National content restrictions: Heed the rule of law

The amoral, unprincipled demimonde of warez-ripping d00dz and Napster habitués was OUTRAGED! the other day when a French court ordered Yahoo to take technical steps to block U.S. “content” from French eyes. The content in question is any information about Nazi “memorabilia” (a bit too innocuous a word) that is up for auction or sale. (Apparently information about Nazi memorabilia in other contexts is permissible. Do we imagine Antiques Roadshow–style euphemisms, like “This armband, for appraisal purposes only, might fetch £2,500 at auction”?) In any case, it was a just decision.

We believe that a “freewheeling” Internet that ignores national borders is a nice enough thing and is quite desirable most of the time, but should not be depended on. How unfashionable, we know. It boils down to this:

Content creators want national and international laws respected when it comes to, say, copyright.
Laws preventing you from duplicating Yahoo’s homepage on your site infringe on your ability to express yourself through that means. Such laws are justified, John Perry Barlow notwithstanding, because the contexts in which you can give away your work and still make money off it are few and far between and need to be preserved by rule of law. (It is OK to voluntarily give away your work without expecting payment. If, however, you need the money to survive or simply want compensation for your effort, you’re going to need protection one way or another, either by the Mob or by Jack Valenti screaming in your opponent’s telephone handset or by copyright legislation.)
Copyright laws also permit holders to limit the territories in which their works can be enjoyed. You can sell your novel in Italy but not in Spain if you hate the Spanish for some reason. It is occasionally annoying, particularly for Americans, to be unable to watch British TV shows, but that’s the way licensing works.
Scope of copyright varies from nation to nation. For example, an author’s moral right (droit moral) is a serious point of contention in Europe (principally the U.K.), but much less important in Canada.
Freedom of expression is limited everywhere in the world. Libel and slander laws are the most common entrenched limitations in the West. In that case, as in copyright protection, illegal expression (unauthorized duplication; libel; slander) might get you nailed.
More benignly, opponents of censorship point out that, with sufficient warnings, a television program with violence, sex, nudity, or swearing (or atheism or homosexualism or paganism or vegetarianism or whatever else gets uptight right-wing Christian evangelicals even more uptight) can nonetheless go to air; it causes less harm to require you to choose to watch it or not than to squelch the free expression of the creator. Go ahead and write, direct, shoot, and sell your show; don’t expect us to watch it necessarily. You can push; we may nonetheless decline to pull.

Using these precedents and analogies, then, a law restricting the sale of Nazi memorabilia merely falls into this continuum of restrictions on the origination of content (Cf. free speech) and its reception (Cf. licensing laws). Your homepage or Internet service, domiciled outside France, may say whatever it wants about Nazi memorabilia. When it comes to France, however, you must comply with their laws. That is particularly true if you want their other laws to apply to you, like copyright protection.

You have a right to create your Nazi memorabilia site. France has a right to block it. While this may seem like stalemate, the rule of law is like that sometimes.

Before the Slashdot kidz get all high and mighty, note that we tolerate cross-border Internet restrictions only when they derive from laws. Individuals and companies should never try to restrict your viewing of their “content” by virtue of where you reside. (Or really, for any other reason, except perhaps paying a membership fee.)

Such actions, apart from being bad business, are governmental in scope. Individuals and corporations shouldn’t be finding you guilty of trespassing, theft, murder, or adultery, either. We have laws for that, too.

If you resent the stalemate and feel the laws are unjust, agitate for their repeal. North Korea, various Islamic countries, and China all come to mind. You have many options. Concerted civil disobedience is one form of agitation. A stinking-rich crybaby empire like Yahoo cannot, however, lay any moral claim to civil disobedience; all evidence shows that the portal juggernaut has simply filled 747s with lawyers and airlifted them to France, the standard modus operandi of the aggrieved corporation.

We see an undercurrent of juvenile peevishness in the entire case, with Jerry Yang blurting, in an imperious and indeed xenophobic and America-first manner, “We are not going to change the content of our sites in the United States just because someone in France is asking us to do so.”

Indeed, the U.S. constantly attempts to enforce its laws overseas. Remember the commando raid to capture alleged “terrorists”? The Motion Picture Assn. of America is a parallel U.S. government, and it has nearly unblemished success at frustrating other nations’ efforts to put their films first. U.S. cultural hegemony – the aptly-named military–industrial–entertainment complex – has been ongoing throughout the postwar era, and our American friends would like to see it continue. All of the above says nothing about international espionage and wiretapping (and the least said the better, given that France is an equal malefactor in that regard, and all the Western countries spy on each other, cooperatively or covertly).

But let any country attempt to enforce its own laws on its own soil, with any kind of effect in the United States, and the righteous indignation flows like treacle. Can you say “hypocrisy”? (The miniseries A Very British Coup documents exactly this phenomenon.)

This, by the way, is not a theoretical issue for us. Case in point? Showtime. Picture our surprise the other day when we tried to take a look at the Official Web Site™ for the upcoming series Queer as Folk (itself a remake of a U.K. series – national licensing, anyone?). Hailing that page from a Linux box domiciled in Canada produced this infuriating message:

We at Showtime Online express our apologies; however, these pages are intended for access only from within the United States.

Evidently the system had done a quickie IP-address lookup and deemed us foreign. Checking the same page through another, rather more international provider (whom we won’t name, because we don’t want to queer it for everyone else using that service) loaded the page no problemo.

We have a hard time excusing this behaviour merely because it is analogous to international licensing laws. We were trying to learn about the program. We were not looking for the program itself. While artworks are artworks, the program is what’s commercially valuable, not the promotional site. Standard practice is to disseminate movie trailers as widely as possible, for example, but tightly control the movie itself.

Showtime failed in its efforts to keep information concerning its U.S.-only program out of our hands, but not for want of trying. We resent the attempt. If there were certain limits on “subsidiary” licensing of, say, copy, photos, or music that restricted them to the U.S., that’s one thing. (It’s inconceivable in a Web site, and it almost never happens anywhere else – Mystery Science Theater 3000 isn’t seen in Canada for reasons of rights clearances, and that’s the only example we know.)

A visitor assumed to be “foreign” might have been an American who is out of the country temporarily. Or maybe the visitor was trying to learn about the program before it airs in a second country (as it will in Canada; we certainly don’t trust Showcase’s site even to function, let alone tell us anything). An American resident might have signed up for hosting out of the country where it’s cheaper. In any event, you lose goodwill, which should not be underestimated online. (Think of Amazon’s Purchase Circles and the firestorm they produced.)

And in any event, as both the Showtime and Yahoo Nazi cases demonstrate, people will find a way around your restrictions. We just want Showtime to stop acting like a government with its own laws and Yahoo to stop acting like a government unconstrained by laws.

Posted on 2000-12-01