Google And the Law, The Book

Did Google go too far ... or is Google victim of legal lag?

Yours truly had the honour to write a chapter for a very promising book called Google and the Law edited by Dr. Aurelio Lopez-Tarruella, of which I have so far only read my own chapter. But the colleagues I know are all very knowledgeable in their respective fields and we all share a passion for the law. Hope I will see them soon and meet the colleagues I have not met before.

My chapter 'Paradoxes, Google and China' is about the blessings of intellectual property and the evil of censorship, two subjects about which both Google and China had some issues. I forgot to place a disclaimer at the end of my chapter, which should have said: I used Google when researching the chapter and enjoyed the hospitality in Shenzhen at the same time.

The text of the publisher is:
Google has proved to be one of the most successful business models in today’s knowledge economy. Its services and applications have become part of our day-to-day life. However, Google has repeatedly been accused of acting outside the law in the development of services such as Adwords, Google books or YouTube. One of the main purposes of this book is to assess whether those accusations are well-founded. But more important than that, this book provides a deeper reflection: are current legal systems adapted to business models such as that of Google or are they conceived for an industrial economy? Do the various lawsuits involving Google show an evolution of the existing legal framework that might favour the flourishing of other knowledge-economy businesses? Or do they simply reflect that Google has gone too far? What lessons can other knowledge-based businesses learn from all the disputes in which Google has been or is involved?

This book is valuable reading for legal practitioners and academics in the field of information technologies and intellectual property law, economists interested in knowledge-economy business models and sociologists interested in internet and social networks.

Table of contents

1 Introduction: Google Pushing the Boundaries of Law . . . . . . . . . . 1
Aurelio Lopez-Tarruella
2 The Power of Google: First Mover Advantage or Abuse
of a Dominant Position? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sophie van Loon
3 Google AdWords: Trade Mark Law and Liability
of Internet Service Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Jeremy Phillips
4 Google and Personal Data Protection . . . . . . . . . . . . . . . . . . . . . . 75
Bart van der Sloot and Frederik Zuiderveen Borgesius
5 Google News and Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Raquel Xalabarder
6 Copyright Issues Regarding Google Images and Google Cache . . . 169
Miquel Peguera
7 The ‘‘Viacom v YouTube’’ Litigation and Section 512(c) DMCA:
When the Safe Harbour Becomes a Permanent Mooring . . . . . . . . 203
Annsley Merelle Ward
8 Looking Beyond the Google Books Settlement. . . . . . . . . . . . . . . . 239
Gary Rinkerman
9 Google Chrome and Android: Legal Aspects
of Open Source Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Malcolm Bain
10 Google, APIs and the Law. Use, Reuse and Lock-In . . . . . . . . . . 287
Andrew Katz
11 Paradoxes, Google and China: How Censorship can Harm
and Intellectual Property can Harness Innovation . . . . . . . . . . . . 303
Danny Friedmann
12 The International Dimension of Google Activities: Private
International Law and the Need of Legal Certainty. . . . . . . . . . . 329
Aurelio Lopez-Tarruella
13 In Search of Alterity: On Google, Neutrality and Otherness . . . . 355
Marcelo Thompson

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Looking into the Back Mirror: "If I Were For Real"

If I were for real, is a 1981 Taiwanese movie (including Hong Kong teams) that was censored in Hong Kong when it was still a British crown colony, because it was deemed too critical about the privileged life of the happy few of party officials.

Li Hsiao-chang (played by Alan Tam) tries to face the challenges in his life with ingenuity. And he has to, since he made his girl friend pregnant. In fact the movie is a kind of Chinese version of the Being There (1971), Jerzy Kosinski's masterpiece. Interestingly, the melody of "Like a virgin", played by an organ you can hear at end of part I and beginning of part II. Billy Steinberg and Tom Kelly composed the song in 1983, which launched Madonna's career. Maybe this music has been put under the video later.

To placate his future father in law he wants to buy a bottle of Mao Tai wine 茅台酒. But he cannot afford the needed twelve "dollar" fifty.

The liquor sales man said sarcastically:
"Just what I thought. That is what Nixon drank. Prime Minister Tanaka too. It's not for you."

