Censoring the Censors in the WTO - Southwestern Law School

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32 J. Int’l Media & Entertainment Law Vol. 3, No. 1 Government at that time was particularly concerned about the short time that computer manufacturers had been given to complete installation of a “technically flawed” filtering program (apparently, defects in the software at that time could significantly impair the functionality of a user’s computer), it also was concerned about the denial of manufacturer and consumer choice regarding filtering software. 73 Given that China is “the world’s second-largest PC market in terms of shipments[,]” 74 any such issue which “could depress sales of PCs in China” would concern U.S. computer manufacturers, the U.S. Government indicated. 75 In any case, if the Chinese Government’s goal in requiring installation of the Green Dam software was to suppress Chinese citizens’ criticism of the Government and the CCP, it appears to have failed to achieve this goal. In fact, as Rebecca MacKinnon, a journalism professor at the University of Hong Kong who studies Chinese internet trends, revealed, the main effect of the Green Dam software appears to have been a significant growth in netizens’ “questions about government intrusiveness and censorship.” 76 In particular, she explained, “searches for the term chinadigitaltimes.net/2009/06/us-trade-officials-say-china-web-filter-breaks-wto-rules (accessed Dec. 28, 2009) (reporting the Wall Street Journal article). Interestingly, The Wall Street Journal reported that “[t]he prospect of winning such a case is murky, however, since the WTO allows countries to impose regulations to protect public morals, as China says it is doing here. Chao, U.S. Trade Officials, supra note 72. In addition, The Wall Street Journal reported that “U.S. officials from the State and Commerce departments, as well as U.S. Trade Representative officials based in Beijing, met . . . with officials from the MIIT and Ministry of Commerce to express concerns that Green Dam would restrict access to the Internet and infringe on ‘internationally recognized rights to freedom of expression[.]’ ” Id. 73. Jacobs, supra note 54. 74. See, e.g., Mark Drajem, U.S. Protests Chinese Computer Censorship Regulations (Update 3), Bloomberg.com, June 24, 2009, available at http://www.bloomberg. com/apps/newspid=20601103&sid=aPyLvZjHpSzg (accessed Dec. 28, 2009) (referring to U.S. officials’ concerns with technical flaws in the Green Dam software and the denial of manufacturer and consumer freedom in the choice of filtering software used); Chao, U.S. Trade Officials, supra note 59 (noting U.S. officials’ concern with the short notice computer manufacturers were given to install the software and indicating that software researchers claimed parts of the Green Dam software were copied from a software program produced in the U.S.). 75. At some point, the U.S. Government could also file a complaint against China in the WTO under the TRIPS Agreement on the ground that the Chinese Government’s alleged infringement of a U.S. company’s filtering software design in its development of the Green Dam software constituted a violation of China’s commitments under the TRIPS Agreement. Wang Xing, Green Dam Developers Face Copyright Suit, People’s Daily Online, June 18, 2009, available at http://english.peopledaily.com. cn/90001/90776/90882/6680841.html (accessed Dec. 28, 2009) (noting that the Solid Oak software company based in California had already “sent ‘cease and desist’ letters to Hewlett-Packaged and Dell to stop distributing computers containing the alleged copied software and said it was considering seeking an injunction in a U.S. court”). 76. Chao, Chinese Delay Plan, supra note 59. 3058-088-3pass-02_Wright-r03.indd 32 6/30/2010 12:01:59 PM
Censoring the Censors in the WTO 33 fan qiang , or ‘climbing over the wall’—shorthand for circumventing China’s ‘Great Firewall’ of internet censoring software—soared after news of Green Dam became public in early June.” 77 Other forms of media besides the internet are also required to comply with a comprehensive set of prohibited content laws in China. In November of 2008, for example, the Chinese State Administration of Radio, Film and Television banned the on-going operations of the U.S. music magazine Rolling Stone , after it had published just one issue. 78 There are conflicting reports regarding the reason for the shuttering of Rolling Stone , but “[a]rticles in the first Chinese edition of Rolling Stone about a rock star associated with the 1989 Tiananmen Square protests and a blogger who wrote about her sex life pushed the limits of what is permissible,” the Los Angeles Times reported. 79 In another highlypublicized incident, after having repeatedly refused to permit the Rolling Stones rock group to perform in China, the Chinese Government in 2006 finally permitted the Stones to perform after they agreed not to perform their songs “Brown Sugar,” “Honky Tonk Woman,” “Beast of Burden” and “Let’s Spend the Night Together,” which the Government said contained “suggestive lyrics.” 80 At the last minute, the Government also banned one of the Stones’ newer songs (thought to be Rough Justice ), for the same reason. 81 Even if one personally agrees with the Chinese Government that some of the lyrics contained in the Rolling Stones songs that it banned are indeed suggestive or is at least sympathetic to the Government’s view on this point, 82 Mick Jagger’s sarcastic comment regarding this 77. Id. 78. Clifford Coonan, China Reels in Foreign Footage, Variety, Apr. 16, 2006, available at http://www.variety.com/article/VR1117941546.htmlcategoryid=19&cs=1 (accessed Dec. 28, 2009). 79. Mark Magnier, Rolling Stone Silenced in China, latimes.com, Mar. 30, 2006, available at http://articles.latimes.com/2006/mar/30/world/fg-sone30 (accessed Dec. 28, 2009); see also Carin Zissis, Media Censorship in China, Sept. 25, 2006, available at http://www. cfr.org/publication/11515/media_censorship_in_china.html (accessed Apr. 20, 2009). 80. Carol Kopp, Stones Rock and Roll in Shanghai, CBS News, Apr. 8, 2006, available at http://www.cbsnews.com/stories/2006/04/08/entertainment/main1482957.shtml (accessed Dec. 28, 2009) [hereinafter “Kopp”]. 81. Id. 82. In fact, the National Football League in the U.S. found certain lyrics in the Stones’ songs to be inappropriate for prime-time TV viewers when it silenced Jagger’s microphone as he sang portions of three songs during the February 2006 Super Bowl half-time show, just two months before the Stone’s concert in Shanghai. Id. Similarly, the Stones were forced to change the lyrics to some of the songs that they sang during their first performance on The Ed Sullivan Show in 1967. Id. 3058-088-3pass-02_Wright-r03.indd 33 6/30/2010 12:01:59 PM
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