Baidu’s perfect paradox: free speech and the right to censor

Originally posted on The Conversation, by Suzannah Wood and Nic Suzor.

According to a US court, ‘free speech’ means internet search engines can choose what they allow to show up and filter out.
Brian J. Matis/Flickr, CC BY-NC-SA

China’s biggest search engine has a constitutional right to filter its search results, a US court found last month. But that’s just the start of the story.

Eight New York-based pro-democracy activists sued Baidu Inc in 2011, seeking damages because Baidu prevents their work from showing up in search results. Baidu follows Chinese law that requires it to censor politically sensitive results.

But in what the plaintiffs’ lawyer has dubbed a “perfect paradox”, US District Judge Jesse Furman has dismissed the challenge, explaining that to hold Baidu liable for its decisions to censor pro-democracy content would itself infringe the right to free speech.

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Some assorted thoughts on the ALRC fair use report

The ALRC Report on Copyright and the Digital Economy was released earlier this month. It’s an extremely thorough and well-reasoned analysis of exceptions in Australian copyright law. The main thrust of the report is to recommend that Australia introduces fair use; in the alternative, the ALRC recommends consolidating the fair dealing defences and expanding the category of uses to which they can apply.

Overall approach

The ALRC adopts a conservative approach here. The suggestions it makes are by no means radical – usually, the ALRC suggests that existing Australian copyright jurisprudence will inform any new law, and the report steers well clear of making any suggestion that fair use would reverse some of the more controversial decisions.

This is the report’s greatest strength. The reasoning is unassailable, and the reforms suggested by the ALRC are mostly in the relatively minor form of clarifications, simplification, and fixes to issues that are commonly understood to be problematic in the current law. The ALRC seeks to build consensus on this limited approach – in such a way that pragmatic law reform might be politically feasible. Where there is real disagreement, the ALRC punts to the courts (in terms of identifying whether existing cases would have different outcomes under fair use) or to future law reform processes.

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Fairness in copyright – or why rates of infringement are so high

Here’s a paragraph from an article I’m writing about free-riding. It distils my argument about the role of fairness in copyright, and why the industry is only harming itself when it does things like make Game of Thrones only available on Foxtel: In recent decades, the copyright industries have been losing the normative high ground. Read more about Fairness in copyright – or why rates of infringement are so high[…]

How to archive for the future? Daniel Caron and Eric Mechoulan at Berkman

Liveblogged from lunch talk at Berkman

Daniel Caron explains that disintermediation makes things much more difficult for archives. Previously, archives waited for material to come to them – saw their role as beginning after the selection process. Now, if archives are to be able to perform effectively, they need to be much more active in the selection of material. There are three big effects of disintermediated digital publishing:

  1. “Here comes everybody” – there are fewer filters that archives can rely on to select works;
  2. There are fewer official interventions in the organisation of material – classification and description;
  3. Access has also become more direct and less mediated – people no longer want to talk to people behind a counter to access archives.

Archives are struggling to triage or select material – they have gone from receiving easily understandable information to a superabundance of information:

As literacy and technological capacity increase, we go from relatively meaningful, understandable and masterable traces to noise.
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Drake IP 2013: Keith Robinson, “The aftermath of Akamai”

Liveblogged from Drake IP Roundtable 2013. Considers joint infringement of a method claim. There was a patent covering something like the iTunes system, with four steps performed by at least three companies. Because no entity performed all of the steps, the patent is not easily enforceable. Defendants may say: “We may perform steps A,B,C, but Read more about Drake IP 2013: Keith Robinson, “The aftermath of Akamai”[…]

Drake IP 2013: Liam O’Melinn, “The Ghost of Millar v Taylor”

Liveblogged from Drake IP Roundtable 2013. Liam O’Mellin begins by noting that common law as a perpetual right was overruled in Donaldson v Becket. But the common law view espoused in Millar has done very very well in recent years in the US. Despite hiding behind the shield of rationality, there’s a natural rights argument Read more about Drake IP 2013: Liam O’Melinn, “The Ghost of Millar v Taylor”[…]

Drake IP 2013: Shontavia Johnson, “Memetic Theory, Trademark Law and the Viral Meme Mark”

Liveblogged from Drake IP Roundtable 2013. Shontavia Johnson presents her recent paper and future work. Asked why she couldn’t buy a “I am Trayvon” or “Justice for Trayvon” t-shirt. It turns out that these were registered as trademarks, and stores like Cafepress refuse to take the risks of printing the shirts. Less than 24 hours Read more about Drake IP 2013: Shontavia Johnson, “Memetic Theory, Trademark Law and the Viral Meme Mark”[…]

Sanity prevails: iiNet did not authorise its users’ infringements

And with one tweet, iiNet CEO Michael Malone announces the result that we’ve all been waiting for: IiNet did not authorize the infringements #iitrial More analysis will follow when the full written judgment is handed down, but it is apparent that the Judge was convinced that iiNet has no control over bittorrent and is not Read more about Sanity prevails: iiNet did not authorise its users’ infringements[…]