicative freedom must also protect the integrity of the technological architecture. The “technodigital normativity” of the Internet requires conceiving the possibility to communicate creatively on the Internet as being inextricably intertwined with the technology of the network grid.

7.4

CONSTITUTIONAL RIGHTS IN THE PRIVATE SPHERE OF THE INTERNET

So far I have discussed how communicative freedom has changed in order fully to protect new aspects that come to the surface of the constitutional right. What remains is the problem that many of the threats to free-speech values that I emphasized originate in private action, whereas constitutional rights can only be applied in cases of state action. It is a common feature of classic constitutional doctrine, both in the US and in European legal orders, that constitutional rights are perceived as applying exclusively in relationships between a private person and the state. In Europe, the classic formulation of constitutional rights views these rights as individual defences against the intrusive power of the state. Although the German Constitutional Court has been developing, step by step, an institutional formulation of constitutional rights since the end of World War II, there has been a strong countermovement defending the classic doctrine.85 In the United States, the possibility of a constitutionally based

83 Bundesverfassungsgericht, 1 BvR 370/07, 1 BvR 595X/07, 27 February 2008, at paras 201, 203, 207 (German in the original). 84 Vagias Karavas, ‘Grundrechtsschutz im Web 2.0: Ein Beitrag zur Verankerung des Grundrechtsschutzes in einer Epistemologie hybrider Assoziationen zwischen Mensch und Computer’, in Christoph Bieber, Martin Eifert, Thomas Gross and Jörn Lamla (eds), Soziale Netzwerke. Das Internet zwischen egalitärer Teilhabe und ökonomischer Vermarktung, Frankfurt: Campus Publishers, 2009, pp. 301–25 (German in the original). See also Thomas Steiner, Advertising in Online Games and Cultural Diversity. An EC and International Media Law Enquiry, Bern: Stämpfli, 2010, at p. 69. 85 Christoph Beat Graber and Gunther Teubner, ‘Art and Money: Constitutional Rights in the Private Sphere’ (1998) Oxford Journal of Legal Studies, 18, pp. 61–73, at p. 63; Karl-Heinz Ladeur, ‘Die Drittwirkung der Grundrechte im Privatrecht – “Verfassungsprivatrecht” als Kollisionsrecht’, in

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oversight in the private sphere is limited by the so-called “state action” doctrine. Although the state action doctrine has shifted over time since its first formulation in an 1883 Supreme Court decision, it still rests on an interpretation of the US Constitution to proscribe only the conduct of government agencies in most of its commandments.86 In Shelley v. Kraemer, the Supreme Court held that “the Constitution erects no shield against merely private conduct, however discriminatory or wrongful”.87 In cases where a clear demarcation between private and public conduct is difficult, courts have often looked at either “whether the private party is performing a public function” or whether the action of a private party is so closely linked to the government that it is attributable to the state for constitutional purposes.88 Although scholarship in the US has been busy attacking the public– private distinction underlying the state action doctrine for decades,89 it has been unable to dismantle it. Rather than adding to these criticisms, Paul Schiff Berman proposed an alternative approach that he calls “constitutive constitutionalism”. According to his view, the debate “should focus on the Constitution’s constitutive role in our cultural life, regardless of whether that life is lived in the public or private sphere”.90 When adjudicating conflicts between private parties, courts should transform into a forum for debating core societal values.91 In cases where such values are endangered by private action, courts would be required to conduct a broader discussion over these values. We agree with Berman, that requiring an element of state action misses the point of why constitutional rights should play a role in the private sphere. Rather than asking whether a state act was involved directly or indirectly, the relevant criterion should be “effective infringement of individual or social autonomy whatever its source”.92 Berman uses examples of private powers employing code to regulate behaviour

Gralf-Peter Calliess et al. (eds), Soziologische Jurisprudenz. Festschrift für Gunther Teubner zum 65. Geburtstag, Berlin: De Gruyter, 2009, pp. 543–58. 86 Bellia, Berman and Post, supra note 22, at pp. 328–29. 87 Shelley v Kraemer (1948) 334 US 1, 13. 88 Bellia, Berman and Post, supra note 22, at p. 329. 89 For a general critique of the public/private distinction see Christine Chinkin, ‘A Critique of the Public/Private Dimension’ (1999) European Journal of International Law, 10 (2), pp. 387–395; Duncan Kennedy, ‘The Stages of the Decline of the Public/Private Distinction’ (1982) University of Pennsylvania Law Review, 130 (6), pp. 1349–57. 90 Berman, supra note 20, at p. 1289. 91 Berman, ibid., at pp. 1296–98. 92 Graber and Teubner, supra note 85, at p. 70. For a more comprehensive elaboration of this argument see section 7.5.1 below.

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on the Internet to support his argument.93 We agree that these examples demonstrate convincingly that subjecting private standard-setting powers to constitutional review is necessary for securing individual and social autonomy on the Internet. However, we join Karavas in his critique that Berman’s approach is too vague and that it would make people believe that constitutional law and constitutional courts can resolve any societal conflict.94 Berman concedes that courts are not the only possible forum for articulating fundamental societal values.95 Nonetheless, he is convinced that “they may sometimes provide a more satisfying resolution than the political process can”.96 From a transnational law perspective it is interesting to note that in Germany a direct effect of basic rights of the Grundgesetz has been rejected mainly because it does not fit in with the dominant doctrine’s view of basic rights as tools designed to fight asymmetries of power (which, arguably, only exist in relationships between individual and state).97 Similarly, a direct horizontal effect of basic rights of the constitution has also been continually and unanimously rejected by courts and academia in Switzerland. The main concern here was that a direct effect would lead to a shift of power from the political authorities to the judiciary. However, as a result of a general constitutional reform in 1999, Article 35(3) of the Swiss constitution requires authorities to “ensure that fundamental rights, where appropriate, apply to relationships among private persons”.98 This provision has consistently been interpreted as establishing an indirect horizontal effect of basic rights of the constitution.99

93

Berman, supra note 20, at p. 1307. Karavas, Digitale Grundrechte. Elemente einer Verfassung des Informationsflusses im Internet, supra note 81, at p. 64. 95 Berman, supra note 20, at p. 1268 (discussing drawbacks of an extension of the scope of state action as a strategy to subject more private activities to constitutional scrutiny). 96 Ibid., at p. 1298. 97 According to Karavas, supra note 81, at p. 64, Berman’s approach closely resembles the doctrine of the German Constitutional Court stating that the basic rights of the constitution include an objective dimension and must be observed throughout the legal order. Karavas has systematically reconstructed the debate in Germany and Switzerland on constitutional rights in the private sphere (also called the “horizontal effect” of constitutional rights) and compared it to the US debate on the state action doctrine. 98 Federal Constitution of the Swiss Confederation of 18 April 1999 (Status as of 27 September 2009), available online at http://www.admin.ch/ch/e/rs/1/101. en.pdf. 99 Bernhard Ehrenzeller, Philippe Mastronardi, Rainer J. Schweizer and Klaus A. Vallender (eds), Die Schweizerische Bundesverfassung, 2nd edn, Zürich: 94

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As Graber and Teubner have argued, the major shortcoming in the European debate on basic constitutional rights in the private sphere is “the narrow view that these rights are constituted exclusively in a triad of individual–power–State.” This is due to “an unholy alliance between liberal political philosophy and the procedures of public law”.100 Liberal political philosophy is based on a concept of the state as a (social) contract between citizens. As a central element of this contract, citizens confer on the state the monopoly in the exercise of power. At the same time, they reserve basic individual rights defining a quasi-spatial exclusion zone against state intervention. The relationship of state and society is understood as a dichotomy. “Co-originality” of private and public autonomy is the term Jürgen Habermas coined to describe the sociological observation that basic rights and the state have the same normative origin.101 The state-centrism of this concept was bolstered up by the procedures of public law, placing particular procedures at the individual’s disposal, which are necessary for the enforcement of his/her basic rights against the state. The view that basic rights of the constitution are directed against the state was challenged by Graber and Teubner using a socio-legal approach based on Niklas Luhmann’s system theory. If one analyses the coming into being of basic rights from a perspective of sociological jurisprudence, one first has to note that basic rights are a typical phenomenon of the modern, i.e. functionally differentiated, society. In pre-modern segmented or stratified societies, the idea of an autonomous individual did not exist.102 Until the end of the 18th century, the formula for social relations was status and not (individual rights-based) contract.103 Consequently, rather than a constitution vesting basic rights in a person, it was the clan, the family or the social stratum constituting rights, obligations and opportunities of its members. In the course of the process of social differentiation eventually leading to

Dike and Schulthess, 2008, notes on Article 35 of the Swiss Constitution, notes 35–37 on Article 35 of the Swiss Constitution. 100 Graber and Teubner, supra note 85, at p. 63. 101 Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, supra note 16, at p. 104. This formula leaves no space for forms of legal autonomy that are neither exclusively public nor exclusively private. For a critique see Gralf-Peter Calliess, Prozedurales Recht, Baden-Baden: Nomos, 1999, at pp. 186–7. 102 Niklas Luhmann, Grundrechte als Institution, Berlin: Duncker & Humblot, 1965, at pp. 33–37; Luhmann, Law as a Social System, supra note 9, at pp. 412–19. 103 According to Sir Henry Maine’s famous thesis, expressed in 1861, “the history of progressive societies had hitherto been one of a movement from social relations based on status to relations of contract”. Quoted from Cotterrell, supra note 6, at p. 119.

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modernity, distinct spheres of social autonomy emerged. The autonomy of the individual was only one among many newly differentiated social spheres, including the functionally differentiated systems of law, politics, economics, science, art and so on. In Luhmann’s theory, a “system” can be understood as a distinct discourse where a specific “language game” (i.e. law, politics, economics etc.) is practised according to autonomously generated “grammatical” rules. To protect the autonomy of these spheres of action, modern society invented basic rights as social institutions. Basic rights are, thus, first and foremost social institutions and must be distinguished from basic rights as legal institutions. As social institutions, the function of basic rights is to protect functional differentiation against self-destroying tendencies of modern society.104 Hence, it is not only the autonomous sphere of the individual, but rather the autonomous spheres of all functionally differentiated systems of modern society that must be protected by basic rights. This distinction between basic rights as social institutions and basic rights as legal institutions represents the main difference between a Luhmanian institutional and a classic concept of basic rights. Although it is the social institution of constitutional rights that protects social autonomy, it is the role of the law to stabilize these rights and to shape them to a certain degree.105 The focus on both individual and trans-individual (discursive) situations is the first of two important implications of an institutional understanding of basic rights. The second implication is that basic rights are not only directed against the state, since freedom in modern society can be endangered by any expansionist tendencies of a social system. The fact, thereby, that in the 19th century and in the first half of the 20th century expansionist tendencies in Western societies mainly originated in activities from the political system (i.e. the state) is a mere historic coincident. Experiences from the late 20th century and the beginning of the 21st century show that colonizing tendencies more often emanate from the economy and from science.

7.5 IMPLEMENTING COMMUNICATIVE FREEDOM ON THE INTERNET 7.5.1

Theoretical Reflection

I have so far been arguing that, due to a curtailed concept of basic rights, classic constitutional doctrine is unable to respond properly to threats to

104 105

Graber and Teubner, supra note 85, at p. 65. Ibid., at p. 72.

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communicative freedom emanating from networked digital technology in the hands of private actors. My analysis revealed two reasons for this limited perspective: first, blindness of interdependencies between speech, creativity and technology; and second, blindness with regard to the function of basic rights as guarantees of communicative chances.106 As a response, I first suggested that communicative freedoms of the constitution be interpreted as extending to creative Web 2.0 activities, while taking account of their specific technosocial character. Second, I suggested overcoming the state-centrism of the classic constitutional rights doctrine by introducing a distinction between basic rights as social institutions and basic rights as institutions of the law. An institutional approach to basic rights allows protecting trans-individual discursive values of communicative freedom, even where it is not moulded into the legal form of a “right”.107 The question now is how these ideas could be brought into effect. I suggest a procedural implementation strategy consisting in a “proceduralization” of basic rights – a logical consequence of an institutional approach. As Graber and Teubner have suggested, a “proceduralization” of basic rights would result in introducing legal procedures effectively securing a diversity of autonomous discursive spheres.108 This argument is based on Luhmann’s theoretical assumption outlined above that basic rights – as institutions – are guarantees for the autonomy of the various subsystems of society.109 Whereas, from an analytical perspective, basic rights and society exist and develop in a relationship of mutual observation and co-evolution,110 from a normative perspective, basic rights protect societal differentiation.111 Referring to the discussion in section 7.3.1 above, this is an argument supporting Balkin’s postulate for a better constitutional balance between commercial values and free-speech values and against a property-tied interpretation of communicative freedom on the Internet.112 Sure enough, a proceduralization of basic rights on the Internet goes beyond a rebalancing of key social values in a constitutional order. If

106

Luhmann, Grundrechte als Institution, supra note 102, at p. 23. See Milton Mueller, Chapter 6 in this volume, for a discussion of the need of a substantive approach to defining Internet blocking. 108 Graber and Teubner, supra note 85, at pp. 72–73. 109 Luhmann, Grundrechte als Institution, supra note 102. 110 Christoph Beat Graber, Zwischen Geist und Geld. Interferenzen von Kunst und Wirtschaft aus rechtlicher Sicht, Baden-Baden: Nomos, 1994, at p. 190. 111 Graber and Teubner, supra note 85, at p. 65. 112 For a similar argument, see Balkin, ‘How Rights Change: Freedom of Speech in the Digital Era’, supra note 59, at p. 46. 107

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basic rights have an institutional effect then the law must provide remedies to protect the autonomy of the various individual and social spheres involved. In reality, autonomous spheres of action are often neither exclusively private nor exclusively public. Boundaries between private and public autonomies are regularly blurred where public duties are performed by private actors.113 Internet intermediaries are a good example of this. Although they are legally organized as private companies they clearly perform public duties, and with regard to content filtering or speed throttling there can be no doubt that both practices interfere with individual and social spheres. The classic remedies that are made available by the procedures of public law for bringing basic rights into effect mostly rely on the judge. This is problematic on the Internet. Jack Balkin rightly emphasized that the free-speech values he postulated for the Internet “won’t necessarily be protected and enforced through judicial creation of constitutional rights”.114 This statement is confirmed by the cases of invisible content filtering and traffic management practised by Internet intermediaries. Here, a decision by a judge would either not be available because of reservations about an extension of judicial power at the expense of legislative power, or would not provide a sufficient remedy to protect effectively the private and public interests involved. On the Internet, moreover, the specific features of its technodigital normativity must be protected. The protection of the autonomy (integrity) of the network grid would require procedural responses that take action at the level of the technological infrastructure. Hence, beyond classic remedies securing due process and judicial response, legislative and administrative schemes of regulation would be necessary that protect the integrity of the networked digital environment through framework requirements regulating the design of technological infrastructure. With respect to the specific constitutional rights implications of technology-based filtering and discrimination of data transmission, protecting the Netizen’s confidence in the integrity of the network grid must be a central postulate. Because it is essential that the user knows when his/ her communication is “regulated”, the law should require transparency and prohibit any filtering and content discrimination technologies that come invisibly.115 From a due-process perspective, feedback and judicial review mechanisms would be important to correct technical and other

113

Calliess, supra note 99, at p. 188. Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’, supra note 60, at p. 51. 115 See Berman, supra note 20, at p. 1275. 114

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failures.116 Regarding the relationship between IP and technology, we have observed, above, a widening gap between what the law permits and what a “technology-intermediated” content market tolerates.117 Since it is often difficult to determine what falls under fair use, from a constitutional perspective, it is particularly problematic if piracy surveillance is delegated from the content owners to Internet intermediaries using automated technologies to filter Internet platforms ex ante.118 Automated filtering technologies are able to cope with rules but unable to cope with standards such as fair use.119 This creates uncertainties that – as we have argued above – in many ways have detrimental effects on Web 2.0 activities and creativity on the Internet.120 To enhance legal certainty and better to protect fair-use rights, procedures which liberate the consumer from the burden of proof would, thus, be important when issues related to distinguishing between legal and illegal use of content arise. 7.5.2

Practical Solutions

With regard to practical implementation it seems that some kind of government-assisted regulation would be necessary to secure the public policy goals that are at stake. In this context, it is interesting to note that the Electronic Frontier Foundation (EFF) called for a “three strikes before blocking” rule, arguing that such a model appears to be something more consumer-friendly than the self-regulatory instruments.121 In my view, this claim must be understood against the background of the specific situation in the US where voluntary copyright enforcement agreements between content owners and Internet intermediaries proliferate.122 In Europe, “three strikes and you are out” solutions are less acclaimed as the heated public debate surrounding the French “loi HADOPI” and the ruling of the Constitutional Council against a first draft of the Act demonstrated.123

116

Katyal, supra note 12, at p. 425. Ibid., at p. 411, addressing the problem of excluding legal mash-ups through filter technology. 118 For the problems of ex ante methods of surveillance from a free speech perspective see supra note 47, and accompanying text. 119 Katyal, supra note 12, at pp. 411–13. 120 Ibid., at p. 412, arguing that uncertainties over what constitutes fair use “risks chilling the transformative work of artists who seek to incorporate the work of others”. 121 Ibid., at pp. 421–22. 122 See supra note 37, and accompanying text. 123 Constitutional Council, Decision no. 2009-580 DC, 10 June 2009, Act Furthering the Diffusion and Protection of Creation on the Internet, Journal 117

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Under the influence of a Council of Europe Resolution on freedom of expression (Article 10 of the European Convention on Human Rights) and Internet filtering,124 the European Union was more sensitive to communicative freedom when it adopted at the end of 2009 the new EC Directive 2009/140/EC (Umbrella Directive),125 amending the framework, access and authorization directives of the Union’s communications framework. Article 1(3a) Framework Directive (as amended by the Umbrella Directive)126 provides for a “Freedom Provision”: Measures taken by Member States regarding end-users’ access to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law. Any of these measures regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of the presumption of innocence and the right to privacy. A prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to effective and timely judicial review shall be guaranteed.

As far as access to and use of networks is concerned, this provision takes account of several of our postulates for effectively protecting Officiel (13 June 2009), p. 9675 (English translation available at http://www.conseilconstitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc. pdf). For a discussion of the decision see Pierre Sirinelli, ‘The Graduated Response and the Role of Intermediaries’, in Lionel Bently et al. (eds), Global Copyright, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, 2010, pp. 478–491. After the Constitutional Court turned down a new complaint against an amended version of the legislation in Decision no. 2009-590 DC of 22 October 2009, the “loi HADOPI” entered into force on 1 January 2010. 124 Recommendation CM/Rec(2008)6 of the Committee of Ministers to Member States on measures to promote the respect for freedom of expression and information with regard to Internet filters, adopted by the Committee of Ministers on 26 March 2008. 125 EC, Directive 2009/140/EC, supra note 74. 126 See ibid., Article 1(1)(b).

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communicative freedom on the Internet, including the presumption of innocence, feedback procedures, due process and judicial review. I emphasize that the “freedom provision” opts for a procedural framework, which must be implemented by member states, rather than providing for a substantive rule. With a view to the sometimes rather competitive relationship between the EU and the Council of Europe in matters of human rights, it is interesting to note that the freedom provision directly refers to the “adequate procedural safeguards” and the proportionality test provided by the European Convention on Human Rights (ECHR).127 Concerns of proportionality were the major reason for many to object to the “graduated response” of the French “loi HADOPI” providing for an Internet cut-off after the third copyright-infringing activity on the network.128 Since Internet access is of extreme importance for most individuals today, a definitive Internet cut-off seems to be an overly severe response to a copyright infringement. A further interesting feature of this clause is its reference to the right to privacy. Private filtering as a strategy for copyright enforcement requires the collection of huge amounts of sensitive consumer data. Courts have recently become more sensitive with regard to basic-rights implications of such data collection, as a 2 March 2010 landmark judgment of the German Constitutional Court demonstrates.129 In this case, 127

The proportionality test as applied by the European Court of Human Rights in the context of restrictions to fundamental rights generally consists of three stages: (i) Is the challenged measure suitable to achieve a legitimate objective? (ii) Is the measure necessary in order to achieve that objective? (iii) Is there a reasonable relationship between the measure and the desired aim (proportionality stricto sensu)? Article 10 ECHR (freedom of expression and information) provides in paragraph 2 an exhaustive list of legitimate objectives, including national security, territorial integrity, public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the reputation and the rights of others. See John J. Cremona, ‘The Proportionality Principle in the Jurisprudence of the European Court of Human Rights’, in Ulrich Beyerlin (ed.), Recht zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht, Staatsrecht, Festschrift für Rudolf Bernhardt, Berlin: Springer, 1995, pp. 323–30; and Jeremy McBride, ‘Proportionality and the European Convention on Human Rights’, in Evelyn Ellis (ed.), The Principle of Proportionality in the Laws of Europe, Oxford: Hart Publishing, 1999, pp. 23–36. On the proportionality test as applied by the European Court of Human Rights when adjudicating intellectual property disputes under the ECHR’s property rights clause see Laurence R. Helfer, ‘The New Innovation Frontier? Intellectual Property and the European Court of Human Rights’ (2008) Harvard International Law Journal, 49 (1), pp. 1–52. 128 See Sirinelli, supra note 123. 129 Bundesverfassungsgericht, BVerfG, 1 BvR 256/08, 2 March 2010, available online at http://www.bverfg.de/entscheidungen/rs20100302_1bvr025608.html. For

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the German Constitutional Court found that certain provisions of the German Telecommunications Act (GTA) allowing preventive data retention by government authorities for a period of six months violated the right to confidentiality of telecommunications as protected by the German Grundgesetz. The contested provisions were enacted by the German legislator to implement the EU Data Retention Directive into national law.130 It is particularly noteworthy that the data retention allowed by the GTA was limited to traffic data131 and did not extend to content data. In its reasoning, the Court clarified that under any circumstances a statute allowing for preventive data retention would only be constitutional if the purposes of that law would be limited to the prosecution of crimes that threaten overwhelmingly high-ordered interests of public welfare.132 According to the Court, such high-ordered interests of public welfare include physical safety, life, or liberty of persons, security of the federal or state governments and prevention of considerable public danger.133 Furthermore the danger to these interests must be sufficiently concrete in order to justify preventive data collection.134 This ruling is an unequivocal signal that any massive data retention as implied by a “three strikes and you are out” type of law would not be constitutional in Germany.

7.6 CONCLUSIONS A law and society approach is useful for finding adequate responses to challenges to communicative freedom on the Internet, arising from

an appraisal of the case in context of the EU Data Retention Directive that was implemented by the contested provision of the German Telecommunications Act see Christian De Simone, ‘Pitting Karlsruhe Against Luxembourg? German Data Protection and the Contested Implementation of the EU Data Retention Directive’ (2010) German Law Journal, 11 (3), pp. 291–317. 130 EC, Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, (13  April 2006) Official Journal of the European Union, 105, pp. 54–63. 131 Traffic data included information necessary to  identify the originator and recipient of communications, information identifying the communication equipment used, the time, duration, and date of communications, and realtime geographic coordinates of mobile devices during mobile communications. Bundesverfassungsgericht, supra note 129, at para. 192. 132 Ibid., at para. 227. 133 Ibid., at para. 231. 134 Ibid., at para. 232.

