Governing With Digital Platforms: A Chinese Lesson for the U.S.?

GOVERNING WITH DIGITAL PLATFORMS: A CHINESE LESSON FOR THE U.S.?

Can digital platforms make law and governance more efficient? Both China and the United States host some of the world’s largest digital platforms, which lead in internet technologies, provide critical digital infrastructure, and mediate private communication and public discourse. While the American experiment has stalled, the Chinese government has made remarkable progress in leveraging digital platforms to enhance efficiency in law and governance.

The study highlights China’s successes

in streamlining court operations, curbing online piracy, and reshaping interactions between the Chinese government and its citizens. In practice, digital platforms have become co-governors, exerting substantial influence over public institutions rather than merely serving as conduits of state power. They have not only developed the technological infrastructure for the online processing of litigation—from filing to adjudication—but also promoted these systems to local courts and even drafted rules for the smart court regime later adopted by the Supreme People’s Court. In the area of copyright protection, Chinese digital platforms have assisted with administrative enforcement and litigation. fundamentally Furthermore, these platforms have enabled not only online citizen participation but also government feedback and censorship, while exercising authority over both public and private actors in the digital sphere.

landscape of copyright

transformed

Through the lens of “governing with digital platforms,” the paper extends the existing literature on platform law, which has largely focused on the governance of platforms or by platforms. It further distinguishes this concept from “governing through platforms,” a formulation that reflects the Chinese government’s initial intentions but fails to capture the full dynamics of the state–platform alliance. At the same time, the paper underscores the risks inherent in such alliances, including constraints on individual freedom and deficits in accountability. The article concludes that, while the United States can draw lessons from China’s experience by proactively governing with digital platforms to improve law and governance, it must also implement robust accountability mechanisms to safeguard democratic values.

I.

INTRODUCTION

Can digital platforms make law and government more efficient? In the U.S. context, this question has remained largely unexplored, likely due to concerns about business the conventional belief in the separation of state and market,1 as well as public and private spheres.2 However, the question has become more urgent than ever with Elon Musk’s official involvement in the U.S. government as a leader of the Department of Government Efficiency (“DOGE”).3 While the

in government affairs and

influence

American experiment—initiated by President Donald Trump and billionaire Elon Musk—has stalled, the Chinese government has already formulated a strategy of “governing with digital platforms” and has made remarkable progress in integrating this approach into its legal and governance systems.4 Both the United States and China are home to some of the world’s most prominent digital platforms.5 Though the two countries diverge significantly in their ideological and political systems, they have both come to rely on digital platforms “that are remarkably similar in terms of their sociotechnical operation and political-economic governance.”6 The Chinese government has taken a step ahead by intentionally integrating digital platforms into its governance. What has happened in China may therefore serve as a useful reference for the United States, even though U.S. scholars and policymakers must carefully consider the significant differences between the two countries before drawing comparisons—an issue this paper will address.7 China is an authoritarian regime where the government exercises strong control over society and the market.8 If, even in such a system, digital platforms play a significant role in shaping legal and other public institutions, their impact in a liberal democracy—where they can openly lobby and directly communicate with top government leaders, including the President of the United States—might be even greater.

Government can be fragmented, slow, and inefficient.9 Digital platforms present both opportunities and challenges for governance, as they control both technology and communication infrastructure in the internet era.10 Digital platforms can help governments govern more effectively, overcoming bureaucratic fragmentation and interest-group capture. By governing with digital platforms, the Chinese state has successfully transformed its judicial case management system,11 strengthened its copyright protection regime,12 and reshaped its regulatory system of online

speech.13 While the efficiency of these three systems has improved, their impact on citizens varies. An efficient judicial case management system enhances citizens’ access to justice, whereas an efficient censorship regime restricts freedom of speech. Copyright protection falls somewhere in between, as it encourages innovation while also limiting access to creative works.

To be clear, governing with platforms is distinct from governing through platforms, where platforms function solely as state-controlled tools with no real influence over state institutions. While the Chinese state initially intended to govern through platforms, the actual outcome has been governing with platforms.14 By owning digital infrastructure and controlling digital access, platforms have both the incentive and capacity to shape legal institutions according to their own agendas and standards, sometimes even overriding state authority, even in the Chinese context.15

Governing with platforms is also different from governance by platforms, where platforms create alternative governance systems that replace state law.16 Furthermore, governing with platforms is more than just governing platforms, which focuses primarily on state regulation of digital platforms.17 Recognizing the state-platform alliance, particularly how digital platforms have actively shaped legal institutions, offers a fresh perspective on legal and institutional reform in the era of digital platforms.18

This article is structured as follows. Section II outlines the theory of governing with digital platforms, focusing on the challenges of public governance, private incentives for public governance, and the accountability of the state-platform alliance. Section III examines the case of China, analyzing how digital platforms have transformed the country’s judicial system, copyright protection, and regulatory system of online speech. Section IV concludes with a discussion of lessons the United States can learn from China’s experience.

II. THEORY

they control

Governments can be corrupt, slow, and subject to capture by various interests. Digital platforms present both opportunities and challenges to governance, as technology and communication infrastructure in the internet era. With such technology and infrastructure, digital platforms can assist governments in governing more effectively, helping to overcome a fragmented bureaucratic system influenced by competing interests.19 On the other hand, without direct access to technology and infrastructure, governments struggle to govern effectively due to a lack of informational capacity.20 When netizens violate the law online, the state may be unable to identify, apprehend, or punish them. Moreover, online protests can disrupt and undermine the state’s governance objectives.21

For these reasons, sovereign states have an incentive to govern through digital platforms. However, governing with platforms goes beyond merely governing through them. In the latter case, platforms serve only as tools of state governance without influencing state institutions. In reality, digital platforms collaborate with governments precisely because they can shape state institutions and promote their own agendas and interests.

This section develops the theory of governing with platforms, examining the challenges and opportunities digital platforms bring to legal and other public institutions, as well as their incentives to shape these institutions.

A. The Challenges to State Governance: Old and New

“Information makes states, and states make information,”22 yet in the internet era, states struggle to control the production and flow of information across the world. The core challenge posed by the internet to state authority is its illegibility: the costs of monitoring hundreds of millions of netizens in real-time are prohibitively high, exceeding even the informational capacity of authoritarian states like China.23 “Legibility” refers to the breadth and depth of a state’s knowledge about its citizens and their activities. The concept of legibility requires that the state not only collect vast amounts of information about society, but also possess the analytical capacity to process and interpret data from diverse contexts, often requiring specialized

technology and expertise.24

One example that illustrates the internet’s challenge to sovereign states is piracy. How can a state instantly determine which copyrighted music or video content has been infringed, by whom, and in what form? It is welldocumented that copyright is a creation of the state, serving multiple functions: encouraging artistic production for public benefit while also controlling the flow of information and ideas. As Lyman Patterson observed, “copyright was not a product of the common law. It was a product of and censorship, misunderstanding.”25 Content distributors have a structural advantage in regulating content, which is why governments historically granted them copyright protections in exchange for delegating the responsibility of censorship.26

guild monopoly,

regulation

statutes,

trade

The illegibility of online activities to sovereign states explains why piracy has become a global issue. In 2019, the U.S. Chamber of Commerce estimated that online piracy costs the U.S. economy at least US$29.2 billion in lost revenue annually.27 The U.S. government has made extensive efforts to combat online piracy; in 2011, Congress proposed the Stop Online Piracy Act (“SOPA”).28 At the time, legislators declared that protecting intellectual property was a bipartisan priority and proposed an expedited process for shutting down websites that provided pirated materials.29

However, the internet’s challenge to state control was vividly demonstrated in the backlash against SOPA, which triggered widespread

protests both online and offline and ultimately led to the bill’s failure.30 On September 20, 2010, The Hill, a newspaper focused on the U.S. Congress, reported the introduction of a bipartisan bill aimed at enabling the Justice Department to shut down websites trafficking in pirated music, movies, and counterfeit goods.31 Seventeen months later, on January 18, 2012, Wikipedia staged a one-day blackout in protest against a successor bill, declaring on its homepage: “Imagine a World Without Free Knowledge. For over a decade, we have spent millions of hours building the largest encyclopedia in human history. Right now, the U.S. Congress is considering legislation that could fatally damage the free and open Internet.”32

On that day, millions of people called or emailed Congress to voice their opposition, triggering an unprecedented wave of mobilization.33 Despite bipartisan support and backing from some of the country’s most powerful lobbying groups, Congress ultimately abandoned the proposed legislation.34 This event highlights the extraordinary power of digital platforms, which not only control the internet’s infrastructure but also have direct access to billions of users across borders. Their influence extends far beyond what most sovereign states can claim, enabling them to shape society, markets, and politics in profound and immediate ways. The question remains: how can states respond to the power of digital platforms?

The challenges posed by the internet to state control are exacerbated by organizational fragmentation within governments. Most sovereign states consist of multiple branches, agencies, and regulatory bodies with differing goals and interests, often resulting in slow and inconsistent responses to technological change. In contrast, digital platforms operate with a singular objective—profit maximization—and can swiftly adapt to emerging technologies to expand their market power. Chinese President Xi Jinping once criticized the Chinese state’s internet governance system for its overlapping bureaucratic departments, fragmented authority, and unclear delineation of responsibilities.35 According to Xi, this bureaucratic

inefficiency lags behind the rapid development of the internet.36

Perhaps the state need not monitor or regulate hundreds of millions of netizens directly. Instead, it can focus on disciplining and controlling a handful of major digital platforms. This approach is not new; it resembles the feudal system of medieval Europe, in which kings governed indirectly through the aristocracy.37 A similar logic applies to digital platforms today: politics can exert significant influence over their operations, and platforms have strong incentives to align with powerful institutions or individuals. This may explain why Elon Musk has supported and aligned with President Donald Trump, at least in efforts to eliminate regulatory constraints that Musk views as barriers to internet-based businesses.38 Likewise, it helps explain why Meta ended its fact-checking program in response to President Trump’s protest against the platform’s “censorship.”39

China has taken the lead in leveraging digital platforms to enhance public governance. A prerequisite for the state’s ability to govern with digital platforms is its capacity to compel and incentivize platform cooperation. Recognizing the critical role of digital platforms in internet governance, China’s party-state established a powerful regulatory body, the Cyberspace Administration of China (“CAC”), to coordinate state and party organs in governing cyberspace.40 The Chinese state ensures the cooperation of internet platforms by imposing or threatening to impose liabilities for their failure to control illegal behaviors such as pirating and inducing publicprivate cooperation.41 In doing so, it has addressed the problem of illegibility

in the internet era by holding major digital platforms accountable— leveraging their control over digital infrastructure and their technical capacity to monitor online activity.42

Initially, the Chinese state sought to govern the internet directly, including through the construction of the “Great Firewall”43 to control the information accessible to Chinese users. However, within this firewall, a limited but vibrant public sphere persists—one where platforms possess greater resources and capacity than the state to govern effectively.44 By the 2010s, the Chinese party-state had developed a strategy of governing through platform owners, rather than trying to control the internet directly.45

Governing through intermediaries—such as landowners or corporate actors—can be an efficient governance strategy, saving states substantial costs over time and space.46 Governing through platforms differs from governing platforms in that it extends beyond the platforms themselves; rather than simply regulating digital platforms, the state influences their operations as a means to achieve broader goals of internet control.47 In this framework, platforms serve as conduits of state power.48 However, even in China, digital platforms have not functioned merely as passive conduits of state authority. They have pursued their own agendas and, in the process, have played an active role in shaping public institutions.

B. Private Incentives to Govern

Digital platforms, though private market entities, have the potential to than sovereign states.49 Their streamlined govern more efficiently organizational structures prioritize efficiency over accountability, enabling

them to respond quickly to challenges, unlike bureaucratic organizations burdened with checks, balances, and redundancies. However, their incentives to govern—which involve delivering public goods—are less straightforward and warrant examination.

Platforms clearly have an interest in governing themselves.50 With hundreds of millions of users, platforms have evolved into essential public spaces and utilities.51 Activities like regulating speech or collecting data illustrate the overlapping nature of private and public interests. However, this paper focuses on digital platforms’ influence on legal and other public institutions that extend beyond their immediate business interests and affect broader society. In these cases, their incentives to govern require closer scrutiny.

