Sarah Jeong Pitches Copyright Conspiracy Thriller

In what sounds like an homage to Tom Clancy, Sarah Jeong, a contributing editor to Motherboard, presents us with a cautionary action thriller in which the Chinese government could theoretically disappear one of the most famous and politically significant photographs ever taken. And all because of American copyright law.  You know the photo. It’s the image that comes immediately to mind when you think of the 1989 Tiananmen Square protest—the still-unidentified young man who stood in front of a column of four Peoples Liberation Army tanks, taken by AP photographer Jeff Widener.

In her recent editorial, Jeong speculates that a Chinese company called Visual China Group may now own the copyright on the iconic image as the result of its purchase of a collection of works that had belonged to Bill Gates.  Jeong states that she does not know if the Widener photo is among the works purchased—there are other “Tank Man” images—and she further mentions that VCG has entered into a licensing partnership with US-based Getty Images.  Nevertheless, Jeong insists that her hypothetical censorship scenario is “not entirely implausible”, citing unpredictability of the Chinese government and proposing a scenario in which the photo may be widely removed from the Internet by means of DMCA takedown procedures.  In asserting that this already multi-hypothetical circumstance would be entirely the fault of American copyright law, the deus ex machina in Jeong’s plot hinges on the following supposition:

“As owners of the copyright to the photo, Visual China Group could easily launch a massive censorship campaign across the internet. The group only needs to send a notice under the DMCA to upstream service providers that host the Tank Man photo—Google, WordPress, Amazon Web Services, Wikimedia, Facebook. If a DMCA notice is valid, a service is required by the law to take down infringing content—or else it can become liable for copyright infringement.”

Of course, nothing she describes reflects an accurate portrayal of how DMCA works, even if Chinese authorities did currently have their hooks into this particular photo.  As rights holders know all too well, an individual notice must be sent in regard to each alleged infringement.  One may not simply send a blanket notice to WordPress and say, “Take this off every WP blog.”  Then, as explained in considerable detail in my last post, the counter notice is still the final word under DMCA provisions, after which the rights holder must litigate in order to pursue removal.  But apparently undaunted by her basic misunderstanding of this aspect of copyright law, Jeong presses on with the following:

“Although fair use could cover use of the photo, thus giving a service provider an excuse not to honor the DMCA notice, that’s by no means a certain defense. See, for example, Fox News’ legal troubles over a copyrighted photograph of firefighters on September 11th—although the news organization cited fair use, a judge denied its motion for summary judgment on the issue, and Fox News ultimately settled the issue out of court.”

It’s a little hard to tell if Ms. Jeong is writing carelessly here or simply doesn’t understand the safe harbor provisions in the DMCA, but nobody should be confused into thinking that it would be the OSPs like Google, WordPress, et al who would be asserting any kind of fair use defense in a theoretical infringement claim of this nature. It’s the individual uploader of the material who is the actual recipient of a takedown request processed through the OSP, and it is he or she who may decide to argue that the use is non-infringing.  The safe harbor shielding OSPs is predicated on the idea that they don’t see nothin’, they don’t know nothin’, and they don’t say nothin’ ‘bout no infringements by its users.

To make matters…worse?  Stranger? Sillier?  I don’t know.  Jeong randomly points to a case in which Fox News’s motion for summary judgment based on a weak fair use claim was appropriately rejected by a district judge; and she cites the example as if this one case is evidence that fair use defenses just don’t work.  Well, tell that to the same Fox News, which has thus far lost to TVEyes on the latter’s somewhat questionable fair use defense.  But as long as Jeong is already wet, she dives all the way into the deep end with this inscrutable speculation:

Journalistic usage of the Tank Man’s photos—which persist in newsworthiness and historical value for the public—should be obviously covered under fair use, but the actual copyright analysis isn’t much different from the Fox News lawsuit. And if that’s the case, perhaps copyright law is broken.