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new technologies such as Deep Packet Inspection and other forms of automated content filtering. In terms of a classic interpretation of basic rights of the constitution, whereas these rights can be invoked when such measures are deployed by governments, no such remedy is available where private companies such as Internet intermediaries use filter technologies to eliminate undesired content or throttle the distribution of data that is not of commercial interest. Such a classic interpretation of basic rights of the constitution, however, must be criticized from a law and society perspective since it neglects that constitutional rights are not only institutions of the law but also – and foremost – institutions of society. Constitutional rights as social institutions fulfil a particular function in society, consisting in the protection of a multitude of individual and social autonomies against selfdestroying tendencies within society. The colonization of non-commercial spheres of Internet communication and creativity by the economy is an example of such a self-destroying tendency, emanating from an expanding system of society. Taking account of the double nature of constitutional rights, as institutions of society and institutions of the law, calls for a proceduralization of constitutional rights. To proceduralize communicative freedom on the Internet means to create legal procedures that protect the plurality of individual and social autonomies in society. The example of Internet filtering demonstrates that waiting for the judge would not be sufficient. Measures for the protection of communicative freedom on the Internet must kick in at an earlier stage to be effective. What is required is a regulatory framework assuring transparency, presumption of innocence, judicial response and due process. Moreover, framework requirements would be necessary to regulate the design of the technological infrastructure where this is necessary to protect the associative link between creative user activities and the integrity of digital systems.

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8.

Diminished, enduring, and emergent diversity policy concerns in an evolving media environment Philip M. Napoli

8.1 INTRODUCTION Technological and institutional changes in contemporary communications systems are forcing both policymakers and policy researchers to re-examine the role and function of diversity as a communications policy principle.1 As a recent study on the tightly related principle of media pluralism prepared for the European Commission noted, “Technological and economic changes .  .  . are affecting established media and communications sectors . . . Traditional policy approaches . . . that were developed in an earlier era are being strained by these changes and there is a growing need to develop policy approaches appropriate for the contemporary and future environment.”2 Reflected in this statement is the fact that the reduced barriers to entry to content production and distribution brought about by the Internet have led (at least superficially) to increases in available content, as well as to dramatic increases in the range of sources from which content can be obtained. Individuals and organizations of various stripes now stand alongside traditional media institutions as producers and distributors of content.3 On a superficial level, these technological developments address

1 See generally, Kari Karppinen, Rethinking Media Pluralism and Communicative Abundance, 11 Observatorio J. 151–69 (2010); Bruce M. Owen, Old Media Policy Failures, New Media Policy Challenges, John M. Olin Program in Law and Economics Working Paper No. 378 (July, 2009). 2 K.U. Leuven, Jonkoping International Business School, Central European University, & Ernst & Young Consultancy, Independent Study on Indicators for Media Pluralism in the Member States – Towards a Risk-Based Approach. Report, 9 (2009). 3 See generally, IDATE Consulting & Research, User-Created-Content: Supporting a Participative Information Society. Report prepared for the European

165

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many of the concerns that provided the underpinnings of diversitymotivated regulations of traditional media institutions.4 However, it is important to emphasize that even if technological change facilitates the achievement of traditional, established diversity policy objectives, this does not automatically negate the status of diversity as a fundamental communications policy principle. Rather, it simply means that policy interventions on behalf of diversity may no longer need to be as extensive as perhaps they once were (but that the relevant monitoring still needs to be conducted). Or, as is perhaps more often the case when policymaking adapts to significant environmental or technological change, the points of observation and/or intervention need to be adjusted in order to better reflect changing environmental conditions.5 Such a shift may be a response to new, emergent threats to a particular policy principle that are a function of technological or environmental change, or they may simply be an effort to build upon the extent to which the principle can be further employed to maximize the public good.6 It is from this standpoint that this chapter assesses the ongoing evolution of diversity as a communications policy principle and how this evolution should affect research that seeks to address and inform the concerns of policymakers. The scope of this chapter is limited in that it takes a somewhat pragmatic (one might even say applied) approach, in that it does not argue for a new agenda for diversity policy and (by association) diversity research. Rather, this chapter simply assesses the current policymaking environment – in terms of exhibited shifts in diversity policy priorities – and seeks to extrapolate from these observations a diversity research agenda that would most effectively resonate with, and serve, these reconfiguring policy priorities. In this regard, this chapter is intended as a tool for those policy researchers interested in directly addressing those policy issues and concerns that are most prominent in contemporary policymaking and policy advocacy discourse. Certainly, policy research can, and should, also serve to set – rather than simply respond to – policy

Commission i2010 Midterm Review (2008); Philip M. Napoli, Revisiting “Mass Communication” and the “Work” of the Audience in the New Media Environment, 32 Media, Culture & Society 505–16, (2010). 4 See Karppinen, supra note 1, 151 (“many accounts of the contemporary media environment present an image of almost infinite choice and an unparalleled pluralization of voices that have access to the public sphere”). 5 See, e.g., Minna Aslama and Philip M. Napoli, Diversity 2.0: Rethinking Audiences, Participation, and Policies. Paper presented at the annual meeting of the International Communication Association (May, 2011). 6 See supra.

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agendas. The focus of this chapter, however, is to extract from ongoing policy discussions those issues and concerns for which policymakers’ demand for research would appear to be most immediate. Section 8.2 of this chapter focuses on those diversity policy concerns that appear to be of diminished importance to communications policymakers. Specifically, this section discusses how contemporary media system developments are to some extent diminishing concentration of media ownership in relation to diversity policy. Section 8.3 examines those media diversity concerns that endure in this new media environment. Specifically, this section illustrates how concerns about cultural and linguistic diversity and transnational content flows, persist amongst policymaking bodies amidst the ongoing reconfiguration of contemporary media systems. In terms of emerging concerns, section 8.4 addresses the range of emerging user-focused diversity concerns that are related to media users’ consumption and production of media content. Finally, section 8.5 builds upon these observations to offer the basic contours of a media diversity research agenda that would resonate with these shifting media diversity policy priorities.

8.2

DIMINISHED DIVERSITY POLICY CONCERNS: THE DECOUPLING OF MEDIA CONCENTRATION AND DIVERSITY

Although diversity is a rich and multifaceted communications policymaking principle,7 over time it has become increasingly tied to concerns about concentration of media ownership.8 These concerns have been both national and international in their orientation.9 That is, concerns about the effects of concentration of media ownership on various manifestations

7

See generally, Philip M. Napoli, Deconstructing the Diversity Principle, 49 J. of Communication 7–34 (1999). 8 For a detailed discussion of the relationship between media diversity concerns and media ownership policy, and the research issues arising from this relationship, see Philip M. Napoli and Nancy Gillis, Reassessing the Potential Contribution of Communications Research to Communications Policy: The Case of Media Ownership, 50 J. of Broadcasting & Elec. Media 671–91 (2006). 9 For a discussion of the international concerns about the relationship between ownership concentration and diversity, see Natascha Just, Measuring Media Concentration and Diversity: New Approaches and Instruments in Europe and the US, 31 Media, Culture & Society 97–117 (2009). For an analysis of these issues within the context of the US, see Eli Noam, Media Ownership and Concentration in America (2009).

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of diversity have been directed at both content flows within individual geographic areas (local markets, individual countries) as well as content flows across geographic borders (e.g., cross-national content flows, or national versus local content availability in local markets).10 It seems reasonable to suggest that these concerns about ownership concentration peaked just as the Internet began to dismantle and reconfigure many aspects of our traditional media system, with, for example, the highly contentious 2003 Federal Communications Commission (FCC) review of its media ownership regulations in the US11 and the subsequent successful court challenge to this decision,12 and in Europe the 2007 issuance by the European Commission of the Audiovisual Media Services Directive.13 It is worth briefly highlighting an important contrast between these two regulatory responses, in terms of the extent to which the European Commission sought to extend its diversity objectives into the new media space,14 whereas the FCC simply took the presumed diversity that exists online as a rationale to scale back its pursuit of diversity objectives in the traditional media space.15 These divergent approaches to the diversity principle represent the crux of ongoing debates over: (1) whether

10 For an overview of the economic and cultural concerns raised by these processes, see Richard Gershon, The Transnational Media Corporation (1996). 11 Federal Communications Commission, 2002 Biennial Regulatory Review – Review of the Commission’s Broadcast Ownership Rules and other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 18 FCC Rcd 13620 (2003). 12 Prometheus Radio Project v. Federal Communications Commission, 373 F.3d 372 (2004). 13 Council of the European Commission (2007), Audiovisual media services directive. Retrieved October 25, 2010, from: http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2007:332:0027:0045:EN:PDF. For a discussion and analysis of this directive, see Natali Helberger, From Eyeball to Creator – Toying with Audience Empowerment in the Audiovisual Media Services Directive, 6 Entertainment Law Rev. 128–37 (2008). 14 The AVMSD, for instance, extends from “linear” (i.e., broadcast) to “nonlinear” (i.e., online/on-demand) media services. For a discussion, see Tarlach McGonagle, European-Level Measures for Promoting Cultural Diversity in Broadcasting: Quixotic Tilting in a New Technological Era? 2007 Yearbook of Communication Law 119–36 (2008). 15 See Federal Communications Commission, supra note 11, ¶ 4 (“while the march of technology has brought to our homes, schools, and places of employment unprecedented access to information and programming, our broadcast ownership rules, like a distant echo from the past, continue to restrict who may hold radio and television licenses .  .  . Our current rules inadequately account for the competitive presence of cable, ignore the diversity-enhancing value of the Internet, and lack any sound basis for a national audience reach cap”).

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policy principles established within the traditional media realm should be extended into new media contexts; and (2) whether the characteristics of the new media environment inherently solve the concerns that traditionally have defined diversity-motivated media policies.16 Recent technological and economic developments have certainly recast the traditional concerns about concentration of media ownership, for a number of reasons. First, up to this point in time, the dynamics of the new media environment have undermined the business models of most of the media industry sectors and organizations that have been the focal point of concern about ownership concentration. The business models of traditional media companies have been damaged in both marketplaces in which the economics and strategy of media industries traditionally have been based: the sale of content to audiences, and the sale of audiences to advertisers.17 And while one can certainly make a compelling case that policymakers should not concern themselves with preserving outdated business models,18 there are legitimate concerns about whether the evolutionary path that contemporary media systems are following is one that will serve the information needs of the citizenry as well as is necessary for democracies to function effectively.19 The end result of these developments is that policymakers are becoming increasingly willing to consider ownership concentration as a possible mechanism for preserving traditional media organizations and maintaining their contributions to the media system, and/or no longer see ownership concentration as a problem requiring regulatory intervention.20 We see this in the US, for instance, where both the Federal Communications Commission21 and the Federal Trade Commission22 are conducting 16

For discussions of these issues, see supra note 1. See Philip M. Napoli, Audience Evolution 55–87 (2011). 18 See Philip M. Napoli, Media Ownership: Lessons from the US, 37 Intermedia 13–21, (2009); 17 (“The primary goal of media ownership policies is not to preserve or promote the health of established industry sectors, particularly if it comes at the expense of the development of new industry sectors”). 19 See generally, Knight Commission on the Information Needs of Communities in a Democracy. Informing Communities: Sustaining Democracy in the Digital Age (2009). 20 For perhaps the most detailed scholarly treatment of these issues, see C. Edwin Baker, Media Concentration and Democracy (2007). 21 Federal Communications Commission, FCC Launches Examination of the Future of Media and the Information Needs of Communities in the Digital Age: Comments Sought. Retrieved January 22, 2011, from: http://hraunfoss.fcc.gov/ edocs_public/attachmatch/DA-10-100A1.doc (2010). 22 Federal Trade Commission, From Town Criers to Bloggers: How Will Journalism Survive the Internet Age? Notice Announcing Public Workshops and 17

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thorough evaluations of the state of the US media system and the appropriateness of various policy responses. Underlying both of these evaluations is the question of whether limitations on concentration of media ownership are either necessary or desirable in today’s media environment. Even long-standing advocates of media ownership regulations, such as FCC Commissioner Michael Copps, have begun to relax their stance in the face of the economic declines of traditional media sectors such as the newspaper and broadcast television industries.23 Perhaps it is not surprising that the FCC’s ongoing iteration of its quadrennial media ownership policy review24 is taking place amidst what appears thus far to be substantially less scrutiny and publicity than has characterized previous iterations; and that, according to some insider accounts, Commission plans to establish a comprehensive empirical record are being scaled back. It seems likely that this iteration of the media ownership proceeding will produce further relaxations of existing ownership rules (specifically, newspaper–broadcast cross-ownership rules) and that these relaxations will be premised largely upon the need to preserve the professional production of news and public affairs content in an environment in which the established economic models of professional journalism are increasingly being undermined. The goal here is not to address the questions of whether the negative effects of concentration of media ownership have been effectively remedied via technological changes, or whether allowing greater concentration of ownership represents an effective solution to the economic hardships confronting traditional media organizations (both of these issues remain very much open for debate); or, for that matter, whether preserving traditional media enterprises even represents an appropriate policy goal. Rather, the point here is that, from the standpoint of “policy windows” and the role they play in the dynamics of policymaking,25 observation of the contemporary policymaking environment suggests that the window is being effectively closed by these developments, as policymakers simultaneously consider the diversityOpportunities for Comment. Retrieved October 25, 2010, from: http://www.ftc. gov/os/2009/09/090930mediaworkshopnotice.pdf (2009). 23 John Eggerton, Copps: FCC May Need to Revisit Newspaper/Broadcast Cross-Ownership. Broadcasting & Cable (March 26, 2009). 24 Federal Communications Commission, 2010 Quadrennial Regulatory Review – Review of the Commmission’s Broadcast Ownership Rules and other Rules Adopted Pursuant to Section 202 of the Telecommunications Act of 1996. Retrieved October 25, 2010, from: http://hraunfoss.fcc.gov/edocs_public/attach match/FCC-10-92A1.pdf. 25 For a discussion of the concept of “policy windows,” see John W. Kingdon, Agendas, Alternatives, and Public Policies (2002).

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enhancing effects (on some levels) of these technologies, and the damaging economic effects that these technologies are having on the traditional media sector that has long been the focal point of most diversity policies. The bottom line is that policymakers’ focus on media ownership as a central element of their concerns about media diversity can safely be described as on the wane. As the sections that follow will illustrate, in today’s media diversity policy discourse, ownership is but one component of a shifting and expanding conversation about contemporary media production, distribution, and consumption dynamics.

8.3

ENDURING DIVERSITY POLICY CONCERNS: CULTURAL AND LINGUISTIC DIVERSITY

Some reasonably well-established media diversity policy priorities are effectively transitioning along with the technological and institutional transitions that are affecting our media system. Consider, for instance, the notion of cultural diversity, which has been perhaps one of the most enduring manifestations of the diversity principle in the communications sector.26 According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), cultural diversity is defined as: the manifold ways in which the cultures of groups and societies find expression .  .  . Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented, and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used.27

One aspect of the concerns about cultural diversity that has migrated from the traditional media space to the new media space has to do with concerns about cross-border content flows, and the extent to which content produced within a select few nations can come to dominate the audience attention and, consequently, the markets of other countries.28

26 For a detailed discussion of the concept of cultural diversity, see United Nations Educational, Scientific and Cultural Organization. Our creative diversity (1995). Available: http://kvc.minibuzza.nl.uk/archive/report/inleiding.html. 27 United Nations Educational, Scientific and Cultural Organization. Universal Declaration on Cultural Diversity, article 4, no. 2 (2002). Retrieved June 26, 2008 from: http://unesdoc.unesco.org/images/0012/001271/127160m.pdf. 28 For a detailed analysis of the cultural implications of such cross-border content flows, see Pippa Norris and Ronald Ingelhart, Is National Diversity

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This concern with what has been termed “national diversity”29 is persistent – and perhaps even intensified – given the greater challenges to limiting the cross-border flows of content that characterize the new media environment. In Europe, we have seen the elimination of national-level restrictions affecting the flow of programming across European nations, alongside the imposition of restrictions on the amount of non-European media content that can be distributed.30 These efforts began with the Television Without Frontiers Directive (TWFD) (implemented in 1989), which sought to create a single European television market by eliminating restrictions that individual countries had placed on the importation of other European television networks, channels, and programming, but at the same time imposed quotas on the amount of non-European content that could be transmitted.31 The subsequent refinement of the Television Without Frontiers Directive – the Audiovisual Media Services Directive – extended the TWFD regulatory apparatus into the new media space (using the terminology “nonlinear audiovisual media services” in reference to various forms of online content provision), though very conspicuously refrained at this point from imposing the quota system on online content providers, raising questions in some quarters about whether a meaningful policy commitment to cultural diversity has been established in the new media space.32 It is important to note, however, that this hesitancy to apply quota mechanisms to online content flows has not arisen from a lack of concern about cultural diversity, but rather from uncertainty as to whether such mechanisms would effectively preserve and promote cultural diversity. As Burri-Nenova notes:

Under Threat? Cosmopolitan Communications and Cultural convergence. Paper presented at the annual meeting of the American Political Science Association (Sept. 2009). 29 That is, the extent to which a multitude of national cultures remain vibrant and resistant to submersion beneath a few dominant cultures; see Norris & Engelhart, supra note 28. 30 See Council of the European Commission. Television without Frontiers Directive (1989). Retrieved June 30, 2009, from: http://eur-lex.europa.eu/ LexUriServ/site/en/consleg/1989/L/01989L0552-19970730-en.pdf.; see also Mira Burri-Nenova, The New Audiovisual Media Services Directive: Television Without Frontiers, Television Without Cultural Diversity, 44 Common Market L. Rev. 1689–725 (2007). 31 See Council of the European Commission, supra note 30. 32 See Burri-Nenova, supra note 30, 1718 (“in our examination of the major provisions of the AVMS, we saw no concrete solutions addressing cultural diversity considerations or any of the values innate to cultural identity and diversity”).

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The effects of a quota mechanism for non-linear services are quite unpredictable and may even have diametrically opposed outcomes. A first outcome is that consumers (being empowered by technology) would simply not choose European works and thus render any investment/catalogue quota ineffective. Another, rather different option is an application of the so-called “Long Tail” theory. This means that in the new environment of indefinitely diverse media, the consumer selection will constantly generate new and/or niche products . . . Consumers will be stimulated to consume products that would otherwise not be available to them . . . and will thus induce markets to offer new types of content .  .  . This may ultimately lead to a higher share of available and effectively consumed European works, which, if realized, will be a genuine expression of cultural diversity.33

This uncertainty about the effects of the contemporary dynamics of media distribution and consumption on the prospects for a particular form (in this case, European-originated) of content is borne out in the growing body of empirical literature seeking to confirm or refute the presence of the “long-tail” effects postulated by Anderson.34 It does indeed seem to be unclear at this point whether a media environment of unprecedented choice and sophisticated tools for identifying and accessing relevant content genuinely helps or hurts the prospects for content that has not traditionally resided in the “head.” The key point here, however, is that cultural diversity concerns endure in today’s media environment; however there remains uncertainty as to the most effective mechanisms for protecting and promoting it. Another important element of the traditional concerns about cultural diversity that has transitioned to the new media environment involves concerns about the diversity of languages available in media content. The notion of online linguistic diversity is a fundamental extension of traditional cultural diversity concerns to the uniquely global online medium. If we look, for instance, at the discourse surrounding Internet governance, and the debates and discussions that have been at the center of the United Nations’ annual Internet Governance Forum, the bulk of the diversityrelated discussions have focused on the linguistic diversity of the content available online, and the bulk of these discussions are grounded in normative concerns about cultural diversity.35 As has been emphasized in these discussions, for many Internet users, 33

See Burri-Nenova, supra note 30, 1709–10. Chris Anderson, The Long Tail (2006). See Napoli, supra note 17, 58–77, for a detailed assessment of the developing long-tail literature. 35 See Philip M. Napoli, Diversity as an Emerging Principle of Internet Governance, 17 (“the central problem reflected in the IGF ’s diversity theme has involved the linguistic diversity (or lack thereof) of the content available online”). 34

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the potential benefits of the tremendous variety of content options available online from a vast array of sources essentially run aground against the fact that much of this information may not be available in their native language. According to recent estimates, there are more than 6000 languages in the world. Ninety percent of these languages are not represented on the Internet. Fifty languages represent 99 percent of the content online.36 From numbers such as these arise concerns about whether desired standards of cultural diversity (as reflected in online linguistic diversity) are being met. As should be clear, concerns about cultural diversity encompass the media user’s ability to engage with communications technologies in terms of both consumption and expression, as is reflected in the UNESCO definition noted above. From this standpoint, the normative underpinnings of efforts to enhance online access and participation for marginalized groups are seen not only in terms of granting members of these groups access to important information sources, but also in terms of diversifying the range of individuals and viewpoints that participate in the online public sphere. Such concerns are increasingly crystallizing into a distinctive, emergent point of focus in the diversity policy discourse, in which the unit of analysis is much more granular than has ever been the case in the realm of media diversity policy. It is this emergent emphasis on user-focused diversity that will be discussed next.

8.4

EMERGENT DIVERSITY POLICY CONCERNS: USER-FOCUSED DIVERSITY

Today we are seeing a growing discussion develop around the changing relationship between media audiences and the media technologies and content providers that they access. This discussion is driven largely by today’s increasingly interactive, on-demand media environment, as well as by the explosive growth of various forms of user-generated content and the tools via which such content can be easily disseminated and accessed. Essentially, diversity policy concerns are deinstitutionalizing, in that the focus amongst policymakers and policy analysts is extending beyond the traditional boundaries of defined media institutions and is now also encompassing media users and their media consumption and production

Retrieved January 22, 2011, from: http://www.fordham.edu/images/undergradu ate/communications/diversity%20and%20internet%20governance.pdf (2008). 36 See supra at 17.

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activities. It is within this context that the terminology “user-focused diversity” is being employed, to capture the more granular analytical lens that is now finding its way into diversity policy discourse. In this regard, the sphere of diversity policy concerns is in some ways enlarging beyond its traditional, institutionally focused boundaries, and in so doing is incorporating concerns that have long resided at the margins of mainstream diversity policy priorities. We are already beginning to see policymaking that, to some extent, seeks to account for today’s more empowered media user. As Helberger notes in relation to European media policymaking: The changing role of viewers of audiovisual content was one of the driving factors that lead to the amendment of the original Television Without Frontiers Directive (now: Audiovisual Media Services Directive). On the one hand, the directive acknowledges that the information seeking habits of viewers are changing, viewers look more actively for information . . . On the other hand, it concludes that viewers have more choices and possibilities to influence the audiovisual contents that they receive; they are not any longer the powerless viewers they used to be.37

Similarly, the research that informs policymaking is now beginning to encompass concerns about the extent to which the audience-empowering capabilities of contemporary communications systems are being realized. For instance, the European Union’s hugely ambitious and multifaceted Media Pluralism Monitor considers not only traditional indicators of the health of a media ecosystem such as diversity of media ownership, viewpoints and content types, but also indicators related to the extent to which traditional media are engaged with new media, the extent to which online media platforms support public participation, and the extent to which citizens and citizens groups engage in online political activity.38 The US Federal Communications Commission’s wide-ranging Future of Media proceeding is another example in which we see policymakers’ concerns increasingly extend into the realm of the production activities of individual media users, even though the bulk of the proceeding is devoted to seeking answers to questions about the future role and function of traditional institutional media such as broadcast and cable television, radio, and newspapers. For example, the Commission asks, “How can communities best make use of citizens’ talents and interests in the creation, analysis, curating, and sharing of information?”39 In this same proceeding, the 37 38 39

Helberger, supra note 13, 9. See K.U. Leuven et al., supra note 2. Federal Communications Commission, supra note 21, 4.

