2009: The Long Bow Appeal
In May 2007, Jenzabar, Inc., its CEO Robert Maginn, Jr., and its President Ling Chai (better known to students of China as Chai Ling), filed suit in Boston against the Long Bow Group (of which the editor of this journal is also a member), claiming defamation and trademark infringement. Timing is not Ms. Chai's strong suit, and by happenstance the case reached the courts for formal hearings in June 2009, on the eve of the twentieth anniversary of the tragic denouement of the 1989 Protest Movement. If Chai and Co. had hoped to revive their reputations as defenders of democracy and free speech, this was perhaps not the most ideal or well-timed gambit.
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 the Long Bow website (www.tsquare.tv, an academic site related to the 1995 documentary film 'The Gate of Heavenly Peace') 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 intended to 'confuse their [that is, Jenzabar's] customers' by luring them to the Long Bow 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 the Long Bow website and Long Bow has never had a single query about Jenzabar or their products. Long Bow was of the view that this lawsuit was and is intended to intimidate and silence a group of independent historians and filmmakers. Costly legal defense jeopardized Long Bow's very existence. A small non-profit corporation cannot afford hundreds of thousand of dollars in legal fees. Although it was felt that such a spurious case could not survive legal scrutiny, given the costly procedures it was also likely that Long Bow may not survive long enough to have its day in court. As Bob Dylan observed over forty years ago, 'Money doesn't talk, it swears...'
In response to this situation, in April 2009, the Long Bow Group issued an Appeal to the academic community and the broader interested public. The text of that Appeal is reproduced below, along with a digest of responses to it.
This material is included in this issue of China Heritage Quarterly to update our readers on one unsavoury aspect of the 'living heritage' of the events of 1989, and how it relates to what we elsewhere call 'totalitarian nostalgia' (see the article on this subject in the Features section of this issue).
In Memoriam: Tiananmen 1989, Free Speech & its Advocates
The Long Bow Group, Boston (15 April 2009)
We commemorate the twentieth anniversary of the 1989 Protest Movement in China and recall with heavy hearts its brutal suppression. During that movement millions of people in China demonstrated in support of freedom of expression and media openness.
In making the documentary film 'The Gate of Heavenly Peace' (天安门, 1995), and with the creation of its archival website (www.tsquare.tv), the Long Bow Group attempted to reflect the complex motives and stories behind the events of 1989 in an accessible format, and to provide specialists and the public with an ongoing research resource.
The film was attacked sight unseen both by the Chinese government and by several former student activists prior to its première at the New York Film Festival in October 1995. Subsequently, the Chinese authorities demanded it be banned from international film festivals, claiming that showing it would 'mislead the audience and hurt the feelings of 1.2 billion Chinese people.' Meanwhile, the student activists who opposed the film accused us of working for the Chinese government and denounced us as 'a pack of flies, a true disease of our era.' (他们是一群苍蝇,是我们这个时代真正的疾病.)
Despite controversy 'The Gate of Heavenly Peace' went on to win numerous prestigious film and academic awards in the United States and overseas. The film has continued to draw attention in the mass media, among researchers and educators and, together with the related website, it forms part of the international discussion of China's modern history. We believe that the kind of independent research and cinematic work we produce has only been possible through the support of academic colleagues, public funding agencies, private donations, and under the protective umbrella of free speech.
We are now deeply concerned because our very existence as an independent film and archive group is being threatened by a lawsuit launched by one of the people who, during the 1989 Protest Movement in Beijing, professed support for freedom of speech and democracy.
Chai Ling (Ling Chai), President of Jenzabar, Inc., and in 1989 Commander-in-Chief of the Defend Tiananmen Square Headquarters, and her husband, Robert Maginn, CEO of Jenzabar and former partner in Bain Capital, sued the Long Bow Group in 2007 in Boston, Massachusetts, for defamation and trademark infringement. (For a summary of the lawsuit, see 'The Gate of Heavenly Peace' website.)
The lawsuit accused us of defamation because our website links to mainstream media news articles that reported critical information about Jenzabar, Chai Ling, and Robert Maginn. The trademark allegations are based on our use of the name 'Jenzabar' in the website. In the early stages of the litigation, the court threw out the defamation claims but not the trademark claims. The court recognized that 'Jenzabar seems unlikely to prevail on [the trademark claims],' but nevertheless decided to give Jenzabar a chance to try to prove its claims.