It is possible, of course, that Ms. Jeong doesn’t realize that news networks, photojournalists, reporters, etc. are all copyright holders and that these folks do not make a habit of poaching one another’s intellectual property on the grounds that they are doing the noble work of reporting the news. (This would be rather circular logic for infringement of journalism.)  But for sure, she either did not read—or does not remotely understand—the facts in the Fox News case to which she refers because the network’s fair use defense in that instance hinged on its argument that its use of North Jersey Media Group’s image on its Facebook page was “transformative” simply because it was hosted on a social media platform.

Perhaps one day a court will agree with a TV network or General Motors or Pfizer that its Facebook page is indeed a little haven of fair use, at which point we can ball up the fair use doctrine and toss it in the fire.  But for now, it is nearly impossible to imagine whence Jeong conjures the idea that her tens of thousands of hypothetical conflicts over the Widener image might each resemble the “analysis” applied in this one Fox News case. In fact, I’m not sure the district judge analyzed the fair use argument all that carefully so much as he just summarily called “bullshit” on it.

Naturally, the subplot in this Sino-censorship-via-American-copyright story is the implication that passage of the Trans Pacific Partnership will make matters worse by way of exporting DMCA-like procedures to US trading partners.  But even if Jeong’s censorship concerns were well-founded, what they might have to do with this trade deal is a mystery.  As far as China goes, when that government wants to censor something, I think they just censor it the old fashioned way.  And with regard to the US, nothing in the TPP would make her already exaggerated scenario work any better because the trade deal doesn’t implicate any change to domestic IP law.  But the real irony I just can’t let go is that while Jeong generalizes her concern that the “American government is exporting strict copyright law” to other countries, she may not be aware that it is Google and other major OSPs that have pushed as hard as anyone to export DMCA notice-and-takedown procedures abroad because its safe harbor provisions serve their interests.  To quote from an Internet Association statement on Tumblr,  “The Internet Association continues to push for strong policies such as DMCA to be incorporated explicitly in the TPP treaty itself to ensure a strong, robust Internet ecosystem.”

Finally, I think Ms. Jeong and her readers might want to breathe into a bag for a while before getting too stressed about China making its human rights record disappear into Santayana’s axiom by way of US copyright law.  I remember where I was at that time in 1989; I was watching CNN broadcasting its very dramatic video footage of this brave young man facing down the tanks—footage CNN still owns and that can still be licensed for educational and other uses.  This is to say nothing of the myriad uses of the Widener photo that no entity is likely to stuff back into the bottle—let alone stifle legitimate fair uses.

Above all, this chronic hyperventilating over the prospect that copyright makes things disappear is not only carelessly reasoned but also places way too much value on social media and other ephemeral Web platforms as repositories of important information.  As Jeong herself proves with this particular article, anyone can put anything on the Internet without the burden of even a good faith effort to be accurate.  And this is probably a more effective a way to burn the proverbial history books than anyone’s attempt at censorship.

© 2016 – 2017, David Newhoff. All rights reserved.

Follow IOM on social media:

27 comments

  • This is to say nothing of the myriad uses of the Widener photo that no entity is likely to stuff back into the bottle

    So I see we agree that nobody could do it if they tried. In other words, copyright is unenforcable.

    But let us say that it was enforcable: is it really something to be desired?

    The situation regarding bad actors is not hypothetical. Team America was pulled from theatres by Paramount during the Sony hack because they feared such provocation would lead to them being attacked next. Nobody turns down that kind of publicity and opportunity for profit so easily. And considering how Paramount didn’t even pass on the rights to someone else, had until that moment been very ready to express an anti-Kim opinion, the danger posed by copyright is even worse than this hypothetical Tank-man-photo scenario. These are anecdotal stories, but I think we can all agree that it best stays that way.

    But no! Copyright insists that such laws of ownership of expression – as opposed to free expression – must stand even if such insanity is expressed by the rights holder. Not just if the copyright falls into the wrong hands after being sold, but also if the original holder is in a wrong state of mind completely. It seems to me that one can’t just hide under the blanket of “hardly anyone does this anyway” – anyone serious about the matter has to confront it head on, and ask what the consequences are.