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Commission also asks, “What role will and should user-generated journalism play? In what ways can it improve upon traditional journalism, and in what ways can it not substitute for traditional journalism? How can the quality and effectiveness of citizen journalism be further improved?”40 Obviously, these are questions that would seem to extend beyond the FCC’s established regulatory mandate to preserve and promote competition, localism, and diversity; yet the Commission clearly considers them relevant to the achievement of these goals. Whether there are indeed any specific policy actions than can or should arise from the answers to questions such as these remains to be seen. Certainly, it remains an open question as to whether, or to what extent, policymakers should intervene in ways intended to enhance the extent to which a diversity of media users take advantage of the variety of ways in which they can become more empowered participants in the media system, or perhaps intervene to enhance the extent to which this growing output of content generated by individual (rather than institutional) communicators is accessed by audiences.41 Finally, it is important to recognize that a growing point of concern within contemporary communications policy discourse involves the extent to which increases in the diversity of sources and content that are facilitated by tremendous bandwidth and diminishment of traditional gatekeepers that characterize many new media platforms affect the consumption dynamics of individual media users. Some policymaking bodies have an established tradition of factoring questions of exposure diversity into their analytical calculus. The Netherlands’ Media Authority, for instance, actively assesses the extent to which a diversity of content is both produced and consumed.42 In the US, concerns in this vein began to emerge somewhat tentatively within the context of the FCC’s 2003 media ownership proceeding, when the Commission attempted to factor individual media outlets’ potential audience reach into their calculus for determining each outlet’s overall contri-

40

Federal Communications Commission, supra note 21, 8. For a discussion of this issue, see Natali Helberger, Andrea Leurdijk, & Silvain de Munck, User Generated Diversity: Some Reflections on how to Improve the Quality of Amateur Productions, 77 Communications & Strategies 55–77 (2010). 42 For a description of the Dutch Media Authority’s system, see Jan van Cuilenburg, The Media Diversity Concept and European Perspectives. Paper presented at the Media Economics, Content, and Diversity Seminar, Finnish Academy of Sciences, Helsinki. Retrieved November 1, 2010, from: http://www. cvdm.nl/dsresource?objectid=6838&type=org (Dec. 2002). 41

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bution to diversity; but then was, somewhat ironically, rebuked by the US Court of Appeals for the Third Circuit for neglecting what it perceived as the relevant criterion – each outlet’s actual audience reach.43 In the FCC’s ongoing Future of Media proceeding, the Commission asked a range of questions that ultimately reside at the intersection of the diversity principle and the dynamics of users’ media exposure patterns. For instance, the Commission asked, “Are media consumption patterns different in minority communities?”44 This question addresses the possibility that diversity of exposure may be a function of the demographic diversity of the media users. Other related questions the Commission asked include the following: Compared to earlier decades, are Americans more or less likely to seek and find more specialized media (i.e., that focused on a specific topic, appealing to a specific demographic group, or promoting a similar ideology or world view)? What are the positive and negative consequences of such patterns?45

This set of questions addresses the dynamics of how media users are navigating today’s increasingly fragmented media environment, and is a reflection of the ongoing debate over whether an environment of unprecedented choice and in which users have access to increasingly sophisticated search, recommendation and navigation tools, is one in which media users truly diversify their media consumption;46 and if so, whether the resultant fragmentation of audiences into specialized “silos” is ultimately beneficial from both cultural and political standpoints.47 Questions of the relationship between technological change and the diversity of users media consumption patterns also relate directly to contexts in which policymakers need to assess the practical significance of the availability of wide ranges of sources and content options. That is, to what extent should the existence of this diversity matter if it turns out that little of it is actually being consumed? The FCC raises a provocative question in its most recent, ongoing (as of March 2012), media ownership proceeding when it asks, “As an alternative to measuring the ‘supply’ of content to assess viewpoint diversity, should we take a ‘demand side’ approach 43

For a discussion of this issue, see Napoli and Gillis, supra note 8, 681–83. Federal Communications Commission, supra note 21, 4. 45 Federal Communications Commission, supra note 21, 5. 46 See Anderson, supra note 34; see also Matthew Hindman, The Myth of Digital Democracy (2009). 47 See generally, Cass Sunstein, Republic.com 2.0 (2007); James G. Webster, Diversity of Exposure. In P.M. Napoli (ed.), Media Diversity and Localism 309–26 (2007). 44

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and utilize measures of audience satisfaction and media consumption as proxies for viewpoint diversity?”48 Similarly, in regards to assessing source diversity, the Commission asks, “What role should consumer satisfaction or media consumption play in evaluating source diversity?”49 Employing such approaches could have dramatic implications, given that the vast majority of available content would have little impact on any consumption-oriented diversity metrics, given the very low levels of exhibited demand, as reflected in audience sizes (unless, of course, such content is considered in terms of its aggregate ability to attract audience attention). At this point it remains debatable whether diversity of exposure is something that policymakers should seek to influence in an effort to produce a particular socially desired distribution of audience attention, or whether it should simply function as a gauge for determining the extent to which the existence of diverse sources and content options should impact policy decision-making. Either way, policymakers have come to recognize the increased relevance of understanding the exposure patterns of media users in relation to diversity-motivated policies.

8.5

TOWARD A REFLECTIVE RESEARCH AGENDA

The previous sections have highlighted the primary diminished, enduring, and emergent diversity policy concerns in today’s reconfigured media environment. This section seeks to extrapolate from these discussions the possible focal points for a research agenda that most effectively reflects the predominant enduring and emergent diversity policy concerns. The relationship between diversity research and diversity policy has been a tenuous one. The empirical research that informs diversity-motivated communications policies has increasingly come under criticism from a variety of quarters, including scholars, advocacy groups, policymakers, and the courts.50 It has certainly been questionable whether diversity research has adequately captured the complexities associated with translating traditional diversity concerns into genuinely useful analytical tools for policy decision-making. Now, as the nature of policymakers’ diversity

48

Federal Communications Commission, supra note 24, 22. Federal Communications Commission, supra note 24, 23. 50 For an example of this critical stance, see Kari Karppinen, Media Diversity and the Politics of Criteria. Diversity Assessment and Technocratisation of European Media Policy, 27 Nordicom Rev. 53–68 (2006). For an overview of the various criticisms that have been leveled against the FCC’s diversity research by industry, advocacy groups, and courts, see Napoli & Gillis, supra note 8. 49

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concerns either transfer to new media platforms or are reconceptualized to reflect the altered dynamics of today’s media environment, diversity policy research needs to move well beyond its traditional, somewhat limited focus on criteria such as television program types and the advertising or audience market shares of different traditional media outlet owners. Certainly, the nature of the ongoing shift in policymakers’ media diversity concerns suggests that the long-standing tradition of seeking to determine the nature of the linkage between the diversity of ownership of traditional media outlets and the diversity of content provided by these outlets is of diminished resonance within the policymaking community. Such research became something of a cottage industry at the height of concerns about ownership concentration, but unfortunately never adhered around widely accepted methodologies or conceptual definitions. Even research examining long-central questions such as whether certain types of traditional owners perform “better” than other types of owners, in terms of criteria such as the provision of local news and public affairs content,51 is of more limited value to policymakers today unless the analytical frame is expanded to incorporate the broader media ecosystem in which such outlets operate.52 Today, empirical diversity assessments conducted for and by policymakers need to move beyond the assessment of institutional structures and outputs, and to integrate “de-institutionalized” sources of ideas and viewpoints better into the analytical calculus. We have seen some progress in this direction in some of the ongoing efforts to assess the state of linguistic diversity in the online realm,53 but what has been lacking from this body of research are efforts to consider the extent to which online attention is distributed across a diverse array of linguistic groups (i.e., exposure diversity). This is an omission that has not gone unnoticed, even if it has not yet resonated strongly within policy discourse or policy research.54 As

51 For an example of this type of research, see Gregory S. Crawford, Television Station Ownership Structure and the Quantity and Quality of TV Programming. Federal Communications Commission Media Ownership Study #3. Retrieved October 25, 2010, from: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA07-3470A4.pdf (2007). 52 For an example of recent research in which the broader media ecosystem was the subject of analysis, see Project for Excellence in Journalism, How News Happens: A Study of the News Ecosystem in One American City. Retrieved September 20, 2010, from: http://www.journalism.org/sites/journalism.org/files/ Baltimore%20Study_Jan2010_0.pdf (2010). 53 For a review of this literature, see Napoli, supra note 35. 54 For exceptions, see Hindman, supra note 46; Daniel Pimienta, Linguistic Diversity in Cyberspace: Models for Development and Measurement. In UNESCO (ed.), Measuring Linguistic Diversity on the Internet, 13–42 (2005).

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a UNESCO report on linguistic diversity on the Internet noted, “We can easily produce a random count of Internet pages by using any number of commercial search engines, but we cannot judge how often Web pages are read.”55 One important avenue of inquiry along these lines should involve applying Anderson’s “long-tail” template.56 That is, researchers should seek to map out the presence or absence of long tails in which, rather than the range of individual online content options serving as the X axis, the national points of origin for content would serve as the X axis instead. In this way, we could answer questions such as: to what extent is audience attention online focusing on content that originates in the US and a select few other countries? Does the traditional 80:20 rule of content consumption apply when the national bases of individual content producers and distributors serve as the central unit of analysis? Are we seeing the development of long-tail or winner-take-all patterns in the distribution of audience attention across the content produced and distributed from different national points of origin? Such a line of inquiry is reflective of persistent calls57 for policymakers and policy researchers to pay more attention to the dynamics of audiences’ media consumption. As Karppinen states, “One thing that seems evident . . . is that instead of analyzing only what is produced or what is available, more emphasis needs to be put on user competencies, questions of media usage, digital literacy, and other aspects related to exposure diversity.”58 But, importantly, as the above statement indicates, it is not just audiences’ consumption behaviors that need to be a part of the contemporary diversity research agenda. As the previous discussion about policymakers’ increased focus on user-generated content tells us, audiences’ production and distribution behaviors need to be factored into the analytical calculus as well. As was noted by a recent report by the Council of Europe on measuring media diversity, “It would . . . be useful to explore the use and creation of media by the audience, which is changing with the new technologies, and examine if it is nowadays enough to offer what has traditionally been considered important information for a

55

Pimienta, supra note 54, 6. See Anderson, supra note 34. 57 See, e.g., Napoli, supra note 7, 24 (“Exposure diversity is, in many ways, the neglected diversity dimension. However, it is as central to communications policy [if not more so] as either source or content diversity”); see also Webster, supra note 47. 58 Karppinen, supra note 1, 166. 56

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democracy.”59 Policymakers now need detailed portraits of what types of individuals are producing what types of content; what types of individuals are not taking part in the online public sphere; and, most importantly, what technological or institutional impediments might there be to various forms of online participation. And, as this last statement would suggest, an important point of focus for future research should be the developing points of intersection and integration between traditional media organizations and individual media users and content producers. That is, the structure, operation and practices of the various online platforms via which media organizations aggregate, monetize and (in many instances) analyze individual media users represent perhaps the most important nexus between old and new media systems and between old and new media diversity policy concerns.

8.6 CONCLUSION This chapter has sought to illustrate the ongoing evolution of media diversity policy concerns, in an effort to inform and guide future diversity research. As this chapter has illustrated, media ownership concentration is essentially moving from the center to the periphery of the media diversity policy agenda. However, there are other traditional media diversity policy concerns that are enduring in the new media space, where they reside alongside new, emerging concerns that are a by-product of fundamental and dramatic reconfigurations of contemporary media systems. This chapter has described some avenues of research that would address what are becoming the defining diversity policy concerns of this digital media age.

59 Council of Europe, Methodology for Monitoring Media Concentration and Media Content Diversity, 13 (2009).

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9. Cultural protectionism 2.0: updating cultural policy tools for the digital age Mira Burri* 9.1 INTRODUCTION Cultural protectionism has been an element of national and foreign policies as an extension of state sovereignty1 and expressed in both defensive and offensive manners. While the generic protectionist formula in the sense of restraining trade between states through measures such as import tariffs or quotas, and through privileging domestic production, has somewhat disintegrated over time under the rationale for free trade and the strong practical evidence of its benefits, the particular case of cultural protectionism has persevered. Over the years, it has developed many and different expressions and has undergone an important ideological revamping, moving from “cultural exception” to “cultural diversity” policies. The enquiry into the cultural protectionism discourse is however not the core objective of this chapter. It only intends to set the scene for its certainly more ambitious goal of exploring cultural protectionism 2.0, that is, the normative dimensions of cultural diversity policies in the global digital space, asking what adjustments are needed and, in fact, how feasible the entire project of diversity regulation in this environment may be. The complexities of the shift from offline to online and from analogue to digital, and the inherent policy challenges, will be illustrated with some (positive and negative) instances of existing media initiatives. Taking into account the specificities of cyberspace and in a forward-looking manner, I propose some adjustments to current media policy practices in order to serve better the goal of sustainably diverse cultural environment.

*

Thanks for invaluable guidance and feedback are owed to Sean Pager. Danielle S. Petito, Sovereignty and Globalization: Fallacies, Truth, and Perception, 17 N.Y.L. Sch. J. Hum. Rts. 1139 (2001). 1

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WHAT DOES THE GLOBAL DISCOURSE ON CULTURAL DIVERSITY TEACH US?

The discourse on cultural protectionism is dynamic and changing. Although the policies of protecting the cultural industries and the related institutions are national per se, changes have often been triggered from beyond state borders. The reason for this is plain, as cultural products and services are not only “vehicles of identity, values and meaning”2 but also tradable matters that have come under the sway of globalization. The latest great shift in cultural protectionist policies on the international level has been from the leitmotiv of “cultural exception” to that of “cultural diversity”. Indeed, “cultural diversity” has become truly popular in recent international policymaking and lawmaking. The immediate reason for this and for the positioning of “cultural diversity” as one of those intuitively positive goals that humankind should pursue is in fact a recent Act of international law – the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, commonly referred to as the Convention on Cultural Diversity. One could think that the intense developments at the international level that led to the adoption of the first legally binding instrument on cultural matters (the said Convention) could provide some guidance as to the suitable tools to be applied at all levels of governance3 in order to serve better the global public good of a diverse cultural environment. Unfortunately, a closer look confirms the contrary, for at least two reasons. The first has to do with the longer narrative about the prominence of cultural diversity as a policy objective that goes back to the “trade versus culture” clash during the Uruguay Round of trade negotiations (1986– 1994). During these talks that ultimately led to the establishment of the World Trade Organization (WTO), several countries with the European Union (EU) and Canada prominently featuring at the forefront fought the so-called “exception culturelle”4 battle that aimed at exempting any 2 UNESCO, Convention on the Protection and Promotion of Diversity in Cultural Expressions, art. 1 (g), Oct. 20, 2005 available at http://www.unesco.org/ new/en/culture/themes/cultural-diversity/2005-convention (hereinafter UNESCO Convention). 3 Thomas Cottier, Multilayered Governance, Pluralism, and Moral Conflict, 16 Ind. J. Global Legal Stud. 647 (2009). 4 The idea that some measures protecting national cultural industries may be justified found reflection also in bilateral and regional fora. In 1988, the cultural proponents celebrated a victory when Canadian negotiators introduced a “cultural exclusion” clause in the Canada–United States Free Trade Agreement, Oct. 4, 1988, 27 I.L.M. 281 (hereinafter CUSFTA). Five years later, such an exclusion also found its way into the North American Free Trade Agreement, which

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product or service that is culture-related from the rules of the negotiated WTO agreements.5 The prime focus of the campaign was the exclusion of audiovisual services (i.e. films, TV programmes, video and sound recordings6), which were conventionally highly protected industries.7 While eventually the “cultural exception” agenda only partially attained its goals,8 a number of flexibilities were built into the law of the WTO, in particular into the General Agreement on Trade in Services (GATS),9 allowing in effect precious few real commitments for audiovisual services.10

incorporated by reference CUSFTA in Annex 2106. However, this cultural exception was coupled with a retaliation provision that limited by design its practical use. North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 289 (1993) (hereinafter NAFTA). 5 The law of the WTO is contained in several agreements, attached as annexes to the Agreement Establishing the World Trade Organization, 1994, 1867 U.N.T.S. 154 (hereinafter WTO Agreement) that encompass the General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, 1867 U.N.T.S. 187 (hereinafter GATT), the General Agreement on Trade in Services, Apr. 15, 1994, 1869 U.N.T.S. 183 (hereinafter GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299 (hereinafter TRIPS). I refer to these collectively as the WTO Agreements. 6 Pursuant to the WTO Services Sectoral Classification List, audiovisual services encompass: motion picture and video tape production and distribution services; motion picture projection services; radio and television services; radio and television transmission services; sound recording and others. WTO Services Sectoral Classification List, WTO Doc.MTN.GNS/W/120, July 10 1991. 7 Different types of support mechanisms were used in different states. Commonly, these included subsidies; domestic content rules; market access restrictions, in particular measures that control access to film markets; regulatory/ licensing restrictions, especially measures that control access to radio or television broadcasting; tax measures; foreign investment and ownership measures; border measures; and film co-production agreements. For a taxonomy, see Mary E. Footer and Christoph Beat Graber, Trade Liberalisation and Cultural Policy, 3 J. of Int’l Econ. L. 115, 122–26 (2000). 8 While no services sector was excluded from the scope of GATS. 9 In contrast to the GATT, where obligations regarding national treatment and quantitative restrictions apply across the board, under the GATS states can choose the services sectors and subsectors in which they are willing to make market access or national treatment commitments (arts XVI and XVII GATS respectively), and can define the modalities of these commitments. Even the mostfavoured-nation (MFN) obligation, which is fundamental to the entire trade system, can be subject to constrictions in the framework of GATS (art. II:2 and Annex on Article II Exemptions). 10 Almost all members, with the notable exception of the US, Japan and New Zealand, have been reluctant to commit and have listed significant MFN exemptions. See Martin Roy, Audiovisual Services in the Doha Round: Dialogue de Sourds, The Sequel? 6 J. World Investment & Trade 923, 941 (2005). See also

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The trade versus culture conflict has been and remains so politically and emotionally charged that although the media landscape has profoundly changed in the last decade, WTO members are adamant in preserving the status quo and are not even prepared to give up their “all-or-nothing” approach and make finer-tuned commitments in domains which have long been deregulated at the domestic level. Keeping the status quo may have some negative implications that go beyond the mere opening of global media markets, and concern digital trade in particular. As cultural proponents are determined to use the GATS flexibilities to the fullest, they are careful that digitally transmitted products are qualified as services rather than goods. As the WTO Programme on Electronic Commerce has shown, while all members recognize the importance of digital trade and the great economic gains to be reaped from it, there is no consensus on how to solve the classification issues between goods and services, and within different categories of services, and move forward.11 These spillovers of the trade versus culture dilemma cause legal uncertainty and lead to forum-shifting to the bilateral or regional levels, the impact of which is precarious, if not detrimental, to achieving any public-interest objectives.12 The second (and higher) hope for policy guidance lay in the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on Cultural Diversity, as the key and very successful effort of the international community.13 Yet, this hope has also been dashed. Clearly, the project of creating an international legally binding instrument on cultural matters, as a counterforce to economic globalization and in particular to the enforceable rules of the WTO, was fairly ambitious.14 With the benefit of hindsight and considering the complexities in the matrix Frederick S. Galt, The Life, Death, and Rebirth of the “Cultural Exception” in the Multilateral Trading System: An Evolutionary Analysis of Cultural Protection and Intervention in the Face of American Pop Culture’s Hegemony, 3 Wash. U. Glob. Stud. L. Rev. 909, 914 (2004). 11 Sacha Wunsch-Vincent, The WTO, the Internet and Trade in Digital Products 201–32 (2006). 12 See e.g. Ivan Bernier, The Recent Free Trade Agreements of the United States as Illustration of Their New Strategy Regarding the Audiovisual Sector, occasional paper, April 2004, available at http://www.coalitionsuisse.ch/doss_sc/unesco_ccd/ bernier_us_ftas_and_av_sector1.pdf (last visited June 15, 2011); see also generally, Jagdish N. Bhagwati, Termites in the Trading System (2008). 13 Only Israel and the US voted against the Convention and four states (Australia, Honduras, Nicaragua and Liberia) abstained. As of May 26 2011, 117 countries have ratified the Convention. Unesco, http://portal.unesco.org/la/con vention.asp?KO=31038&language=E (last visited June 15, 2011). 14 For details, see Keith Acheson and Christopher Maule, Convention on Cultural Diversity, 28 J. Cult. Econ. 243 (2004); Mira Burri, Cultural Diversity

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of trade, culture, media, intellectual property and human rights15 and the starkly different sensibilities of the negotiating parties,16 the project was also doomed from the outset. Now that the hype caused by the adoption and the swift ratification of the UNESCO Convention has settled, its flaws are apparent: the Convention’s weak binding power and its substantive and normative incompleteness involve no real advance towards the goal of sustaining a diverse cultural environment except spreading a political manifesto.17 Here too, in legal terms, the status quo is to be preserved. On the one hand, the Convention’s own implementation into the law of the contracting parties is of modest or even non-existent significance.18 On the other hand, the Convention will not alter the rights and obligations of the WTO members – a situation that has been confirmed by the recent China – Publications and Audiovisual Products case.19 To sum up, although the discourse on trade and culture and on cultural diversity has a long history and has been politically strongly boosted, the real effects are few, and the guidance on what is cultural diversity and how it is to be attained is practically non-existent.

as a Concept of Global Law: Origins, Evolution and Prospects, 2 Diversity 1059 (2010). 15 See e.g. Mira Burri, Mapping the Fragmented Matrix of Trade, Culture and Intellectual Property in Global Law, paper presented at the Law and Society Annual Meeting, 2–5 June 2011, San Francisco. See comprehensively, Laurence R. Helfer & Graeme W. Austin, Intellectual Property and Human Rights: Mapping the Global Interface (2011). 16 Rachael Craufurd Smith, The UNESCO Convention on the Protection and Promotion of Cultural Expressions: Building a New World Information and Communication Order?, 1 Int’l J. of Comm. 24, 30–32 (2007). See also Caroline Pauwels, Jan Loisen and Karen Donders, Culture Incorporated; or Trade Revisited? How the Position of Different Countries Affects the Outcome of the Debate on Cultural Trade and Diversity, in UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Making It Work, 125 (Nina Obuljen and Joost Smiers eds, 2006). 17 For detailed critique, see Craufurd Smith, supra note 16; Mira BurriNenova, Trade and Culture in International Law: Paths to (Re)conciliation, 44 J. World Trade 49 (2010). 18 European Parliament, The Implementation of the UNESCO Convention into EU’s Internal Policies, Briefing Note, IP/B/CULT/IC/2010_066 (May 14, 2010), available at http://www.europarl.europa.eu/activities/committees/studies/ download.do? language=en&file=31355 (last visited June 15 2011). 19 WTO Appellate Body Report, China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China – Publications and Audiovisual Products), WT/DS363/AB/R, (Dec. 21, 2009), confirming in most essential points WTO Panel Report, WT/ DS363/R, (Aug. 12, 2009), in particular para 4.207.