As a result, we are facing the accusation that Long Bow—a non-profit documentary film producer—is violating the commercial trademark of Jenzabar, a company that sells administrative and management software systems to large educational institutions. Although we clearly have no connection to Jenzabar and do not compete in any respect with Jenzabar, the lawsuit claims that our site diverts and confuses Jenzabar's potential customers. In fact, not one person has ever contacted the Long Bow Group about software or Jenzabar.
Over the years, mainstream US media publications (in particular, The Boston Globe, Forbes and The Chronicle of Higher Education) have produced and archived materials related to Jenzabar and its President, Chai Ling. The Long Bow website merely quotes from these materials, yet we are not aware of any action against these larger publications. In our opinion, this lawsuit is clearly intended to intimidate us into removing these news accounts and other information about Chai Ling and Jenzabar from our website. Indeed, Chai Ling's lawyers have demanded that we remove any reference to the company from our website. We believe that this material is of public interest and it is already in the public domain through other sources. Despite long months of discussion and conciliatory action on our part, undertaken in the hope of bringing an end to what we believe is malicious litigation, the case continues at great expense and risk to us.
The following excerpts from the Complaint filed against Long Bow in May 2007 demonstrate the seriousness of this lawsuit, as a threat to Long Bow and to the principles of political and expressive freedom that we hold so dearly:
—'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.'
The Complaint also makes a demand:
—'For an accounting of the gains and profits realized by Long Bow from its aforesaid wrongful acts, and restitution and/or disgorgement to Jenzabar of Long Bow's ill-gotten gains.'
We believe this is a concerted attempt to undermine a nonprofit film and research organization that has for nearly thirty years presented audiences and educators throughout the world with work on Chinese life and history. Chai and Jenzabar appear determined to drain the limited resources of the Long Bow Group for not complying with their demands that we remove historical materials and data, as well as all references to Jenzabar, from our website. We are of the view that such demands and tactics have dire implications not only for us, but more widely for free speech and independent scholarship. We believe that in commemorating the events of 1989 twenty years on, it is important to reflect also on the value of independent thought, unfettered historical research, the collection and protection of archival materials and the freedom of speech in our own environment.
It is for this reason that we appeal to you—fellow researchers, colleagues in the media, educators and members of the interested public—to visit our website (www.tsquare.tv) to read the materials that have prompted this lawsuit and the legal filings from the case. We ask you to draw your own conclusions about the issues and freedoms at stake.
Please do not take this appeal as an attack on Jenzabar's business or the products and services it provides to its customers. We have no interest in prompting or participating in a boycott and no interest whatsoever in causing harm to Jenzabar's business or its employees. We seek only to preserve our rights, to stand up for the principle of free speech, and to defend ourselves and our work from this unjustified challenge.
If you would like to help, please sign this appeal as a modest gesture of your support for our stand. Please know that your signature carries no legal obligations, responsibilities, or commitments of any kind, nor does it mean that you necessarily agree with opinions expressed in either the Long Bow Group's films or its websites. Rather, it indicates that any instance of a corporation using its money and its power to stifle debate and suppress the historical record is cause for concern, in the academic community and beyond. If you are interested in lending your support, you may add yourself to the list below by emailing your name, title, and affiliation (if any) to: firstname.lastname@example.org.
Written and Signed by
Carma Hinton, Professor of Visual Culture & Chinese Studies, George Mason University; Producer, Director, Long Bow Group
By the end of June 2009 over 450 people had signed the Long Bow Appeal. For this Appeal in English and Chinese, as well as a list of signatories, go here.
The Response, a selection
The China Beat, 26 April 2009
The first explication of the Appeal and its background was published by the U.S. academic blog 'The China Beat' on 26 April 2009. See 'The Boston Long Bow Group, Chai Ling and "The Gate of Heavenly Peace": Geremie R. Barmé responds to "China Beat" ', here, posted on 26 April 2009. In this Barmé outlined the details of the Jenzabar/Chai Ling Case and offers some observations. Some of this material is used in the Editor's Note above.
The Times, 4 May 2009
The Appeal was first reported in the international press by Jane Macartney writing for The Times in London on 4 May 2009. See 'Tiananmen activist Chai Ling sues makers of film about 1989 protest', at: The Times. Macartney is a highly respected veteran China journalist who also reported on the events of 1989 at the time.