    As rights holders know all too well, an individual notice must be sent in regard to each alleged infringement. One may not simply send a blanket notice to WordPress and say, “Take this off every WP blog.”

    You know I can’t help but wonder if after all this campaigning for “notice and staydown” that you seem disappointed that someone wouldn’t have the power to do this. You seem to be entirely trustworthy of the copyright holders – whoever they may be and whatever state of mind they may be in – to do the right thing. They truly are incorruptible!

    As far as China goes, when that government wants to censor something, I think they just censor it the old fashioned way

    Such censorship of, say, dissenting cinematic movies – the only piracy China cares about – would nonetheless have to be applauded by rights holders across the Pacific if they are to be consistent with what they believe in. And I have seen such actions applauded as “the first step towards copyright enforcement in a new China” in tones of useful idiocy. As you know piracy is the only way these movies can circulate under detection from Chinese authority, and the odd torrent website that the Great Firewall might have missed is indeed usually the only outlet for such much-needed revolutionaries. But shut it down in America, and you will get applause from the usual circles. While the ordinary Chinese citizen will have one less lifeline in his struggle. And people who point this out are dismissed by copyright advocates as “armchair protesters” who “think stealing is the way to fight the system, how pathetic”! Are they listening to what they are saying to the faces of those on the other side of the planet? It’s an utter profaning of the cause of those who don’t want artificial hurdles to the naturally scarce, and all for nothing as piracy runs rampant in China in the end anyway. The isolationist mentality evidently doesn’t think many steps ahead, and this isn’t even getting into the disgraces related to the prevention of translation of languages – also something copyright will never prevent and quite thankfully.

    This inconsistency has to be resolved one way or another. Either you believe in the stopping of unauthorised copies, or you do not. You have to believe in the stopping of unauthorised languages of your copies, or you do not. If you do, you have to accept the consequences that any motive of the authority in question is fair game, no matter how illiberal. If you don’t, you have to challenge the original, core assumption that ownership of expression is incompatible with freedom of expression.

    Above all, this chronic hyperventilating over the prospect that copyright makes things disappear

    I would have thought that one of the most basic things you were allowed to do with your “property” would be to make it disappear i.e. destroy it. Alas, the endless cherry-picking of property rights by copyright philosophy whenever it suits always amuses me.

    I mean, do we see the extreme complexity of the American Tax Code as a personal challenge? Copyright strikes me as this philosophy that would rather add a new rule to its massive exception rulebook instead of confronting a contradiction head-on with honesty. It’s almost as if deep down we don’t desire the logical implications at all.

    • Sorry, James. I was going to try but that is such a litany of fallacies mixed with paranoia, that it’s too much work. I do have to single out your faux solidarity with the Chinese citizen whose “lifeline” is media piracy, though. Your portrayal of the Chinese dissident connected to culture only through pirate channels is bad movie plot in itself suggesting that you don’t really know much about China. History shows that one of the best things that can happen for freedom of expression in a society is an empowered creative class. Nations that have functioning copyright laws also have vibrant creative economies and free speech; nations that don’t, don’t. America has had copyright and free speech since Day 1, and we sill have the most liberal free speech policy and culture in the world. The problem with this entire line “debate” is that people actually think the Internet has changed everything.

      • I’ve got nothing to be paranoid about really. These are “what-ifs”, namely what if copyright law can actually be enforced. Which I have no fear of whatsoever.

        Let me keep it simple then. Do you think an author here in an English speaking country has the right to (try to) prevent Chinese readers from reading his book through the copyrights reserved regarding translation, yes or no?

        And I don’t exactly need the internet to hold these views. Research shows most of the piracy in China (no doubt uncritical of the state) happens through under-the-counter DVD sales, not through the internet. There is a reason why we stopped bartering with salt. I could have proven that point with DVDs and even paper if I wanted. It is the burden of copyright advocates to show how society can be deterred into scarcity, where they could get us to seriously still trade in salt if they wanted.

