In several previous posts, we’ve directed our readers to the prize-winning film "The Gate of Heavenly Peace" and the excellent accompanying website, which provides a wealth of information for those seeking to understand the complex events of 1989. The film has generated controversy from the start, but we’ve learned that there’s now a new development, a lawsuit directed against the film-makers. To learn more about the situation, we’ve turned to Geremie Barmé, whose role in the film and the website have been described before. Here are the questions we’ve put to him and his answers:
CB: What exactly is the lawsuit about?
GRB: In May 2007, Jenzabar, Inc., its CEO Robert Maginn, Jr., and its President Chai Ling, filed suit in Boston against the Long Bow Group, claiming defamation and trademark infringement.
On the first page of their complaint, Chai Ling, Maginn, and Jenzabar claimed that Long Bow was, “Motivated by ill-will, their sympathy for officials in the Communist government of China, and a desire to discredit Chai, a former student leader in the pro-democracy movement in China’s Tiananmen Square...”
Specifically, the lawsuit cited the posting of mainstream news articles about Chai Ling and Jenzabar on our website and the use of the term “Jenzabar” in the keywords or “metatags” used to index and describe the contents of certain pages of the site. With respect to their trademarks, they alleged that Long Bow intends to “confuse their [that is, Jenzabar’s] customers” by luring them to our site in order to make money. They demand “a disgorgement to Jenzabar of Long Bow’s ill-gotten gains.”
There is no defamatory material on our website and Long Bow has never had a single query about Jenzabar or their products.
We believe this lawsuit was and is intended to intimidate and silence us. Costly legal defense jeopardizes Long Bow’s very existence. A small non-profit corporation cannot afford hundreds of thousand of dollars in legal fees. We believe that their legal case cannot stand up in court, but given the costly procedures Long Bow may not survive long enough to have our day in court.
CB: How is the Long Bow Group responding to the charges?
GRB: In response to the complaint, Long Bow asked the court to dismiss all of Jenzabar’s claims. In August 2008, the court dismissed the defamation charges. With regard to Internet trademark claims, however, it is extremely difficult to have a case thrown out of court before a trial because Internet commerce is relatively new and the law is considered to be “unsettled.”
The judge recognized that: “Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow’s business,” but nevertheless allowed Jenzabar to try to prove its case. We take the view, of course, that trademark law does not stretch so far as to squelch the mere reference to a company’s name on a website that reports news about the company and its officials, especially when there is no competition or commerce involved. In fact, “The Gate of Heavenly Peace” website does not use Jenzabar’s logo, lettering, or tag line on any of its pages. It simply uses the company’s corporate name, Jenzabar, to refer to the company. Moreover, a clear disclaimer on the relevant pages states that the site “is in no way affiliated with or sponsored by Jenzabar, Inc.” Even without such a disclaimer, we feel that no reasonable person could believe that our website was sponsored or endorsed by Jenzabar. Nor could anyone conceivably mistake the two companies. As the court recognized: “Jenzabar develops software; Long Bow makes films.” (For further details including all documents filed with the court, go here.)
We believe that the claim of trademark infringement is only an excuse to sue us. The real issue is whether a corporation should have the power to prevent people from using its name in public discourse to refer to it and discuss its conduct. This is a First Amendment issue.
CB: How can people learn more about this situation?
GRB: Those with an interest in issues of academic freedom and freedom of speech can visit the website related to our film. This site contains our public Appeal regarding the vexatious litigation being pursued by Chai Ling and Co of Jenzabar Inc. as well the details of the case. Those who wish to show support for us can sign on to the Appeal.
CB: What does endorsing the Long Bow Group Appeal mean?
GRB: Support for the Long Bow Group Appeal (go here for details) indicates that any instance of a corporation using its money and its power to stifle debate and suppress or alter the historical record is a profound cause of concern, in the academic community and beyond. Endorsement does not mean that signatories have to agree with the opinions expressed through the Long Bow Group’s films or websites, but rather it means taking a stand in upholding the principles of free speech.