Then Li ask what the cooking wine costs. Answer: "One twenty."
 "I can afford that. Now an empty bottle of Mao Tai, a red candle."
The liquor sales man nods and gives a sardonic smile.
Later you see Li putting the cooking wine into the empty Mao Tai bottle.

Here is Part II: In the beginning you can hear the melody of "Like a virgin" and fast forwarding to minute 3 you can watch the liquor scene.

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Corrupting Our Youth One Sing Contest At A Time, and Time-Travelling Still Possible

Super girl, o boy o boy!

In the year 399 BC, Socrates was sentenced to death by drinking a cup of Hemlock, because he corrupted the youth. In hind sight we hold his contribution to educate the population in high esteem. How will our progeny judge a TV programme such as Super Girl? At least now the creators of this programme are affected by a similar criticism that once hit Socrates: "vulgar, manipulative, poison for our youth". Read more here.

"I don't want to be vulgar ...

"Market access ban is the modern hemlock cup"
The Death of Socrates 
Jacques-Louis David 1787

We can debate about whether the ever o so impressionable youth can spend their time wiser (hurray for programmes about "practical information about house work"). But especially in a stressful hyper competitive society as China's, people also grave for some entertainment after a day chock-full of study or work. I think the more choice the better. Hopefully then the audiences gravitate toward higher quality. State Administration for Radio, Film and Television (SARFT) might not be in the best position to be a media critique. And it might be better if the government sticks to facilitating the preconditions for culture to blossom, which includes providing a varied TV programmes schedule with uplifting but also entertaining programmes. Therefore, and based on China's WTO commitments, China should give market access to foreign TV and film providers. Limiting them market access does not only harm foreign media providers (it does also indirectly, because it creates a huge demand for pirated works). It also harms Chinese audiences that miss out on good programmes and Chinese media providers that are not stimulated to meet high international standards.

... but I support their freedom of being vulgar."

I am quoting my colleague Tan Fugui, who inspired by Voltaire said this to me after reading this article. Tan Fugui adds: "a precondition, people have freedom of being vulgar as long as they dont penetrate other peoples right territory, for example, not involving outsider's privacy etc."

Must be harsh for American Idols producers to see that even their knock-off version is kept off the tube.
Read my 2005! blog post about the American Idols knock-off with Chinese characteristics, here.
Read my 2006 blog post about copyright allegations against Super Girl's producer here.

Time-travelling to Alternate Reality

Do you remember that SARFT forbid time-travelling, read here. Well, last weekend I went to the movies in CoCo Park, Shenzhen. And it seems that time-travelling is still possible ..., at least in the movie Source Code.

Spoiler alert
Via "Source Code" Captain Colter Stevens is in the body of Sean Fentress during the last 8 minutes of his life, just before a train blew up. With Source Code and some alleged quantum mechanics, that creates an alternate reality he is able to visit this last 8 minutes many times (using the memory of someone who is technically dead) in order to find who is behind the terrorist attack, so that this information can prevent future attacks. Stevens find a way to alter at least one parallel universe and is able to save the people on the train and can even contact the people of the control centre at Source Code via SMS.
End spoiler alert


The prohibition of time-travelling is to prevent to mislead or confuse uneducated people. Or is it because the future can be changed by going back in time? Or that future projections of many a science-fiction work (such as George Orwell's Nineteen Eigthy-Four which he wrote in 1949) is a kind of critique of contemporary society? But this could happen in a parallel society such as Avatar (that was blocked in 2-D, not 3-D, read here). But why stop there: one can start to interpret the Smurfs (very popular in China) as social criticism. Maybe Source Code slipped through the censor because it is too far fetched even for the credulous and gullible.

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Innovation: "Paradoxes, Google and China"

Google and China have found each other in a marriage of convenience, in order to serve the one god they both live by: innovation. This article deals with censorship and intellectual property. Two of the biggest challenges that the internet present to the legal community. The main characters are two of the biggest actors on the internet stage: Google and China. Google wants to offer all the information available to everyone, while not doing evil. China interprets having all the information available to everyone as an evil that will lead to instability.