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Generally (beyond the UNESCO Convention and the WTO framework), there are worrisome observations to be made about the concept of cultural diversity as it is evolving in the global policy discourse. First, we need to be reminded that from the very outset it has been marked by a deeply convoluted understanding of the effects of trade, and more broadly of economic globalization, on culture.20 In the trade and culture discourse, the common (and particularly loud) statements are that cultural diversity is becoming impoverished and almost extinguished as the globalized flow of easy entertainment coming from Hollywood dominates and homogenizes.21 The perceived peril for small art productions and local and indigenous culture is deemed immense, and worthy of the state’s counteraction. This picture is conventionally painted black and white only, and the many nuances of the complex commerce and culture interlinks are missed out. Parties on both sides find examples supporting their positions. The cultural protectionism exponents tend to pick up their facts from the film markets, where the United States (US) clearly dominates and where the power of big budgets and marketing is self-evident. The free-market proponents make their case by using examples of local musicians gone global, or the success of documentary productions.22 While the truth is surely somewhere between the two extremes,23 the discussion on “trade” and “non-trade” values is so extremely politicized that it renders any solution impossible.24 This path-dependence is deeply carved in the presently shared concept of cultural diversity as it has been advanced in global political discourse.

20 For an overview of the different positions, see Pierre Sauvé & Karsten Steinfatt, Towards Multilateral Rules on Trade and Culture: Protective Regulation or Efficient Protection?, in Achieving Better Regulation of Services 323–46 (Productivity Commission & Australian National University, 2000); Ian Slotin, Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination, 111 Yale L.J. 2289 (2000); Sean Pager, Beyond Culture vs. Commerce: Decentralizing Cultural Production to Promote Diversity through Trade, 31 Nw. J. Int’l L. & Bus. 63 (2011). 21 See e.g. Christoph Beat Graber, Handel und Kultur im Audiovisionsrecht der WTO (2003). 22 J.P. Singh, Culture or Commerce? A Comparative Assessment of International Interactions and Developing Countries at UNESCO, WTO, and Beyond, 8 Int’l Studies Perspectives 36 (2007). 23 See Antony Giddens, Runaway World: How Globalisation Is Reshaping Our Lives (2002); Tyler Cowen, Creative Destruction: How Globalization Is Changing the World’s Cultures 146 (2002); Tyler Cowen, In Praise of Commercial Culture 15–43 (1998). 24 Christopher M. Bruner, Culture, Sovereignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products, 40 Int’l L. & Pol. 351 (2008); Madhavi Sunder, Cultural Dissent, 54 Stan. L. Rev. 495 (2001).

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Other noteworthy tendencies visible in the application of the notion of cultural diversity are: 1.

While there is an increased adoption of cultural diversity as a legitimate policy goal in the formulation of state’s internal and external policies, it seems that “diverse” or “multicultural” is often used as opposed to national.25 2. There is a growing disconnection in the discussion of the different types of “diversities”, such as those with respect to language, religion or minorities. This may lead to policy fragmentation and to an extreme narrowing of the focus of cultural diversity policy strategies.26 3. Cultural diversity is mobilized as a national competitiveness argument, most often against US productions and services. This is an easily observable trend in EU cultural policies, especially for audiovisual media: as the EU High Level Group on Audiovisual Policy put it as early as in 1998, “At the heart of the matter is the question of whether the predicted explosion in demand for audiovisual material will be met by European productions or by imports .  .  . The danger is that the channel proliferation brought about digital technology will lead to further market fragmentation, making it more difficult for European producers to compete with American imports”.27 4. The concept of cultural diversity appears so absurdly “allencompassing” that it is “empty”. This gives plenty of space for handsome rhetoric, and there is an associated danger of losing the real sense of an environment with diverse cultural expressions as a global public good. Cultural diversity is then simply added after a comma, as just another of the regulatory objectives to be pursued. An example which reveals the above trends is the review of the EU’s Television without Frontiers Directive, which is the major Community instrument in the field of audiovisual media.28 Particularly hotly debated during the review process were the rules on advertising and product

25 See e.g. Himani Bannerji, The Paradox of Diversity: The Construction of a Multicultural Canada and ‘Women of Color’, 23 Women’s Studies Int’l Forum 537 (2000). 26 See e.g. Jon Garon’s Chapter 15 in this volume. 27 See Marcelino Oreja, The Digital Age European Audiovisual Policy. Report from the High Level Group on Audiovisual Policy (Oct. 26, 1998). 28 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the Coordination of Certain Provisions Laid Down by Law,

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placement. The European Commission argued that by providing a clear framework for product placement, new revenues for the European audiovisual industry would be secured. This would increase its competitiveness, especially vis-à-vis the US media industry, where product placement accounts for 1.7 per cent of total advertising revenues of free-to-air broadcasters and grew by an average of 21 per cent per year between 1999 and 2004.29 More oddly, the Commission also believed that the new rules on product placement will “help to boost our creative economy and thus reinforce cultural diversity”.30 Indeed, both the more relaxed rules on advertising and the introduction of product placement were seen as “further instruments safeguarding cultural diversity”.31 Although it is understandable that additional financial resources for broadcasters can have a positive influence on their content offerings, the causal link between more advertising and safeguarding cultural diversity is at best weak, if not completely inconsistent. Paying mere lip service to the objective of protecting and promoting cultural diversity is of no value, and as some authors point out, “[q]uite paradoxically, it seems that the largest threat to cultural diversity concerns currently emanates from the vagueness and ambiguity surrounding many of the relevant EU provisions”.32 The above scene-setting highlights the ambiguities in the concept of cultural diversity. The questions “Diversity of what?” and “Diversity how?” remain unanswered, and no guidance as to the appropriate measures in achieving a diverse cultural environment is offered. In the next sections, I look beyond the UNESCO Convention and the WTO framework and discuss the proper “fillings” of a cultural diversity policy, in particular in light of the advent and widespread of digital media, which strongly impact on the processes of cultural content production, distribution and access as well as on the efficiency of the applied regulatory toolboxes.

Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services 2010 O.J. (L 95/1) (hereinafter AVMS). 29 Comparative Study on the Impact of Control Measures on the Televisual Advertising Markets in European Union Member States and Certain Other Countries 60–61 (2005). 30 The Commission Proposal for a Modernisation of the Television without Frontiers Directive, MEMO/05/475 (Dec. 13, 2005). 31 Id. 32 Sophie de Vinck and Caroline Pauwels, Cultural Diversity as the Final Outcome of EU Policymaking in the Audiovisual Sector: A Critical Analysis, in Protection of Cultural Diversity from a European and International Perspective 263, 304 (Hildegard Schneider and Peter van den Bossche eds, 2008).

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9.3

BEYOND THE UNESCO CONVENTION, THE WTO AND OUT IN THE DIGITAL SPACE

Admittedly, political decisions in the field of culture are not easy and neither is regulatory design. It needs to be stressed that the abovedescribed system of institutional and substantive relationships between issues of trade and culture, as well as most of the presently applied national instruments, have emerged under the conditions of analogue and offline media. Yet, we are now faced with a situation that is “significantly different from the audiovisual sector of the Uruguay Round when negotiations focused primarily on film production, film distribution, and terrestrial broadcasting of audiovisual goods and services”,33 and that is even starkly different from the conditions prevailing at the outset of the Doha Round in 2001, when the Internet was in its infancy and its implications were largely unknown. Since then the technological, economic and societal changes triggered by digitization have been persistent and ever more profound, and have together led to a decidedly different information and communication environment.34 While we distance our analysis from any technological utopianism and Web-determinism, it is fair to say that there are real changes in the media environment (although their implications are not all clear and definitive). Particularly relevant to our present discussion are: ● ● ● ● ●

the proliferation of content; new ways of distributing, accessing and consuming content; the empowerment of the user; the reduced role of intermediaries; and the new modes of content production, where the user is not merely a consumer but is also an active creator, individually or as part of the community.

What does the new digital space mean for cultural diversity policies? While some may argue that it prompts a panacea for the goal of cultural diversity by (almost magically) creating a digitally empowered mix of commercial and non-commercial, professional and amateur, mainstream and niche content that is readily available and whose supply and demand

33 World Trade Organization, Communication from the United States: Audiovisual and Related Services, S/CSS/W/21 (Dec. 18, 2000). 34 Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 2 (2006).

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are perfectly driven by the market,35 I consider a finer-grained assessment appropriate.36 I think that in some cases, the features of the digital network environment may hint at opportunities for better, more efficient and flexible accommodation of diversity concerns. In other cases, they may equally be viewed as challenges, perhaps calling for additional regulatory intervention. Overall, change is needed – sometimes incremental, sometimes as a true overhaul of existing media policy practices. 9.3.1

Designing Cultural Diversity Toolboxes for the Digital Media

So far, policies in the audiovisual media (film, television and radio) have focused above all on supply, that is, on the production and distribution of content, often under the condition that this content reflects certain qualities that are perceived “good” (where “good” is sometimes simply equal to national). As we move towards a digital media space, while the need for adjustment has been widely acknowledged, the prevailing logic has been that “as television moves to other platforms, television regulation should follow”.37 The EU Audiovisual Media Services Directive (AVMS),38 which in a post-convergent environment extended the scope of EU’s media regulation to cover not only TV programmes but also the so-called “ondemand” or “non-linear services”,39 illustrates this path-dependence. The AVMS in effect extended the quota system, which traditionally prescribed TV channels operating in the EU to broadcast a majority of European works,40 to digital media outlets without any specific consideration of the affordances of digital media. Concretely, the AVMS created an obligation for the member states to ensure that non-linear media service providers under their jurisdiction “promote, where practicable and by

35

See Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More (2006) and the references infra in note 73. 36 A view shared also by Philip Napoli; see Napoli’s Chapter 8 in this volume. 37 Mónica Ariño, The Regulation of Audiovisual Content in the Era of Digital Convergence, 7 J. UOC’s L. and Pol. Sci. 3 (2008). 38 See supra note 28. 39 On-demand or non-linear services are offers of audiovisual content “for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider.” AVMS art. 1(g). 40 “European work” is by definition content produced with European money without any particular requirements regarding quality, exclusivity, originality or cultural distinctness. For a critique, see Mira Burri-Nenova, The New Audiovisual Media Services Directive: Television without Frontiers, Television without Cultural Diversity, 44 C.M.L. Rev. 1689, 1705–10 (2007).

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appropriate means, production of and access to European works”.41 It is further clarified that such promotion could relate to the financial contribution to the production and rights acquisition of European works or to the share and/or prominence of European works in the catalogue of programmes. Evidence on the Directive’s implementation so far shows that many EU member states have indeed chosen to “harden” this soft rule, thus creating artificial demand for European productions. As such, the quota system could plainly be equated to a protectionist scheme supporting the European creative industries by securing exposure of the produced works – now also online.42 Moreover, coming from the EU as one of the major cultural diversity proponents, whose regulatory models are often copied and pasted in other jurisdictions, such a simple transition of offline rules to the online space may not be sending the right signals. It may unnecessarily burden digital media outlets, limiting their flexibility and competitive edge, while the efficacy of the scheme – that is, the actual consumption of diverse (including European) works – is doubtful. So far, there is little or no innovation in advancing cultural diversity goals that adequately makes use of the potential of digital technologies. I argue that three paths are worthwhile considering in this regard: (1) responding to the creative user; (2) responding to the unlimited “shelfspace” in cyberspace; and (3) taking into account policies conventionally thought peripheral to achieving cultural objectives and often falling outside the traditional media law and policy domain (at least as it was conceived pre-digitization and pre-convergence). Responding to the creative user The contemporary media consumer is increasingly empowered not only by the simple device of the remote control but also by a broad palette of tools and platforms to choose from (pay-TV, Internet-TV, YouTube, to name but a few). The new “media-literate viewer”43 can now decide what and when to see, irrespective of the ready-made content offer “pushed” to them. Beyond the actively made choices as to content consumption, users have also turned into producers.44

41

AVMS art. 13(1). Burri-Nenova, supra note 40. 43 On the concept of the media-literate viewer and its impact on media regulation, see Natali Helberger, The Media-Literate Viewer, in Dommering-bundel: Opstellen over informatierecht aangeboden aan prof. mr. E.J. Dommering 135–48 (N.A.N.M. van Eijk and P.B. Hugenholtz eds, 2008). 44 See Philip M. Napoli, Audience Evolution: New Technologies and the Transformation of Media Audiences (2010); Axel Bruns, Blogs, 42

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The reality of more content and new content, generated and spread individually or by groups,45 and its accessibility without real location restriction, are important for making regulatory choices. Some of this user created content (UCC) reflects the key media policy components of being diverse, local and non-commercial,46 although there is some doubt to what extent UCC contributes to a truly richer media environment, or whether we are in fact only seeing the same content exponentially distributed. While measurement is still a vexed issue47 and opinions diverge as to the novelty of the content, its quality48 and whether the “old” media companies are simply taking over the “new” and independent ones,49 UCC could still be an apt channel for fostering diversity.50 Considering the fluidity of the digital environment and the often inchoate forms of creativity, it is hard to propose concrete models suitable to address all concerns. Nonetheless, states need to take a fresh look and explore how the goal of a vigorous and diverse cultural environment can best be met. The state, for instance, can assign a more diversified role for the public service broadcasters or put in place incentives for other cultural

Wikipedia, Second Life, and Beyond; From Production to Produsage (2010). 45 Organisation for Economic Co-operation and Development (OECD), Participative Web: User-Created Content, at 5, DSTI/ICCP/IE(2006)7/FINAL (Apr. 12 2007). 46 Ellen P. Goodman, Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets, 19 Berkeley Tech. L.J. 1389, 1395–99 (2004). 47 Philip M. Napoli, Chapter 8 in this volume. 48 Andrew Keen, The Cult of the Amateur: How Today’s Internet Is Killing Our Culture (2007). 49 Matthew Hindman, The Myth of Digital Democracy (2008). 50 “Why is this important for cultural policy? Amateur content is typically very localized and often small-scale: for example, blogs address issues of niche and geographic interest, and by definition are not mainstream media sources. Amateur content is about having a local voice, reflecting the needs and interests of a local audience. The local scale of amateur content is, or should be, extremely important to the large range of countries (and smaller geographic entities like states and provinces) that are not commercial exporters of content . . . Obviously, in a competition over who is more likely to produce material that reflects the national culture, and appeals to the people of, say, Malta, Hollywood executives are going to be less interested than Maltese amateur content producers. Therefore national regulators, who want to produce a vibrant corpus of material that is directed to the ethnic and cultural needs of their people, are much better off encouraging the amateur content producers within their country  by intelligent use of their cultural policy”. John Quiggin and Dan Hunter, Money Ruins Everything, 30 Hastings Comm. & Ent. L.J. 203, 252–54 (2008).

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institutions, such as museums or theatres, to innovate around the UCC phenomenon. Critical in these exercises may be the effort to improve the quality of UCC works,51 and to integrate amateur and professional production and distribution better.52 Financial support programmes for the creation and diffusion of local content may need to be revised to take into account the potential of UCC.53 In such situations, a mere depiction of a French castle from the reign of Louis XIV in an online game would not be a sufficient ground for subsidizing the game provider, as for instance a French tax rebate scheme now allows.54 Rather, some forms of better accommodating in-game creativity and UCC as a product will need to be added – forms that enable, for example, telling stories, mixing videos around a particular in-game character, site or scene, and/or linking those to current events, personal websites or blogs outside the virtual world.55 Or, to phrase it in an aspirational manner, what is needed overall are supporting efforts that make creativity an interrupted and indeed promoted process. Despite the controversies surrounding the emergence of public service broadcasting of the next generation (PSB 2.0),56 mostly because of the now moot issue of financing of potentially competitive Internet services through the TV licence fee, some developments are already visible. Ofcom, 51

Natali Helberger, Andra Leurdjik and Silvain de Munck, User Generated Diversity: Some Reflections on How to Improve the Quality of Amateur Productions, 77 Comm. & Strategies 55 (2010). 52 Napoli, supra note 47. 53 OECD, supra note 45, at 41–42; Office of Communications (Ofcom), Ofcom’s Second Public Service Broadcasting Review Phase One: The Digital Opportunity, at 1.23 (2008) (U.K.); Tim Gardam & David A. Levy, The Price of Plurality: Choice, Diversity and Broadcasting Institutions in the Digital Age 125–51 (2008). 54 A French tax scheme enables video game manufacturers subject to taxation in France to deduct up to 20 per cent of the production costs of certain games. The scheme is based on a points system that determines the cultural content of a game pursuant to criteria such as language, levels of artistic expenditure, links to European historical, artistic or scientific heritage. The case was controversial as to its compatibility under EU state aid law. See Commission Decision of 11 December 2007 on State Aid C 47/06 Tax credit introduced by France for the creation of video games, 2008 O.J. (L 118/16). 55 For further details, see Mira Burri-Nenova, User Created Content in Virtual Worlds and Cultural Diversity, in Governance of Digital Game Environments and Cultural Diversity: Transdisciplinary Enquiries 74–112 (Christoph Beat Graber and Mira Burri-Nenova eds, 2010). 56 Benedetta Brevini, Towards PSB 2.0? Applying PSB Ethos to Online Media in Europe, 25 Eur. J. of Comm. 348 (2010).

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the converged British regulator for media and communications, has been a pioneer in moving proactively into new media.57 While the idea of a public service publisher, which was supposed to provide competition to the British Broadcasting Corporation (BBC) by spreading high-quality “public content” over platforms other than TV and radio, was not well received and endorsed, “the idea had ‘served its purpose’ in shifting the debate on the future of public service broadcasting by emphasizing the importance of digital media”.58 BBC iPlayer and BBC Archives are two of the present initiatives of “digitizing” the institution of public service broadcasting. The former is an Internet television and radio service, developed by the BBC to provide access to its shows of the past seven days, involving also recommendations and social network features. Importantly the iPlayer,59 which is widely used in practice, has been made available across many platforms, including also game consoles (Wii and SPS) and diverse mobile devices, which stresses the critical importance of interoperability of the entire media experience and user-friendliness of any applied new media projects. The second initiative, the BBC Archives,60 aims at digitizing the entire collections of BBC audio and video material, reaching back to the 1890s. An interesting add-on to this was the BBC Creative Archive pilot, which ended in 2006 after releasing more than 500 pieces of content under the so-called Creative Archive Licence.61 The latter, similarly to a copyleft licence,62 allowed creating around and on top of the content and making it available under similar terms (no commercial use; share alike; give credit; no endorsement; UK only63). This initiative confirms the often acknowledged need for appropriately accommodating the “creative 57

Ofcom, A New Approach to Public Service Content in the Digital Media Age: The Potential Role of Public Service Publisher (2007); see also Jamie Cowling and Damien Tambini, From Public Service Broadcasting to Public Service Communications (2004). 58 Chris Tryhorn, Ofcom Scraps “Public Service Publisher,” The Guardian, 12 March 2008 (quoting Ofcom Chief Executive Ed Richards), available at http:// www.guardian.co.uk/media/2008/mar/12/ofcom.digitalmedia (last visited June 15, 2011). 59 http://www.bbc.co.uk/iplayer/ (last visited June 15 2011). 60 http://www.bbc.co.uk/archive/ (last visited June 15 2011). 61 http://www.bbc.co.uk/creativearchive/ (last visited June 15 2011). 62 See e.g. http://creativecommons.org/licenses/ (last visited June 15 2010). 63 The Creative Archive content is made available to internet users for use within the UK, as UK citizens pay the BBC licence fee (which includes TV, radio, online, as well as other services such new technology investment and collecting the fee). For 2010, the BBC licence fee amounted to £145.50. See http://www.bbc. co.uk/aboutthebbc/licencefee/ (last visited June 15 2011).

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play”64 in copyright, thereby allowing UCC distribution outside of the legal grey area65 and casting aside worries about its chilling effect on user innovation.66 Finally, in this context of responding to the creative user, different policy tools can make sure that this user is indeed there, thriving well and active. Diverse initiatives, not necessarily of legal nature, can contribute to making the media user digitally literate and to overcoming the widening gaps between digital “haves” and “have-nots” in industrialized societies, and the global divide between developed and the developing countries.67 Active participation as a creator and as a citizen will not however be sufficiently ensured by the mere availability of an Internet-enabled device; it should include a package of sophisticated media, communication and social skills.68 An excellent example in this context is Brazil’s Culture Points programme launched in 2003, which spurs real-life “digital empowerment” in centres scattered throughout the country that serve simultaneously as laboratories for experimental culture,69 community and training hubs, as well as entrepreneurial incubators.70

64 Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. Davis L. Rev. 1151 (2007). 65 Rebecca Tushnet, User-Generated Discontent: Transformation in Practice, 31 Colum. J.L. & Arts 497 (2008). Tushnet notes that “user-generated discontent” may have a role to play in pushing towards changes since it reflects “fundamental values that we as a society should consciously endorse, such as active participation in cultural and political dialogue. Organized and self-reflective thinking by fair users helps make the case that a consistent, socially beneficial set of practices exists that should be recognized by the law.” Id. at 501. 66 See e.g. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (2003); Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008). 67 Mira Burri, The Global Digital Divide as Impeded Access to Content, in Trade Governance in the Digital Age, 396–420 (Mira Burri and Thomas Cottier eds, 2012). 68 Mark Warschauer and Tina Matuchniak, New Technology and Digital Worlds: Analyzing Evidence of Equity in Access, Use, and Outcomes, 34 Rev. of Research in Educ. 179, 213 (2010). 69 Culture Points promote contemporary Brazilian music, indigenous and computer art, rather than high culture. Individual centers are also meant to be linked to an online network that encourages distribution and sharing. See Larry Rohter, Brazilian Government Invests in Culture of Hip-Hop, N.Y. Times, Mar. 14, 2007. 70 Centers receive a standard multimedia kit consisting of computers, video and audio recording equipment, open source software and broadband connectiv-

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Responding to the unlimited “shelf-place” By reducing information to zeroes and ones, digital representation radically modifies the characteristics of content. For one, it is freed from the need for a tangible medium and it can be swiftly distributed at almost no cost. A second salient feature that has caused much uproar in both the big media conglomerates and small indigenous communities71 is the ability to make perfect copies. A third, less noted, but perhaps the furthest-reaching, characteristic of digital media is that they have changed the way information is organized and accessed.72 Under the broader category of digitally induced market modifications,73 as the reproduction, storage and distribution of digital media products have a marginal cost close to zero it becomes economically viable to sell relatively unpopular products. This creates incentives for suppliers to offer a larger and more diverse portfolio including “non-hit” titles that appeal to smaller niche audiences. This may be true for garage band or indigenous music, but also more generally for offering products and services in a greater number of languages: whereas most websites are still in English, it is a fact that as the Internet becomes ubiquitous, people around the world prefer to read their news, stories and local gossip in their own language. So, in parallel to the intensified globalization, one may also observe a process

ity. Further equipment purchases and start-up costs can be covered by the government, which also provides ongoing training and technical support. For a fully fledged analysis of the Culture Points programme, see Sean Pager’s Chapter 12 in this volume. 71 See e.g. Mira Burri-Nenova, The Long Tail of the Rainbow Serpent: New Technologies and the Protection and Promotion of Traditional Cultural Expressions, in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 205–36 (Christoph Beat Graber and Mira Burri-Nenova eds, 2008). 72 David Weinberger, Everything Is Miscellaneous: The Power of the New Digital Disorder (2007). 73 I refer here to the so-called “long-tail” theory. The name has to do with the image of a demand curve that gets longer and longer and covers more niche “non-hit” products. The “long-tail” theory was coined by Chris Anderson, chief editor of Wired Magazine (Anderson, supra note 35) but builds on previous and parallel economic research. See in particular Erik Brynjolfsson, Yu Hu and Michael D. Smith, From Niches to Riches: The Anatomy of the Long Tail, 47 Sloan Mgmt. Rev. 67 (2006); Erik Brynjolfsson, Yu Hu and Duncan Simester, Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales, 57 Mgmt. Sci. 1373 (2011), available at http://ssrn. com/abstract=953587. For a critique of Anderson’s book, see Tim Wu, The Wrong Tail: How to Turn a Powerful Idea into a Dubious Theory of Everything, Slate, 21 July 2006. For an analysis of the “long-tail” theory in the specific context of cultural diversity, see Michal Shur-Ofry, Chapter 10 in this volume.

