Here is a very brief explanation to and my viewpoint of the latest development of China’s compaign to the Internet Controlling. Like my other ideas, this one might not be mature enough. But anyway, the reason of saying something is to get the commentaries and/or criticisms.

1. The definition of the Splitting Internet Governance: it has multiple meanings

(1) The separation of the Internet under the governance of ICCAN (at least namely) and the “Cinternet” under the the governance of the China’s government;

(2) the departed jurisdication of the Internet Governance in China.

2. The history of China’s Internet Controlling: My own division of periods

Regulation/legislation regardless the techonology neutrality (1996-2003)

–> Technology Control but very low frequency to enforce the regulations (2003-2005)

–> Begin to rely on the law enforcement but the technology control is still the main stream (2003-2009)

–> Using the law, and put the technology filtering mechanisms the second place (2009)

3. Pros and Cons of the above Transform in 2009

Pros: It finally go back to the track of lawyering.

Compare:
2007: No one know who ordered to shut down the website, and sometime no one know the reason.
2008: At least one knows who ordered to shut down the website.
2009: The reason of shut down is explained, and the subject is clearer and clearer

Cons:

(1) The old law (regulation was promulgated in 1990s, and the provisions are not compatible to the ) and the older approach by itself are arbitrary and immature, the enforcement may cause the officals find the benifit of the selective enforcement.

(2) The law may not compatible to the other parts of the “Internet”. The conflicts may be everywhere. The “dark net” may be highly developed.

4. the Down-to-Earth Solutions

… forthcoming…

From December 14th to December 20th, 2009, seven new Chinese entries have been posted to the Blawgdog. Here are the brief one-sentence abstracts for the English readers’ reference:

• Top Ten 2009 Copyright News in China
  Chosen by the China Copyright Journal. I added the referral links to those news that had been commented at blawgdog.
• It’s Wrong not because of Burdening the Duty of Carefulness, but because of Providing Joint Liability
  Some Beijing academicians oppose Article 36 of the drafting China’s Tort Law Bill by saying it should not burdens the ISPs the duty of carefulness. I clarified in this essay that the key problem of Article 36 is wrongfully providing a joint liability to the ISPs. 
• Turning Exemption Provisions to the Criterion of Liability
  This article is also about Article 36 of the drafting China’s Tort Law Bill. I noted that, in the legal transplantation in recent years in China, the exemption provisions in foreign legislations are often (intentionally or mistakenly) shifted to be the criteria of liability. For example, Sec. 230 of the CDA in US is an exemption arrangement, while Article 36 is a criterion of liability; another example can be the safe harbour to the ISPs in the DMCA (on the so-called red flag test) was wrongfully transplanted to be a criterion of liability.
• Xinhua News Agency: China will not Resolve the un-recorded Domain Names
  This entry has been translated into English at here.
• I See the Historical Day
  This post mentioned the latest news: the Ministry of Industry and Information is proposing that the foreign enterprises “must register domain names from Chinese registrars if the names are used for business in China. The domain names oversea registered shall not be used in the businesses toward China.” And admitted the state will “supervise the domain names that launches the website oversea, and take measures to control the foreign name registrars”.
• Reprint: Two Articles by Mr Youxi Chen
  Chen is a lawyer, and the vice Chair of the Committee of the Constitutional Law and Human Rights in China Bar Association. He published two articles at his website blaming the newspaper misleading the mass in reporting the news that lawyers are arrested in ChongQin. He argues that the Chinese lawyers are in very hard social environment now.
• China IP Weekly Newsletter
  Writen and edited by Luckie Hong, a co-author of BlawgDog, reporting the latest news in IP Law. This issue includes SNDA Literature (NASDAQ: SNDA’s subcompany) annouced suing Baidu for over one million in infingement of copyright, and the new development of Netac v. Sony, and other 7 latest news.