Download the chapter here of Friedmann, Danny, Paradoxes, Google and China - How Censorship Can Harm and Intellectual Property Can Harness Innovation (July 1, 2011), which is a chapter of the book: Aurelio Lopez-Tarruella (Ed), Google and the Law, IT and the Law Series, TMC Asser, Forthcoming. 

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Digital Economy Act: Google Points Finger To China, But Patent Application Points to Google

Photo: Danny Friedmann
Google shedding crocodile tears about freedom of speech

Will the real freedom of expression lover please stand up? 

Just as "Digital Opportunity", Professor Ian Hargreaves' independent review of UK's intellectual property law came out, Eric Schmidt, executive chairman of Google is comparing UK's plans on copyright enforcement with censorship in China.   

He was quoted by Josh Halliday saying: “So, ‘let’s whack off the DNS’. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say ‘I don’t like free speech so I’ll whack off all those DNSs’ – that country would be China." Read Mr Halliday's article for PaidContent here.

Well Google does have first-hand experience with censorship, because in most countries, including China, they filter whatever the government wants them to filter. Ironically, Google went even beyond what is required by governments and filed an application in the U.S. to patent censoring methodology, that censors depending on the location of the user. Namely: 'Variable user interface based on document access privileges', U.S. Patent application number: 10/953,496, filed: September 30, 2004, assignee: Google Inc. (Mountain View, CA), you can find it here.

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Best of Google's White Paper: Censorship is Hurting China's Economy

Intellectual property and market access are interdependent subjects. If there is a barrier to the free flow of information (the market access is challenged, regulated or censored when it refers to copyrighted goods), no intellectual property can be exploited and this will feed a demand for pirated works and counterfeit products.

Google has problems accessing the market in China, because it cannot offer its users unrestricted access via its search engine and other applications. In the hope of solving this problem it published a white paper of 25 pages, see here: Enabling Trade in the Era of Information Technologies: Breaking Down Barriers to the Free Flow of Information, in which it appeals to basically everyone:

• "Focus on and publicly highlight as unfair trade barriers those practices by governments that restrict or disrupt the flow of online information services.
• Take appropriate action where government restrictions on the free flow of online information violate international trade rules.
• Establish new international trade rules under bilateral, regional, and multilateral agreements that provide further assurances in favor of the free flow of information on the Internet."

If this does not sound very innovative to you, it is because it is not.

The most persuasive argument: internet censorship is bad for the economy of the censoring country, because it is a restraint on global trade. The other arguments (trying to stop violation of international trade treaties such as WTO's TRIPs, unfair competition and favouring indigenous industry) might all be laudable and valid, but not as compelling to China right now.

Therefore it would be interesting to elaborate how censorship is hurting China's economy and stifling innovation. More about this subject later.

UPDATE November 18, 2010:

Ronald Yu pointed me to an interesting The Register article by Cade Metz 'Baidu boss: Google don't know China' that the problems Google is facing are not only related to market access. Thanks Ron.

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Say My Name Say My Name ...No Domain Name For Individuals In China

January 30th, 2010, Verna Yu wrote an interesting article for the South China Morning Post: 'Upset Net Users Show Their Discontent On Censor's Website'. Ms Yu wrote that the website of the government's internet censor in Hunan was attacked by hackers, that were, allegedly unhappy applicants for website approval.

The article explains that in China different levels of communication administrations act as supervisory authorities. For example: Sina.com needed about 10 different licenses from different government authorities for providing their range of internet services.

There is a recent regulation that prohibits to host individually owned websites. Only business licensed or government authorised websites can register domain names in China. The Chinese government said that this measure was taken to rein in the spread of pornography, but some allege the reason is to control the flow of information.

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Piracy Distributes Guns N' Roses Album in China

Mr Dean Goodman writes for Reuters that Guns N' Roses' Geffen Records label is not trying to sell their new album in China, because it thinks it will not be approved by China's censors, mainly because of its title "Chinenese D-mmocraxy", read here.

Mr Goodman: "China's culture ministry has the final say on such matters, although rampant piracy makes the job difficult." Besides, everybody can listen to the new album online for free here.

Mr James Areddy wrote more about it for the Wall Street Journal, here and here.

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