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of localization. In this sense, for instance, while most of the articles in the free online encyclopedia Wikipedia are in English (3 658 500), it contains content in 280 other languages, including Fijian, Hindi, Igbo and Maori.74 The digital setting may have also reduced the significant entrepreneurial risk inherent in launching new cultural goods and services75 (at least for some of them), while making their visibility greater. This is in stark contrast to the substantial storage and distribution costs in the offline world, where the “shelf-space” (be it TV prime time or a Christmas cinema weekend) is limited. Traditional media companies have also faced (and still face) horrendous promotion costs, which were unbearable for smaller producers or individual artists. In the digital ecology, however, access to a wider audience is facilitated and made cheap. Supply and demand are also somewhat more easily “connected” as the Internet allows searching through a single point of entry. This search process is dynamic and in addition to the conventional search engines, samples, feedback and other advanced search tools based upon collective intelligence,76 enable users to discover new products, eventually widening the diversity of content consumed.77 In the longer run, as the consumer becomes more and more empowered to choose as we move from a “push” to a “pull” mode of content consumption, it is conceivable that consumer selection will constantly generate new and/or niche products. This would have the effect of inducing markets to offer new types of content, including for example archived or original works, director’s cuts or performances, be they European, US or African. This may ultimately lead to a greater share of available and effectively consumed diverse works. Another interesting implication relates to the fact that, in the digital environment, content remains accessible and usable long after its tradi-

74 See http://meta.wikimedia.org/wiki/List_of_Wikipedias (last visited June 15 2011). 75 Germann argues that this specific characteristic of cultural goods is the main one that calls for state intervention for the attainment of cultural objectives. See Christophe Germann, Culture in Times of Cholera: A Vision for a New Legal Framework Promoting Cultural Diversity, 6 ERA–Forum 109, 116 (2005). 76 James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, and Nations (2003); Clay Shirky, Here Comes Everybody: The Power of Organizing without Organizations (2008). 77 This process of discovering diversity is admittedly not perfect and one needs to acknowledge the sceptics’ views on search engine’s role. See Hindman, supra note 49; Siva Vaidhyanathan, The Googlization of Everything (and Why We Should Worry) (2011).

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tional “one-off” viewing at cinemas, on TV, or through DVD rental or sale. “Pulling” content individually from a virtually unlimited selection of titles may in effect change the value attached to cultural content. Romantically put, this value would transcend the mere “one-off” use of content and offer incentives for creating “good” content, be it original, avant-garde or traditional, which people will be willing to consume more than once. To sum up the above implications, one may say that digital technologies have fundamentally changed the conditions for participation in the communications environment as production and distribution costs fall and as the notion of scarcity is redefined. In this context, it becomes impossible to “reserve” space for a certain purpose, since it is the consumer who decides about the content, its form and time of delivery. In this sense, building new or keeping the old barriers around national content is futile. Efforts to foster truly diverse consumption of cultural content should rather focus on making the “head of the snake” smaller and its tail longer and thicker.78 This may also require additional regulatory effort, for instance to monitor for search engines’ abuse of monopoly power, to contain other distribution and access gatekeepers, or to enable production and consumption of high-quality content in a fragmented media space. Move from core to the periphery: all policies are Internet policies79 Talking about cultural diversity has been so far logically linked to formulating regulatory responses in the media domain. As digital media have become ubiquitous, however, and as their effects are felt in all facets of societal life, this premise changes and one may need to look for solutions outside traditional media law and policy. Firstly, while under the conditions of the digital networked environment, content abounds, this does not automatically mean that it is also readily accessible. There are barriers of different types: (1) placed at the infrastructural level (e.g. no access to broadband Internet, failing networks, network discrimination); (2) placed at the hardware or software level (e.g. lack of interoperability between different types of platforms, software or formats); or (3) placed at the content level (e.g. due to copyright protection or other obstructions imposed through technological protection measures, such as digital rights management systems80). 78

Napoli, supra note 47. “Almost every area of public and social policy is in some respects part of internet policy.” See Oxford Internet Institute, Towards a Future Internet: Interrelation between Technological, Social and Economic Trends, Final Report for DG Information Society and Media, at 41 (2010). 80 See Daniel Gervais, Chapter 2 in this volume. 79

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Each of these barriers may impede the real access to cultural content, the engagement in active intercultural dialogue or various creative activities, thus distorting the conditions for a vibrant culturally diverse environment. This also means that discrete decisions taken in one policy domain – for instance, on universal service provision of telecommunication services81 – may have repercussions on cultural diversity as well. As we increasingly observe diverse forms of hybrid regulation in cyberspace, finding the right balance between self- and co-regulation and state intervention will also be important in terms of ensuring competition and avoiding concentration of power and control. As we move towards the unchartered territory of cloud computing, these concerns may gain new significance: due to the extremely high costs of providing cloud platforms and services, there will be fewer players, more vertical and horizontal integration and possibly more control by private companies (e.g. Google or Microsoft).82 In a much broader context, the sustainability of the digital media environment as a whole (or what Jonathan Zittrain calls the “generativity” of the Internet83) and the path of its evolution may become critical. In this sense, for instance, the importance grows of decisions that influence the interoperability of networks and code,84 the control of the network,85 as well as those pertinent to the principle of net neutrality.86,87 81

Mira Burri-Nenova, The New Concept of Universal Service in a Digital Networked Communications Environment, 3 I/S: J.L. & Pol’y for Info. Soc’y 117 (2007). 82 See e.g. Charles Leadbeater, Cloud Culture: The Future of Global Cultural Relations (2010). 83 Jonathan L. Zittrain, The Generative Internet, 119 Harvard L. Rev. 1974 (2006). 84 Urs Gasser and John G. Palfrey, Breaking Down Digital Barriers: When and How ICT Interoperability Drives Innovation, Berkman Center Research Publication No. 08 (2008). 85 John G. Palfrey and Ralf Rogoyski, The Move to the Middle: The Enduring Threat of “Harmful” Speech to the End-to-End Principle, 21 Wash. U. J.L. & Pol’y 31 (2006). 86 The principle of net(work) neutrality holds that the network should be neutral to the content being passed and that intermediaries should pass all packets, while the intelligence is located at the edges of the network where necessary. See e.g. Susan P. Crawford, Network Rules, 70 Law & Contemp. Probs. 51 (2007). 87 In a recent study, prepared for the European Commission, and perhaps a bit futuristically, the following guiding principles for a needs-based future Internet have been stressed: it should be available and accessible; diverse and inclusive; scalable and sustainable; open and shareable; green and affordable; reliable and resilient; safe and secure; trustworthy and private; appealing and usable; customizable and adaptable. Oxford Internet Institute, supra note 79, at 29–35.

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SUMMING IT UP

In this chapter, I first took stock of the cultural diversity, cultural protectionism discourse at the international level. The picture is not very bright as the discussions stick to outdated concepts of protectionism, perceiving open trade as perilous, and offer no meaningful recipes for advancing a diverse cultural environment. The trade versus culture dilemma even appears as an impediment to opening digital media markets and to providing legal certainty for digital transactions of businesses and individuals. The concept of cultural diversity, as endorsed by the UNESCO Convention,88 is overly vague, broad, prone to abuse,89 and thus possibly problematic for advancing well-targeted policy action. Digital technologies as a factor strongly changing the regulatory space have not so far been employed as leverage to overcoming the existing path-dependence. In the national context, where one first expects the formulation of regulatory models fostering diversity, there is little or no forward-looking thinking, which admittedly is politically difficult as national and cultural protectionism still finds strong support from domestic constituencies. Existing media policy tools, expanding on old TV-like regulation, still seek to create incentives on the supply side for the production and spread of (presumably) culturally diverse content, with no guarantee of its consumption. These measures are essentially based on a model of static pointto-multipoint media with high thresholds for creation and set patterns of distribution. Yet, this model is no longer the only one in existence and is under massive pressure to change from both the demand and the supply side, from the outside and from within. As Yochai Benkler has noted, “[i]n the digitally networked environment, there is a better way to serve the goals that have long justified structural media regulation”.90 I have sketched three possible avenues for advancing the policy goal of cultural diversity, considering some of the specific characteristics of digital media: (1) responding to the creative user; (2) responding to the unlimited “shelf-space” in cyberspace; and (3) taking into account policies conventionally thought peripheral to achieving cultural objectives. Within these categories, I looked at a few concrete tools, such as better

88

UNESCO Convention, art. 4(1) (“the manifold ways in which the cultures of groups and societies find expression”). 89 As the China – Publications and Audiovisual Products case (supra note 19) shows. 90 Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation toward Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561, 567–68 (2000).

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UCC accommodation, against the background of some existing European media policy initiatives. I also formulated broader rationales for adjusting regulatory intervention in order to make better use of the affordances of digital technologies, and hinted at elements that may be essential in engineering cultural diversity policies (e.g. the sustainability of the digital space). Finally, one can prognosticate that the old cultural protectionism as we know it from the days of the Uruguay Round will gradually fade away and disappear. Cultural diversity concerns are here to stay, however. While the promise of “cloud culture” is grand, where there is more culture and it is more available than ever before to people, due to indefinite digital stores of data in the Cloud, ubiquitous broadband, new search technologies and access through multiple devices,91 it comes with certain challenges attached. Awareness of these and of their multidirectional and interlinked effects may be critical to pursuing diversity goals appropriately in an environment of no state boundaries and no scarcity. The first rule for any intervention should however be that of “do no harm” since we still need to come to grips with the reality of digital media where complex processes of consumption, communication, creation, sharing, mixing and commercialization unfold.92 In this sense, a rush of untargeted efforts, as a plain act of innovation by government bureaucracies,93 should not be greeted too warmly. There must be room for experimentation, for studying existing practices, for individual and community experience with new media and testing to find out which patches of intervention work in a particular society, which presupposes flexibility of the state agencies and procedural checks. Multidisciplinary research that could deliver coherent and meaningful messages has an important role to play as promoting cultural diversity in cyberspace mobilizes a broad array of technology and social sciences.94

91

Leadbeater, supra note 82, at 36. See Cohen, supra note 64, at 1194, who states that, “the psychology of creativity suggests that attempts to impose a rigid structure on the creative process quickly become counterproductive, and that the success of the creative process hinges in part on the ability to avoid externally imposed distractions”. With regard to regulation of technologies in development, see Daniel Gervais, The Regulation of Inchoate Technologies, 47 Houston L. Rev. 665 (2010). 93 Quiggin & Hunter, supra note 50, at 240–41. 94 The latest study on the future of the Internet sponsored by the European Commission clearly states that, “[m]oving towards an internet at the meeting point of human-centred aspects and technological complexities has emerged . . . as the key research challenge. A recurrent theme is that research in the EU on the internet must be far more multidisciplinary”. Oxford Internet Institute, supra note 79, at 7. 92

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10. Copyright, complexity, and cultural diversity: a skeptic’s view Michal Shur-Ofry* 10.1 INTRODUCTION Father, Mother, and Me, Sister and Auntie say All the people like us are We, And every one else is They. And They live over the sea, While We live over the way, But – would you believe it? – They look upon We As only a sort of They1 Human attraction to the similar and rejection of the unknown “other” has long occupied the attention of writers, researchers and philosophers.2

* For helpful discussion and valuable comments to earlier drafts I thank Katya Assaf, Michael Assaf, Guy Pessach, Ofer Tur-Sinai, Christopher Yoo, Eyal Zamir, the participants of the Bits without Borders Conference held at Michigan State University (September 2010) and the participants of Complexity-An Interdisciplinary Perspective Conference held by COST-European Cooperation in Science and Technology, together with the Racah Institute of Physics at the Hebrew University of Jerusalem (March 2012). The opinions expressed are solely my own. An earlier version of the chapter, in Hebrew, appeared in Is Law Important? (Neta Ziv and Daphna Hacker eds, Tel Aviv University Press, 2010), 569. 1 Rudyard Kipling, We and They (first verse) in Debits and Credits (1926). 2 Indeed, Kipling’s astute observations in We and They were reinforced by ample sociological research concerning people’s tendency to associate and bond with similar others – see, e.g. Paul Lazarsfeld and Robert K. Merton Friendship as a Social Process: A Substantive and Methodological Analysis in Freedom and Control in Modern Society 18 (Morroe Berger, Theodore Abel and Charles H. Page, eds 1954); Miller McPherson, Lynn Smith-Lovin and James M Cook, Birds of a Feather: Homophily in Social Networks, 27 Annu. Rev. Sociol. 415 (2001). 203

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In the cultural sphere, the preference of the known and familiar has been the subject of extensive discussion concerning cultural diversity. The debate over cultural diversity has become particularly vigorous in recent years. Communication and technological developments shrink our world. Globalization exposes us to different cultures, whilst exposing cultures to external influences, usually Western. The topic occupies the attention of researchers from various disciplines as well as international organizations,3 and takes place on several levels. Some are concerned by the effect of globalization processes and the need to acknowledge cultural uniqueness and multiculturalism;4 others stress the disturbing tendency to focus on one’s own culture and ignore cultures of other groups and nationalities;5 while yet other scholarly work explores the declining interest in “high culture.”6 The issue has not escaped legal scholarship in the field of copyright, which identifies a correlation between lack of cultural diversity and broad copyright protection afforded to cultural works.7 In the background of

For similar observations in earlier writing see Plato, Phaedrus (Benjamin Jowett trans.), available at the Internet Classics Archive http://classics.mit.edu/Plato/ phaedrus.html (“The old proverb says that ‘birds of a feather flock together’; I suppose that equality of years inclines them to the same pleasures, and similarity begets friendship”). 3 The UN convention on cultural diversity is a prominent example: U.N. Educ., Scientific & Cultural Org. (UNESCO), Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Oct. 20, 2005) at http:// unesdoc.unesco.org/images/0014/001429/142919e.pdf. The convention came into force in March 2007. 4 See, e.g. Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (2002). 5 See, e.g. C. Edwin Baker, Media, Markets, and Democracy (2002), at 226–27, 234–35; Ton Bevers, Cultural Education and the Canon – A Comparative Analysis of the Content of Secondary School Exams for Music and Art in England, France, Germany and the Netherlands, 1990–2004, 33 Poetics 388 (2005). 6 See, e.g. Sarah M. Corse, Nationalism and Literature: The Politics of Culture in Canada and the United States (1997); Michelle Lamont, Money, Morals and Manners: The Culture of the French and American UpperMiddle Class (1992). 7 See, in general, Neil Weinstock Netanel, Copyright’s Paradox, 38–41, 135–40 (2008); Guy Pessach, Copyright Law as a Silencing Restriction on Noninfringing Materials: Unveiling the Scope of Copyright’s Diversity Externalities, 76 S. Cal. L. Rev. 1067 (2002–2003); Mark S. Nadel, How Current Copyright Law Discourages Creative Output: The Overlooked Impact of Marketing, 19 Berkley Tech. L. J. 785 (2004); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L. J. 283, 296 (1996–1997) (hereinafter: Netanel: Democratic Society) ; Niva Elkin-Koren, It’s All About Control: Rethinking Copyright in the New Information Landscape, in the Commodification of Information, 102–05 (Niva Elkin-Koren and Neil Weinstock Netanel, eds 2002); Ronald V. Bettig,

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that discussion is a well-known phenomenon, whereby a small number of hits in the cultural field – such as films, books, or musical works – attract most public attention and obtain much popularity among readers, viewers, and listeners.8 Many of those hits are produced by large media corporations, and constitute uniform and formulaic products of popular culture. To a large extent, they do not offer true and actual diversity.9 Thus, although the variety of cultural works seems larger than ever, this potentially diverse cultural supply is not met by real and actual demand. Most of us are never exposed to it and show no interest in it. The principal argument “against copyright” in this context links copyright protection to the domination of mass-media products. Copyright, so goes the argument, “feeds the beast” of mass media by enabling media corporations to invest in the marketing and advertising of commercial, formulaic works, at the expense of other more diverse ones,10 thus encouraging cultural lock-in on mass media hits.11 Reducing copyright protection, on the other hand, would open the bottleneck and weaken the domination of formulaic works, the sole purpose of which is to appeal to the taste of the masses.12 The desired result would be that “other,” more diverse works would receive more public attention. This chapter questions this position. The analysis is based on complexity theory concerned with the evolution of popularity and the selforganization of complex systems, which demonstrate that the inclination towards a limited number of popular cultural works is an intrinsic phenomenon in our social network.13 This phenomenon was identified

Copyrighting Culture: The Political Economy of Intellectual Property 99–106 (1996); Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L Rev. 23, 103–05 (2001). 8 This phenomenon, mathematically termed “power law distribution”, and more commonly known as “winner takes all”, is described in detail in section 10.3 infra. 9 Netanel, supra note 7, at 109; Pessach, supra note 7, at 1067; Benkler, supra note 7, at 58, 93–95; Baker, supra note 5, at 30–31. 10 Nadel, supra note 7, at 801 (overly broad copyright protection “feeds the beast” and enables mass media to invest enormous amounts in marketing); Netanel, supra note 7, at 138–39 (noting, in this context, that media corporations invest extraordinary amounts in marketing). 11 Pessach, supra note 7 (introducing the term “cultural lock-in”). 12 Netanel, supra note 7, at 167–68; Benkler, supra note 7; Bettig, supra note 7, at 103. A more detailed discussion of these arguments appears in Parts section 10.3.3 infra. 13 In light of the popular use of the term “social networks” to describe particular internet applications (such as Facebook or Twitter) it should be clarified that my use of “social networks” in this chapter is more general, and refers to a longestablished area in sociology, focusing on the interrelations between individuals in

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prior to the mass media era, and does not depend upon copyright protection. Against this background, the chapter proceeds to analyze recent “long-tail” research, which indicates that positive changes in the degree of cultural diversity are possible, even under a broad copyright regime. These findings, I argue, cast significant doubt on the role of copyright in the inhibition – or promotion – of diverse cultural consumption. In light of these insights, I attempt to offer a broader, extralegal perspective on diverse cultural consumption, relying on socio-cultural research examining cultural preferences, cultural diversity, and multiculturalism. This literature reveals that diverse cultural consumption is a complex, non-linear phenomenon, which is influenced by multiple causes, including social, historical, environmental, educational, economic, and technological factors. Unfortunately, I cannot offer a recipe for attaining cultural diversity, nor an exhaustive list of the factors affecting this issue. My claim is much more modest: cultural diversity is a complex and multifaceted issue, and the premise that the limitation of copyright can play a major role in its promotion has no sufficient support. The chapter proceeds as follows: section 10.2 briefly explores the nature of cultural diversity and its possible relations to copyright, and defines the ambits of the present discussion. Section 10.3 analyzes the concentration of public attention on a small number of cultural works, based on complexity and network research. It then continues to examine the hypothesis that limitation of copyright can mitigate the cultural domination of the mass media products, and significantly promote people’s interest in works of a more diverse and less commercial nature. Section 10.4 then examines sociocultural studies offering various explanations for different levels of cultural diversity among different populations. These provide a further, wider perspective on the issue of cultural diversity, and reinforce the doubts as to the weight of copyright in the diversity equation. Section 10.5 concludes.

10.2

COPYRIGHT AND CULTURAL DIVERSITY: THE INTERRELATIONS AND THE SCOPE OF DISCUSSION

Cultural diversity and copyright law are linked in several ways. The following paragraphs seek to delineate the scope of the discussion and define the link this chapter is concerned with. Several short clarifications are

a social environment and their influence on the individual and collective behavior – see footnotes 33–35 infra and the accompanying text.

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required for this purpose: the first concerns the nature of cultural diversity; and the second, its relation to copyright law. 10.2.1

The Nature (and Importance) of Exposure Diversity

Despite the frequent use of the term “cultural diversity” in copyright discourse, relatively little attention has been devoted to the essence and meaning of that diversity. Other disciplines, too, refrain from providing a uniform and agreed definition to this expression.14 The following paragraphs, then, do not purport to provide an exhaustive definition of cultural diversity, but rather to shed light on the aspects this chapter is concerned with. My starting point is the “winner-takes-all” phenomenon which is consistently observed across cultural markets: despite the large supply of works in the fields of culture and art, the vast majority of consumers prefer to concentrate on a small number of “star” works. All other works, of a much larger number, receive little attention and in many cases are practically ignored. They are overshadowed by the massive attention directed at the most popular works.15 As a result, the diversity which exists within the supply side of cultural markets is to a large extent potential diversity, which does not achieve actual manifestation. The actual exposure diversity is much lower.16 Moreover, those works which receive the widest exposure are mostly works of a commercial nature, produced by large media corporations,

14 See, e.g. Philip M. Napoli, Chapter 8 in this volume, (pointing towards different aspects and notions of “diversity”). See also the studies reviewed in footnotes 99-109 infra and accompanying text (various measures of cultural diversity). 15 See Netanel, supra note 7; Pessach, supra note 7, at 1073; Clay Shirky, Power Laws, Weblogs, and Inequality, Clay Shirky’s Writing About the Internet (Version 1.1., 2.10.2003) www.shirky.com/writings/powerlaw_weblog. html (arguing that the larger the variety of works, the larger too is the gap between the most popular works and “all the rest”); Christoph Engel and Michael Kurschilgen. Fairness Ex Ante & Ex Post, – An Experimental Test of the German ‘Bestseller Paragraph’ (November 2010)), available at SSRN: http://ssrn.com/ abstract=1628725, at p. 2 (discussing the highly skewed distribution of success in the movie industry). A detailed discussion of this phenomenon appears in section 10.3, infra. 16 The term “exposure diversity” refers to the types of content actually consumed by people – J. G. Webster, Diversity of Exposure, in Media, Diversity and Localism: Meaning and Metrics, 13 (Philip M. Napoli, ed., 2007); Napoli, supra note 14.

