These web pages are the sole responsibility of the Long Bow Group, and are in no way affiliated with or sponsored by Jenzabar, Inc.
Twenty years after the events of 1989, Chai Ling and her company, Jenzabar, are attempting to censor this website. Click the following link to read an online appeal for support.
For independent coverage of the lawsuit, see the Guardian, Nov. 17, 2009: From Democracy Activist to Censor, the Boston Globe, June 7, 2009: Beijing Lesson Unlearned, The World (from the BBC, PRI, and WGBH), June 4, 2009: A Legal Dispute Over Remembering Tiananmen, the Times of London, May 4, 2009: Tiananmen activist Chai Ling sues makers of film about 1989 protest, and the New Yorker, May 7, 2009: The American Dream: The Lawsuit. A more recent article appeared in the South China Morning Post on June 9, 2010: June 4 Leader Drops Film Lawsuit. This headline is misleading; to date, Long Bow has not received any communication from Chai Ling or her lawyers indicating that they would drop the lawsuit.
August 13, 2009: WGBH/FRONTLINE, the award-winning PBS public affairs series which broadcast The Gate of Heavenly Peace in June 1996, issued a statement about the lawsuit filed by Jenzabar: "FRONTLINE is troubled by what appears to be an effort by Jenzabar to force Long Bow to remove quotes and references to certain news accounts from their site and to stop Long Bow from using the company name as a metatag... FRONTLINE believes that Jenzabar's trademark claim poses first amendment issues and is a potential threat to all newsgathering, reportorial and academic sites. The metataging of a company's name is necessarily an editorial decision and that decision will be chilled if Jenzabar were to prevail in court. Small publishers might be tempted to drop metataging of company names even when accurate and relevant to a reportorial endeavor. In the long run this would ill serve the public by making accurate, truthful information more difficult to find."
Summary of the lawsuit filed by Jenzabar, Inc., Ling Chai, and Robert A. Maginn, Jr. against the Long Bow Group, Inc.Related pages: About Chai Ling and Jenzabar, Inc. | Jenzabar and Long Bow Group Correspondence, Feb.-April 2007
For nearly two years the Long Bow Group tried to negotiate a settlement with Chai Ling and Jenzabar's lawyers. During this time, we were careful not to publicize the lawsuit. However, in April 2009, Jenzabar's lawyers declared that they had no interest in settling the case; given our limited resources, Long Bow decided to appeal to the public for help.
Elsewhere on this site, we have posted a letter of appeal seeking support for the principles of free speech and academic freedom which we feel are being threatened by this lawsuit. Please know that signing the appeal letter 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.
SUMMARY OF LAWSUIT
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. Specifically, the complaint cited the posting of articles about Chai Ling and Jenzabar on this 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. 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..." In response to the complaint, Long Bow filed a motion to dismiss all claims. In August 2008, the court granted the motion in part and dismissed all of the defamation claims. On the trademark claims, the court 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 claims.
This page summarizes key aspects of the claims made by the plaintiffs in this lawsuit and the court's ruling. To view the actual filings from the case, including Long Bow's motion for Summary Judgment, please click here.
Defamation
The lawsuit's defamation claim centered on a Boston Globe column about Chai Ling and Jenzabar that was published in 2003 and later excerpted on our website. This column, "American Dream," written by Steve Bailey, included the following quote, which was taken verbatim from papers filed publicly in a lawsuit against Chai Ling, Robert Maginn, and Jenzabar: "Five former executives have sued Jenzabar, including the former chief financial officer [Joseph DiLorenzo], who accused Chai and Maginn of 'a number of unethical, inappropriate, and/or illegal actions.'" The Globe column (and Long Bow's page of excerpts) also contained the disclaimer that "Jenzabar has denied the claims and resolved some of the disputes." In other words, the only specific alleged defamatory statement was in fact made by DiLorenzo during a lawsuit against Jenzabar; the Globe truthfully reported on the statement, and Long Bow, in turn, quoted from the Globe. Both Long Bow and the Globe reported DiLorenzo's accusation as merely an allegation, not as a statement of fact. Long Bow and the Globe also reported that Jenzabar denied the former CFO's claim.
The Globe column not only mentioned lawsuits against Jenzabar, it also discussed Chai Ling's recent activities in the context of her actions during the 1989 protests. In this discussion, the column prominently referenced her portrayal in Long Bow's film, The Gate of Heavenly Peace. The column stated: "Over the years the image of Chai has become decidedly mixed... The harshly critical documentary The Gate of Heavenly Peace captured that emerging view best in an interview that Chai gave in a Beijing hotel room..." The column goes on to quote from the interview. Long Bow first posted the Globe column in 2004, in a section of the website that provides background information about people who appear in the film. The information includes, as much as possible, a follow-up on each character's post-Tiananmen life. Only those viewers who are specifically interested in finding out more about Chai Ling are directed to the subpages on Chai Ling and Jenzabar.