The New Yorker, 7 May 2009
Shortly thereafter, the online edition of The New Yorker on 7 May 2009 carried a piece by Evan Osnos under the title 'The American Dream: The Lawsuit'. See: The New Yorker. In this report Osnos observes:
For the record, to anyone with knowledge of the film ['The Gate of Heavenly Peace'], the notion that it is sympathetic to the Chinese government is laughable. But, whatever happens with the suit, it's hard to imagine a more acute measure of how far the student movement has faded into memory. Or, how much it's been replaced by more practical priorities. Chai's company's Web site lists its corporate mission as helping to create a 'gateway to the American dream.'
Jenzabar, 29 May 2009
Jenzabar responded to the Appeal in a formal letter dated 29 May 2009. The full text of this document can been seen at www.tsquare.tv following the text of the Long Bow Appeal. This formal response to the Appeal was posted by Long Bow at the specific request of the company's lawyers. Long Bow disagrees with and disputes many of the claims made in Jenzabar's response. A few choice quotes from that text must suffice here:
In many ways, bloggers and websites are potentially more dangerous to a democratic society which respects free speech since they are effectively unregulated, exist in 'cyber-space', and can be operated for little or no cost outside the jurisdiction of our justice system.
Wang Lixiong, 29 May 2009
Also on 29 May 2009, Wang Lixiong 王力雄, an influential Beijing-based writer and thinker, published his response to the Appeal, which he signed, entitled '神化天安门运动是我们的心魔——我为何在《天安门》制作人的呼吁书上签名'. For Wang's essay and a Chinese version of the Appeal, see WLX.
The Boston Globe, 7 June 2009
A more recent article on the Jenzabar Case Against Long Bow led by Ms. Chai Ling and her husband Robert Maginn was Yvonne Abraham's 'Beijing Lesson Unlearned', 7 June 2009, The Boston Globe, online at: The Boston Globe.
Among other things, the article observes that:
…the case has dragged on because Jenzabar is also contending that just by using the company's name as a tag on its website, Long Bow is guilty of trademark infringement—that somebody googling Jenzabar might land on the Long Bow site and get confused.
Abraham ends her piece with the statement: '[Chai Ling is] using the justice system to attack the very freedoms for which her fellow students gave their lives.'
The numerous readers' comments on Abraham's article are highly instructive. The second response was posted online the same morning that Abraham's report appeared, at 6/7/2009, 8:41 AM EDT to be precise. Signed 'bmaginn', it purports to have been written by Robert Maginn, CEO of Jenzabar and Chai Ling's husband (Chai is the President of Jenzabar). Putting the high dudgeon, colourful language and numerous grammatical errors of this 'letter' to one side, this offering is a fascinating contemporary example of the literature of denunciation. The author parrots baseless and defamatory accusations previously made by Ms. Chai against the Long Bow Group, to wit:
You [Yvonne Abraham] make such unverify statements as to be held in contempt in any court in the land: 1. How have your verify who is behind this group. It is hugely helpful to those who defend the Tiananmen massacre to have the focus be on such small issues and not the fact that soliders and tanks were sent to kill innocent unarmed citizens. What is your proof that they do not have huge resources behind them from a government or other front organizations? Your statement about bankruptcy is rubbish and you know it.
This colourful screed ends with truncated remarks that read as though the send button was pressed before the author had time to finish a thought:
In the end we only feel sorry for you the reporter/columnist of this article. Something is missing in your life that leads to your jealousy over success in business and in life. On this Sunday morning I will say a prayer to God that you find some happiness and use your important positi[sic].
Bmaginn's remarks did not go unnoticed. In response, for example, one correspondent called 'lesvalseuses' posted their remarks at 6/7/2009 1:45 EDT:
'What is your proof that they do not have huge resources behind them from a government or other front organizations?'
Or, again, as Chailatte (who is avowedly interested in 'all things Chai') remarked on 6/7/2009, 9:27 EDT:
Robert Maginn, If you want to sue someone for defamation, you might want to start with the person posting under your ID who makes you look like an idiot. See rmaginn above. You would have a much better case there than you have with Long Bow. Of course it couldn't be your spouse who is actually making the post. Could it?
Letters to the Editor, 14 and 20 June 2009
Two contrasting Letters to the Editor from 1989 activists were published by The Boston Globe on 14 and 20 June 2009. They are noteworthy, and can be read at: Filmmakers don't know the truth of Tiananmen and Tiananmen reconsidered respectively.