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rather than works of independent authors.17 These works are normally uniform and formulaic products of mass culture, easily digested by the largest possible audience. Other, non-commercial works; works derived by artistic considerations; works that are more complex; which contain broader historical, artistic and social contexts; all these do not capture significant attention, do not become hits, and in effect are relegated to the furthermost fringes.18 An additional important insight on the subject of cultural diversity concerns the tendency to concentrate on the “self” – or national – culture, and ignore works created by authors of other cultures,19 or works which portray “other” cultural heroes.20 The discussion on this subject is often related to the heated debate concerning the effects of globalization. Some scholars emphasize the domination of Western culture, which undermines local cultural works,21 while others turn the spotlight towards the export of United States (US) mass culture to the rest of the world.22 Whether the debate on cultural diversity focuses on high versus mass culture, corporate versus independent works, or local versus foreign culture, the important point for the following discussion is that the cultural audience is locked in a limited number of popular works which do not offer, among themselves, true cultural diversity. Such lack of exposure diversity entails significant social costs. To use Kipling’s words, the adherence to a small number of cultural works which resemble each other buttresses our perception of the known and familiar “We”, and reinforces the

17 Benkler, supra note 7, at 58, 93–95; Pessach, supra note 7, at 1088–91; Netanel supra note 7, at 110; Nadel, supra note 7, at 800–02. 18 Baker, supra note 5, at 24–31, 226–27; Pessach, supra note 7, at 1090–91; Netanel, supra note 7, at 110. Cf. Corse, supra note 6, at 165 (US authors complain about the difficulty to publish high culture and of the disappearance of publishing houses whose interest in books is not merely economic). 19 See, e.g. Benhabib, supra note 4, at 181–86; Bevers, supra note 5, at 389–90; Broude, supra note 14, at 348–49; Baker supra note 5, at 256–57. 20 Cf. Madhavi Sunder, Bollywood/Hollywood, 12 Theoretical Inquiries In Law, 275, 283 (2011) (arguing that Hollywood products tend to demonize the “other”). 21 See, e.g. Rosemary J. Coombe: Culture: Anthropology’s Old Vice or International Law’s New Virtue?, 93 Am. Soc’y Int’l L. Proc. 261; Anupam Chander and Madhavi Sunder, Everyone’s a Superhero: A Cultural Theory of “Mary Sue” Fan Fiction as Fair Use, 95 Cal. L. Rev. 597, 605–06 (2007). 22 See, e.g. Corse, supra note 6 (discussing the influence of American popular culture on Canadian literature); Cf. Bevers supra note 5, at 392, 395–97 (demonstrating that large European countries, such as France and Germany, tend to concentrate on their own creators and prefer local works over those originating from other countries).

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values, attitudes, and beliefs of “People Like Us.”23 On the other hand, exposure to diverse content – including cultural content – raises awareness to different opinions, tastes, and perceptions. The very acquaintance with such content promotes tolerance and serves as a buffer against extremism.24 Exposure diversity is therefore a constructive and empowering factor, whereas the lack of such diversity narrows our horizons and can result in the exclusion of “others,” those who do not conform to the accepted and standard.25 This perspective is shared by various disciplines, from modern philosophy and sociology, to contemporary freedom-of-speech scholarship and deliberative democratic theory – all of which emphasize that abundance and diversity are crucial for the existence of social tolerance and stability, and have a profound democratic significance.26 10.2.2

Copyright and Cultural Diversity: Links and Relations

Scholarly writing identifies two principal manners in which broad copyright protection might obstruct cultural diversity.27 First and most obvious,

23

Kipling, supra note 1. Cf. McPherson, Smith-Lovin and Cook, supra note 2 at 415–16 (“by interacting only with others who are like ourselves, anything we experience as a result of our position gets reinforced”). 24 Baker, supra note 5, 93–94; Yochai Benkler, The Wealth of Networks: How Social Production Transformers Markets and Freedom, 162–64 (2006) (hereinafter Benkler: Networks) (demonstrating how exposure to diverse contents broadens people’s perceptions). 25 See, e.g. John Stuart Mill, On Liberty, 96–132 (1859) (stressing the importance of diversity and difference); Robert C. Post, Democratic Constitutionalism and Cultural Heterogeneity, 25 Austl. J. Leg. Phil. 185 (2000); Benhabib, supra note 4; Cristina M. Rodriguez, Language and Participation, 94 Cal. L. Rev. 687, 726–27 (2006). 26 Mill, supra note 25, at 96–132; Post, supra note 25; Benhabib, supra note 4; Rodriguez, supra note 25, at 726–27. See also Jurgen Habermas, Three Normative Models of Democracy, in Democracy and Difference, 21 (Seyla Benhabib, ed., 1996); Seyla Benhabib, Models of Public Space: Hannah Arendt, the Liberal Tradition and Jurgen Habermas, in Habermas and the Public Sphere 73, 82–83, 86 (Craig Calhouny ed.,1992). 27 Notably, in addition to the links described herein, there are additional connecting axes between copyright and cultural diversity. Thus, from an international perspective, intellectual property rights provide an incentive for “transportation” of works across geographical boundaries. This, of course, might result in intercultural influence, which in turn affects the issue of diversity – see Tomer Broude, Conflict and Complementarity in Trade, Cultural Diversity and Intellectual Property Rights, 2 Asian J. WTO & Int’l Health L. & Pol’y, 345, 355–57 (2007). Beyond this general note, I will not examine this type of influence in the framework of this chapter.

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copyright encumbers second-generation authors who wish to use existing cultural works within new and independent works. Such newly produced works might infuse previous works with additional interpretations, challenge conventional meanings, or shed new light on old issues.28 Copyright, by its very existence, can burden and even hamper such activities, and therefore might have a negative effect on the variety of works created and distributed. It is difficult to contest the importance of copyright law in this respect, and I certainly do not purport to do so. Indeed, as far as the supply of diverse cultural works is concerned, copyright law can and does have a significant effect.29 Yet, this chapter is concerned with a second aspect, which relates to the effect of copyright protection on exposure diversity, namely on audiences’ demand for diverse cultural works. While the discussion of the first aspect focuses on the constraints which copyright imposes on the ability to use protected works and on the question of whether such use constitutes copyright infringement, the discussion here concerns works and uses against which no claim of copyright infringement is argued.30 Instead, it focuses on the success – or rather, failure – of diverse works to capture significant attention of cultural audiences. The question examined is, then: would the limitation of copyright result in a more dispersed distribution of public attention, increase exposure diversity, and weaken the cultural domination of mass media hits? Current legal scholarship generally provides a positive reply. The “case against copyright” in this context ties copyright protection to the domination of mass media corporations, which “flood” us with shallow, uniform, and formulaic contents, in a manner that leaves no room for other works, 28

Two famous examples: copyright was the basis for the suit brought by the right-holders to the novel Gone With The Wind, that objected to Alice Randall’s adaptation – The Wind Done Gone, which told the story from the perspective of the slaves: Suntrust Bank v. Houghton Mifflin Co., 268 F. 3d 1257 (11th Cir. 2001) (the claim was ultimately rejected and author’s use was declared “fair use”); similarly, the holders of copyright to Barbie tried to enforce their rights and prevent uses that portrayed the doll as a symbol of female oppression in an art installation, in which Barbie was shown naked and being attacked by various household appliances – Mattel v. Walking Mountain Productions, 353 F. 3d 792 (9th Cir. 2003) (artist’s use eventually allowed and held to constitute “fair use”). 29 See, e.g. Coombe, supra note 21; Netanel, supra note 7, at 109–10; Netanel: Democratic Society, supra note 9; Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace, 14 Cardozo Arts & Entertainment Law Journal 215(1996); Bettig, supra note 7, at 103–04; Chander and Sunder, supra note 221. 30 Pessach, supra note 7, at 1081, 1086 (highlighting that the issue is not a question of copyright infringement).

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and negatively affects cultural diversity.31 The economic basis for the operation of mass media corporations depends to a large extent on copyright protection, which grants extensive control over mass media content and allows copyright owners to rake in enormous profits. It follows, then, that copyright significantly contributes to the enslavement of the masses to mass-popular culture, as well as to their disregard for “other” culture. The ensuing conclusion is, therefore, that limiting copyright would increase cultural diversity.32 Can the limitation of copyright indeed constitute an important means for promoting cultural diversity? In the following pages I attempt to examine cultural diversity through the lens of complexity and network theory, and argue that the insights provided by this literature cast significant doubt over our ability to increase cultural diversity by narrowing the scope of copyright protection. The following section, therefore, begins with a closer examination of the phenomenon of cultural concentration through the prism of complexity theory. The findings are then used to examine in more detail the “case against copyright.”

10.3

EXPOSURE DIVERSITY AND CULTURAL CONCENTRATION: A COMPLEXITY PERSPECTIVE

10.3.1

Cultural Lock-In and Complex Networks

The concentration of all, or nearly all, individuals in a society around a relatively small number of works or products out of a much larger variety has occupied the attention of researchers since the end of the 19th century. Indeed, as early as 1890, before the age of mass media, sociologist Gabriel de Tarde wondered “why, given one hundred different innovations conceived 31 See Baker, supra note 5, at 8–16 (arguing that copyright law favors the production of mass media products); Benkler, supra note 7, at 93–97; Benkler: Networks, supra note 24, at 165; Netanel, supra note 7, 137 (describing the tendency of mass media to invest in formulaic, non-diverse, works); Nadel, supra note 7, at 797–801 (arguing that broad copyright protection of mass media products crowd out independent creation). 32 This line of argument appears (with some variations) in the writing of various prominent scholars – see Netanel, supra note 7, 167; Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Expression, 53 Vand. L. Rev. 1879 (2000) (hereinafter Netanel, Market Hierarchy); Benkler, supra note 7, at 103–05; Nadel, supra note 7, at 797–801. Cf. Pessach, supra note 7 (presenting a milder version of the argument).

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at the same time – innovations if the forms of words, in mythological ideas, in industrial processes etc. – ten will spread abroad, while ninety will be forgotten.”33 The adoption of certain innovations by all (or most) members in a certain society, while moving towards a uniform behavioral pattern – or in this case, the phenomenon of flocking towards the popular cultural works – has since been examined by various researchers in the field of social networks,34 a discipline concerned with the effect of individual interactions on society as a whole, as well as the effect of the social network behavior on that of individuals.35 During the recent decades, this very phenomenon has been receiving much attention from physicists, mathematicians, and scientists researching complex systems. While there is (still) no unanimous accepted definition for complexity,36 complex systems are often described as comprised of a large number of components, whose multiple interactions yield collective patterns and behaviors.37 One such complex system (among many others) is the social network.38 A major concern of complexity and network research is understanding the phenomenon of self-organization, and the emergence of order out of chaos and randomness.39 Interestingly, there is a significant cor-

33 Gabriel de Tarde, The Laws of Imitation, 140 (1890) (Elsie Clews Parsons trans., Henry Holt & Co., New York, 1903). Notably, the term “innovation” as used in sociological discourse has a broad meaning which is not confined to novel technological inventions, but can refer to products, ideologies, trends, and cultural works which are introduced to a certain social environment. 34 See, e.g. Everett Rogers, Diffusion of Innovations (5th ed., 2003); Everett M. Rogers, Una E. Medina, Mario A. Rivera and Cody J. Wiley, Complex Adaptive Systems and the Diffusion of Innovations, 10(3) art. 30, The Innovation Journal: The Pub. Sector Innovation J., (2005) (last updated Oct., 2009), http://www.innovation.cc/volumes-issues/rogers-adaptivesystem7final.pdf, at 4; Matthew J. Salganik, Peter Sheridan Dodds and Duncan J. Watts, Experimental Study of Inequality and Unpredictability in an Artificial Cultural Market, 311 Science, 854 (2006). 35 See, e.g. Peter Hedstrom, Experimental Macro Sociology: Predicting the Next Best Seller, 311 science., 786 (2006). 36 See, e.g. Melanie Mitchell, Complexity – A Guided Tour, 94 (2009). 37 Id. at 13; A Science of Thirty: Complexity, GIACS – General Integration of the Application of Complexity in Science (eds. Sorin Solomon, Davis Bree, Nurit Intrater, Wendie Sheffer, Victoria Welch and Emanuel Zuckerberger), 9–11 (proposed definitions for “complexity”) (hereafter: Complexity – GIACS). 38 Mitchell, supra note 36, at 236; Complexity – GIACS, supra note 37, at 20, 24 and 34. Additional complex systems which are the subject of complexity research are biological, ecological and chemical networks, as well as economic systems – Mitchell, supra note 36, at 4–12; Complexity – GIACS, supra note 37, at 6–7, 29, 38, 43. 39 Mitchell, supra note 36, at 13; Complexity – GIACS, supra note 37.

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relation between the sociological models of diffusion of innovations and the mathematical-physical models of self-organization.40 One important finding of complexity and network research is that the movement of all, or nearly all, components of the system towards similar behavior is a general characteristic of complex networks, both human and other.41 While research on this topic is certainly not limited to the cultural sphere but covers a variety of areas,42 there is already a significant amount of studies that do focus specifically on the diffusion of cultural, mass media products, such as films,43 books,44 music,45 and electronic games.46 These reveal that the phenomenon of flocking towards the popular applies to cultural copyright protected works. Complexity and network studies further indicate that complex networks often operate on a “preferential attachment” principle, or in simpler words: popularity is popular – popular nodes in a given network are likely to attract more and more links, as opposed to less popular ones.47 In order to apply this principle with respect to cultural works, the supply of works of a certain type available to society at a given time (films, for example) can be described as a network. The nodes comprising the network are the films, that are connected to each other not directly but through the social network – the audience of viewers who decide which film to watch; or in network 40 This correlation has recently been acknowledged by researchers from the various disciplines: see, e.g. Rogers, Medina, Rivera and Wiley, supra note 34, at 5. 41 Rogers, Medina, Rivera and Wiley, supra note 34, at 3–4; Albert-Laszlo Barabasi, Linked: the New Science of Networks,7 (2002); Mitchell, supra note 36, at 10. 42 See, e.g. Rogers, supra note 34, at 259–65, 345–46 (discussing the successful diffusion of technological innovations, such as the fax, the internet and cellular phones) and at 31–35, 106 (discussing the diffusion of various ideas, products and habits such as the use of certain breeds among farmers, or the boiling of water); Malcolm Gladwell, The Tipping Point, How Little Things Can Make a Big Difference, 3–8 ( 2002) (describing the diffusion of certain trends and fashions), Barabasi, supra note 41, at 131–32 (discussing diffusion of viruses and diseases). 43 Rogers, supra note 34, at 121; Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More, 127–28 (2006); Engel and Kurschilgen, supra note 15, at 2; Arthur De Vany and W. David Walls, BoseEinstein Dynamic and Adaptive Contracting in the Motion Picture Industry, 106 Econ. J. 1493 (1996). 44 Anderson, supra note 43, at 121; Gladwell, supra note 42, at 169–75; Rogers, supra note 34, at 354–55. 45 Salganik, Dodds and Watts, supra note 34; Anderson, supra note 43, at 19; Rogers, supra note 34, at 220–21. 46 Rogers, supra note 34, at 313–14. 47 Albert Laszlo Barabasi and Reka Albert, Emergence of Scaling in Random Networks 286 Science 509 (1999) (discussing the “preferential attachment” principle).

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terms, to which nodes to link.48 The probability that people wishing to watch a film would prefer to link to a popular one, which already has a larger number of links – or in simpler words, would decide to watch a film that already has a large audience – is greater than the probability that they would choose an unpopular film with a small number of links. This phenomenon characterizes complex networks in general: thus, a popular Internet site is more likely to obtain additional links,49 popular actors have better chances of receiving new roles,50 highly popular restaurants attract additional clientele,51 and – in this case – very popular cultural works are more likely to obtain additional viewers, listeners, or readers.52 As a result, the distribution of links in complex networks is often a power law distribution: a small number of nodes – in this case, the most popular cultural works – attract most of the links, which in this case are the cultural consumers.53 The remaining works, which are not among the fortunate cultural winners, must share a relatively small amount of audience attention. A graphic illustration of this skewed distribution would therefore take the shape of a curve, with a high left side denoting the few works which achieve “winner-takes-all” status, which then descends in a steep slope and ends in a “tail,” representing the silent majority of works which receive considerably less attention:54 48 Mathematicians would describe such a network as a “bipartite graph” – Duncan Watts, Six Degrees – the Science of a Connected Age, 94–95 (2005). 49 Since a major criterion for site ranking by the Google search engine is the number of incoming links, these sites appear at the top of the search results lists. Consequently, more people are exposed to them, they become yet more central, and additional sites wish to link to them. The increase in number of links then raises the ranking – and popularity – of the popular sites even further; See Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 8 Yale J. L. & Tech.,188, 193–94 (2005–2006) (describing these dynamics). 50 Barabasi, supra note 41, at 85–86 (describing studies of the Hollywood actors’ network which support this conclusion). 51 Mark Granovetter, Threshold Models of Collective Behavior, 83 Am. J. Soc. 1420, 1438–39 (1978) (discussing human tendency to prefer a full restaurant over an empty one). 52 See, e.g. Salganik, Dodds and Watts, supra note 34 (showing, in a wide-scale experiment, that people prefer cultural works which have already been chosen by many others). 53 Anderson, supra note 43, at 19, 121; Netanel, supra note 7, at 132–33 (discussing power law distribution in cultural markets). See also Barabasi, supra note 41, at 73–77; Barabasi and Albert, supra note 47 (discussing power law distribution in complex networks). 54 Graph source: Wikipedia, Power Law, http://www.en.wikipedia.org/wiki/ Power_law (last visited May 12, 2011). See also Barabasi, supra note 41, at 71; Anderson, supra note 43, at 121.

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Power-law graph

A detailed discussion of the reasons for the dynamics just described is beyond the scope of this chapter.55 Researchers in the social sciences often point towards the inevitable need to decide how to allocate our limited mental and financial resources, and choose among a vast variety of cultural products.56 Joining the choices of other members in our social network by selecting cultural works that have already been selected by many others reinforces our confidence as to our own choices,57 and can also serve as a tool for increasing social acceptance and reputation.58 In addition, selecting a popular film, book, or TV show creates opportunities for interpersonal communication,59 and can nurture feelings of solidarity and enjoyment, arising from the mere knowledge of individuals that their actions or choices are part of a larger whole.60 Interestingly, researchers studying complex networks in the exact sciences provide a somewhat similar, though more general, explanation. According to it, the movement of all, or most, units of a complex system toward uniform behavior is a type of reaction which enables the system (in this case, the social network) and its components to cope with complexity.61 55 For a more detailed review of the different explanations proposed by various disciplines see Michal Shur-Ofry, Popularity as a Factor in Copyright Law, 59 Toronto L. J. 525, 534 (2009). 56 See Robert H. Frank & Philipe J. Cook, The Winner Take All Society: Why the Few at the Top Get So Much More Than the Rest of Us 38–9 (1995) (using the image of a “mental shelf” with a limited storage capability). 57 The experiment conducted by Salganik, Dodds and Watts’s supports this reasoning – Salganik, Dodds and Watts, supra note 34 (demonstrating that members in a social network are influenced by the cultural selections of their predecessors). 58 Cass Sunstein and Edna Ulmann-Margalit, Solidarity Goods, 9 J. of Pol. Phil., 129, 138 (2001) (noting the contribution of solidarity goods to social acceptance). 59 Id. 60 Cf. Gladwell, supra note 42, at 171 (observing human tendency to enjoy films more in the presence of others: “comedies are never funnier and thrillers never more thrilling than in a packed movie house”); cf. Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535, 578–80 (2004–2005) (arguing that certain acts of reproduction of cultural works are crucial for expressing solidarity). 61 Rogers, Medina, Rivera and Wiley, supra note 54, at 8 (describing selforganization and collective behavior as a means for complexity reduction); cf.

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In any event, the important conclusion at this stage is that the state of affairs under which a few nodes (in this case, cultural works) achieve a very high level of success – as opposed to all others, which are the vast majority – is a structural phenomenon in complex networks. In fact, power law distribution of links is so characteristic of complex systems that some scientists refer to it as a “natural law”.62 Moreover, phenomena of collective behavior were observed by researchers over 100 years ago, and provide the basis for several prevalent terms in social sciences.63 They were not born in the mass media era, and most importantly – they do not result from copyright law. In fact, power law distribution was also detected among cultural works that do not seek the protection of copyright, and even with regard to works which are not protected by copyright altogether. Thus, for example, power law distribution of audience attention has been observed among Internet blogs,64 or with respect to musical pieces composed by classical composers in which copyright has long since expired.65 Moreover, flocking towards the popular was also detected in a multi-participant experiment conducted under laboratory conditions, free of copyright constraints: participants were requested to select and rank unknown musical works, while receiving some information as to the choices of previous participants. In that case, too, certain works became particularly popular, creating a significant gap between them and all other works.66 These insights cast doubt on the assumption that the limitation – and even abolition – of copyright would reduce the flocking towards the big winners in the cultural sphere. Rather, they suggest that concentration

Clay Shirky, Here Comes Everybody – The Power of Organizing without Organizations 28 (2008) (describing how decisions regarding cultural consumption are influenced by complexity reduction considerations). 62 Barabasi, supra note 41, at 6, 73. 63 See, e.g. the works of sociologist Gabriel de Tarde supra note 33, and economist Thorstein Veblen, The Theory of the Leisure Class (1899). Cf. to the concept of “herd behavior” in social psychology (identical behavior by individuals in a society without prior coordination among them) – Wilfred Trotter, Instincts of the Herd in Peace and War (2005). 64 Shirky, supra note 15, at 2 graph no. 1. Although formally entitled to copyright protection, in many cases such blogs are works of an anti-commercial nature, whose creators seek no fee for the distribution of their material. 65 Bevers, supra note 5, at 403–04 (the “winner take all” phenomenon detected in research concerning exposure to classical composers in the German, French, British and Dutch education systems. All systems tended to concentrate on a small number of popular composers – mainly Bach, Hayden, Mozart, Schubert, and Beethoven, who received much more attention than all others). 66 Salganik, Dodds and Watts, supra note 34. The experiment included more than 14 000 participants.