Over the past decade, legal scholarship on platform governance has proliferated, generally falling into two categories. The first examines how platforms act as quasi-regulators, making rules and shaping the behavior of their own users. Kate Klonick refers to platforms as “the new governors,” emphasizing their governance role,52 while Rory Van Loo highlights their quasi-regulatory, quasi-enforcement, and quasi-judicial functions, calling them “the new gatekeepers.”53 Scholars in this category often critique platforms for their accountability deficits and democratic shortcomings. Conversely, some scholars in comparative law argue that platforms can supplement weak state institutions by creating alternative governance systems to enforce contracts, protect property rights, and adjudicate disputes. Barry Weingast and Lizhi Liu, for example, credit private governance by platforms like Taobao with contributing to China’s economic development, suggesting Taobao fills gaps the state cannot.54

The second category focuses on how to regulate platforms. This includes debates over legalizing Uber,55 defining the employment status of gig workers,56 and addressing platforms like TikTok in the context of

national security.57 Antitrust law, as championed by scholars like Lina Khan in her seminal work, “Amazon’s Antitrust Paradox,” dominates this literature. Khan argues for rethinking antitrust frameworks to address the unique power structures of platforms.58 Regulation of platforms has thus become a global issue, attracting significant scholarly attention.59

What’s the relationship between “the new governors” and the conventional public regulators? Scholars of internet platforms have noticed that “powerful economic interests have always sought to reshape jurisdictional, procedural, and methodological rules to their advantage.”60 But what advantages do internet platforms want? According to Julie Cohen, a leading scholar of internet platform law, “in their encounters with judicial and regulatory institutions in the United States and around the world, platform firms and their advocates have labored to minimize their accountability and maximize their scope for self-determination and selfgovernance.”61 In other words, internet platforms want to become untouchable and make their governance insulated from the state’s scrutiny and supervision.62 It is no wonder scholars have defined platform governance as private ordering.63

So, the overall picture is that platforms create their own rules and systems of governance that impact almost everyone on the planet, and they don’t want to be touched by sovereign states. In turn, states, confronted with ensuring accountability for such private governance, have been working hard to modernize their toolkits such as antitrust law to hold platforms accountable.

This picture of “catch me if you can,”64 or, internet platforms trying to escape the orbit of sovereign states, is incomplete, to say the least. Internet

platforms do not always want to escape the orbit of the sovereign states: they also have incentives to shape the official legal system to their own benefit. Firstly, consistent with the conventional view that platforms favor less regulation, they have strong incentives to shape the regulatory system, primarily in the direction of deregulation.65 The tech industry has spent vast sums of money campaigning for pro-tech candidates.66 Crypto companies rallying behind Trump67 and working to defeat anti-crypto political candidates68 is a classic example of tech companies influencing politics and public office.

Secondly, uber-style platforms also seek to legalize their businesses. Pollman and Barry’s concept of regulatory entrepreneurship shifts the focus to platforms that proactively seek legal change as a core component of their business strategy.69 Platforms like Uber and Airbnb exemplify this phenomenon, operating in legal grey areas or outright challenging existing regulations to legitimize and expand their businesses.70 These platforms often rely on political lobbying, public mobilization, and strategic growth to render themselves “too big to regulate.” However, the literature largely frames these efforts as self-serving, aimed at legalizing initially illegal activities.71 This narrow focus leaves unexplored the potential for platforms like Tencent to act as collaborators with public institutions, proactively shaping legal frameworks in ways that improve governance rather than solely furthering their own interests.

Thirdly, digital platforms have incentives to offload some of their governance burden to the official legal system, or, in other words, to piggyback on the official legal system. Jeanne Fromer and Mark McKenna’s recent work reveals how Amazon’s Brand Registry incentivizes businesses to seek legal registration of their marks, resulting in a dramatic increase in the number of applications swamping the U.S. Patent and Trademark Office (“PTO”).72 As Fromer and McKenna have pointed out, their research is not just an extension of the literature on the private governance systems of

internet platforms, but a departure from the literature with a different focus: how have internet platforms shaped the legal system? The authors have made it clear that Amazon did not overtly seek to impact the trademark system in the United States, though it has taken over the PTO by shaping third parties’ trademark registration behavior.73

Despite these contributions, existing scholarship often overlooks a critical question: should governments enlist private platforms to improve legal and other public institutions? Existing research tends to focus either on the unintended consequences of platforms’ dominance (as in Amazon’s case),74 their self-serving pursuit of legal change (as seen with Uber),75 or their role in substituting for state governance (as in Taobao).76 Digital platforms’ role in transforming China’s copyright regime, judicial case management system, and censorship diverges from these narratives, demonstrating the potential of the state-platform alliance to improve legal and other public institutions.

Digital platforms are incentivized to directly contribute to the building of legal infrastructure in the internet era for three reasons: (1) such platforms have an interest in the improvement of legal infrastructure such as protection of intellectual property rights. Their interest is much bigger than that of an individual citizen who is not a pillar of a particular industry. The overlap between the public interest, i.e., the improvement of legal infrastructure, and private benefits from such improvement is big enough for digital platforms to take direct actions. (2) Digital platforms also want to be good “institutional citizens” that can add to their legitimacy in the eyes of both the public and the government. (3) Digital platforms have an interest in shaping legal institutions according to their standards and embedding themselves in public and legal institutions. Such embeddedness can consolidate their position on the market and give them leverage in their interactions with legal authorities, even if such contribution doesn’t bring them immediately tangible benefits. Based on the discussion in this subsection, the table below situates the “governing with platforms” approach in the existing literature and differentiates it from other approaches.

Governing with

Governing by

Platforms as co-governors of public institutions Pioneering work: regulatory capture: Pollman & Barry 2016; indirect impact: Fromer & McKenna 2025

Platforms as private governance systems (BlochWehba 2019; Klonick 2018; Van Loo 2020; Liu & Weingast 2017; Tang 2022)

Governing of

Regulating platforms (e.g., antitrust) (Bradford 2023; Van Loo 2021; Khan 2016, 2019, 2020)

Governing through

Platforms as tools of the state (Xi 2014; Balkin 2014, 2018)

C. Accountability of the State-Platform Alliance

This section addresses the urgent need to hold both governments and platforms accountable for their collaboration in reshaping public and legal institutions. Specifically, it argues for holding the government accountable when it offloads functions to platforms and treating platforms as public entities when they directly shape public and legal institutions. As social scientists have long recognized, a state that is strong enough to protect property rights cannot credibly commit to not expropriating private property.77 Similarly, tech companies that are efficient and resourceful in facilitating public governance cannot credibly commit to avoid using public and legal institutions for their own benefits.

China’s experience offers a valuable comparative perspective. Digital platforms have significantly influenced the country’s copyright regime, judicial case management, and public opinion governance. The Chinese state is generally considered as more professional and autonomous than its Western counterparts which are prone to business lobbying and populist pressure.78 If platforms can exert such transformative power in a government

system like China’s, their impact on Western systems like the United States could be even more profound.

to address

is essential

A dual accountability framework

the accountability of the state-platform alliance. Governments must be held accountable when they offload functions to platforms. This requires transparency in public-private partnerships and mechanisms to ensure that outsourced functions align with democratic values and public interests. For instance, when platforms mediate disputes or moderate speech, their actions should be subject to oversight akin to administrative agencies. Platforms should also be held accountable for their intentional impact on public and legal institutions. This involves implementing procedural safeguards, such as those proposed by Van Loo, to ensure fairness, transparency, and due process in platforms’ decision-making processes.79 Additionally, platforms’ lobbying efforts and regulatory influence should be closely scrutinized to prevent undue concentration of power.

While platforms possess the financial and technological capacity to enhance public and legal institutions, their integration into governance must be carefully managed. Institutionalizing their participation in ways that leverage their strengths while curbing their excesses is crucial. For example, platforms’ advanced data analytics could improve case management in courts or streamline administrative processes, as seen in China.80 However, these contributions should not come at the expense of democratic accountability.

III. THE CHINA CASE

This section presents three case studies to examine the Chinese model of “governing with digital platforms:” copyright, smart courts, and online speech. The variety of cases is intended to illustrate both the opportunities and challenges brought by the Chinese model of “governing with digital platforms.” Access to courts is an old issue, and digital platforms have brought an opportunity to solve it. Fighting online piracy faces the old problem of a fragmented government and the new challenge of the legibility of internet to the government. The challenge to effective censorship, which is the primary form of speech regulation in China, in the internet era is also the new version of the legibility problem. The contrast between smart courts and platform censorship also illustrates the good and bad things the government can do through “governing with digital platforms.” Across these

three cases, the common issues are the government’s lack of access to technology and digital infrastructure, and therefore it needs to govern with the digital platforms. I also investigate the digital platforms’ incentives and mechanisms to co-govern with the government, contributing to the improvement of legal institutions or strengthening of state control, even when they don’t derive direct and tangible benefits from such cogovernance.

A. Smart Courts

Smart courts are a system that Tencent helped develop for the Chinese judicial system to provide online access for Chinese citizens to file cases, attend court trials, and enable courts across China to verify evidence, communicate with parties to litigation, and deliver adjudication results.81 This system has significantly improved Chinese citizens’ access to justice and the efficiency of the judicial system by streamlining the litigation process and reducing the administrative burden on judges.

1. Challenges to Courts Judges worldwide are facing an increasing workload, which affects individual citizens’ access to justice and can undermine the legitimacy of the judiciary—and, in turn, the broader political and legal system. This concern is particularly pressing in non-liberal democracies, where government legitimacy is closely tied to performance. Judicial overload is a widely recognized issue in the Chinese judiciary. 82 As a leading authority on Chinese courts recently wrote, “never before have Chinese courts faced such a severe situation of ‘too many cases, too few personnel.’”83

At the same time, the Chinese regime is eager to provide greater access to courts—after all, allowing aggrieved citizens to resolve disputes through the judiciary is preferable to having them take their grievances to the streets.84 Like many other developing countries, China also struggles with judicial corruption, which further undermines the efficiency and credibility

of the courts.85 This, in turn, weakens the legitimacy of both the judiciary and the broader political system.86

A single solution addresses multiple challenges—the Chinese government believes that technology can significantly enhance the efficiency of courts, improve citizens’ access to justice, and alleviate systemic issues such as excessive workload and judicial corruption.87 Empirical evidence so far appears positive, positioning China as a global leader in the use of technology to modernize courts, a level of innovation not yet seen in many other jurisdictions.

The Supreme People’s Court (“SPC”), China’s highest court, introduced the concept of smart courts (智慧法院) in 201688 in response to a surge in judicial workload caused by a legal reform that significantly expanded citizens’ access to courts. 89 As a result, the average annual caseload per judge increased from 187 in 2017 to 357 in 2023.90

To clarify, the SPC’s smart court initiative does not focus on using AI to decide cases, as AI-assisted adjudication remains at a highly preliminary stage.91 Rather than focusing on concerns about AI replacing judges, a more pragmatic approach to improving court efficiency lies in leveraging smart technology to streamline judicial processes. Each step of the judicial process, from case filing, evidence submission, court hearing, to adjudication, involves multiple parties and significant amounts of communication and paperwork. Technology enables judges to communicate with multiple parties conveniently and makes each step and document traceable, significantly

literature on managerial

reducing communication costs and enhancing case management and “calendar control.”92 As judges has demonstrated, a substantial portion of judges’ time is consumed by administrative paperwork and communication rather than adjudication.93 Using technology to improve efficiency in this area presents fewer ethical and legal concerns while offering the potential to significantly enhance judicial productivity.

However, the SPC’s smart court initiative faces two significant challenges. The first is technology: online courts require advanced capabilities such as data storage, facial recognition, and simultaneous multiparty video calls. Like their counterparts in other jurisdictions, Chinese courts do not possess the technical expertise to develop and manage such technologies independently.94

The second challenge is infrastructure. Even if the SPC were able to develop its own virtual court system for citizens to file cases and participate in trials online, widespread adoption would require substantial costs and time. Citizens would need to download and familiarize themselves with the platform, presenting a significant barrier to accessibility.95 In contrast, digital platforms, which already provide internet infrastructure, have direct access to hundreds of millions of Chinese citizens who use apps like WeChat daily—for everything from chatting with family members to conducting business negotiations and virtual conferences.96

Of course, these challenges are not unique to China. A well-known U.S. author has observed that “over the past decade, I’ve seen technology services fail at all levels of government” and has proposed the idea of “recoding America.”97 Similarly, efforts to streamline administrative and judicial processes can easily bring extra “sludge,” to borrow Cass Sunstein’s term,98 increasing bureaucratic hurdles for citizens and further limiting access to essential government services and courts.