CB: Any final thoughts you want to share with our readers about the past or present controversies associated with the film and/or the website?
GRB: I would draw your readers’ attention to the implicit irony in the present situation. I have only recently been in New York where I was interviewed by the “60 Minutes” team who were compiling an audio-visual presentation to be screened during the PEN International event at which Liu Xiaobo, one of the initiators of the Charter 08 in China, was to be recognized. I recalled Liu’s role in the tragic events of 1989 (for more on this, see my 1991 essay “Confession, Redemption and Death”, recently reprinted online here). Xiaobo also features in our film “The Gate of Heavenly Peace”, as indeed does Ms Chai. One could outline a crude schema, one that allows for the following narrative arc:
—Liu attempted to play a moderating role in 1989 and, along with Hou Dejian, was crucial in the peaceful retreat of students and other protesters from the centre of Tiananmen Square on the tragic morning of 4 June 1989. Since then, and following a period of incarceration, Liu has resisted various pressures for him to leave China choosing instead to pursue his beliefs through activism. His latest contribution being his role in Charter 08, for which he was detained by the authorities last year.
—Ms Chai, soi-disant Goddess of Democracy, fortunately avoided capture in 1989 and has enjoyed the benefits of academic training in the United States, and a business career since then. In her pursuit of her career and in the process of self-re-invention since 2007 she has been pressing a legal case against the Long Bow Group in what amounts to what in my opinion is an ill-disguised attempt to close down our website and ultimately to punish us for “The Gate of Heavenly Peace”.
During the making of that film Chai turned down requests to be interviewed (see also the reference to this in the Wikipedia entry on Chai). As early as 1995 she has made ludicrous (and I would venture libellous) accusations against my colleague Carma Hinton and our film. A prime example dates from 1995 (months before the film was even completed!):
...certain individuals have for the sake of the gaining approval of the authorities racked their brains for ways and means to come up with policies for them. And there is another person with a pro-Communist history [Carma Hinton] who has been hawking [her] documentary film for crude commercial gain by taking things out of context and trying to reveal something new, unreasonably turning history on its head and calling black white. (Quoted and analysed in the chapter “Totalitarian Nostalgia” in my 1999 book In the Red, on contemporary Chinese culture, Columbia University Press, p. 331.)
In essence, Chai’s 1995 comments were repeated in the 2007 action against Long Bow (included in our 15 April 2009 Appeal), which contains the calumny:
—“Motivated by ill-will, their sympathy for officials in the Communist government of China, and a desire to discredit Chai, a former student leader in the pro-democracy movement in China’s Tiananmen Square, Long Bow Group, Inc. (“Long Bow”) has published false content concerning the Plaintiffs on the website it maintains (the “Site”) and has collected a misleading sample of statements from outdated articles to circulate half-truths and falsehoods, and to create false impressions about Jenzabar, Chai, and Maginn. To ensure that this content is widely viewed and as damaging as possible, Long Bow makes unauthorized use of Jenzabar’s protected trademarks to direct traffic to the Site. As a consequence, Jenzabar’s clients and prospective clients are diverted to the Site and its defamatory content, causing reputational injury and loss of business opportunities.”As well as the following risible claim:
—“Upon information and belief, Long Bow’s defamatory statements are motivated by malice toward Chai, as well as Long Bow’s desire to discredit Chai and advance Long Bow’s divergent political agenda.” (For more of the same, visit our site.)
I was in Beijing during the harrowing period of May 1989. I was friendly with Liu Xiaobo (whose work I had studied since 1985) and saw him during the movement and was familiar with his views and activities. I was also witness to the extremism of people like Chai Ling. One could observe that certain mindsets and patterns of behaviour, be they found in individuals in China or subsequently in those who became sojourners in the United States, remain little altered despite changed personal circumstances. The contrasts I witnessed in 1989, and about which I wrote thereafter, remain as stark today as they were twenty years ago.