The Similarity Between ACTA And Chinese Internet Censorship

from the it's-all-about-secondary-liability dept

Wed, Jan 20th 2010 11:46am — Mike Masnick

To be fair, it may have been Bono who first made the connection explicit, but others are beginning to notice that there are some worrisome parallels between what is being pushed via ACTA and other methods and ongoing internet censorship in China. The latest, as pointed out by the EFF, is writer Rebecca MacKinnon, who walks you through the way in which Chinese censorship is based on the same faulty principle as ACTA's push for secondary liability for ISPs.

Let's take a step back to explain this. We've discussed, in the past, that the way China operates its "Great Firewall" is not by explicitly banning anything. Instead, it simply puts liability on third parties such as ISPs and says they'll take the blame and face the consequences for any "bad stuff" that is allowed through to Chinese users. As MacKinnon notes, this is really "intermediary liability," or (obviously enough) putting the liability for actions on an intermediary to force them to try to curb the behavior of end users. In this way, the Chinese government can claim that it doesn't censor the internet and there's no such thing as a "Great Firewall," because it doesn't exist as a single thing. It's just that the government will punish ISPs who don't block "bad stuff."

But this "intermediary liability" is a big deal, because under any common sense approach to things, you should never blame an third party/intermediary for the actions of end users. And yet, that's exactly what the entertainment industry has been pushing. One of the key components being pushed for the internet section of ACTA is the idea of expanding "secondary liability" or "contributory copyright infringement" or whatever they want to call it. In reality, it's the same intermediary liability that China uses to have ISPs censor content. The idea is that if you put the liability for file sharing on ISPs, then they will be forced to figure out ways to stop it -- just like ISPs in China are forced to create their own censorship campaigns.

And, of course, this isn't even hypothetical. We've got some real world examples. That's because much of the early language in ACTA was modeled on the "free trade" agreement that the US pressured South Korea into signing. That included such intermediary liability for ISPs when it came to copyright infringement, and guess what happened? First, the country felt it needed to start kicking people off the internet based on a "three strikes" plan, just to satisfy the treaty. Then service providers quickly started banning all sorts of activities, including any music uploads and many video uploads. After all, it's not worth it for the service providers to be liable, so they block the ability to upload all sorts of content. And, of course, with such liability there, others went even further, with some service providers even banning advertisements for any kind of website that could allow copyright infringement, because of the fear that, via such intermediary liability, they may get blamed just for allowing an advertisement that pointed to a site that could be used for copyright infringement.

When you look at the details, it's incredibly similar to the way in which China crafted its Great Firewall. Impose such secondary liability that puts the responsibility on a third party, and and watch those third parties basically lock down all sorts of additional things, just to be safe. Of course, the old school entertainment industry doesn't mind, because preventing you from communicating isn't their problem. They don't see the internet as a communications platform anyway. They're hoping it's the next broadcast medium, and clearing the decks via ~~a Great Firewall~~ an intermediary liability system works right into those plans. The more you look at the details, the more it looks like the entertainment industry is doing everything possible to encircle the internet to make it appear more like a broadcast entertainment medium, rather than a communications medium.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: acta, broadcast, censorship, china, communications, contributory infringement, copyright, entertainment, intermediary liability, liability, third party liability

23 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Pickle Monger (profile), 20 Jan 2010 @ 11:48am

Going back to the good ole times?
Maybe I'm just prejudiced against that sort of thing because I grew up under the Soviet system, but god help us all...
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 12:07pm

I thought ACTA was about counterfeiting?

You mean it's not!?!
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 12:20pm

Network Neutrality
Of course, this isn't compatible with network neutrality so they've got to make sure that doesn't catch on either.
[ link to this | view in thread ]
DMNTD, 20 Jan 2010 @ 12:22pm

Well the main frame of china IS supposed to become the standard for America..you knew that right?
[ link to this | view in thread ]
:Lobo Santo (profile), 20 Jan 2010 @ 12:25pm

Ever notice...
How come all of the "we, the gov, are youing to F*$k you hard in the a$$ without lube" amendments are all named like "Peace Accord for 2010" or "Free Trade" or even "Free Beer"?

Watch, the next one will be called "Cuddly Muffins" and it'll be about how everybody gets a brain implant to "mitigate" (see: censor) anti-government thoughts.

F@#K!!
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 12:35pm

Re: Ever notice...
Why are you so against cuddly muffins? Are you some kind of monster?
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 12:37pm

Is this the equivalent of blaming the bartender, or the bar, for a patron who ends up drunk driving?
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 12:50pm

This makes no sense. First off, China has been very lax in copyright enforcement. This is why there are separate release windows and separate DVD region codes for China.

Essentially, the internet is a highway. But now, in building the highway, the insurance industry wants the highway to be monitored 24/7 so if an infraction or crash occurs on the highway, the Department of Transportation is responsible for reconstructing the events and providing video footage to protect the insurance industry's profits. The highway system wasn't originally built with a profit motive in mind. It was built for transportation. Much like how the internet wasn't built with a profit motive in mind, but has its roots firmly in place to facilitate communication.

Sure, this is a problem for the entertainment industry. But instead of pushing substandard content with the expectation that it will make money, and also holding onto legacy distribution methods, they should focus more on figuring out what works and how to derive revenue from it.

The internet is not a 'magical piggy bank'. Use your brain. If you don't, the market will walk away, and other businesses and industries will emerge that will take your place.
[ link to this | view in thread ]
Dark Helmet (profile), 20 Jan 2010 @ 12:58pm

Re: Ever notice...
I am hereby introducing a new bill to ban the use of extraneous symbols to censor one's own typed or written speech. It is called the "Sad-eyed And Three-Legged Puppies And Kittens Making Faces Act".