Seven Chinese posts have been posted to the Blawgdog from December 3rd to December 13th, 2009. Here are the brief one-sentence abstracts for the English readers’ reference:

• A broadcast station = A Karaoke Shop?
  This essay roughly compared the standard of remuneration of using music recordings in the broadcast and TV programs (promulgated by the State Council, and will be enforced since 1 Jan 2010) and the standard of royalty to the Karaoke shops (provided by the state administration of copyright). It seems the former is very low. And it seems the state owned enterprises (all broadcast and TV Stations) always get more institutional benifits than the private enterprises (most Karaoke Shops are of private) in the entertaimet industry.
• Fighting Google Unarmed?
  This article has been translated into English, click here.
• Answer Shizhao: why searching Books will infringe the copyright but searching webpages will not?
  Shizhao is the top cordinator of the Wikipedia Chinese. He asked the question at BlawgDog. As for “why searching books will infringe the copyright”, some of the answers are translated into English at here. As for the webpage searching, I pointed out that actually even (1) searching the webpages; (2) providing the cached pages may infringe the copyright under Chinese copyright law.
• It Is Contrary to the Right Way of the Internet: On Article 36 of the drafting China’s Tort Law
  China is drafting a Bill of Tort Law. In its exposure draft, Art. 36 burdens the ISPs joint liability to all kinds of torts (with a safe harbour of notice -nd-take-down). I strongly opposed this provision in this short comment.
• The Function of the Domain Name Registration Informations: Protect Private Rights but not Aid Social Control.
  The information provided by the registrants for domain name registration are originally functioned as a facilitation of protecting either the rights in trademark or the right of the domain name holders. However, some Chinese administration made the mistake and thought they can be used to aid the social control.
• Academic Paper: The Review and Reflection of the History of China’s Regulations on Domain Names.
  My 2005 paper and had never been published at Blawgdog. I republish it because the new round of  Internet controlling compaign in China is focusing on the domain names. Some of my arguments in the paper are still useful for the current situation.
• Ploughing the way to the Civil Society: the Qualification of Registrating .CN
  China actually had never permit the individuals registering .cn domain names. But the customary law and even the dispute resolution had admitted the right of individual .cn holders. Now the customary law encountered the state law when the government swipe the Internet recently in the name of anti-pornography.

To control the pornographic websites, China’s Minstry of Industry and Information annouced today five measures that the registrar (CNNIC) and domain name registration service providers shall do, .

1. Establish a blacklist of the the domain name holders whose website has been shut down by the government.

2. The  applicants of domain names must provide all the informaiton for the name registration.

3. If a website is not approved to “record” by the telecommunications administration bureau, the affiliated domain name shall not be resolved.

4. Once a website is found “pornographic or illegal”, the resulution of the affliated domain name shall be stopped, and all other domain names that the same registrant has held will be suspended to be resolved. And the registrant will be listed in the blacklist.

5. Investigate the way of coorporation, modes of advertisment and the way of connection between the regsitra/domain name registration servicer providers and their cooporative partners.

This time, based on this announcement, not only .cn, but also all the domain names registrated/managed in China will not be reolved unless the corresponding website is “recorded” (actually approved) by the government. And if one’s webstie has been shut down, she may not be permitted to registrate new domain names.

A “Map of Internet Encirclement Compaign in China” was released by some Chinese netizens yesterday. It is very interesting and has been switfly spreaded to BBS and weblogs in Chinese Internet sphere.

Here is an English translation of the map (click the picture for a better view):

[Background] “The Wars of (anti-)Encirclement Compaign” were a series battles between China Communist Party and the KMT‘s Nanjing Gorvernment in 1930s. At the time the CCP established a government in south-central China (mostly in Jiang Xi Province). The KMT’s army tried five times to attack and encircle the territory of CCP’s regime. And The CCP’s Red Army was almost defeated in the Fifth Encirclement War in 1934. The Long March followed the war and rescued CCP and its army.

I just read Tim Hwang’s essay on the “Berkman School”. It is very interesting although I am not a fan of categorizing “schools”. He says Berkmanites tend to share the notion that the Internet has specific configuration of features, such as openess, freedom and unfathomably deepness. Hence the fire-walled China’s Internet might not be regarded as “The Internet”.

This might be correct when one asks the Berkmanties what is the “ought to” Internet in their minds. While as a Berk-freshman, I’d rather considering what is the truth of the Internet. In my suspicion, the nuance or even major variety of cyber ecology among different countries/cultures/languages/regimes is unavoidable and has actually been formed for years. Considering the 1 billion accounts of QQ, the seperation of the Internet, the isolation of various version of “Internet” seems not merely a trend but also a truth. The problems seems not only “what are the features of the Internet distinct from the pre-internet society”, but also “To each pre-internet community, what are the features of the Internet respectively.”

Rebecca MacKinnon says there is a “Cyber-tarianism” not uniquely in Chinese Internet sphere. I am waiting for reading that. Nevertheless, I assume there is a trend of Cyber-ANY-isms emerging from everywhere. At this stage, shall we take a “cyber-pluralism” into account firstly?