Copyright and Leveraging Control Over Information
Copyright and Leveraging Control Over Information
Copyright and Leveraging Control Over Information

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    Even though I was in Seoul a little less than a month ago, I would be remiss if I didn’t take note of the nightly protests that were occurring there. For one thing, they were impossible to miss—the convention center where the OECD Ministerial was held had a small phalanx of orderly protesters and riot police outside it during the days—a scene mirrored in vastly greater numbers each evening downtown. But another reason for me to pay attention to the protests was an issue that touched on media and even copyright issues.

    On June 18, the front page of the Korea Times covered a speech given by President Lee Myung-Bak at the OECD Ministerial. The headline? “Lee Calls Internet ‘Double-Edged Sword.” From the article:

    “The spread of false and inaccurate information (on the Internet) is paralyzing rational reason and confidence,” [Lee] added.

    Ironically, Lee is struggling with public discontent that has spread like wild-fire across the Internet following what was dubbed as his decision to ignore people’s concern about the safety of U.S. beef and allow its import.

    Just two pages into the paper, we can see some of this governmental discontent with the Internet at work: another article, entitled “Arrest of Webcaster Chief Angers Netizens.”

    Moon Yong-Shik, the president of the Internet company Nowcom, had been arrested, since some of his sites had been used by copyright infringers. That, at least, was the stated rationale. Nowcom operates several different online businesses, including remote-storage sites (known in Korea generically as “webhard” services, after one of the first sites to offer the service). Notably, though, Nowcom also operates the video-sharing site, which has become a major focal point for organizing and documenting anti-free trade (and anti-administration) protests.

    It’s disturbing enough that Moon, and the executives of other file-sharing sites were actually arrested and held in custody for activities that could be only as culpable as running a sort of Napster, and as innocent as running a bulletin board, but what’s fascinating is the way in which copyright law can be leveraged to suppress speech.

    After all, copyright is a means of restricting certain types of speech—speech that reproduces, distributes, displays, performs, or makes a derivative work of someone else’s work. That’s why copyright, along with defamation (another tort and crime grounded in speech acts) is a favorite allegation of plaintiffs in cyberSLAPP suits. In SLAPP suits, lawsuits are used not to win a judgment in court, but as a means to intimidate and drain the resources of a targeted party. CyberSLAPP sees this practice extended to the Internet, and has most commonly been used to reveal the identities of anonymous online commentators.

    In looking over some articles on the protests, I’ve come across a couple of other Korean examples of this leveraging of legal, legitimate restrictions on speech (like copyright) to suppress others’ viewpoints. For instance, a number of Internet commentators called for a boycott of certain companies who ran anti-protest ads in the country’s major newspapers. These commentators are now being investigated under blackmail laws.

    In another instance, Naver, a popular portal site, has come under fire for banning certain keywords and altering search results—including adding “afreeca” to its list of banned terms. Ostensibly, this was in response to the fact that porn advertisers were posting on—a claim that has come under scrutiny given afreeca’s prominence in the protests.

    These examples all come from Korea, but that doesn’t mean that this type of leveraging is a problem unique to Korea. The political situation and technological development of the Korean protests just provide an excellent illustration of how control over speech can be channeled through the legal system.

    Is that what’s happened here with Moon’s arrest? It may not be so clear. But the threat of using the selective enforcement of overbroad limitations on speech remains regardless of how secondary liability for copyright infringement shakes out in Korean law.

    Still, we can’t ignore the causes and consequences of the arrests by pretending they are a purely Korean concern dealing with Korean national laws. The free trade agreement that has so exercised the Korean public over the last few months was also the spur for a crackdown on file-sharing. It's dismaying that this is the result of agreements with the US, where we still have ongoing litigation about the extent of secondary liability. Such changes show that Internet policy isn’t just made on the Hill and in our courts—it’s often drafted in meeting rooms in Geneva, Brussels, and Seoul, where too often the unkindest cuts of US policy are slated for export.