      • James, unless I wrongly interpret your invocation of Paramount in this context, you seem to be operating under the misapprehension that an author has a moral obligation to publish no matter what. Suppose Salman Rushdie decided upon completion of his manuscript of Satanic Verses that he didn’t want to make himself a target and to withhold publication. Would he have committed an act of censorship at that point? If so, that is a morally corrupt line of reasoning. Alternatively, suppose a creator sought to hold back distribution of a work specifically because it would be censored or altered by authorities in a particular country.

        I don’t know if Marjane Satrapi’s Persepolis is available in Iran, but assuming it isn’t, that is the kind of strong moral argument for “piracy” and unlicensed distribution–one I’d be willing to bet the author herself would applaud. But this kind of underground reading, if you will, is not why enterprise-scale piracy exists by any stretch; and it is also the kind of subversiveness through culture that has existed long before the Internet.

      • Of course he does, just as a Canadian manufacturer could determine that their product should have no US distributor. It wouldn’t stop a US citizen from buying it from Canada or where ever. As for translations an author may have lots of reasons not to allow a foreign translation. Example I may object to having ‘humour’ translated to ‘humor’ and other barbarities.

      • @John Warr

        Well then there is a deep moral division between us right there.

      • I’m not obliged to provide anything to anyone. You have no rights to expect me to provide you any thing in the format or language you prefer, Indeed it is a well established principle of the US constitution that no one can force any other to speak against their wishes. It is also a well established principle outlined in SCOTUS rulings that the granting of a copyright is not dependent on the holder exploiting it, that they may do nothing more than exclude others from using the work.

      • @David Newhoff

        I think you’ll find that there’s no equivalence between your argument of stopping yourself from publishing a work, and my argument of stopping someone else from publishing the work. If I decide to withhold a work at the last minute, that’s fine, I am at liberty to do that, though I would have to refund those who paid for it beforehand. But after the initial revealing of the work I cannot then morally go around saying nobody else is allowed to publish it. Which is what Paramount had done to a cinema trying to stand up to bullying on Sony’s behalf.

        And I especially cannot say that only English speakers may be allowed to read it. These language barriers are positively poison, reak of isolationist mentality, encourage tribalism as opposed to globalisation, and stretch all the way back to religious fanatics insisting that the Bible may only be written in Hebrew and the Koran only written in Arabic. Thankfully however, such attempts of utterly ruthless de-facto copyright enforcement had failed even at that level. (This is what the ridiculous libertarian image of defending your property with a gun on the “intellectual” field really looks like, by the way).

        Intellectual property is, and the clue is in the name, all in the mind. It’s not enforceable, and why on Earth would we want it to be? Ownership of expression is necessarily not compatible with freedom of expression – it can’t be if you can deny millions of folk the ability to read a book based on the langauge they speak.

      • You’re theoretical position aside, the Paramount example is a terrible one. Film exhibitors are not remotely akin to publishers. The distributor does not provide a limited exclusive license to the exhibitor and probably isn’t even allowed to do this. An exhibitor rents a print and sells tickets. That’s it.

        As for your larger view, all of law is a product of the mind; and IP clearly is enforceable, and we have the caselaw to prove it. You might as well say anti-discriminatory laws are imaginary since there are no doubt daily infringements in this regard that go un-litigated for various reasons. This does not mean these transgressions do not have the force of law behind them.

      • But after the initial revealing of the work I cannot then morally go around saying nobody else is allowed to publish it.

        What is the basis for that? What moral grounds do you have to say that what once something is published it must always be republished? If X publishes an error are they morally bound to forever republish it?

      • fanatics insisting that the Bible may only be written in Hebrew and the Koran only written in Arabic

        Both are 1000+ years out of copyright.

        it can’t be if you can deny millions of folk the ability to read a book based on the langauge they speak.