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on the popular is not the fault of copyright law. It is an inseparable and inherent part of our complex world. 10.3.2

Exposure Diversity and Long-Tail in the New World

Does the picture drawn above belong to the “old world?” Does exposure diversity fare any better in the new, digital, online world, the world of bits without borders? Several scholars have argued that the Internet does not substantially change the picture of cultural diversity.67 Yet, the recent “long-tail theory” proposes a positive reply to the latter question. The theory maintains that the combination of Internet technology and digitization significantly contributes to the increase of diversity:68 the ease of access and search provided by the Internet, combined with the lack of physical constraints, allows cultural consumers to turn away from the beaten path of cultural hits and develop more “niche,” sophisticated, and diverse tastes. At the same time, due to the freedom from geographic constraints and the reduced storage and distribution costs, creators of cultural works and their “intermediaries” (publishers, production companies, etc.) are able to develop viable business models which are not based on appealing to the widest common denominator, but rather to more unique and sophisticated tastes. The result is a certain change in the demand curve which portrays consumption of cultural works through the Internet: the distribution is still power law distribution, but the hits at the top of the scale receive somewhat less attention than in the “offline” world, while the “tail” – which denotes the attention paid to all other works – is growing longer.69 This of course, is good news from the perspective of cultural diversity. However, long-tail studies are still in the early stages. While there is empirical evidence as to the growth of a long tail in certain markets, such as the markets for online distribution of music, books, and legal articles,70 others 67 See Elkin-Koren, supra note 7 (demonstrating how corporate culture gains influence and control in the internet, and uses it to increase its influence on public attention); Netanel, Market Hierarchy, supra note 32, at 1884–93; Pessach, supra note 7, at 1087, n. 66; Baker, supra note 5, at 284–89. 68 For the development of the theory see Chris Anderson, The Long Tail, Wired 12.10 (Oct. 2004), http://www.wired.com/wired/archive/12.10/tail.html (Anderson – Wired), Anderson, supra note 43. 69 Anderson – Wired, supra note 68; Anderson, supra note 43, at 18–28. 70 Paul L.Caron, The Long Tail of Legal Scholarship, 116 Yale L. J. Pocket Part 38 (2006) http://yalelawjournal.org/the-yale-law-journal-pocket-part/schol arship/the-long-tail-of-legal-scholarship/ (analyzing the SSRN data on the “downloading” of legal articles, and showing that the most popular articles receive

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argue that these data are not unequivocal, and that the Internet, too, is skewed towards the popular works in terms of both search costs and ease of access.71 Moreover, even in long-tail markets, power law distribution prevails and the growth of a long tail does not signify “the end of the hits:” these continue to get most audience attention, even if in some cases “other” works do receive more attention than they would have received in an offline world.72 It is probably too early to evaluate whether cultural diversity will be rescued by the Internet, but the long-tail theory does reveal two important insights, which are relevant to the present discussion. First, the theory reinforces the notion that copyright protection has no crucial influence on exposure diversity: the rise in the demand for diverse cultural works, according to long-tail research, is a result of technological development and not a result of any narrowing or modification of the copyright regime. It is important to note in this context that the long-tail studies described here examine works that are marketed through the Internet subject to the rights of copyright owners, such as books marketed by Amazon, music marketed by Raphsody.com, or legal articles distributed through the Social Science Research Network (SSRN).73 The increase in diversity reflected in these studies cannot, therefore, be attributed to disregard or infringement of copyright. On the other hand, the growth of a long tail in certain cultural markets

slightly less attention than in the past, while the attention granted to “all the rest” is increasing); Anderson, supra note 43, at 19-25 (distribution data for music and books distributed online, compared to similar data in the physical world, show that “niche” works receive more attention in the online markets). 71 See Anita Elberse, Should You Invest in the Long Tail? Harv. Bus. Rev., Jul.–Aug. 2008 at 88 (arguing, based on online sales data, that the internet increases the relative power of hits), and Anderson’s response in his blog Chris Anderson, Excellent HBR Piece Challenging The Long Tail, Long Tail Blog – http://www.longtail.com/the_long_tail/2008/06/excellent-hbr-p.html (June 27, 2008). See also Anindya Ghose and Bin Gu, Search Costs, Demand Structure and Long Tail in Electronic Markets: Theory and Evidence (NET Institute Working Paper No. 06-19) (2006) available at http://ssrn.com/abstract=941200 (arguing that the internet is skewed towards popular contents in terms of search costs). 72 Anderson, supra note 43, at 136, 147 and 182. Notably, the scholarship discussed in section 10.3.1 reinforces the hypothesis that the “hit era” has not ended and is not likely to end: it shows that choosing the already popular is predictable and inherent in a complex environment, and highlights the significance of this practice for the social fabric – see section 10.3.1 supra, notes 55–62, and the accompanying text. 73 See Anderson, supra note 43, at. 19, 23, and 121 (books and music); Caron, supra note 70 (legal articles).

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demonstrates that the case of cultural diversity is not a lost cause. Even if flocking towards the popular is, to a great extent, a “natural law,” the intensity of concentration around the popular works is not entirely fixed, and neither is the extent of attention paid to the rest of the works. Changes may also be possible in the mixture of successful works. In light of this insight, the question arises whether copyright – or, more precisely, the limitation of copyright – could play an important role in these respects. The following section takes a closer look at the arguments raised in scholarship, and examines them against the background of network and complexity analyses. 10.3.3

The (Uneasy) Case Against Copyright74

One of the main arguments raised against copyright with respect to cultural diversity links copyright protection to the domination of mass media corporations that are motivated by profit considerations and must therefore appeal to the widest possible audience and to the lowest common denominator. Consequently, they supply the public with media products and contents that are shallow and uniform. These contents flood the public sphere through a multitude of television channels and aggressive advertising campaigns, in a manner that captures public attention and leaves no room for “other,” diverse works. The operation and profitability of mass media corporations rely to a large extent on copyright protection, which affords them almost unlimited control over the media products they produce and market. It follows, so the argument proceeds, that copyright protection supports activities which are contradictory to cultural diversity, and is consequently to blame for the lack of such diversity. It also follows that the limitation of copyright could lead to an increase in diversity.75 A closer look reveals, however, a far more complex picture. Consider, for example, Mickey Mouse – a product of popular culture that has been at the center of many debates in the copyright world.76 It is unlikely that the expiration of copyright in Mickey’s character would cause the fans of

74 This subheading is inspired by Stephen Breyer’s famous article The Uneasy Case for Copyright, 84 Harv. L. Rev. 281 (1974). 75 See the references cited supra in notes 30–32, and in notes 79-82 infra. 76 Several (non-exhaustive) examples are Jonathan Schwartz, Will Mickey Be Property of Disney Forever? Divergent Attitudes Toward Patent and Copyright Extensions in Light of Eldres v. Ashcroft 2004 J. L. Tech. & Pol’y 105 (2004); Michael Hahn, A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law, 9 J. Int’l Econ. L. 515 (2006); Dennis S. Karjala,

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this mouse – most of whom are, presumably, between the ages of 3 and 13 – to pay more attention to cartoons created by independent European artists, or to West African art. The safer assumption is that this would lead to increased merchandizing of Mickey Mouse, not only by the original right owners but also by others. In the short run one should expect a decline in prices and a corresponding increase in distribution of Mickey’s products. As a result, Mickey’s network value – or solidarity value – may rise even further, and his fan base may actually expand.77 Even if the original copyright owner (Disney) loses interest in further promotion of Mickey Mouse, it is doubtful whether this would have any immediate significance: network studies demonstrate that, once a work has obtained a critical mass of users, its continued diffusion in the network is almost selfgenerated. It is driven by social influence and does not depend – certainly not crucially – on marketing and promotion through the mass media.78 In other words: in the immediate term, the continued success of the most popular cultural works is almost guaranteed. Yet, could such limitation have an effect in the longer term, and in more complex and sophisticated manners? One prominent argument in this respect maintains that the “success path” of cultural works – their ability to attract considerable attention – passes through media exposure, marketing, and advertising. These means are at the disposal of mass media corporations, but are not available to most independent authors.79 The intensive marketing activities of media corporations are made possible due to the vast profits gained as a result of broad copyright protection of the contents in their inventory. Reducing the scope of copyright protection would reduce the profitability of those corporations, which would then cease to invest enormous amounts in the marketing and advertising of their works. This, in turn, would weaken the cultural domination of these

Congestion Externalities and Extended Copyright Protection, 94 Geo. L. J. 1065, 1072, 1078–85 (2006). 77 Cf. Martin Peitz and Patrick Waelbroeck, Piracy of Digital Products: A Critical Review of the Economics Literature 10-13 (CESifo Working Paper Series 1071) (2003), available at http://ssrn.com/abstract=466063 (presenting a similar argument in the context of analyzing the economic effect of piracy). 78 Rogers, Medina, Rivera and Wiley, supra note 34, at 13 (observing that upon reaching critical mass the continued diffusion is self-sufficient and very difficult to stop); Rogers supra note 34, at 175-76, 198 and 205. 79 Nadel, supra note 7, at 797-801; Benkler, supra note 7, at 93; Netanel, supra note 7, at 138-39; Cf. Netanel, Market Hierarchy (arguing that the high level of centralism in media markets raises entry barriers to other, independent content providers); Pessach, supra note 7, at 1089.

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works.80 Another important and related argument is that the immense success of commercial–corporate works and their domination of the public sphere influences people’s cultural taste. In other words, the large supply of shallow and formulaic works increases the demand for works of this type.81 Limitation of copyright, it is argued, might result in more moderate success of commercial–corporate works, which would in turn decrease the influence of such products on the formation of public taste, leaving more room for other, less commercial works.82 However, copyright’s “fault” is not apparent even in light of such claims. First, the assumption that intensive marketing, advertising, and sales promotion are crucial – indeed, a sine qua non – for attracting significant audience attention is questionable in itself. Undoubtedly, these factors play an important part in diverting attention towards certain cultural works. However, ascribing the success of cultural works to advertising and marketing alone cannot explain works that achieve phenomenal success despite a complete lack of marketing budgets.83 Nor does it explain how works with low advertising budgets sometimes succeed much more than those which enjoy much larger budgets.84

80

Nadel, supra note 7, at 800–01. See Baker, supra note 5, at 87–92 (highlighting the impact of mass media on public taste and preferences) Pessach, supra note 7, at 1086. 82 Pessach, supra note 7, at 1099 (further arguing that a cautious and sophisticated limitation of copyright could lead to a strategic change in the decisionmaking processes and priorities of media corporations, and perhaps even in the works they choose to promote, but nevertheless emphasizing that the attempt to estimate the exact effect of such limitation is “extremely speculative” and requires further research). 83 There are numerous significant examples of works which gained great success without massive advertising through the mass media, among them “Harry Potter” (in its early stages), the “Rap” and “House” musical genres, or the “Smiley” icon. The creation of the latter is attributed to Harvey Ball, who designed it in the 1960s, at the request of an insurance company – see Exhibitions: Smiley Face, Worcester Historical Museum, http://www.worcesterhistory.org/ ex_smiley.html. For the diffusion of the “Rap” and “House” genres see Rogers, supra note 34, at 220–221, Anderson, supra note 43, at 177–78. See also J.K. Rowling’s official website – J.K.Rowling Official Site, http://www.jkrowling. com/textonly/en/biography.cfm (the author describes the difficult conditions under which the first Harry Potter book was written and its rejection by several publishing houses). See also Gladwell, supra note 42, at 169–75 (describing a book that spread by word of mouth to become a bestseller); Anderson, supra note 43, at 15 (discussing an example of a bestseller distributed through the internet). 84 Cf. Duncan J. Watts, a Simple Model of Fads and Cascading Failures 1 (Santa Fe Institute Working Chapter, 00-12-062) (2000), available at http://www.santafe.edu/media/workingpapers/00-12-062.pdf (presenting a similar 81

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Complexity and network research focusing on the diffusion of innovation and evolution of popularity sheds light on these phenomena. It demonstrates that this process is strongly connected to the social network, its structure, the links between the individuals comprising it, their individual thresholds for adopting innovation, and their social influence on each other.85 These studies do not imply that mass media has no effect whatsoever on diverting audience attention to certain works. Yet, they do show that advertising and marketing are not the sole cause for the remarkable success of certain works and the relative disregard of all the rest. Indeed, research demonstrates that even under laboratory conditions free of advertising and marketing activities, social influence yields flocking towards popular works.86 This insight is reinforced in light of new routes open to independent authors via the Internet, which allow them to try and gain public attention without directly participating in corporate culture. An additional, related argument maintains that copyright benefits commercial creators in particular.87 Independent authors, on the other hand, do not require an incentive in the form of copyright, since they often operate out of a creative impulse or other motivations.88 The result is that copyright encourages primarily the creation of mass-culture products which decrease diversity. Yet it seems that in this context, too, the picture is not one-dimensional: even if independent authors do not create out of pure economic motivations, many of them nevertheless

observation and further proposing an explanation related to network typology and threshold models). 85 A detailed description of the diffusion process appearing in that literature is outside the scope of this chapter – see, in general, Rogers, supra note 34, Barabasi, supra note 41, and Gladwell, supra note 42; Granovetter, supra note 51; Mark S, Granovetter, The Strength of Weak Ties, 78 Am. J. Soc. 1360 (1973); Rogers, Medina, Rivera and Wiley, supra note 34. For a concise review of that research see Shur-Ofry, supra note 55, at 531. 86 Salganik, Dodds and Watts, supra note 34. See also Rogers, supra note 34, at 175–76, 198, 205 (arguing that the mass media is significant in creating awareness of an innovation (a work), but interpersonal channels and social interactions have more influence over people’s decision whether or not to adopt it). 87 See Benkler, supra note 7, at 103–05; Bettig, supra note 7, at 103; Baker, supra note 5, at 16–17; Netanel, supra note 7, 110 (arguing that copyright’s major benefits are enjoyed by the highly concentrated media industries). 88 See Benkler, supra note 7, at 103–05; Bettig, supra note 7, at 103; Baker, supra note 5, at 16–17; Netanel, supra note 7, 110. See also Dianne Leenheer Zimmerman, Copyrights as Incentives: Did We Just Imagine That?, 12 Theoretical Inquiries in Law (2011) (highlighting the existence of multiple motivations for individual creation, while focusing on the significance of intrinsic factors).

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have legitimate expectations of earning a living from their creation.89 It must also be kept in mind that the distinction between “independent” and “commercial” authors is not always sharp: thus, a poor independent author who writes a book out of a creative impulse (a book about the wizarding world, for example) can then gain immense success, enter an agreement with Hollywood studios for the adaptation of the book into a movie, and make enormous profits, all due to her copyright in her work. In addition, the problem of exposure diversity does not lie in the lack of a sufficient supply of works by independent authors, but rather in the fact that this supply does not meet enough demand from the cultural audience.90 Indeed, that uniform and formulaic supply of mass media works does play a part in forming the public taste and in increasing the demand for such works.91 However, a closer look at the significance of copyright is warranted here as well. Preferences and patterns of cultural consumption, as well as the willingness to consume works which are not part of the popular culture, are influenced by a variety of factors, and are not dictated solely by the mass media.92 Moreover, a phenomenon of ‘demand-following-supply’ was also observed by long-tail studies, but in an opposite manner: the existence of a diverse supply of works (such as books, music, or academic articles) had a positive effect on the demand for diverse and “niche” works.93 Notably, those markets, too, are based on copyright-protected works, a fact which (once again) places a question mark over the causal relationship between the scope of copyright and the degree of diversity: we do not attribute the relatively improved situation of cultural diversity in the long-tail markets to copyright. Should we place the responsibility for the lack of diversity in traditional media markets on the shoulders of copyright?

89 Cf., e.g. Netanel: Democratic Society, supra note 7 (discussing the significance of copyright from this perspective); Nadel, supra note 7, at 813 (acknowledging creator’s interest in receiving financial reward). 90 Section 10.2.2 supra. 91 See supra note 81, and the accompanying text. 92 See the discussion in section 10.4 infra. Cf. Pessach, supra note 7, at 1086 (acknowledging that mass media is not an exclusive factor in preferences formation). Interestingly, there is also research which has doubted the hypothesis that modernization and mass media lead to unified consumer preferences – see Richard A. Peterson and Paul Di Maggio, From Region to Class, the Changing Locus of Country Music: A Test of the Massification Hypothesis 53 Soc. Forces 497 (1974–1975) (questioning the massification theory on the basis of empirical research related to the evolution of country music). 93 Supra notes 68–73 and the accompanying text.

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This latter point sheds light on a more general and fundamental issue. Although copyright undoubtedly constitutes an important economic basis for the operation of the mass media, the fact that mass culture is directed at the widest common denominator is not copyright’s “fault.” Rather, it is part of the very essence of popular culture, which perceives cultural works as products.94 No one seriously questions the existence of media corporations and no one realistically proposes to return to the premass media era and revoke copyright entirely.95 Assuming, then, that the existence of mass media and a certain extent of copyright protection are given and irreversible, the question of the reverse scenario become apparent: advocates of the limitation of copyright do not lay out a particular scenario detailing how such limitation would actually promote exposure diversity. The surmise that a change in the scope of copyright would lead the mass media corporations to an internal change of priorities, or to distribution of more culturally diverse contents, is not sufficiently supported by a detailed “reverse scenario.”96 As long as mass media exists, it is unrealistic to expect producers of mass culture to relinquish the attempt to cater to the tastes of the masses, be the extent of copyright protection as it may. Interestingly, this latter argument is supported by a complexity perspective, too. Complexity and network scholarship teaches us that changes in complex systems do not always result in proportionate responses on part of the system. Dynamics of complex systems comprising multiple interacting components are hard to predict, and small differences in the initial conditions may yield vast differences in the system’s overall response to change. When the interactions between its components are non-linear, 94

See, e.g. the prominent writing of Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Richard Nice trans., Harvard University Press, Cambridge, 1984); Theodor W. Adorno and Max Horkheimer, The Culture Industry: Enlightenment as Mass Deception in Dialectics of Enlightenment, 94 (trans., Edmund Jephcott, 2002) (attributing this phenomenon in a large part to the development of reproduction technologies). 95 See Baker, supra note 5, at 94 (noting that media markets based on media corporations are a given fact); cf. Nadel, supra note 7 (proposing to truncate the exclusive reproduction right, but observing that the mass media corporations would continue to enjoy technological and other protections, with respect to the contents they market). 96 Cf. Christopher S. Yoo, Copyright and Democracy: A Cautionary Note, 53 Vand. L. Rev. 1933, 1951 (2000) (arguing that the hypothesis that changes in the copyright regime would mitigate the centralism of mass media and allow access to those who are currently denied it is neither proven nor probable); Pessach, supra note 7, at 1099 (explicitly referring to the “reverse scenario” and acknowledging that the impact of copyright limitation is uncertain).

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as is often the case with real world systems, the system’s overall behavior cannot be predicted even when the properties of these components are identified.97 Since exposure diversity is influenced by human dynamics occurring in a social network, comprised of numerous interacting humans, the premise that a certain limitation of copyright’s scope would lead to a proportionate increase in the level of diversity is very much doubtful. The above analysis calls for broadening the viewpoint on the question of diversity of exposure, beyond the prism of copyright. If there is no strong evidence that cultural diversity can be regulated through regulation of the scope of copyright protection, then other factors that might affect such diversity deserve a closer examination. Highlighting such factors could provide an additional perspective as to the weight of copyright in the cultural diversity equation.

10.4

CULTURAL DIVERSITY: A MULTICAUSAL, NON-LINEAR APPROACH

The factors affecting cultural preferences, cultural tastes, and culture consumption have been drawing the attention of scholars researching the sociology of culture. This discussion is based, to a large extent, on the work of Pierre Bourdieu, who highlighted the link between cultural preferences and social class, and observed that the consumption of high culture characterizes the high socio-economic classes, and serves them as a means of distinction.98 More recent writing maintains that in the modern era the high socio-economic classes are characterized by “omnivorous” cultural tastes (i.e., by consumption of both “high” and “low” culture), while lower socio-economic classes possess less diverse cultural preferences and consume mainly popular culture.99 Before reviewing further insights provided by sociological literature, a caveat is in order: the research of the relationship between social

97 See Mitchell, supra note 36, at 22–23 (explaining that non-linear systems do not equal the mere sum of their parts); Complexity – GIACS, supra note 37, at 11 (definition of complexity by Michael Assaf); Rogers, Medina, Rivera and Wiley, supra note 34. I thank Michael Assaf for his help in clarifying this latter point. 98 Supra note 94, 16: “of all the objects offered for consumers’ choice, there are none more classifying than legitimate works of art”. 99 Richard A. Peterson and Albert Simkus. How Musical Tastes Mark Occupational Status Group in Cultivating Differences 152 (Michele Lamont and Marcel Fournier eds, 1992).

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stratification and cultural consumption is still proceeding, and I do not purport to review it comprehensively, nor to conclude it. Rather, the sole purpose of the following paragraphs is to demonstrate that the extent of interest in high culture and the degree of cultural openness are correlated to a multiplicity of social characteristics. Thus, for example, numerous sociological studies in different countries found a positive correlation between the level of education and diverse cultural tastes.100 Other experiments point towards social status101 and ethnic origin102 as factors which influence exposure diversity, while yet others indicate that cultural tastes, at least in certain societies, travel among generations.103 Comparative studies which aim to examine the degree of cultural diversity in different countries, too, offer no support to the view that copyright law is the primary culprit for lack of diversity. Instead, they propose complex and multicausal explanations for the increased or decreased level of diversity. Thus, Michelle Lamont points to a range of environmental and historical factors affecting societies’ attitudes towards non-mass culture.104 These include, for example, the intellectual and historical tradition,105 the structure of the education system,106 and the existence of powerful public

100 Peterson and Simkus, supra note 99; Tak Wing Chan and John H. Goldthorpe, Social Stratification and Cultural Consumption: Music in England 23 Eur. Sociol. Rev. 1 (Feb. 2007); Jordi Lopez-Sintas and Tally Katz-Gerro, From Exclusive to Inclusive Elitists and Further: Twenty Years of Omnivorousness and Cultural Diversity in Arts Participation in the USA, 33 Poetics 299 (2005). 101 Peterson and Simkus, supra note 99 (pointing to a positive correlation between the consumption of diverse types of music, “high” and “low”, and occupational status in the US); Chan and Goldthorpe, supra note 100 (pointing to a similar correlation in England); Tally Katz-Gerro, Sharon Raz and Meir Yaish, Class, Status and the Intergenerational Transmission of Musical Tastes in Israel, 35 Poetics 152 (2007) (demonstrating a correlation between social status and preferences for “high” musical genres in Israel). 102 Peterson and Simkus, supra note 99; Katz-Gerro, Raz and Yaish, supra note 101. 103 Katz-Gerro, Raz and Yaish, supra note 101 (demonstrating such a correlation with respect to music consumption in Israel). 104 Lamont, supra note 6, at 106–07, 146–49 (comparing the attitudes towards high culture among the middle classes in France and in the USA, and concluding that the French middle class places more importance on the humanistic culture, and shows greater interest in non-mass culture). 105 Id. at 129–49 (the existence of aristocracy in French society, which put emphasis on high culture, in comparison to the emphasis on equal opportunity and greater social mobility in US). 106 Id. (observing that in France the education system and its contents are determined by the state, whereas in the United States it is generally governed by the local municipalities, and further arguing that the latter depend on funding by

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broadcasting organizations or lack thereof.107 Other variables in the cultural diversity equation identified by Lamont are the strength of the public sector and the extent of the state’s funding, involvement, and investment in cultural institutions and projects of high culture. Her interesting conclusion in this context is that the more dependent culture resource allocation is on the free market, the less prominent is high culture, and vice versa.108 The interest in foreign cultures, too, is affected by factors external to copyright: thus, for example, Ton Bevers’ identified a link between a country’s size and centrality and its degree of interest in other cultures: strong and central countries tend to concentrate on their own culture, demonstrate less openness towards other cultures, and tend to overrate their own cultural contribution.109 Wayne Fu’s recent research demonstrates that interest in cultural products of foreign countries is related to the cultural proximity between the relevant countries.110 The comparative studies which reveal that lack of cultural diversity does not exist in a similar degree in all Western countries cast further doubt over copyright’s contribution to cultural lock-in. Lamont, for example, maintains that cultural diversity fares better in France than in the United States.111 If copyright posed a significant obstacle to diverse cultural interest, one could expect the scope of copyright protection in France to be narrower than in the United States, but this does not seem to be the case.112

the local elite through municipal taxes, which in turn leads to concentration of the education system on the local culture). 107 Id, at 140–41 (arguing that a powerful public broadcasting system strengthens diversity). 108 Id, at 144–45. See also Corse, supra note 6, at 58–61 (arguing that according to the Canadian perception it is inconceivable to leave culture to the free market); cf. Nadel, supra note 7, at 845–46 (acknowledging the importance of government funding of culturally significant works). 109 Bevers, supra note 5, at 395-97 (basing this conclusion on an empirical experiment). 110 Wayne Fu, Chapter 16 in this volume. 111 Supra note 104. 112 Generally, the period of protection in both systems is identical, as are the main economic rights, whereas moral rights receive broader protection in France that in the United States. In addition, in France there is also Sui Generis protection of databases which does not exist in the United States. See, in general, Lucas, France, and David Nimmer, USA, in International Copyright Law and Practice (Melville B. Nimmer and Paul Edward Geller eds, updated 2002); Cf. Jane C. Ginsburg, A Tale of Two Copyright: Literary Property in Revolutionary France and America, 64 Tul. L. Rev. 991 (1989–1990) (comparing copyright protection in France and in the USA and concluding that the differences between the two systems are not extreme).