Vote against that shit....I dare you!
[ link to this | view in thread ]
chris (profile), 20 Jan 2010 @ 1:35pm

Re: Ever notice...
How come all of the "we, the gov, are youing to F*$k you hard in the a$$ without lube" amendments are all named like "Peace Accord for 2010" or "Free Trade" or even "Free Beer"?

war is peace. ignorance is strength. freedom is slavery.
[ link to this | view in thread ]
chris (profile), 20 Jan 2010 @ 1:36pm

Re:
Is this the equivalent of blaming the bartender, or the bar, for a patron who ends up drunk driving?

no. drunk drivers have no affect on hollywood's profits.
[ link to this | view in thread ]
chris (profile), 20 Jan 2010 @ 1:38pm

Re:
The internet is not a 'magical piggy bank'. Use your brain. If you don't, the market will walk away, and other businesses and industries will emerge that will take your place.

the internet will be a magical piggy bank once the entertainment lobbyists get done with it. it will be TV with a "BUY!" button.
[ link to this | view in thread ]
:Lobo Santo (profile), 20 Jan 2010 @ 1:45pm

Re: Re: Ever notice...
I think I'd prefer a "Anarchy Internet Act"--and hopefully it actually describes what it's for.
[ link to this | view in thread ]
btr1701 (profile), 20 Jan 2010 @ 3:01pm

Re:
> Well the main frame of china IS supposed to become the
> standard for America.

Main frame? What does that mean?

Are you saying that Chinese mainframe computers are going to become the standard for the American IP industry? Because that doesn't make any sense.
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 3:17pm

Re: Re:
However, internet piracy does affect corn farmers. That must be true. It just makes sense.
[ link to this | view in thread ]
Mojo Bone (profile), 20 Jan 2010 @ 4:36pm

Re: Re:
"the internet will be a magical piggy bank once the entertainment lobbyists get done with it. it will be TV with a "BUY!" button."

chris FTW!
[ link to this | view in thread ]
Anonymous Coward, 20 Jan 2010 @ 5:46pm

ACTA itself is bad enough, but here in nanny state of Australia, we are staring down the barrel of ISP-level mandatory internet filtering as well. Marry the two and it's not hard to imagine a nation-wide ban on access to torrent tracking and other filesharing services becoming a reality.
[ link to this | view in thread ]
The eejit (profile), 21 Jan 2010 @ 12:54am

I hereby issue a challenge
...to all the major record labels; put mt in charge of the RIAA for one year. I will attempt to make your businesses more viable, more transparent and much more profitable.

And I will do it for half of what you're paying your current executive.
[ link to this | view in thread ]
Hephaestus (profile), 21 Jan 2010 @ 7:38am

Re:
"it's not hard to imagine a nation-wide ban on access to torrent tracking and other filesharing services becoming a reality."

It wont work they would have to ban encryption and do deep packet inspection. The cost would make every ISP revolt. Thats why I see the passing of ACTA as a joke that will do the same thing that the lawsuits RIAA filed here in the US did. It doesnt bode well for them in the short or long run.

1) It will make headlines as it is used as a public education campaign-scare tactic.
2) be totally ineffective.
3) cause a bunch of deaths due to graduated reponse-three strikes as people cant use VOIP to phone out for help.
4) increase the use of encyption as people hide what they are doing.
5) bankrupt a bunch of people due to lawsuits.
6) be a total public relations nightmare.
7) create a bunch of applications that will allow for true annonymity on the internet as DNS, storage, and data transfer-routing are virtualized and decentralized.
8) lead to criminal charges and no knock warrents against file sharers.
9) lead to less and less people wanting to sign with the record labels as they become societally stigmatized.
10) lead to systems forming online to replace the record labels.

The end result will be the failure of the record lables. If the TV and movie studios follow in the foot steps of the record labels the same will happen to them as more competition occurs. Virtual sets, HD cameras, and video editting software will become cheaper and allow for anyone to create studio level shows on the cheap.
[ link to this | view in thread ]
mrG, 24 Jan 2010 @ 7:02pm

China? Why China?
Is there some reason you use China as the example? Why not use Canada? Canada is under the same rule-of-fear whereby the courier is responsible for what travels on their trucks, and from what the Privacy Commissioner tells me outright, in Canada, the ISPs are considered 'couriers' of packets travelling by trunk-line trucks.

So why pick on the Chinese as if they were something special? Is it their skin colour? Their language? The low probability of offending readers or exposing rubber-hose censorship right under our noses?

I'm just curious.
[ link to this | view in thread ]
Another Anonymous, 8 Feb 2010 @ 7:13am

I believe the very concept of censoring ANYTHING of the internet is a spits in the face of the internet. More so, what determines the limit of what is or isn't lewd? What is copyright infringement? What deteremines what should and shouldn't be censored? Inevitably, this WILL lead to the censorship of any anti-government statement or satire that would make a man of power feel uncomfortable. We all have a right to a voice and these fascists are about to take it away. I say that the founding fathers gave us a right to use and bear weapons, and I don't just mean for hunting animals.
[ link to this | view in thread ]
Robert, 14 Aug 2010 @ 5:28pm

A GAN would be nice...
We have some nice bits of software out there, with Peer to Peer and onion networks. It'd be really nice if the proliferation of wireless technology could be leveraged with that mindset to cut our requirement for an infrastructure that could be controlled out of the equation.
[ link to this | view in thread ]
Anonymous Coward, 25 Jan 2012 @ 12:21pm

So I suppose that the phone company would be liable if 2 people plan a murder over the phone?
[ link to this | view in thread ]