2. Private Incentives and Mechanisms to Govern The SPC recognized its lack of both technological expertise and infrastructure necessary to implement smart courts and chose to collaborate with Tencent on the initiative. Tencent possesses both the technology and infrastructure to provide millions of Chinese citizens with online access to courts. Nearly every Chinese citizen has a WeChat account, a product of Tencent. This super app combines the functionalities of WhatsApp, Facebook, Amazon, Expedia, and more. Users can perform nearly any task on WeChat, and obtaining an account requires identity verification through a government-issued ID. But why would a private company be interested in improving judicial efficiency and expanding access to justice?

One possible explanation is financial—Tencent could charge the SPC and lower courts substantial fees for integrating smart courts into its WeChat system. However, this was not the case. As one judge who worked with Tencent on the smart court initiative, now renamed WeCourt after Tencent’s involvement, stated: “Tencent didn’t intend to make money from courts and charged only a minimal fee.”99

Another possibility is that Tencent saw WeCourt as a means of building social capital with the judiciary. Unlike in the United States, where large technology companies can donate to political campaigns and judicial elections, China has no such system. While bribery remains a persistent issue in Chinese courts,100 Tencent cannot simply bribe the entire judiciary to secure favorable treatment. In other words, Tencent’s contribution to WeCourt was not directly tied to any specific judicial decision involving the company. Nevertheless, by working closely with the SPC and courts across China, Tencent gained valuable access to judges—an advantage that is significant even without explicit preferential treatment. If Tencent actively positioned itself as a volunteer partner in the smart court initiative, it also had opportunities to curry favor with lower and local courts. For instance, a district court in Kunming proudly announced that it had signed the first collaboration agreement with Tencent to create southwestern China’s first

smart court system. 101 The court framed the agreement as a major institutional achievement and praised itself for its experimental spirit.102 One can imagine the influence Tencent might have in such a local court if a dispute involving the company were to arise. By officially and publicly collaborating with the judicial system, Tencent strengthened its social and political capital—not only in its interactions with government authorities but also in relation to market competitors.

A third reason for Tencent’s involvement is that shaping judicial institutions in accordance with its own standards is beneficial in and of itself, regardless of whether such participation yields immediately tangible benefits. For example, Tencent’s smart court team drafted the guidelines for WeCourt, which were later officially adopted and promulgated by the SPC.103 In this process, Tencent embedded its technology and standards into China’s judiciary, indirectly advancing its broader interests, such as stronger intellectual property protections.104

As a major copyright holder, Tencent frequently goes to court to protect its intellectual property rights. The company files thousands of lawsuits in Chinese courts each year.105 However, it has faced two major challenges in such litigation. First, offline court proceedings are slow, often failing to keep pace with Tencent’s need to swiftly detect and remove pirated content.106 Second, online piracy is constantly evolving, making it costly and difficult to preserve evidence in a manner that meets judicial standards.107 With the completion of the WeCourt system, Tencent can now file cases, submit evidence, and attend court hearings entirely online—without setting foot in

a physical courtroom.108 Moreover, because the WeCourt system was built by Tencent, courts are now more likely to accept digital evidence preserved in Tencent’s proprietary format. Unsurprisingly, Tencent employees have openly acknowledged that the company was the biggest beneficiary of the smart court project.109

Finally, and perhaps most importantly, Tencent—though a private market entity—benefits directly from improving citizens’ access to justice, particularly when that access is facilitated through infrastructure it owns. Enhanced judicial access translates into increased reliance on Tencent’s services, further consolidating its position as the dominant provider of internet infrastructure. From 2018 to 2020, more than 3,500 courts across 32 provinces in China adopted the WeCourt system, leading to over one billion visits. By 2021, approximately five million cases were filed through WeCourt, 110 compared to a total of 33 million cases filed in Chinese courts that year.111 Tencent has a clear incentive to maintain its status as the primary provider of digital court infrastructure and to preempt the emergence of alternative service providers.

B. Copyright

China’s party-state has achieved what the U.S. government was not able to achieve, i.e., eliminating online piracy. This paper investigates for the first time the transformation of copyright protection on China’s internet, which has been transformed from a Wild West of piracy into one of the world’s largest markets for copyrighted content within a few years.112 In 2018, only 1.6% of the music on China’s internet was pirated. Just before 2014, the

figure was 44%.113 Today, China is not even on the top ten list of countries engaging in music piracy.114 The country’s leading internet platforms now compete with one another to purchase exclusive copyright licenses from content providers such as Sony, Warner Music Group, and Universal Music,115 with their billions of dollars of investment testifying to the strength of copyright protection on China’s internet.116

What explains the foregoing transformation? The state relies on internet platforms’ technology and cooperation to govern the internet, including detecting, monitoring, and removing unwanted online content, while internet platforms choose to cooperate with the state to gain monopoly rents from copyright licenses they have purchased. Without the cooperation of platforms, even the Chinese state alone would not be able to complete the transformation. Most internet platforms had embedded themselves in the piracy model and could resist the state’s copyright strategy simply by noncooperation, which had happened in China’s copyright enforcement campaigns before this transformation.117 To make it even worse, the transformation requires significant investment in not only purchasing copyright licenses but also enforcing such licenses beyond the domains of individual platforms and across the cyber space. State enforcement had been weak, which meant that platforms needed to invest in building up China’s legal institutions—a public good.

Platforms such as Tencent used their technology, frequent, repeated and large-amount litigation, and influence with the state to shape and change legal institutions that cemented the transformation from piracy to copyright.118 It is because of the impact of platforms on the development of legal institutions that I call them the new (co-)governors of internet, not because they have built up their alternative systems of governance which has been well documented in the legal scholarship on platform governance.119

1. Challenges to Copyright Law and Enforcement In China, protecting copyright online faced the old problem of a fragmented government, which resulted in inconsistent copyright rules, and the new challenge of legibility of internet to the government, which contributed to ineffective administrative and judicial enforcement.

(“MIIT”)

a. Inconsistent Copyright Rules China’s Copyright Law recognized copyright holders’ right to disseminate copyrighted content through the internet (信息网络传播权) and instituted civil, administrative, and criminal penalties for violating copyright through the unauthorized online dissemination of copyrighted content in 2001,120 but it was left to the State Council to promulgate specific measures aimed at protecting copyright online.121 In 2005, the National Copyright Administration (“NCA”) and the Ministry of Industry and Information Technology the Administrative Protection of Internet Copyright (“2005 Administrative Measures” hereafter), instituting the notice-delete rule.122 In 2006, the State Council, to which both the NCA and MIIT belong, promulgated the Regulations on the Protection of the Right of Communication to the Public on Information Networks (“2006 Regulations” hereafter), a higher administrative regulation protecting copyright online. The 2006 Regulations add that internet service providers are jointly liable (with the providers of pirated content) if they “know” or “should have known” that the uploaded content was pirated.123 Although it is difficult to prove that internet service providers “know” that such content is pirated, it is relatively easy to prove that they “should have known”: the way in which providers such as Baidu

jointly promulgated

the Measures

for

operate implies that they “should have known” that much of the content uploaded to their websites was pirated.

Despite the State Council’s 2006 Regulations, the National People’s Congress (“NPC”) Standing Committee adopted a rule in China’s first Tort Law, which was promulgated in December 2009 and took effect in 2010, that gives internet service providers greater protection against liability for online piracy.124 Contrary to the conventional standard of allocating tort liabilities, and to many Chinese intellectual property rights scholars’ dismay, the Tort Law requires that internet service providers “know” about pirated content to be held liable for online piracy. The phrase “should have known” is missing from the Tort Law, making it harder for copyright holders to hold internet service providers liable for the pirated content on their websites. It is unclear why the Tort Law departed125 from the word “know” as including “should have known” to make sense of the legislation.126

b. Ineffective Administrative Enforcement The NCA oversees copyright protection and launched an annual antipiracy enforcement campaign in 2005. The annual enforcement campaign was not effective, however, due to the NCA’s inadequate human resources and the lack of cooperation from digital platforms.127 Without digital platforms’ cooperation, there was simply too much pirated content for the NCA to detect and remove, a typical problem caused by the illegibility of internet to the government. For example, the NCA required platforms to report copyright information of content broadcasted on their websites, but these platforms were not cooperative. According to an NCA official, “Some websites did not report their copyright information; some reported irrelevant information; some reported all information without a focus on what [the] NCA required.”128 Platforms also tried a “fake deletion” strategy, resulting in the fact that movies they had claimed to have deleted were still available to their users.129

c. Limited Judicial Protection Overall Chinese courts were known for their lack of consistency, predictability, and effectiveness in protecting intellectual property rights.130 International copyright holders tried to protect their copyright in Chinese courts but failed.

Known as “the biggest single violator of music copyrights and by far the greatest obstacle to legitimate digital commerce in China,” Baidu was estimated to account for over 50% of illegal music file downloads and for 75% of the traffic directed to infringing deep link sites in the 2000s.131 Baidu’s business model had relied heavily on piracy since the early 2000s. In 2001, it launched Baidu MP3, which allowed users to search and download music from one site.132 Previously, users had to find links to music files themselves and use downloading software to save the music. By offering “deep links” that granted users direct access to illegal music files, Baidu MP3 simplified the music listening process and attracted substantial online traffic, given Baidu’s large user base. In 2004, music on Baidu MP3 was downloaded, on average, 10–15 million times daily.133 Owing to its advantage in internet traffic, Baidu quickly gained a significant competitive advantage, with a market share of over 80% in the online music market and a 92.8% share of the music search market.134 Baidu’s downloading service

was also highly profitable, generating annual advertising earnings of at least US$50 million.135

In 2005, seven international music labels, including Sony, Universal, and Warner Music, filed a lawsuit accusing Baidu of providing unauthorized downloads of 46 songs.136 In its defense, Baidu appealed to the safe harbor principle arguing that Baidu MP3 simply provided a search service as part of Baidu’s search engine.137 The service did not alter the information on websites and provided only web links, not the content of the respective websites. The company claimed that it had no control over the content of the websites to which it provided links, and thus lacked subjective intent to infringe. The entities that offered unauthorized music file downloads and plays were the owners of the respective websites, and Baidu had neither the ability nor the responsibility to check whether those websites were authorized. The First Intermediate Court in Beijing, based on a judicial interpretation of the SPC,138 supported Baidu’s arguments, ruling that the safe harbor principle applied: the files being downloaded and played did not come from Baidu, but rather from third-party online servers, and thus the transmission was between these third-party servers and users. The court held that the plaintiffs had not proved that the defendant was aware or should have been aware of piracy on the websites to which it offered links and that a search engine without the ability to identify and select was not legally liable for linked websites’ uploading and users’ downloading behaviors. Therefore, the court ruled that while the digital transmission of musical works was protected under the Copyright Law, Baidu was not liable because it simply provided basic search services.139 In

infringements between

2007, the Beijing High People’s Court affirmed the ruling, rejecting all of the claims of the music companies and ruling that Baidu was not liable.140 The ruling strengthened Baidu’s confidence in pirating music and profiting from its massive online traffic.

In 2008, Universal, Warner, and Sony sued Baidu again for unlawfully providing links that allowed users to listen to and download 128 songs.141 Again, the First Intermediate People’s Court in Beijing ruled in favor of Baidu, applying the safe harbor principle.142 Later on, as a compromise in response to an international content providers’ campaign, the Beijing High People’s Court, an appellant court in the above dispute, nudged a mediation agreement between Baidu and the three companies: Baidu agreed to pay royalties to the three record companies for all of the copyrighted music on its website in the future, a departure from its practice of providing pirated music and shielding itself from liability through the “safe harbor principle.”143 To clarify, this mediation decision did not say that Baidu was liable for the pirated music on its website in the past, but constituted a cooperation agreement between Baidu and the three record companies for future cooperation for which Baidu would need to pay.144 However, following its contracts with the record companies, Baidu continued to rely on free and pirated content on its platform to attract online traffic and generate revenue from advertisements that ran alongside pirated content.145

2. Private Incentives and Mechanisms to Govern Before the transformation materialized, there was pervasive piracy. The leading platforms provided music and video content that they had either pirated themselves or that had been pirated by their users to the public, and

made money through advertising. However, there were also a few pioneers who envisioned an internet based on copyright protection.146 Why would any website give up an already profit-making business model for one that would incur significant financial costs before the transformation materialized?