As for DiLorenzo's lawsuit, according to Jenzabar he retracted his allegations in December 2005. DiLorenzo wrote a letter of apology to Chai and Maginn on September 22, 2006. To the best of our knowledge, none of this information was ever published by the Boston Globe or any other media outlet. Jenzabar itself did not inform Long Bow about the retraction and apology until February 2007, via a letter from the company's lawyer, which included the following demand: "Your republication of these statements is defamatory, and we insist that you remove the false and defamatory articles and statements on your Web pages." In response, Long Bow updated and modified the pages containing the Globe column and other information about Jenzabar. The lawyer's letter, fully detailing Jenzabar's point of view, and DiLorenzo's letter of apology, were posted on our website in their entirety. (See Jenzabar's letters to the Long Bow Group.) Nevertheless, Jenzabar proceeded with a lawsuit against the Long Bow Group in May 2007.
Given the timeline of events (that is, the fact that Long Bow posted the column in 2004, when the lawsuit was still active), the court decided that "the question becomes whether Long Bow had any kind of continuing duty to investigate the accuracy of the Boston Globe article, i.e., whether DiLorenzo was still accusing the plaintiffs of inappropriate actions." The court concluded emphatically: "There is no such duty. Jenzabar cannot sustain a defamation claim based on Long Bow's publication of the Boston Globe article." (from the judge's Decision on the Motion to Dismiss)
The defamation allegations went beyond the Globe column. Jenzabar, Chai Ling, and Maginn also alleged that The Gate of Heavenly Peace site "presents a small and misleading sample of articles critical of [Chai Ling's] past, her political activism, and her business ventures." (See this page.) None of these articles were identified in the complaint. Nor did the complaint allege that anything reported in these unspecified articles was untruthful, inaccurate or defamatory. In essence, as Long Bow argued to the court, Jenzabar, Chai Ling, and Maginn were trying to hold Long Bow liable for defamation simply for compiling truthful, non-defamatory articles about Chai's "past, her political activism, and her business ventures." Long Bow argued that such a compilation of critical news articles is fully protected by the First Amendment and cannot be the basis for a defamation claim. The judge's ruling on the Motion to Dismiss focused heavily on the fact that the plaintiffs did not even claim that the articles quoted and compiled on the website were false: "Notably, Jenzabar does not allege that the articles are false. . .. To survive this motion to dismiss, the plaintiffs must allege falsity, which they have not done."
As a result of the court's ruling, all of the defamation claims against Long Bow have been thrown out of the case.
Trademark Infringement
Unfortunately, Jenzabar also attempted to cast its objections to our website as trademark violations. In the complaint, Jenzabar alleged that Long Bow's references to the Jenzabar "Marks" -- i.e., its trademarked name, Jenzabar -- in the keywords or "metatags" used on The Gate of Heavenly Peace website constitute trademark infringement and trademark dilution. Jenzabar claimed that Long Bow by using Jenzabar's trademarks was "diverting consumers who are searching for Jenzabar's products and services to the derogatory content published on the Site."
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 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. A prospective Jenzabar customer might be distracted by Jenzabar's mark appearing on Long Bow's site, but they would not be confused."
The Gate of Heavenly Peace website uses the term Jenzabar in the metatags of pages that specifically cover Chai Ling and Jenzabar. Other metatags on these pages include "Chai Ling," "Gate of Heavenly Peace," and "Tiananmen Square." Likely search terms are commonly inserted into metatags as part of standard HTML coding practices. The term Jenzabar is also used in the filenames of two pages ("jenzabar.html" and "jenzabar_letters_2007.html"). HTML page names often use straightforward terms to identify a page's content. For example, other filenames on The Gate of Heavenly Peace site include "harvard.html," "Newsweek.html," and "latimes.html." We feel strongly that our website's use of the term "Jenzabar" in the metatags or in an html filename is not the kind of "use" to which trademark law applies. We simply use the term "Jenzabar," among other terms, to accurately describe and index the content of that webpage. One can hardly describe the content of a page about Chai Ling and Jenzabar without using the terms "Chai Ling" and "Jenzabar."
Nevertheless, the legal standard that applies to motions to dismiss is very low and requires a court to assume for the benefit of plaintiffs that everything asserted in a complaint is true. In our case, the judge concluded that Jenzabar had met this low standard on the trademark claims. In making her ruling, the judge stated that "Jenzabar has adequately pled the likelihood of confusion element, which is all that is required to survive a motion to dismiss. The trademark claims will stand." However, she also pointedly remarked that "Jenzabar seems unlikely to prevail on this claim because of the dissimilarity of Long Bow's business..."
Jenzabar is now pursuing the trademark claims against the Long Bow Group.
