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.