Leading platforms such as Tencent have the resources and scale to at least partially internalize the costs of purchasing and enforcing copyright. Back then, the three major platforms in China were Tencent, Alibaba and Baidu. Baidu was the major internet service provider before the transformation, but its business model was based on piracy.147 Alibaba came too late to the music business.148 Tencent started as one of the leading players in the industry and ended up with monopolizing about 80% of the music market.149 Because of the market structure, the collective action problem was not as big as it would have been on a market with dozens of players. This also explains why Tencent devoted a significant amount of resources in improving public enforcement, as its private interest largely overlapped with the improvement of public institutions.

Tencent was able to monopolize China’s online music market because it could afford to sustain short-term losses in purchasing exclusive copyright

licenses at costs that were much larger than it could charge its users—many of whom would have been pushed to pirated websites otherwise, and by outspending other platforms in purchasing exclusive copyright licenses from music copyright holders. Under the exclusive licensing model, an online music platform obtains exclusive licenses from a music production company via an exclusive rights contract. The platform thereby garners the exclusive right to represent and disseminate the music concerned throughout the internet, and can sublicense it to other music service providers. Under the exclusive licensing model, online platforms pay royalties to the copyright holders and make the paid music available to their users for free. The platforms then recoup the licensing fees paid through revenues from advertising and membership fees.

In 2014, Tencent began to aggressively purchase exclusive licenses from both foreign and domestic copyright holders to establish a massive legitimate music library. In 2015, in a press conference held during the annual meeting of the NPC, Tencent founder Pony Ma, who was an NPC deputy, emphasized that copyright was the core of Tencent’s business and that all unlicensed products bear legal risks.150 Both Warner and Sony signed licensing contracts with Tencent in 2014.151 Therefore, by the end of 2014, Tencent had already exclusively partnered with two of the top three record companies.152

Already owning QQ Music, Tencent acquired China Music Corp. (“CMC”) in 2016 to form Tencent Music Entertainment (“TME”). CMC owned the two largest online music platforms in China, Kuwo and Kugou.153 In 2016, QQ Music and CMC had a market share of around 30% and 40%, respectively, and CMC’s acquisition boosted Tencent’s market share to over 80%.154 The acquisition expanded Tencent’s music library to 15 million songs and granted it exclusive licenses from more than 30 record companies.155 It also cemented Tencent’s dominance of the digital music

market, giving the company more than 15 million paying subscribers,156 and thus greater power in negotiating exclusive licensing agreements with copyright holders.

The comparison between Tencent and CMC illustrated internet platforms’ advantages over a company that provided only music. Tencent’s main advantage against CMC was its market power and financial resources. Music was just part of Tencent’s business, and it enjoyed a large cash flow from other businesses such as online gaming, which supported the copyright business model before it became profitable. CMC, despite owning more copyright licenses than any other Chinese company including Tencent, before it was acquired by Tencent, could not sustain short-term losses and did not have sufficient financial resources to last until the completion of the transformation.157 CMC attempted to go public to raise funds in May 2016, but the attempt was unsuccessful owing to market distrust in the revenuegenerating ability of digital music companies.158 After all, even Spotify did not go public until 2018.159

to promote

What does Tencent’s purchase of copyright license have to do with China’s copyright system? Tencent devoted a substantial amount of resources transformation of business model from broadcasting pirated music to protecting music copyright on China’s internet, which is a public good but consistent with Tencent’s interests. Considering that Tencent eventually monopolized the online music market through the exclusive copyright licenses it had purchased, it had the right incentive to provide such public goods and institutional infrastructure. Moreover, other platforms and companies had to follow Tencent to purchase and protect copyright once this transformation was set in motion. By setting the the improvement of public institutions related to copyright. The most remarkable spillover effect of Tencent’s practices was the changed landscape of copyright litigation in Chinese courts.

industry’s standard practices, Tencent also contributed

to

Tencent’s aggressive investment in copyright purchases is based on its own efforts at copyright enforcement. Before Tencent’s founder Pony Ma publicly committed to the copyright model, he asked Tencent’s legal department whether it would be able to protect the company’s purchased copyright licenses.160 The result was that Tencent established a systematic

way to protect its copyright licenses.

Firstly, by purchasing exclusive licenses, Tencent had already reduced the cost of proving online piracy and therefore copyright enforcement: as far as the platform which holds exclusive licenses provides evidence of a website broadcasting the content under exclusive license without this platform’s permission, an act of piracy is proved. When platforms detect copyright infringement using technology, they issue warning notices to the infringing parties informing them of the exclusive licenses they possess. Most infringing parties choose to settle through compensation agreements rather than going to court. It would be much more costly to prove piracy in the case of non-exclusive licenses.

Secondly, Tencent launched an automated 24/7 monitoring system in 2014 that detects piracy, collects evidence of infringement, issues takedown notices, and produces infringement reports.161 Tencent developed some parts of the system for internal use and also purchased monitoring services from external technology companies.162 Tencent uses the system to collect and preserve basic evidence of infringement, and often collaborates with copyright holders to issue warnings to piracy sites and/or file lawsuits against them or to file reports with the administrative departments.163 The monitoring system monitors the internet and detects piracy 24/7. Once it identifies pirated content, it automatically issues the website concerned with a takedown notice and follows up on the results.164 Such a monitoring system allows platforms to standardize evidence collection, making it easier to legally form a complete chain of evidence, which enables Tencent, or other platforms equipped with such a system, to stop piracy through takedown notices and litigation on a large scale. In 2013, Tencent issued 66,571 takedown notices, and the number increased to 1.5 million in 2017.165

From 2014 to 2018, Tencent filed more than 13,000 copyright infringement cases in Chinese courts.166 Tencent’s frequent, repeated and large-amount litigation has impacted how Chinese courts adjudicate copyright disputes. For example, a huge amount of user-generated content

(“UGC”) raises a big challenge to copyright enforcement. Platforms such as Douyin, which is the Chinese counterpart of TikTok and owned by the same parental company, Bytedance,167 relied on such UGC for businesses. Also, these platforms can shield themselves behind the “safe harbor” principle and are only obligated to delete UGC that infringes copyright upon notice from copyright holders. Considering the huge amount of UGC, it is hard for copyright holders such as Tencent to enforce their copyright on UGC platforms under the “safe harbor” principle.

Tencent managed to overcome this principle and impose stricter liabilities on UGC platforms through simultaneous and large-number litigation. In 2021, Tencent initiated 168 suits against Douyin in 18 courts across 13 provinces in China with the claimed damages totaling 2.9 billion RMB in its effort to enforce its copyright licenses against Douyin.168 Some of these courts supported Tencent’s innovative claim that UGC platforms should take preemptive measures to block pirated content as the advancement of technology had allowed them to do so.169 Such judicial practices broke away from the traditional “safe harbor” principle.170 Tencent was essentially using its huge amount of financial and legal resources to test the Chinese judicial system in different locations, encourage local judicial innovations, and then use such local innovations to support changes at the national level.

Moreover, such a large amount of litigation has also made the Chinese judicial system more predictable and reliable for copyright enforcement. In a related but separate empirical study, my research shows that “plaintiffs won regardless of their identity and the location of the ruling court, contrary to

the prevailing trend toward local protectionism in Chinese courts.”171 Such improvement of the Chinese judiciary is attributable to Tencent’s copyright strategy as we also observe in our data that exclusive licenses and fair evidence preservation were the two key determinants of winning a case, both of which were pioneered by Tencent.172

C. Online Speech

Cyberspace is not a separate or alternative realm distinct from the world governed by sovereign states. Rather, sovereign states have increasingly delegated certain functions to internet platforms, most notably regulation of speech. As Jack Balkin argues, the governance of free speech has shifted from a dyadic relationship between the state and individuals to a triangular model, in which internet platforms play a central role in regulating speech.173 In “new-school speech regulation,” as opposed to traditional direct state control over speech, the state leverages the market power of internet platforms to regulate speech on its behalf.174 As owners of digital infrastructure, platforms have a greater capacity to regulate individual behavior than sovereign states could achieve without them. This “newschool speech regulation”—or “collateral censorship”—exemplifies the broader phenomenon of “governing through owners.”175

However, even in the realm of speech regulation, Chinese digital platforms function as more than mere conduits of political power. They have not only created a new space for state-citizen interaction but also own and control that space. As a result, they have fundamentally reshaped how the Chinese state governs—particularly in its interactions with citizens and its management of public opinion. Rather than relying solely on primitive censorship, the state now engages with, guides, and responds to public opinion formed in the digital space.176 Because of digital platforms’ profound impact on state institutions and behaviors, the Chinese model of governance is best described as “governing with digital platforms,” rather than merely “governing through platforms.”

1. Challenges to Censorship As President Xi has warned, the Chinese Communist Party (“CCP”)

could face a ruling crisis if it fails to pass the test of the internet.177 In the digital era, netizens generate millions of pieces of information across multiple platforms every second, making it impossible for even the CCP’s vast traditional censorship apparatus to screen, delete, or control all content. A commentary from Xiakedao, a WeChat official account run by the overseas edition of the CCP’s central mouthpiece, People’s Daily, cautioned: “Information dissemination is diversified and fragmented. A real army is no rival of the guerilla . . . If the gap lasts, it will erode the legitimacy of the rule and distabilise the root of the Party and the state.”178

In a 2013 speech, Xi specifically identified digital platforms such as Weibo and WeChat as key risks: “[Social media] disseminate[s] information rapidly, …, has a broad reach, and a strong ability to mobilize society. … Ensuring the orderly spread of information online … has already become a real and pressing problem before us.” 179

Before the rise of digital platforms, the party-state controlled speech by monopolizing traditional media such as newspapers, television, and radio stations, most of which were state-owned. The CCP’s propaganda department closely supervised and regulated these media, dictating when and how information was disseminated. Ordinary citizens had no access to mass communication channels.

The rise of digital platforms has dismantled this monopoly, and, in doing so, has weakened the party-state’s exclusive control over information. As officials such as CAC director Zhuang Rongwen have noted, digital platforms “have upended the traditional mechanisms used by the Party to govern China’s information environment by decentralizing the mechanisms of narrative dissemination.”180 Anyone can now post a message—whether text, voice, or image—that becomes immediately visible to the entire internet. Running a newspaper was once beyond the reach of most Chinese citizens, but creating a WeChat Official Account or posting on Weibo, the Chinese counterpart of Twitter/X, is now just a few clicks away.

To be clear, the party-state retains the ultimate power to shut down a digital platform—or even the entire internet—as the regime in North Korea has done.181 However, that is not how the Chinese party-state chooses to govern: the CCP seeks to enhance its legitimacy and consolidate power by providing material wealth and maintaining openness to the outside world.182 Ideally, the party-state would directly own Tencent, the digital platform that operates WeChat, and Sina, which operates Weibo.183 This would allow the government to appoint propaganda officials to company boards and exercise direct control over these platforms. However, that is not the case. The rise of China’s internet giants, such as Tencent and Sina, stemmed from private entrepreneurship and the country’s integration into international capital markets.184 Without ownership in these private platforms, the Chinese state has no direct access to the technology—or, more specifically, the algorithms—that digital platforms use to control the flow of information online. Technology is at the core of platform competitiveness, and platforms have strong incentives to protect their proprietary algorithms. In other words, without the cooperation of digital platforms, the party-state’s informational capacity would be severely limited, and the internet—the most important public space—would be largely illegible to its propaganda and censorship officials.

The party-state recognizes its own limitations in the information age and has formulated a strategy to govern through platforms. In October 2011, the Sixth Plenary Session of the 17th Central Committee of the CCP promulgated a resolution to “push internet service providers to fulfill their legal duties and social responsibilities and not to provide channels for the spread of harmful information.”185 This resolution signaled that internet service providers should be held accountable for maintaining a “healthy” online culture and preventing the spread of “harmful information.”186 It also referenced “national information security,” a concept that President Xi

would later elevate as a guiding principle of China’s internet governance.187 In 2012, Xi assumed leadership of China. The Decision on Several Matters of Comprehensively Deepening Reform (“Decision” hereafter), passed at the Third Plenary Session of the 18th Central Committee of the CCP in 2013, is widely considered a blueprint for President Xi’s governance.188 In this document, Xi underscored the internet’s critical role in state power and national security.189 He further elevated cybersecurity to the level of national security, declaring: “Without cybersecurity, there is no national security; without informatization, there is no modernization.”190 Xi also stressed that “Internet and information security relate to national security and social stability, and it is a comprehensive challenge we are facing.”191

As aforementioned, to govern through platforms, the Chinese government established the CAC in 2014, granting it sweeping authority over cyber-related affairs.192 However, this does not mean that the party-state can fully control platforms at will. For the purpose of profit maximization through increased user engagement, digital platforms may still make decisions that directly challenge the party-state’s control over the internet.193 Another strategy the party-state employs to shape the flow of information in cyberspace is to encourage all of its units to engage with netizens directly on digital platforms. Compared to building its own digital platforms, Chinese party and state organs have found that interacting with netizens directly on platforms such as Weibo is a more direct, effective, and timely way to manage public opinion. President Xi made it a national strategy for party and state organs to establish a presence on the most popular digital platforms.194

Public authorities became active participants in the virtual public space, monitoring discussions, gathering first-hand information, and responding to citizen demands in real time to shape public opinion and enhance the regime’s legitimacy. In this sense, “the Internet has become the main battlefield for public opinion struggle.”195 From the party-state’s perspective, this strategy represents a necessary adaptation to the era of the internet and digital platforms, expanding its informational capacity.