We believe that, in essence, Jenzabar, Chai Ling, and Robert Maginn, Jr. are attempting to censor The Gate of Heavenly Peace website under the guise of trademark law. Ironically, in public statements promoting Jenzabar, Chai Ling has spoken forcefully about the importance of free speech and the Internet. For example:
"The Internet is a powerful tool for communication and free speech, a technology that knows no country boundaries and empowers people to change... The Internet and technology business can bridge the gap between U.S. and China relations, bringing more freedom to the people of China."(See more quotes by Chai Ling on the Internet and freedom.)Business Wire, April 13, 1999
"The students in China need to be informed about what's really going on around the world. So, the BBC, Voice of America, Hong Kong TV, new media or the Internet media can help communicate the truth. And the truth will lead to peace!"Tiananmen 10 Years On, New Perspectives Quarterly, Vol. 16, No. 4, Summer 1999
"The Internet itself is democracy," said Chai Ling, a former student leader in 1989 and now a Web entrepreneur who has started her own Web company, called Jenzabar. "That's why people like us who fought for freedom and democracy in China ten years ago naturally embraced the Internet."Ten Years Later: Chinese Dissidents Using Net, CNET, June 7, 1999
It is difficult to believe that a person who spoke so emphatically about the power of the Internet and the value of free expression could now be suing to prevent Long Bow from publishing a website that contains newsworthy information about her and her story.
Jenzabar's lawsuit against Long Bow has been covered by a variety of independent news sources, blogs, and internet and technology news sites, from Ars Technica to the New Yorker. The following are links to some of this coverage.
Independent Media ReportsSouth China Morning Post, June 9, 2010: June 4 Leader Drops Film LawsuitThe article notes that "...after becoming a Christian late last year, [Chai Ling] says she's dropping her case.The Guardian, Nov. 17, 2009: From democracy activist to censor?
'After thinking it over, I instructed my lawyers ... to make an offer to Long Bow's lawyers to withdraw the suit,' she said ... 'My decision is motivated by my desire to see God glorified through this, so that more people may come to know him.'
The Long Bow Group said it had no knowledge of an offer to withdraw the lawsuit."
Jeremy Goldkorn writes, "In a country that calls itself free, money should not be able to buy silence or the alteration of historical records. Intellectual property laws should not be used to suppress free speech."
The Boston Globe, June 7, 2009: Beijing Lesson Unlearned
Yvonne Abraham notes that Chai Ling is "using the justice system to attack the very freedoms for which her fellow students gave their lives."
The World (from the BBC, PRI, and WGBH), June 4, 2009: A Legal Dispute Over Remembering Tiananmen
The Times of London, May 4, 2009: Tiananmen activist Chai Ling sues makers of film about 1989 protest
New Yorker, May 7, 2009: The American Dream: The Lawsuit
Evan Osnos writes, "Now comes word that Chai Ling, the student leader who appeared on television screens around the world as the picture of fragile, furious idealism, is now suing the makers of an award-winning documentary about the Tiananmen Square demonstrations. ...her company's lawsuit accuses them of being 'motivated by ill-will, their sympathy for officials in the Communist government of China, and a desire to discredit Chai....' For the record, to anyone with knowledge of the film, 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."
Internet/Technology News
Ars Technica: Tiananmen Square battle still being fought -- now over meta tags
Internet/Free Speech/Advocacy SitesPublic CitizenBlogs
In October 2009, Public Citizen, a national non-profit Public Interest Organization, offered legal representation to the Long Bow Group because of the serious First Amendment issues raised by Jenzabar's lawsuit.
Public Citizen attorney Paul Levy's blogs:
Faulty Trademark Suit Pits Leader of Tiananmen Square Protest Against Makers of Documentary Film About Historic Event
Jenzabar Joins Trademark Abusers Hall of Shame
Jenzabar Tries to Forbid Blogging About Its Abusive Trademark Litigation
Jenzabar "expert witness" claims that Google still uses keyword meta tags
Citizen Media Law Project - Threats Database
The Citizen Media Law Project is jointly affiliated with Harvard Law School's Berkman Center for Internet & Society and the Center for Citizen Media at Arizona State University.
Legal/InternetTechdirt - The Techdirt blog analyzes news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow.China
Likelihood of Confusion - A blog about trademark, copyright, new media and free speech.
The China Beat: The Boston Long Bow Group, Chai Ling and "The Gate of Heavenly Peace": Geremie R. Barmé responds to "China Beat"
Inside-Out China: The Fall of Lady Liberty and Chai Ling's Revenge
Home | Film/Media | Tour | Themes | Chronology | Readings/Links | Site Map | Chinese
Frontline | ITVS | Center for Asian American Media | PBS
© Long Bow Group, Inc . All Rights Reserved.