        Many works are ruined in translation “Translator traitor” is an oft repeated phrase. A literary author may have real problems approving some translations.

      • @John Warr

        If anything, a situation without copyright would be far better at creating translations of works that are as accurate as possible. There is a cure for traitor translators: the freedom to translate an alternative regardless of permission and challenge the status-quo translation, the status quo being supposedly correct solely and utterly because the copyright holder says so, according to the argument from authority you just put to me. Never mind the fact that foreign historians would also be able to start researching primary sources instead of being imprisoned to secondary sources, which is another issue that stems from this.

        And the point about the holy books is that you would instantly be advocating the same case as those believers for restrictions on translations if it was found that the books had been copyrighted back then. I’m trying to make you aware of what the moral consequences of that would be.

        I feel like I’m getting nowhere with this basic question on translation. John is advocating blocks whatever the moral consequences, but David hasn’t given me a direct answer – more like a euphemism of “authors aren’t obligated to publish” as if everybody else should be obligated to burn blasphemous translations. I mean at least with physical property you can get around such a petty cultural wall through a third party, but not so with translation blocks.

        So I’ll leave it there. All I can say is I find it deeply profane to reason and basic integrity that we should deprive an entire population of a foreign language the same literary fortune and enlightenment as those of the “correct” language and all at one person’s whim.

      • The question is whence comes your notion of deprivation in the first place? Most authors want to be translated and distributed as widely as possible. Yes, they want it done in a licensing regime that compensates them, and they want reputable publishers and translators. But I have no idea, other than hypothetically, why we’re on the subject of withholding works a general practice.

        Just because Sarah Jeong concocted a Rube Goldberg scenario involving the Tank Man image–and got several points flat wrong about the law–does not mean we should be seriously discussing authors using their rights to disenfranchise a particular market, because that’s generally not what happens. I assumed you were speaking in pure hypotheticals and oddball circumstances. But there is no reason to get in a ruffle about depriving the heterodox society on a whim.

      • There is a cure for traitor translators: the freedom to translate an alternative regardless of permission and challenge the status-quo translation

        Er no. What you will get is a mass of shoddy as various people attempt to undercut each other. Would you know whether X translation of a Ukrainian work was good or not? I certainly wouldn’t. I might catch it if a translation reverts to pigeon english, but I certainly wouldn’t pick up on subtleties.

        Never mind the fact that foreign historians would also be able to start researching primary sources instead of being imprisoned to secondary sources

        In which case they won’t be reading a translation they’ll be reading the work in the original language.

        And the point about the holy books…

        Zealotry comes later in the course of religion. The Koran was translated into Persian in the 7th century, and into Greek in the mid 9th century. Hardly surprising that a proselytizing religion would want to spread its sacred writings. Early Judaism used Hebrew as its priestly language, but that was replaced by Aramaic, and then Greek. Once again a proselytizing religion needs to have its sacred writing in a language that converts can read. Cicero talks of a of jewish believers in great numbers in all the cities across the Roman Empire. Scholars estimate something around 4 million across the ancient world. This would be remarkable given that the majority of Judeans living in the Levant were tillers of the soil and that they were not a maritime nation, the most plausible explanation being that, these jewish believers were converts from pagan religions to the new monotheism. Judaism in the final 2 centuries BCE was proselytizing.

    • RE Paramount: Someone that holds a gun to some else’s head and says do X has nothing to do with copyright.

      RE The tankman photo: Right to publish have been given to numerous publications no one can resind those rights.

      RE Copyright owner deciding not to license a work any more: How is this any different from a manufacturer discontinuing a product line?

      RE Take down and stay down: If I send a DMCA notice regarding usage on pirate site X the likelihood that I’m going to allow usage on pirate site X tomorrow is vanishingly small.

      • RE Paramount: Someone that holds a gun to some else’s head and says do X has nothing to do with copyright.

        Even when enforcing the copyright is the very thing the gunman is asking to do?

        RE The tankman photo: Right to publish have been given to numerous publications no one can resind those rights.