The downside of this strategy, however, is that it places hundreds of thousands of party and state organs under the jurisdiction of digital platforms, which have occasionally exercised authority to override partystate decisions. In 2016, for instance, Weibo deleted a post from an account run by the CCP’s Communist Youth League (“CYL”). The platform later explained that the deletion was triggered automatically by a keyword filter.196 This was not an isolated case—there have been multiple instances where digital platforms have exercised power over party-state organs’ online speech, demonstrating that algorithmic control can override the authority of the party-state.197

To conclude, digital platforms control the flow of information as owners of digital infrastructure and virtual public space through technology. This authority is separate from and independent of the party-state’s authority. While the party-state has attempted to govern through digital platforms, these platforms have been far more than mere conduits of power. Instead, they have exercised their own authority in ways that have forced the partystate to reform its censorship regime and its methods of interacting with citizens. In this sense, digital platforms have not only created an alternative system to public institutions but have also fundamentally reshaped how the party-state governs China.

2. Private Incentives and Mechanisms to Govern

Regarding online speech censorship, Chinese digital platforms, like their U.S. counterparts, do not have strong inherent incentives to regulate speech.198 From a profit-making perspective, their primary concern is the

number of active users, not the quality of speech on their platforms. Digital platform leaders and employees in China may also share some libertarian ideologies with their U.S. counterparts.199

Nevertheless, even from a user engagement standpoint, platforms may still have reasons to regulate speech. Users care about both the quantity and quality of information available on digital platforms. If a platform becomes flooded with rumors and low-quality content, users may stop visiting or migrate to a competitor.200 For this reason, WeChat imposes a limit on the number of articles that owners of WeChat Official Accounts can publish.201 More importantly, similar to their U.S. counterparts, Chinese digital platforms face significant political pressure to (de)regulate online speech. A few days before the start of President Trump’s second term, Meta ended its fact-checking program on social media posts due to political pressure.202 However, in China, this pressure is far more direct. In 2014, China established the CAC to hold major internet service providers accountable. While monitoring millions of netizens is difficult, major digital platforms serve as the infrastructure that enables communication and information sharing online. By co-opting these infrastructure providers, the party-state aims to control and shape the online public space, using the internet to drive innovation and development while eliminating threats to its security and leadership.

In February 2016, several Weibo accounts of influential opinion leaders were ordered to be shut down by the CAC on the grounds that they opposed basic constitutional principles, harmed national interests, spread rumors, disturbed social order, and committed other violations.203 In November 2018, the CAC required major platforms to address problematic content, including the distortion of Party history, defaming war heroes, spreading rumors, and disseminating pornography.204 As a result, platforms “punished” 9,800

accounts.205 Platforms such as WeChat and Weibo publicly vowed to provide a “healthier” environment for their users.206

Platforms understand that their long-term prosperity depends on their relationship with the Party, which closely monitors their potential influence on public opinion and their capacity to facilitate social mobilization.207 Following a training session organized by the CCP’s United Front Work Department, Zhang Yiming, founder and then CEO of Bytedance, made the following statement: “Thanks to this training session, I understand more deeply my position and mission … We used to focus on technologies and did not have much experience in dealing with the [party-state] system. But we are absolutely patriotic and willing to accept political guidance.” 208 The use of the word “patriotic” is a deliberate reference to what President Xi considers the most fundamental of the “socialist core values.” 209 It also reflects the growing expectation that platform executives must think like “politicians”—understanding the key concerns of the party-state and shaping public opinion accordingly.210

The party-state relies on the collaboration of digital platforms because these platforms own the infrastructure of internet speech and possess the technology to monitor and control it. Similar to their U.S. counterparts, Chinese platforms regulate online speech through various methods, including terms and conditions, automatic keyword filtering, algorithms, and user-flagged content.211

One advantage of platform censorship is that platforms can collect data the government would likely be unable to obtain through direct state censorship.212 For example, Chinese platforms legally collect extensive user data, including personal information and online behavior patterns.213 WeChat’s suspected illegal surveillance of private and group chats has also drawn increasing scrutiny.214 In one case, Tencent released a report detailing the most popular emojis among different age groups, sparking suspicion that

user conversations were being monitored.215

Platforms also have greater resources and more advanced capabilities in policing their sites than the party-state.216 For instance, platforms can mobilize their entire user base to assist with censorship efforts.217 Additionally, they possess far more advanced technologies for content moderation than government regulators.218 This is partly due to their use of algorithms, which require a high level of artificial intelligence expertise. A 2016 study on WeChat found that the term “six-four” (a reference to June 4, the date of the 1989 Tiananmen Square crackdown) was automatically blocked when paired with phrases such as “democracy movement” or “memorial.” 219 As platforms have refined their technologies, WeChat has developed more sophisticated algorithms that can effectively recognize images and their accompanying text using a machine-learning approach.220

IV. CONCLUSION: A CHINESE LESSON FOR THE U.S.?

Overall, the Chinese case demonstrates how the state-platform alliance can positively shape law and other public institutions while simultaneously highlighting the challenge of holding such an alliance accountable. Some of its positive effects stem from the fact that Chinese institutions—such as democracy, the rule of law, and copyright protection—started from a position where none of these institutions were well-developed. Nevertheless, even U.S. institutions have significant room for improvement, and digital platforms, with their control over digital infrastructure and technology, can contribute meaningfully to reform. The three case studies presented in this paper offer varying degrees of insight into how digital platforms can help reshape law and public institutions in the United States.

The U.S. experience in speech regulation is perhaps the closest parallel to the Chinese case, given the dominant role digital platforms play in regulating online speech. Although the two countries appear to take opposite approaches to free speech, their similarities stem from the ownership and control of virtual public space by private platforms rather than from their political regimes, which remain fundamentally different. An intriguing

aspect of the Chinese case is that digital platforms have gained jurisdiction over the online speech of hundreds of thousands of party-state organs, thereby opening a public space that allows for greater freedom of expression than is possible offline. This shift has, in turn, weakened the state’s traditional censorship model and compelled the Chinese regime to be more responsive to public demands. In contrast, because the United States has long been a beacon of democracy, scholars tend to focus more on the challenges posed by digital platforms to U.S. democracy rather than the opportunities they might present.221

In the area of copyright, the Chinese case diverges sharply from the U.S. experience. In the United States, digital platforms have generally avoided litigation, as lawsuits between major industry players tend to be prolonged and costly.222 Countries worldwide continue to grapple with the challenge of enforcing copyright online, and in 2024, the United States topped the global list for digital piracy, as measured by the number of visits to websites offering pirated content.223 However, under the U.S. system, digital platforms lacked the same incentives as their Chinese counterparts to strengthen public institutions—partly due to strict limitations on exclusive music copyright licenses.224 In contrast, Chinese digital platforms were not discouraged by an inefficient judicial system; rather, they actively helped streamline litigation through their technological and legal resources. After filing tens of thousands of copyright infringement cases with indisputable evidence of piracy, Chinese courts became more efficient, predictable, and impartial—an unusual achievement in a country often criticized for its weak rule of law.225

If the improvement of copyright litigation was merely a byproduct of digital platforms’ pursuit of monopoly, the development of smart courts illustrates how digital platforms can contribute to judicial reform even without direct tangible benefits. There is no fundamental institutional difference between China and the United States that would prevent U.S. courts from adopting a smart case management system with the assistance of

digital platforms. Of course, differences exist in implementation. For example, no U.S. digital platform has a super app like WeChat, which allows users to handle multiple aspects of daily life—including litigation—within a single application. However, while the exact blueprint for modernizing U.S. courts remains an open question, the need to make courts more efficient is clear—as justice delayed is justice denied. The Chinese case does not offer a direct model for reform, but it does provide a promising cue for further exploration.

In light of the Chinese experience, perhaps we should welcome the interest of figures like Elon Musk in U.S. governance—but only if they are held accountable to their claimed goal of improving government efficiency. At the same time, we must ensure that they remain subject to public scrutiny. Since the state-platform alliance has already blurred the public-private boundary, we should treat digital platforms as public entities, requiring them to adhere to similar standards of accountability, transparency, and fairness.

--- FOOTNOTES ---

SHITONG QIAO*

TABLE of CONTENTS

I.INTRODUCTION ................................................................................................. 2 II.THEORY .............................................................................................................. 5 A. The Challenges to State Governance: Old and New ............................ 5 B. Private Incentives to Govern ................................................................ 9 C. Accountability of the State-Platform Alliance ................................... 14 III.THE CHINA CASE .......................................................................................... 15 A. Smart Courts ...................................................................................... 16 1. Challenges to Courts .................................................................... 16 2. Private Incentives and Mechanisms to Govern ............................ 19 B. Copyright ........................................................................................... 21 1. Challenges to Copyright Law and Enforcement .......................... 23 a. Inconsistent Copyright Rules .................................................. 23 b. Ineffective Administrative Enforcement ................................. 24 c. Limited Judicial Protection ..................................................... 25 2. Private Incentives and Mechanisms to Govern ............................ 27 C. Online Speech .................................................................................... 33 1. Challenges to Censorship ............................................................. 33 2. Private Incentives and Mechanisms to Govern ............................ 37 IV.CONCLUSION: A CHINESE LESSON FOR THE U.S.? ............................... 40

Copyright © 2026 Shitong Qiao * Ken Young-Gak Yun & Jinah Park Yun Distinguished Professor of Law, Duke Law School. Email: [email protected]. The author thanks Mike Klausner for discussions, Xingfang Li, Nicole Zhang, and Ziqi Ye for research assistance, Zhuang Liu, Veronica Root Martinez, Mara Revkin, Barak Richman, Jon Petkun, Katrina Wyman, James Zeng, and participants at the 2024 American Law and Economics Association annual meeting and the 2024 Duke/UNC China Summit for comments.

1. See, e.g., Timothy K. Kuhner, The Separation of Business and State, 95 CALIF. L. REV. 2353

(2007).

2. See, e.g., Morton J. Horwitz, The History of the Public/Private Distinction, 130 U. PA. L. REV.

1423 (1982).

3. Exec. Order No. 14158, 90 Fed. Reg. 8441 (Jan. 20, 2025); Dan Lips, What a Trump-Musk Government Efficiency Department Should Do in Its First 100 Days, THE HILL (Nov. 11, 2024),

https://thehill.com/opinion/4983476-trump-administration-efficiency-priorities/.

4. See infra Section III for details. 5. Sayd Farook, Global Digital Platform Power Index 2023, DINARSTANDARD (Dec. 25, 2023),

https://www.dinarstandard.com/post/global-digital-platform-powerindex-2023.

6. JOSÉ VAN DIJCK, THOMAS POELL & MARTIJN DE WAAL, THE PLATFORM SOCIETY: PUBLIC

VALUES IN A CONNECTIVE WORLD 164 (2018). 7. See infra Section IV for details. 8. See, e.g., Shitong Qiao, Cooperating to Resist: Society and State during China’s COVID

Lockdowns, 35 YALE J.L. & HUMANITIES 877 (2024).

9. See, e.g., JENNIFER PAHLKA, RECODING AMERICA: WHY GOVERNMENT IS FAILING IN THE

DIGITAL AGE AND HOW WE CAN DO BETTER 23 (2023).

10. See, e.g., Van Dijck et al., supra note 6. 11. See infra Section IIIA for details. 12. See infra Section IIIB for details.