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This subject, of course, warrants further research, which would compare the scope of copyright protection in different jurisdictions with their degree of cultural diversity, and which exceeds the scope of this chapter. At this stage, however, a superficial comparative glance reveals no correlation between the extent of copyright protection and the degree of cultural lock-in. As already emphasized, I do not presume to present an exhaustive review of the findings concerning culture consumption, cultural preferences, and exposure diversity. I certainly cannot provide a recipe for obtaining “true” cultural diversity, such that would direct people’s attention towards both high and popular culture, towards both local and foreign culture, towards both present and past culture. But the insights provided by the above scholarship reinforce the previous analysis: cultural diversity is a complex, multifaceted, and multicausal issue.113 The social systems in which we seek to promote cultural diversity are complex systems, and the level of diversity cannot be easily calibrated through calibrating the scope of copyright protection.114

10.5 CONCLUSION This chapter has questioned the prevailing view, which perceives copyright as an obstacle to cultural diversity. The perception of copyright as an important, even crucial, factor in the diversity equation stems from its function as a major basis for the operation of mass media corporations, whose popular products flood our cultural sphere. This reality leads to a notion that if we could only limit the scope of copyright, the cultural domination of those mass media products would be diminished. This, in turn, would increase the interest of the masses in a broader variety of cultural works. The analysis proposed in this chapter offers no support for this premise. Network and complexity theory dealing with the evolution of popularity and the self-organization of complex systems indicates that the flocking towards a limited number of popular cultural works is an intrinsic phenomenon in social networks. This phenomenon existed prior to the mass media era; it is not a result of copyright and does not depend upon it. At the same time, recent long-tail studies suggest that even under a broad copyright regime, positive changes in the degree of exposure diversity

113

Cf. Bevers, supra note 5, at 390 (describing cultural diversity as “multi-causal”). 114 Supra notes 36–38, 97 and accompanying text.

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are possible. These findings cast doubt over the role of copyright in the inhibition – or promotion – of cultural diversity. In addition, current scholarship does not present a detailed “reverse scenario” as to the ways in which limitation of copyright would promote the interest of cultural audiences in a wider range of cultural works. Yet, the analysis in this chapter also suggests that the level of cultural diversity is not inflexible, and its fate is not predestined. Therefore, and in light of the doubts as to the significance of copyright in this context, an examination of exposure diversity from a wider perspective is called for. The socio-cultural outlook, presented mainly in the last part of the chapter, indicates that exposure diversity is a complex, multicausal and non-linear issue, influenced by a multiplicity of factors: social, historical, environmental, educational, economic, technological, and others. I do not argue that copyright plays no part whatsoever in this complex equation. I also do not imply that the discourse over copyright in the “new world” is not significant, or that there are no other convincing reasons for modifying or limiting copyright’s scope.115 However, the hypothesis that the key to cultural lock-in is in the hands of copyright is not sufficiently supported. Focusing the diversity debate primarily on the issue of copyright might therefore cloud and blur the significance of multiple other relevant variables. Paradoxically, then, the discussion of cultural diversity might be affected by the very same problem which it seeks to address: the critical mass of attention on part of policymakers would be directed towards copyright – a factor that has not been proven to be of critical importance – while other factors, whose significance and influence over cultural diversity have been empirically demonstrated, would receive only little attention. Indeed, the inclination to place the responsibility for lack of diversity on the shoulders of copyright is understandable. Calling for the limitation of copyright is, perhaps, simpler than coping with issues such as the structure and content of education systems, the degree of state involvement in 115

See, e.g. the scholarship cited supra, note 29 and accompanying text. Notably, the analysis in this chapter is confined to the ambits of the discussion as defined in section 10.2.2, (namely the influence of copyright protection on exposure diversity). I myself have elsewhere advocated a certain limitation of copyright protection afforded to works that constitute cultural or utilitarian standards – Shur-Ofry, supra note 55. It should also be noted that other areas of the law, besides copyright, could be very significant to promotion of cultural diversity, for example policymakers’ intervention aimed at dealing with the centralism of media markets or at incentivizing the creation of contents which are not market-skewed – cf. Baker, supra note 5, at 114–21 (acknowledging the possible significance of this type of intervention).

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the promotion and distribution of culture, or re-examination of the freemarket approach towards culture.116 In a sense, placing the responsibility on copyright law also relieves us of our own responsibility as cultural audiences: it frees us from examining our attitude towards culture, the extent of our willingness to deviate from the beaten path of the “We,” and the degree of our openness to other cultures. It spares us from self-observation with respect to the cultural choices we make for ourselves and for our children. However, the analysis in this chapter indicates that the effort to promote cultural diversity must not be confined to copyright. Rather, the promotion of cultural diversity requires a thorough examination of a series of issues, of which only a few have been addressed in this framework. This chapter suggests that facing these questions is unavoidable.

116

See supra, note 108 and accompanying text.

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11. The Nigerian film industry and lessons regarding cultural diversity from the home-market effects model of international trade in films Mark F. Schultz1 11.1 INTRODUCTION Nollywood, the Nigerian video film industry, is an unlikely success story. With an output of between 800 and 1500 films per year, it is one of the most productive, if not the most productive, of the world’s film industries.2 Its success is even more remarkable considering that Nigerians have long had easy and pervasive access to inexpensive, pirated versions of both Hollywood and Bollywood movies. Nollywood thrives, even against titanic competition from the West and East. In a mere two decades, Nollywood has become one of the world’s most important creative industries.3 It has been an explosive commercial success, with vast numbers of videos available in shops and on street corners throughout Africa and beyond.4 The films are widely shown on

1

The author wishes to thank participants in Michigan State University’s Bits Without Borders Conference. In particular, I appreciate extensive comments from Steven Wildman and Sean Pager. Further thanks are due to my colleague, John McCall, of Southern Illinois University’s Anthropology Department for his introduction to the Nollywood phenomenon and his continuing and insightful guidance through the world of African film. Errors and shortcomings in this chapter are, of course, my own. 2 Jonathan Haynes, Nollywood in Lagos, Lagos in Nollywood Films, Afr. Today 131, 137 (2007). 3 Also see Sean Pager, Chapter 12 in this volume, for a similar discussion of Nollywood’s commercial and cultural significance. 4 Jonathan Haynes, Video Boom: Nigeria and Ghana, Postcolonial Text (vol. 3, May 2007), http://postcolonial.org/index.php/pct/article/view/522/422 at 1–2. 231

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broadcast and satellite television in African countries.5 They are now enjoying larger budgets and glitzy international premieres in locations such as London’s West End.6 Culturally, Nollywood is arguably Africa’s first mass pop culture phenomenon, enjoying widespread popularity and cultural influence across the continent.7 Significantly, its birth and life have been almost wholly indigenous, arising with no significant aid or technical assistance from foreign co-productions or donor money from international cultural agencies.8 Nollywood’s success suggests that cultural diversity can persist and grow even as economies and communications become more globalized.9 Its vitality contradicts pessimists who fear that globalization will lead to “a growing standardization of cultural production as dominant centers flood .  .  . the world with their products and shut out less powerful voices.”10 Instead, Nollywood heralds the rise of a multipolar world, with many centers of culture.11 Nollywood demonstrates the possibility that smaller, less wealthy countries can withstand the onslaught of United States (US) consumer culture. Significantly, Nollywood succeeds by telling familiar stories that accord with local sensibilities. It reflects and preserves local sensibilities, rather than simply contributing to a global monoculture that some fear is developing.12 It stands in hopeful contradiction to the dire warning that free trade in media products “would at once mean the tendential extinction

5

Id.; John McCall, The Pan-Africanism We Have: Nollywood’s Invention of Africa, 28 Film Int’l, 92, 93 (2007). 6 See, e.g. Ovwe Medeme, Excitement as Mirror Boy Arrives, Daily Independent (Lagos), July 21, 2011, http://allafrica.com/stories/201107220589. html (describing the successful premier of the Nollywood film Mirror Boy at Empire Leicester Square, London, as well as in Ghana and Nigeria). 7 Haynes, supra note 4, at 1–2; McCall, supra note 5, at 93. 8 Haynes, supra note 4, at 1–2; McCall, supra note 5, at 93. 9 Other chapters in this volume also consider general policy issues regarding diversity in a digitized, globalized world. See Burri, Garon and Napoli (Chapters 9, 15, and 8, respectively). In particular, Pager, Mann and Christen (Chapters 12, 13, and 14, respectively) provide specific case studies that to varying degrees echo the optimistic view that this chapter provides. 10 Moradewun A. Adejunmobi, Nigerian Video Film as Minor Transnational Practice, Postcolonial Text (vol. 3, May 2007), http://postcolonial.org/index.php/ pct/article/view/548/405 at 2. 11 Jonathan Haynes, “Nollywood”: What’s in a Name?, The Guardian (Lagos), Sunday, July 3, 2005, available at http://www.africine.org/?menu=art&no=8042. 12 Frederic Jameson, Notes on Globalization as a Philosophical Issue, in The Cultures of Globalization 54, 77 (Frederic Jameson and Masao Miyoshi, eds, 1998).

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of new national cultural and artistic production elsewhere, just as the free movement of American movies in the world spells the death knell of national cinemas elsewhere, perhaps of all other national cinemas as distinct species.”13 This chapter’s methodology is to examine Nollywood through the lens of the home-market effects model of international trade in media products pioneered by Wildman and Siwek.14 This widely used model examines the factors that influence the size of domestic media industries under conditions of bilateral trade. It tends to predict that the largest markets, particularly the US, will dominate the trade in media products, all things being equal. The caveat is as important as the primary conclusion, because the model highlights factors that can mitigate the advantage of the US and other large markets. This feature of the model makes it useful for understanding what conditions support or diminish cultural diversity as new technology makes it ever easier for large-market media products to reach consumers everywhere. This chapter’s primary contribution to the literatures on Nollywood and on cultural diversity is to apply the home-market effects model to highlight some of the variables that likely have helped Nollywood to rise, grow, and thrive despite competition from foreign movies with much higher production values from much larger markets. It also shows to some extent how piracy limits and shapes supply, likely yielding far more films but with lower-value creative inputs. The home-market effects model highlights both the challenges that Nollywood has overcome as well as some likely drivers of its success. The home-market effects model is often cited and employed to explain why the US dominates global film markets.15 When compared to other markets, including European film markets, Nollywood is a truly impressive underdog success story. Its market, by most measures, is much smaller than markets in wealthier countries with less successful film industries. The model points to two factors that may help to explain Nollywood’s success:

13

Id. at 61. Steven Wildman and Stephen Siwek, International Trade In Films And Television Programs (1988). 15 The informal or verbal description of the model, which could be summed up as “large markets win,” is much more categorical than its formal description, as Wildman noted in later work. The formal model indicates factors other than market size that influence outcomes and tend to diminish the tremendous weight of the US market advantage. See Steven Wildman, Trade Liberalization and Policy for Media Industries: A Theoretical Examination of Media Flows, 20 Can. J. Comm., 367 (1995). 14

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a preference for local cultural goods (the “cultural discount”) and production cost advantages. This chapter also examines the role of piracy in the home-market effects model, heretofore underconsidered, but essential to understanding the film market in developing economies. Every aspiring film industry must deal with the challenge posed by Hollywood, but filmmakers from Nigeria and other developing economies must do it with relatively fewer resources. The fact that Nollywood is thriving in an environment with so many challenges suggests that cultural diversity can persevere, even in a world where the Internet and digital media breach borders and make Hollywood’s ubiquitous products even cheaper and easier to obtain. The home-market effects model of international film trade helps to illuminate and suggest how Nollywood has overcome these challenges: mainly through a robust consumer preference for local content. Section 11.2 of this chapter briefly explains the home-market effects model. Section 11.3 extensively analyzes Nollywood and its circumstances using the home-market effects model. Section 11.4 considers some possible directions for Nollywood’s future. Section 11.5 concludes with policy conclusions suggested by the lessons yielded by applying the home-market effects model to Nollywood.

11.2

THE HOME-MARKET EFFECTS MODEL OF THE INTERNATIONAL FILM TRADE

In recent years, policymakers, scholars, and commentators have been optimistic about the growth prospects for creative industries worldwide.16 If creative industries can perform as well as some hope, the prospects are promising for preserving and enhancing cultural diversity. The positive signs are abundant: the creative industries are among the fastest-growing industries in the world and are making an increasingly large contribution to economic output.17 Many contend that developing countries could enjoy the same benefits from their creative industries, given the right institutional environment.18

16

See Diana Barrowclough and Zeljka Kozul-Wright, Voice, Choice and Diversity, in Creative Industries and Developing Countries: Voice, Choice and Economic Growth 3 (Diana Barrowclough and Zeljka Kozul-Wright, eds, 2008). 17 Id. at 3–6. 18 See, e.g. Mark F. Schultz and Alec van Gelder, Creative Development: Helping Poor Countries by Building Creative Industries, 97 Kent. L.J. 79 (2008).

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Despite the promise of the creative industries, there is reason to question whether creative industries in smaller countries can overcome the market dominance of creative industries based in larger countries. On the one hand, creative industries seem to be likely to be more subject to localized preferences than most other industries. They are highly differentiated products, unlike a washing machine or a television that fulfills similar functions and serves similar needs wherever the consumer lives. For cultural products such as music, books, and films, however, languages, dialects, local interest, and culture should play a larger role in determining preferences. On the other hand, it is clear that large countries, particularly and by far the United States, dominate trade in cultural products in spite of cultural differences. Concerns about cultural diversity have largely been motivated by the observation that US cultural products, especially movies, dominate world markets. 11.2.1

Background on Earlier Studies

The challenges facing producers of cultural goods in smaller markets have been well known in the economics literature for the past two decades. This literature attempts to explain why the US has dominated (and continues to dominate) the world trade in media products, particularly movies.19 Although earlier work had attributed the US strength to inherent cultural appeal, or to more purposeful acts such as unfair trade practices or cultural imperialism, more recent research has identified a structural economic advantage: the benefits conferred by a large home market. The home-market effects theory of international trade in media products, first pioneered by Wildman and Siwek20 and Hoskins and Mirus,21 contends that relatively high consumer spending on media products leads to relatively high exports of those products. In the context of cultural products, the home-market effects model predicts that a country with a large and wealthy market will tend to dominate bilateral trade in cultural products. The basis for the home-market effects model of the creative industries

19

For a recent review of the literature, see Sang-Woo Lee and David Waterman, Theatrical Feature Film Trade in the United States, Europe, and Japan Since the 1950s: An Empirical Study of the Home Market Effect, 20 J. of Media Econ. 167, 188 (2007). 20 Wildman and Siwek, supra note 14. 21 Colin Hoskins and Rolf Mirus, Reasons for US Dominance of the International Trade in Television Programmes, 10 Media, Cult. & Soc’y, 499, 515 (1988).

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lies in the international trade literature analyzing trade under conditions of increasing returns to scale and monopolistic competition. In seminal  papers, Helpman and Krugman showed that countries with relatively large markets tend to account for a larger share of production  of  goods from industries with increasing returns to scale.22 For most goods, this process is driven by significant transportation costs – industries locate in large markets with significant demand for their products. Several studies have applied this model to the creative industries, with a few significant changes to account for the different nature of creative works. Unlike manufacturing industries, transportation costs for creative works are relatively trivial. Nevertheless, the home-market effects have been shown to operate through a different mechanism: a “cultural discount.”23 Other things being equal, consumers tend to prefer creative works in their own language that reflect familiar cultural references. They thus “discount” foreign works, and this discount acts like a transportation cost, representing a cultural distance between markets.24 The cultural discount works to protect the home market for creative industries. Each country thus has the advantage of unfettered access to its own market, with limited access to other country’s markets.25 For larger countries, access to the home market proves to be a decisive advantage. This advantage derives from the fact that creative industries have relatively high fixed costs (of production) and low marginal costs (of reproduction and distribution). Relatively large markets can support higher budgets, and thus higher production values and a greater variety of products, than smaller markets.26 A smaller country’s cultural discount thus may be partly overcome by a larger country’s production value advantage. This theory has been tested empirically in the context of movies by several scholars. For example, Marvasti found a significant relation-

22

See Elhanan Helpman and Paul Krugman, Market Structure And Foreign Trade: Increasing Returns, Imperfect Competition And The International Economy (1985). 23 Wildman and Siwek, supra note 14; Hoskins and Mirus, supra note 21. 24 Gordon H. Hanson and Chong Xiang, Testing the Melitz Model of Trade: An Application to US Motion Picture Exports (Nat’l Bureau of Econ. Res.,Working Paper No. 14461, 2008). 25 David Waterman and Everett Rogers, The Economics of Television Program Production and trade in Far East Asia, 44 J. Comm. 89, 111 (1994); see also Wildman and Siwek, supra note 14; Hoskins and Mirus, supra note 21. 26 Wildman and Siwek, supra note 14.

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ship between movie exports and country size.27 Oh found that domestic share of box office was significantly related to gross domestic product (GDP) and certain measures of cultural distance.28 Lee and Waterman show a significant relationship between the dominance of the US film industry after the 1970s and the rapid growth of US consumer spending on movies.29 Hanson and Xiang find a significant relationship between share of movie exports and market size, as measured by GDP and certain measures of cultural distance.30 In Chapter 17 this volume, Lee and Wildman examine the relative importance of the various factors in the home-market effects model in achieving market share in the media industries.31 11.2.2

The Model

These studies have focused on several key factors to explain the success of the US in cultural markets, particularly movies: market size, the advantage it confers in terms of ability to fund high production values, and the offsetting disadvantage of a “cultural discount.” The model posits two-way trade between two countries (Country A and Country B) in media products, for example movies. The following discussion provides a brief summary of the model, with some additional considerations relevant to analyzing Nollywood. For the original specification of the model and a more extensive, formal treatment see Wildman and Siwek32 and the extensions developed in Frank.33 The discussion here is intended to be brief and largely informal. The key variables in the model are: ●

Market size: total revenue from consumer spending on movies in each country.

27

Akbar Marvasti, International Trade In Cultural Goods: A Cross-Sectional Approach, 18 J. Cultural Econ. 135, 148 (1994). See also Akbar Marvasti, Motion Pictures Industry: Economies Of Scale And Trade, 7 Int’l J. Econ. Bus. 99, 114 (2000); Akbar Marvasti and Ray Canterbery, Cultural And Other Barriers To Motion Pictures Trade, 43 Econ. Inquiry 39, 54 (2005). 28 Jeongho Oh, International Trade In Film and the Self-Sufficiency Ratio, 14 J. Media Econ. 31, 44 (2001). 29 Lee and Waterman, supra note 19. 30 Hanson and Xiang, supra note 24. 31 Sang Yup Lee and Steven S. Wildman, Chapter 17 in this volume. 32 See Wildman and Siwek supra note 14, at Appendix B. 33 Björn Frank, A Note on the International Dominance of the US in the Trade in Movies and Television Fiction, 5 J. Media Econ. 31, 38 (1992).

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Cultural discount: the “handicap” that the movies of Country A face upon import into Country B. Creative inputs: the discretionary up-front costs of making a movie, which might include money spent on a script and revisions, premium fees paid to better-known actors, the cost of special effects, extra takes and reshoots, and any other factors that contribute to higher production values or audience appeal.34

Several key assumptions of the model are: ●







34 35

Other things being equal, people prefer to see movies in their own language that reflect their own culture and experiences. This cultural discount acts a natural trade barrier, giving movies from the home market an advantage. As Hoskins and Mirus put it: “As a result of diminished appeal, fewer viewers will watch a foreign [movie] than a domestic [movie] of the same type and quality.”35 Producers in larger markets start out with a built-in revenue advantage. Take the case of two countries, A and B, where A is the larger country and B the smaller. Producers in each country are protected by the cultural discount, but those in the larger country have greater potential revenues. A gets a large slice of its own large market and a small slice of B’s market, while B gets a large slice of its own small market and a small slice of A’s market. Cultural industries enjoy increasing returns to market size. Cultural industries, particularly the movie industry, have relatively high set-up costs and relatively low marginal distribution costs. Producers in large markets, protected from foreign competition by the cultural discount, have more potential customers from whom to recoup their high set-up costs. Producers in such markets can thus afford higher set-up costs including creative inputs. Higher spending on creative inputs leads to more spending on creative inputs, higher production values, and greater consumer appeal. The model assumes that producers spend money on creative inputs in pursuit of maximizing their revenue. Spending more on the script, likable stars, additional takes, or other elements thus may not inevitably make a movie “better” in terms of aesthetic value or professional critical opinion, but will on average make the movie more appealing to viewers. The model thus assumes that more spending

See Wildman and Siwek, supra note 14 at 178. Hoskins and Mirus, supra note 21 at 500.

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on creative inputs leads, on average, to greater ticket sales or sales of copies. It is the expected relationship that leads to the existence of big-budget “blockbusters” and the high expectations that producers, investors, the press, and the public have for them. While one can find many examples of big-budget flops and small-budget hits, the amounts poured into movie budgets by Hollywood studios confirm that this assumption is conventional wisdom. These assumptions lead to the following conclusion: larger markets lead to a production values advantage that reduces barriers to export. The cultural discount is based on the assumption that consumers prefer domestic movies “of the same type and quality.” But producers in larger markets make movies of a different, “better”36 type and quality than producers in smaller markets because of their home-market advantage. In the case of the US and its European trading partners, research has indicated the existence of the US home-market advantage: as US consumer spending on US films has risen over the past few decades, the US has gained a greater share of the European markets.37 Frank extends that model to consider the market entry conditions for a potential country with a smaller film market that currently produces no films (e.g., essentially, Nigeria in the late 1980s), that currently imports films from a country with a much larger market (e.g., the United States).38 Frank derives the following entry condition from the Wildman and Siwek model: RB > h * RA

(11.1)

0