        And what would you be saying if this were not the case? That the rights holder has a moral right to stop any and all circulation?

        RE Copyright owner deciding not to license a work any more: How is this any different from a manufacturer discontinuing a product line?

        Because another manufacturer is not allowed to start his product line as a replacement. Again with this property cherry-picking! Intangible one time, tangible the next. Dualist when it suits, materialist when it suits. Moving the goalposts and completely unfalsifiable. Well at least I know what the answer to my previous question is now.

        RE Take down and stay down: If I send a DMCA notice regarding usage on pirate site X the likelihood that I’m going to allow usage on pirate site X tomorrow is vanishingly small.

        I’m not sure what point this was meant to be addressing.

      • What copyright was paramount violating? If this were not the case you wouldn’t be aware of the picture. Yes the creator has the right to stop any new publications. But they don’t have a right to stop publications already agreed. They may have the name disassociated from such publications though. Correct a 3rd party manufacturer cannot produce fakes of the original. Takedown staydown is specific to a site.

    • Sigh… First of all the movie was The Interview, not Team America, but that’s immaterial. As well, the Paramount action (and frankly I don’t blame them for wanting to protect their theaters and their employees; no one should die because of a movie) didn’t prevent it from being available on demand and yes, in some independent theaters.

      Also, rights holders absolutely have the moral right to not be published; many creators refused to have their work available in apartheid era South Africa. You may disagree with that choice, but it’s theirs.

      Finally, considering that Google has caved in to pressure from China all on their own, why is copyright the bad guy?

      • Actually, James is right about Paramount pulling Team America in response to threats stemming from the hack of Sony, which is the distributor for The Interview.

      • Also, rights holders absolutely have the moral right to not be published; many creators refused to have their work available in apartheid era South Africa. You may disagree with that choice, but it’s theirs.

        What is the implication here? That in the name of resisting racism, South Africans should be forbidden from reading books upon a whim simply because they are South African?

        Finally, considering that Google has caved in to pressure from China all on their own, why is copyright the bad guy?

        I repeat my issue of translation above, where copyright very much is the “bad guy” if it insists, say, Chinese people should be forbidden from reading something simply because they only speak Chinese.

    • Oh, and this may blow your mind, James, but *all property* is in the mind. The idea that anybody owns anything is an agreed-upon abstraction, if you want to go down that route.

      • I was stressing the difference between the tangible and the intangible.

        Though you know what else is all in the mind? Fiat currency. But that still doesn’t stop us from seeing why jpeg dollars would be a silly idea. As well as digital voting and all other cyber-utopian concepts headed for the dustbin of history.

        Though the utopian philosophy of copyright can be compared to enforcing jpeg dollars, it’s sometimes actually a step above the madness of some libertarians calling for a return to the gold standard: a return to the good old days of a salt standard. Where if we say it’s scarce, it’s scarce, and that’s the end of it!

      • James you do realize that what you are objecting to is entirely a fabrication of your own mind.

  • “What is the implication here? That in the name of resisting racism, South Africans should be forbidden from reading books upon a whim simply because they are South African?”

    Mostly it’s because authors have the right to not financially benefit a system that the don’t believe in. And yes, part of is because they wanted to protest apartheid. And that was their choice, whether you like it or not.

  • actually, even if property is “tangible” someone’s claim to it is an abstraction. the only reason Trump owns any buildings is because of an agreed-upon set of laws that have no basis in nature.

  • “I repeat my issue of translation above, where copyright very much is the “bad guy” if it insists, say, Chinese people should be forbidden from reading something simply because they only speak Chinese.”

    An author should have the right to approve of the translations of their work. Not sure why that’s controversial.
    This is rather bizarre, because while you start with evil governments and corporations you end up cracking down on individual creators who don’t cotton to the “everything should be free!” philosophy.

  • Pingback: Masnick Makes a Hash of Fair Use & Censorship - The Illusion of MoreThe Illusion of More

Join the discussion.