13. See infra Section IIIC for details. 14. See infra Section III for details. 15. Id. 16. Compare Lizhi Liu & Barry R. Weingast, Taobao, Federalism, and the Emergence of Law, Chinese Style, 102 MINN. L. REV. 1563 (2017) (finding that the Chinese government has acquiesced in Taobao’s attempts to create a body of law governing contracts, property, fraud, and dispute resolution in areas where the state is unwilling or unable to provide) with Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 HARV. L. REV. 1598 (2018) (“Platforms have developed a detailed system rooted in the American legal system with regularly revised rules, trained human decisionmaking, and reliance on a system of external influence.”).

17. See, e.g., Tarleton Gillespie, Regulation of and by Platforms, in THE SAGE HANDBOOK OF

SOCIAL MEDIA 254 (Jean Burgess, Alice Marwick & Thomas Poell eds., 2018).

18. See infra Sections IIA and IIB for a review of the literature on platform law.

19. See, e.g., infra Section IIIB for an example. 20. See infra Section IIA for details. 21. See infra Section IIIB for details. 22. Bridget Fahey, Yupin Lin & Taisu Zhang, The Law of Information States: Evidence from China (2025),

INT’L

371,

L.

J.

States, and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5067469.

United

VA.

23. See infra Sections IIIB and IIIC for further discussion on legibility.

24. See Melissa M. Lee & Nan Zhang, Legibility and the Informational Foundations of State

Capacity, 79 J. POL. 118, 119 (2017).

25. LYMAN RAY PATTERSON, COPYRIGHT IN HISTORICAL PERSPECTIVE 19 (1968). 26. JEANNE C. FROMER & CHRISTOPHER JON SPRIGMAN, COPYRIGHT LAW: CASES AND MATERIALS 7 (v6.0 2024) (“Before the introduction of the printing press in the mid-fifteenth century, there was little need for copyright law. Books were expensive and time-consuming to copy by hand, which made unauthorized copying unattractive. But with the advent of the printing press and of the cheap mass copying that the technology made possible, copying emerged as a concern for book printers. In England, the printers joined together to organize a guild, the Stationers’ Company, chartered by the Crown in 1557. The guild, which was focused on controlling copying, entered into a pact with the Crown, which was interested in controlling seditious books. Under the terms of the 1557 charter and a number of licensing acts that followed, the members of the Stationers’ Company were granted an exclusive right to print most works within the realm. The Company itself was granted power to search for and destroy books printed by non-guild printers.”).

27. DAVID BLACKBURN, ET AL., IMPACTS OF DIGITAL VIDEO PIRACY ON THE U.S. ECONOMY (U.S. Chamber of Com. 2019), https://www.project-scope.org/wp-content/uploads/2020/08/digital-videopiracy.pdf.

28. Yochai Benkler et al., Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate, 32 POL. COMMC’N 594, 594 (2015) (“The bill, introduced by Senators Patrick Leahy and Orrin Hatch, described in technocratic terms that it ‘would create an expedited process for the DOJ to shut down Web sites providing pirated materials’ . . . .”).

29. Id.

30. See id. 31. Gautham Nagesh, Bipartisan Bill Would Ramp Up Anti-Piracy Enforcement Online, THE HILL (Sept. 20, 2010), https://thehill.com/blogs/hillicon-valley/technology/119771-bipartisan-bill-wouldramp-up-anti-piracy-enforcement-online.

32. Benkler et al., supra note 28, at 594–95. 33. Id. 34. Id. 35. 习近平谈关于加快完善互联网管理领导体制 [Xi Jinping Discusses Speeding Up the Improvement of Internet Regulation and Leadership System], 中华人民共和国国家互联网和信息办公 室[CYBERSPACE ADMIN. OF CHINA] (Feb. 25, 2014, 4:59 PM), http://www.cac.gov.cn/201402/25/c_133142284.html.

36. Id. 37. See generally Larissa Katz, Governing Through Owners: How and Why Formal Private Property Rights Enhance State Power, 160 U. PA. L. REV. 2029 (2011); see also ARIEL EZRACHI & MAURICE E. STUCKE, HOW BIG-TECH BARONS SMASH INNOVATION – AND HOW TO STRIKE BACK (2022).

38. Theodore Schleifer & Madeleine Ngo, Elon Musk and His Allies Storm Into Washington and Race to Reshape It, N.Y. TIMES (Jan. 29, 2025), https://www.nytimes.com/2025/01/29/us/politics/elonmusk-trump-administration.html; Camille Tuutti, What Trump 2.0 Means for Tech and AI Regulation, NEXTGOV (Nov. 20, 2024), https://www.nextgov.com/policy/2024/11/what-trump-20-means-tech-andai-regulation/401161/.

39. Mike Isaac & Theodore Schleifer, Meta Says It Will End Its Fact-Checking Program on Social Media Posts, N.Y. TIMES (Jan. 15, 2025), https://www.nytimes.com/live/2025/01/07/business/meta-factchecking (“The social networking giant will stop using third-party fact-checkers on Facebook, Threads and Instagram and instead rely on users to add notes to posts. It is likely to please President-elect Trump and his allies.”).

40. Jamie P. Horsley, Behind the Facade of China’s Cyber Super-Regulator, DIGICHINA (Aug. 8, 2022), https://digichina.stanford.edu/work/behind-the-facade-of-chinas-cyber-super-regulator/; 国务院 关于授权国家互联网信息办公室负责互联网信息内容管理工作的通知 [Notice of the State Council on Charging the Cyberspace Administration of China with the Content Management of Information on the Internet] (promulgated by the St. Council, Aug. 26, 2014, effective Aug. 26, 2014), CLI.2.232123 (Lawinfochina).

41. This is similar to how the U.S. government handles digital platforms. See Jack M. Balkin, Old-

school/new-school Speech Regulation, 127 HARV. L. REV. 2296 (2014).

42. Xiaosong Zhang & Jichai Zhu, 习近平出席全国网络和信息化工作会议并发表重要讲话) [Xi Jingping Attends National Internet and Informatization Meeting and Gave Important Speech], 中华 人民共和国中央人民政府 (Apr. 21, 2018, 4:58 PM), http://www.gov.cn/xinwen/2018-04/21/content_5284783.html.

[THE ST. COUNCIL OF CHINA]

43. Nicholas Gisonna, Great Firewall, ENCYC. BRITANNICA (last updated July 12, 2024, last

accessed July 31, 2024), https://www.britannica.com/topic/Great-Firewall.

44. See, e.g., YA-WEN LEI, THE CONTENTIOUS PUBLIC SPHERE: LAW, MEDIA, AND

AUTHORITARIAN RULE IN CHINA (2019). 45. Zhang & Zhu, supra note 42. 46. Katz, supra note 37. 47. Jack M. Balkin, Free Speech Is a Triangle, 118 COLUM. L. REV. 2011, 2016 (2018) (describing this model as the “new-school speech regulation,” where nation-states coerce or co-opt private owners of digital platforms to regulate the speech of individuals, associations, and media companies).

48. Julie E. Cohen, Law for the Platform Economy, 51 U.C. DAVIS L. REV. 133, 168–75 (2017). 49. See GILLIAN K. HADFIELD, RULES FOR A FLAT WORLD 227 (2017) (contending that private parties equipped with blockchain technology might be able to enforce contracts more efficiently that state authorities).

50. Klonick, supra note 16; Liu & Weingast, supra note 16. 51. Klonick, supra note 16. 52. Id. 53. Rory Van Loo, Federal Rules of Platform Procedure, 88 U. CHI. L. REV. 829 (2021) (“Tech platforms serve as private courthouses for disputes about speech, lodging, commerce, elections, and reputation.”) [hereinafter Loo, Federal Rules of Platform Procedure].

54. Liu & Weingast, supra note 16. 55. Katrina M. Wyman, Taxi Regulation in the Age of Uber, 20 N.Y.U. J. LEGIS. & PUB. POL’Y 1, 1 (2017); Daniel E. Rauch & David Schleicher, Like Uber, but for Local Government Law: The Future of Local Regulation of the Sharing Economy, 76 OHIO ST. L.J. 901, 901 (2015).

56. Ryan Calo & Alex Rosenblat, The Taking Economy: Uber, Information, and Power, 117

COLUM. L. REV. 1623, 1623 (2017).

57. Sapna Maheshwari, TikTok Butters Up Trump, Again and Again, N.Y. TIMES (Jan. 19, 2025),

https://www.nytimes.com/2025/01/19/technology/tiktok-trump-messages-ban.html.

58. See Lina M. Khan, Amazon’s Antitrust Paradox, 126 YALE L.J. 710, 710 (2016) (arguing that the current framework in antitrust—specifically its pegging competition to “consumer welfare,” defined as short-term price effects—is unequipped to capture the architecture of market power in the modern economy); see also Lina M. Khan, The Separation of Platforms and Commerce, 119 COLUM. L. REV. 973, 973 (2019); Lina M. Khan, The End of Antitrust History Revisited, 133 HARV. L. REV. 1655, 1655 (2020).

59. See, e.g., ANU BRADFORD, DIGITAL EMPIRES: THE GLOBAL BATTLE TO REGULATE

TECHNOLOGY (2023); see also Loo, Federal Rules of Platform Procedure, supra note 53.

60. Cohen, supra note 48, at 176. 61. Id. at 176–77. 62. See id. at 178–91. 63. See Hannah Bloch-Wehba, Global Platform Governance: Private Power in the Shadow of the State, 72 SMU L. REV. 27, 39 (2019) (stating few American observers challenged the foundational belief that private ordering, rather than public regulation, should govern much online activity).

64. Cohen, supra note 48, at 177.

65. See Charles Duhigg, Silicon Valley, the New Lobbying Monster, THE NEW YORKER (Oct. 7,

2024), https://www.newyorker.com/magazine/2024/10/14/silicon-valley-the-new-lobbying-monster.

66. Id. 67. Ross Douthat, How Democrats Drove Silicon Valley Into Trump’s Arms, N.Y. TIMES (Jan. 17,

2025), https://www.nytimes.com/2025/01/17/opinion/marc-andreessen-trump-silicon-valley.html.

68. Duhigg, supra note 65. 69. Elizabeth Pollman & Jordan M. Barry, Regulatory Entrepreneurship, 90 S. CAL. L. REV. 383,

383 (2016).

70. Id. 71. Id. 72. Jeanne C. Fromer & Mark P. McKenna, Amazon’s Quiet Overhaul of the Trademark System,

113 CALIF. L. REV. 1169.

73. See id. 74. Id. 75. Pollman & Barry, supra note 69. 76. Liu & Weingast, supra note 16.

77. See generally Timothy Frye, Credible Commitment and Property Rights: Evidence from Russia, 98 AM. POL. SCI. REV. 453 (2004) (surveying two Russian company managers to support this insight); Douglass C. North, Institutions and Credible Commitment, 149 J. INST. & THEORETICAL ECON. 11 (1993) (observing that western European states had failed to credibly commit property rights). Cf. Douglass C. North & Barry R. Weingast, Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England, 49 J. ECON. HIST. 803 (1989) (arguing that “new institutions allowed the government to commit credibly to upholding property rights” and describing this success as “remarkable”).

78. See, e.g., FRANCIS FUKUYAMA, POLITICAL ORDER AND POLITICAL DECAY: FROM THE

INDUSTRIAL REVOLUTION TO THE GLOBALIZATION OF DEMOCRACY 335–54 (2014).

79. Loo, Federal Rules of Platform Procedure, supra note 53, at 79. 80. See infra Section IIIA.

81. 最高人民法院关于加快建设智慧法院的意见 [Opinions of the Supreme People’s Court on Accelerating the Construction of Smart Courts] (法发〔2017〕12号) [Fa Fa [2017] No. 12], SUP. PEOPLE’S CT. GAZ. (Sup. People’s Ct. Apr. 12, 2017).

82. Press Release, Sup. People’s Ct., 最高人民法院《最高人民法院工作报告》解读系列全媒 体直播第三场 [The Third Press Release of the Work Report of the Supreme People’s Court] (Mar. 9, 2021), http://www.court.gov.cn/zixun-xiangqing-289951.html.

83. Xin He, Pressures on Chinese Judges Under Xi, 85 CHINA J. 49, 57–58 (2021). 84. See generally Yang Su & Xin He, Street as Courtroom: State Accommodation of Labor Protest in South China, 44 LAW & SOC’Y REV. 157 (2010) (arguing that the Chinese government should strengthen “legal channels” to resolve collective labor disputes).

85. See generally Hualing Fu, Building Judicial Integrity in China, 39 HASTINGS INT’L & COMP. L.

REV. 167 (2016) (proposing measures to rebuild judicial integrity and credibility of Chinese courts).

86. Id. 87. See智慧法院如何实现跨越发展?听最高法副院长怎么说

Say], 中国长安网

to Realize Leapfrog Development for “Smart Courts”? Listen to What the Vice-President of the Supreme People’s Court Has to PM), PEACE] http://www.chinapeace.gov.cn/chinapeace/c100007/2021-01/11/content_12437164.shtml; also Opinions of the Supreme People’s Court on Accelerating the Construction of Smart Courts, supra note 81.

[CHINA

[How

2021,

(Jan.

6:30

see

11,

88. How to Realize Leapfrog Development for “Smart Courts”? Listen to What the Vice-President

of the Supreme People’s Court Has to Say, supra note 87.

89. See generally, e.g., Chaoqun Zhan & Shitong Qiao, Workload, Legal Doctrine, and Judicial Review in An Authoritarian Regime: A Study of Expropriation Judgments in China, 80 INT’L REV. L. & ECON. 1 (2024) (examining “how Chinese courts, faced with an explosive increase in workload caused by a legal reform in 2015, adjudicated expropriation disputes between the government and property rights holders”).

90. 中华人民共和国中央人民政府 [THE CENT. GOV’T OF THE PEOPLE’S REPUBLIC OF CHINA], 最 高人民法院工作报告 [THE WORK REPORT OF THE SUPREME PEOPLE’S COURT], 15 (Mar. 15, 2024), https://www.gov.cn/yaowen/liebiao/202403/content_6939583.html.

91. Shitong Qiao, Zhiyu Li & Benjamin Chen, How Technology is Changing Justice in China,

JUDICATURE INT’L 1, 2 (2022).

92. Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 378–79 (1982). 93. Id. 94. Wang Han, 依托小程序”微法院”带来诸多司法黑科技

[Relying on Mini-Programs: “WeCourt” Brings Many Judicial High-Tech Innovations], 民主与法制时报 [DEMOCRACY & LEGAL SYS. TIMES] (Jun. 30, 2019), http://e.mzyfz.com/paper/1279/paper_31084_7317.html.

95. Jiang Bo, 腾讯法总江波:平台助力智慧法院建设 [Tencent Legal Chief Jiang Bo: Platforms Assist in Building Smart Courts], 蓝海现代法律 [BLUE OCEAN MOD. LAW] (WeChat Official Account) (Feb. 7, 2018), https://mp.weixin.qq.com/s/BB_yAEOpQYsert__Eyo4kg.

96. Id. 97. PAHLKA, supra note 9, at 23. 98. Cass R. Sunstein, Sludge and Ordeals, 68 DUKE L.J. 1843 (2019).

99. Yi Feng, “南山必胜客”十年记: 这份荣耀不只属于腾讯法务 [Ten Years of “Nanshan Must Win”: This Honor Belongs Not Only to Tencent Legal], 新浪财经 [SINA FIN.] (Mar. 26, 2021), http://finance.sina.com.cn/chanjing/gsnews/2021-03-26/doc-ikkntiam8551742.shtml; see also 广西壮族 (GXZC2020-G3-005105-YZLZ) 中标结果公告 自治区高级人民法院移动微法院系统建设项目 [Guangxi Zhuang Autonomous Region Higher People’s Court Mobile WeCourt System Construction Project (GXZC2020-G3-005105-YZLZ) Winning Bid Announcement], 广西壮族自治区公共资源交易 中心 PLATFORM], http://gxggzy.gxzf.gov.cn/jyfw/jyfw_zfcg/zfcg_gkzb/gkzb_zbgg/t7419722.shtml (This is a bidding announcement for a provincial WeCourt project. The published cost is 4.14 million yuan, with approximately 3 million yuan allocated to Tencent Cloud server rental.). 100. Fu, supra note 85.

[GUANGXI ZHUANG AUTONOMOUS REGION

PUB. RES. TRADE

[21ST

CENTURY

101. Fei Yun,【点赞】腾讯全国首家”智慧微诉平台”落户西山 实现微信打官司 [Thumbs Up: Tencent’s First National “Smart Micro-Litigation Platform” Launches in Xishan, Enabling WeChat Lawsuits], 云南高院 [YUNNAN HIGH PEOPLE’S CT.] (WeChat Official Account) (Feb. 13, 2018), https://mp.weixin.qq.com/s/rkHqJnBE52cv0q4d216CIQ. 102. Id. 103. Wang Feng, 指尖诉讼、掌上办案? 中国移动微法院总入口正式开通 [Lawsuits at Your Fingertips, Case Handling in Your Palm? China’s National Mobile WeCourt Portal Officially Launched], 21世纪经济报道 2019), https://m.21jingji.com/article/20190326/herald/15c672db82bcba4ac475e894b6050c21.html. 104. Tao Yudai, 腾讯公司副总裁江波: 互联网法院为互联网行业提供裁判引导和规则保障 [Tencent Vice President Jiang Bo: Internet Courts Provide Judicial Guidance and Regulatory Assurance for the Internet Industry], 最高人民法院 [SUPREME PEOPLE’S CT.] (WeChat Official Account) (Sept. 30, 2020), https://mp.weixin.qq.com/s/_cldycs2TlVO_l7kCQJLBQ. 105. Shitong Qiao, Governing with Technology Platforms: The Rise of Copyright on China’s Internet, working paper, on file with the author. 106. Tengxun Yun Qukuailian, 我们用区块链技术保护了1000万篇原创文章 [We Used Blockchain Technology to Protect 10 Million Original Articles], 腾讯云开发者 [TENCENT CLOUD 2020), DEVS.] https://mp.weixin.qq.com/s/Yk1ipjbufhX4OPgTfMaBMQ. 107. Id.

HERALD]

Account)

(WeChat

Official

(Mar.

(Apr.

BUS.

26,

16,

1,

(July

2020),

[MANAGER MAG.]

108. 腾讯内容开放平台维权再升级，区块链技术为原创者护航 [Tencent Content Open Platform Upgrades Rights Protection Again: Blockchain Technology Safeguards Original Creators], 经 理人杂志 https://tech.sina.cn/2020-07-01/detailiirczymk9960784.d.html. 109. Wu Pingping, 腾讯参与智慧法院项目助力司法公平正义 [Tencent’s Participation in the Smart Court Project Supports Judicial Fairness and Justice], 腾讯智法 [TENCENT LEGAL INTEL.] (WeChat Official Account) (Jan. 8, 2019), https://mp.weixin.qq.com/s/MjhUbTZdF_cHtntgSErXug. 110. 中国移动微法院上线两周年! 累计访问超10亿次，数字赋能让公平正义更触手可及! [Two Years Since the Launch of China’s Mobile WeCourt! Over 1 Billion Visits, Digital Empowerment Makes Fairness and Justice More Accessible!], 澎湃新闻 [THE PAPER] (Apr. 7, 2021), https://m.thepaper.cn/baijiahao_12087793. 111. Xiaohui Wang, 最高法：2021年全国法院执结执行案件864.2万件 [Supreme People’s Court: In 2021, Courts Nationwide Concluded 8.642 Million Enforcement Cases], 央视新闻 [CCTV NEWS] (July https://content-static.cctvnews.cctv.com/snowbook/index.html?toc_style_id=feeds_default&share_to=wechat&item_id=15966287209539738063&tra ck_id=A406AC81-1C02-4B70-A527-1C0D645CB916_679297436058. 112. See, e.g., Cyril Ip, How Did China’s Digital Music Industry Become the Second Largest in the World?, S. CHINA MORNING POST (Nov. 28, 2021, 4:00 PM), https://www.scmp.com/economy/chinaeconomy/article/3157517/how-did-chinas-digital-music-industry-become-second-largest.

12:43

2022,

PM),

12,

PROT.]

ON CHINA’S

[2018 REPORT

INTERNET COPYRIGHT

113. 中国信息通信研究院 [CHINA ACAD. OF INFO. COMMC’N & TECH.], 2018年中国网络版权保 护年度报告 (2019), http://www.caict.ac.cn/kxyj/qwfb/ztbg/201904/P020190429564006047715.pdf. 114. Andy Chatterley, 2021 MUSO Discover Piracy by Industry Data Review, MUSO 1, 10 (Jan. 2022), https://f.hubspotusercontent40.net/hubfs/6347345/2021%20MUSO%20Discover%20Piracy %20by%20Industry%20Data%20Review.pdf. 115. See, e.g., Tencent Set to Buy 10% Stake in Universal Music, BBC (Aug. 6, 2019), https://www.bbc.com/news/business-49248074. 116. Louise Lucas & Xinning Liu, Western Artists Eye Changing Beat of China’s Music Market, FIN. TIMES (Nov. 26, 2017), https://www.ft.com/content/e63f9012-c2a4-11e7-a1d2-6786f39ef675. 117. See infra Section IIIB. 118. See infra Section IIIB.2. 119. See generally, e.g., Xiyin Tang, Privatizing Copyright, 121 MICH. L. REV. 753 (2022) (noting the dominance of private contracting in the governance of digital content); Klonick, supra note 16 (“Platforms have developed a detailed system rooted in the American legal system with regularly revised

rules, trained human decisionmaking, and reliance on a system of external influence.”); Rory Van Loo, The New Gatekeepers: Private Firms as Public Enforcers, 106 VA. L. REV. 467 (2020) (“Over the past two decades, administrative agencies have used legal rules, guidance documents, and court orders to mandate that private firms in these and other industries perform the duties of a public regulator.”); Fromer & McKenna, supra note 72 (analyzing the “Amazon Brand Registry’s sweeping influence on firm behavior, particularly in relation to the formal trademark system.”). 120. 著作权法 [Copyright Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 27, 2001, effective Oct. 27, 2001), art. 47, CLI.1.37087 (Lawinfochina). 121. Id. at art. 58. 122. 互联网著作权行政保护办法 [Measures for the Administrative Protection of Internet Copyright] (promulgated by the Nat’l Copyright Admin. & Ministry of Indus. and Info. Tech., Apr. 29, 2005, effective May 30, 2005), CLI.4.58307 (Lawinfochina). 123. 信息网络传播权保护条例 [Regulation on the Protection of the Right of Disseminating Copyrighted Content Through the Internet] (promulgated by the St. Council, May 18, 2006, effective Jul. 1, 2006), art. 23, CLI.2.76727 (Lawinfochina) (“明知或者应知所链接的作品、表演、录音录像制品 侵权的，应当承担共同侵权责任” [“[I]f it knows or should have known that the linked work, performance, or sound or audio-visual recording is infringing, it shall assume liability for joint infringement . . . .”]).

124. 中华人民共和国侵权责任法 [Tort Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 26, 2009, effective July 1, 2010), art. 36, CLI.1.125300 (Lawinfochina). 125. Xue Jun, 民法典网络侵权条款研究：以法解释论框架的重构为中心 [Research on the Internet Tort Provisions of the Civil Code: Centering on the Reconstruction of the Interpretative Framework of the Law], 4 比较法研究 [BIJIAOFA YANJIU] 131, 137 (2020). 126. Id. 127. See Wang Yu, 视频网站侵权泛滥：悠视遭点名 酷6腾讯被警告 [Copyright Infringement on Video Websites Flourished: Youshi Has Been Criticized, Ku6 and Tencent Have Been Warned], 新浪科 技 [SINA TECH.] (Jan. 28, 2011, 6:06 PM), http://tech.sina.com.cn/i/2011-01-28/18065144967.shtml. 128. Id. 129. Id.

130. See generally, e.g., Xin He & Yang Su, Do the “Haves” Come Out Ahead in Shanghai Courts?, 10 J. EMPIRICAL LEGAL STUD. 120 (2013) (analyzing 2,724 decisions from Shanghai courts and finding inconsistent outcomes regardless of disparities in the parties’ litigation capacities); Ji Li, The Power Logic of Justice in China, 65 AM. J. COMPAR. L. 95 (2017) (accounting for the inconsistency in Chinese judicial behavior by reference to a theory of power distribution); Cheryl Xiaoning Long & Jun Wang, Judicial Local Protectionism in China: An Empirical Study of IP Cases, 42 INT’L REV. L. & ECON. 48 (2015) (providing quantitative evidence of judicial local protectionism using IP cases published in the Bulletin of the People’s Supreme Court of China (the PSC) since 1985 and collected from five Chinese provinces filed during 1994–2009); James S. Ang et al., Does Enforcement of Intellectual Property Rights Matter in China? Evidence from Financing and Investment Choices in the High-Tech Industry, 96 REV. ECON. & STAT. 332 (2014) (noting that while China has uniform national IP laws, there are significant differences across provinces in terms of local enforcement); William Weightman, Is the Emperor Still Far Away? Centralization, Professionalization, and Uniformity in China’s Intellectual Property Reforms, 19 UIC REV. INTELL. PROP. L. 145, 157 (2020) (confirming that to fight local protectionism is the main motivation of building specialized IP courts and tribunals). 131. Digital Music Report, INT’L FED’N OF THE PHONOGRAPHIC INDUS. 1, 16 (2009), https://www.musikindustrie.de/fileadmin/bvmi/upload/06_Publikationen/DMR/ifpi_digital-musicreport-2009.pdf. 132. Wu Duidui, 中国数字音乐罗曼蒂克消亡史 [The Wasted Times of Chinese Digital Music], 品 玩 [PINWAN] (Sept. 10, 2019), https://www.pingwest.com/a/194108. 133. PMCAFF, 资本的裁决：2017年中国数字音乐产业报告 [Decision of Capital: 2017 Report on China’s Digital Music Industry], 界面新闻 [JIEMIAN XINWEN] (Feb. 13, 2017, 2:56 AM), https://www.jiemian.com/article/1110643.html. 134. Zhang Kailun, 从千千静听到网易云，在线音乐20年沉浮录 [From TTPlayer to NetEase: Twenty-Year (June 27, 2020, 11:55 AM), https://news.leju.com/2020-06-27/6682491437529218675.shtml (observing that

Digital Music], 乐居财经

CAIJING]

History

[LEJU

of

Baidu has captured over 80% of the online music market since 2003); Music Dui Dui, 提前退场的百度 ，如何再分音乐行业一杯羹？[After Its Early Exit, How Can Baidu Get Another Slice of the Music Industry Pie?], 36氪[36 KR] (Dec. 12, 2018, 4:13 PM), https://36kr.com/p/1723049574401 (noting that Baidu has held 92.8% of the music search market). 135. Digital Music Report, supra note 131, at 16. 136. 环球唱片有限公司与北京百度网讯科技有限公司侵害作品信息网络传播权纠纷案 [Universal Music Grp., Inc. v. Beijing Baidu Netcom Sci. & Tech. Co., Ltd., A Dispute over Infringement the Right of Disseminating Copyrighted Content Through the Internet] (Beijing No.1 Interm. People’s Ct. Nov. 17, 2006). Information about this case mentioned thereafter all comes from the judgment unless otherwise specified. 137. For discussions on the safe harbor principle, see, e.g., Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 NOTRE DAME L. REV. 499 (2018). 138. 最高人民法院关于审理涉及计算机网络著作权纠纷案件适用法律若干问题的解释(2004 修正), 法释 [2004]1号 [Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Cases in Relation to Copyright Disputes over Computer Network (2004 Amendment), Judicial Interpretation No. 1 [2004]] (promulgated by the Judicial Comm. Sup. People’s Ct., Jan. 2, 2004, effective Jan. 7, 2004), CLI.3.51153 (Lawchinainfo). 139. Universal Music Grp., Inc. v. Beijing Baidu Netcom Sci. & Tech. Co., Ltd., supra note 136; 百 度打赢MP3搜索侵权案 七大唱片公司败诉 [Baidu Won MP3 Search Infringement Case, Seven Large

17,

4:42

PM),

2006,

(Nov.

[SOHU XINWEN]

Record Labels Lost], 搜狐新闻 http://news.sohu.com/20061117/n246457899.shtml. 140. Ma Quanzhi, 五大唱片公司诉百度案终审落定 百度胜诉 [Final Judgment of Five Large Record Labels v. Baidu: Baidu Won], 豆瓣 [DOUBAN] (Dec. 21, 2007, 12:52:28 PM), https://www.douban.com/group/topic/2359219/. 141. See 环球唱片公司、华纳唱片公司和索尼音乐娱乐公司与百度公司侵犯著作权纠纷上诉 案 [Universal Music Grp., Inc., Warner Music Grp., Inc., and SONY Music Ent. Hong Kong Ltd. v. Beijing Baidu Netcom Sci. & Tech. Co., Ltd., Appeal of Copyright Infringement Dispute] (Beijing Higher People’s Ct. Jul. 18, 2011). 142. See id. 143. See Xin Wang, 百度签约环球音乐华纳唱片索尼音乐三大公司 [Baidu Has Signed Licensing Deals with the Three Major Music Companies: Universal Music Group, Warner Music Group, and Sony Music Entertainment], 新浪财经 [SINA FIN.] (July 20, 2011, 9:35 AM), https://finance.sina.cn/sa/201107-20/detail-ikftssan8116689.d.html. 144. Id. 145. 百度整合旗下音乐产品 打造正版音乐权威媒体 [Baidu Integrates Its Music Products to Create Authoritative Licensed-Music Media], 央视网 [CCTV.COM] (Oct. 23, 2012, 1:23 PM), https://news.cntv.cn/20121023/105080.shtml .

[DI-YI CAIJING]

146. Yue Yan, 上市遇阻? 中国音乐集团投入腾讯怀抱 [Having Troubles with IPO? China Music Corp. Merged with Tencent], 第一财经 (July 15, 2016, 6:21 PM), https://m.yicai.com/news/5044188.html. 147. In 2015, following the NCA Order, Baidu deleted 642,000 songs, many more than Tencent (23,700) and Alibaba (26,000). Li Tong & Gu Lexiao, 市占率不足2%, 虾米音乐还能听多久? [How Much Longer Can Xiami Music Sustain with Less Than 2% of Market Share?], 界面新闻 [JIEMIAN XINWEN] (Dec. 1, 2022, 5:05 AM), https://www.jiemian.com/article/5344345.html. 148. Alibaba, the leading e-commerce platform in China and a competitor to Tencent, did not invest in online music as Tencent did in the 2000s. However, in 2013, it acquired Xiami to join the competition for a share of the growing market for online music. In 2014, Alibaba also acquired TTPod, another free music file player based on piracy, to build up its music platform. In 2015, it then established Ali Music on the basis of Xiami and TTPod. Xiami CEO Song Ke explained in an interview that year that rather than accumulating copyrights, Ali Music wanted to focus on “people” and hoped to provide a platform that could solve problems for musicians: “[W]e don’t even care which platform holds [the] exclusive licenses of record companies…. We value not only the product, but also the production process.” In Song’s view, a copyright war was “too low-class,” and simply signing copyright agreements and moving offline music online was worthless. His statements are in sharp contrast to Tencent founder Pony Ma’s 2015 declaration that copyrights were central to Tencent’s business. 专访阿里音乐 CEO 宋柯: 如果只 是玩版权, 我和高晓松就不来了 [Interview with Ali Music’s CEO Song Ke: If It’s Only a Copyright Game, Gao Xiaosong and I Would Not Have Come], 36KR (Nov. 10, 2015, 7:09 AM), https://www.36kr.com/p/1720967593985. 149. 市场监管总局 [State Admin. for Mkt. Regul.], 国家市场监督管理总局行政处罚决, 国市监 处 [2021] 67 号 [The State Administration for Market Regulation’s Decision of Administrative Punishment, 2021), https://www.samr.gov.cn/xw/zj/202107/P020210724302729586098.pdf; 大数据解读主流音乐平台市 场及用户群体 [Interpreting Mainstream Music Platforms’ Market and Users Using Big Data], 中国音 乐网 PM), http://www.chnmusic.cn/yybk/2017/0204/3999.html.

State Admin. Mkt.

[2021] No.

[ZHONGGUO

11:04:03

YINYUE

WANG]

Regul.

2017,

(Feb.

(July

67]

24,

4,

150. Lu Nan, QQ音乐的正版化路径 [The Road to Licensing of QQ Music], 中国新闻出版 报 [ZHONGGUO XINWEN CHUBAN BAO] (May 20, 2015, 9:30 AM), https://www.chinaxwcb.com/info/2 8561. 151. INT’L FED’N OF THE PHONOGRAPHIC INDUS., GLOB. MUSIC REP. 2017, 28 (2017), https://www.musikindustrie.de/fileadmin/bvmi/upload/06_Publikationen/GMR/GMR2017_press.pdf. 152. 腾讯与索尼音乐战略合作引领中国数字音乐产业崛起 [Collaborating with SONY Music, Tencent Leads the Rise of China’s Digital Music Industry], 凤凰音乐 [IFENG MUSIC] (Dec. 17, 2014), https://m.qudong.com/pcarticle/202834. 153. In 2015, Kuwo’s CEO Ming Lei explained that Kuwo had three revenue sources: advertisements, subscription fees, and offline music products. See INT’L FED’N OF THE PHONOGRAPHIC INDUS. (2017), supra note 151. 154. State Admin. for Mkt. Regul., supra note 149; see Interpreting Mainstream Music Platforms’ Market and Users Using Big Data, supra note 149. 155. See Interpreting Mainstream Music Platforms’ Market and Users Using Big Data, supra note

149. 156. INT’L FED’N OF THE PHONOGRAPHIC INDUS. (2017), supra note 151, at 28. 157. Yue Yan, supra note 146. 158. Id. 159. Id. 160. Interview with a platform counsel, May 8, 2018.

of

note

supra

150; Protection

Intellectual Property, TENCENT,

161. Lu Nan, https://www.tencent.com/legal/html/en-us/property.html (last visited July 31, 2024). 162. Interview with a platform counsel, May 8, 2018. 163. See中国网络正版音乐促进联盟成立 [Licensed Music on China’s Internet Promoted the Establishment of Alliance], 中国财经 (Jan. 30, 2015, 9:46 AM), https://finance.china.com.cn/roll/20150130/2936752.shtml. 164. 互联网版权监测捕捉侵权者的”电子眼” [The “Electronic Eye” of Internet Copyright Monitoring That Catches Infringers], 中国新闻出版 [ZHONGGUO XINWEN CHUBAN BAO] (Mar. 13, 2014, 9:40 AM), http://ip.people.com.cn/n/2014/0313/c136655-24623833.html. 165. Confidential data provided by an interviewee. 166. Id.

[ZHONGGUO CAIJING]

167. Claire Fu & Daisuke Wakabayashi, There Is No TikTok in China, but There is Douyin. Here’s What It Is, N.Y. TIMES (Apr. 25, 2024), https://www.nytimes.com/2024/04/25/business/china-tiktokdouyin.html. 168. Liu Fei, 亿版权索赔，全国起诉:高举正义牌坊的腾讯， 背后又有什么私利? [800 Million in Copyright Claims, Nationwide Prosecution: What’s Behind Tencent’s Self-Interest in Holding Up a Sign of Justice?], 搜狐新闻 [SOHU] (Dec. 23, 2021), http://news.sohu.com/a/510980307_407695. 169. See 重庆法院2021年知识产权司法保护十大典型案例 [The Ten Typical Cases of Judicial Protection of Intellectual Property Rights in the Chongqing Courts], 澎湃新闻 [THE PAPER] (Apr. 19, 2022), https://m.thepaper.cn/baijiahao_17696590; 参见北京微播视界科技有限公司、深圳市腾讯计 算机系统有限公司等非诉行为保全审查非诉保全审查一案，重庆市第一中级人民法院 (2021)渝 01行保1号之一民事裁定书 [Beijing Weibo Shijie Tech Ltd. v. Shenzhen Tencent Computer System Ltd., The First Intermediate Court of Chongqing, Yu (2021)01Xingbao No.1]; 深圳市腾讯计算机系统 有限公司等诉北京微播视界科技有限公司等侵害信息网络传播权及不正当竞争纠纷一案，陕西 省西安市中级人民法院（2021）陕01知民初3078号民事判决书 [Shenzhen Tencent Computer System Ltd. v. Beijing Weibo Shijie Tech Ltd., Xi’An Intermediate Court, (2021) Shan 01 Zhiminchu No. 3078]. 170. See Zhiqiang Zhao, Chen Huang & Yan Zhang, 通知—删除规则下采取必要措施的范围 [The Scope of Necessary Measures under The Notice-Delete Rule], 人民司法（案例 [2023 People’s Justice (Case Studies)]，85, 89.

171. Qiao, supra note 105. 172. Id. 173. See generally Balkin, Free Speech Is a Triangle, supra note 47 (arguing that the regulation on free speech should be conceived as a triangle of speakers, platforms, and governments). 174. See id. at 2016–17. 175. See id. 176. See infra Section IIIC for details.

177. Jufang Wang, China’s Public Opinion Control in the Platform Era: News, Media Power, and State-platform Collaborative Governance, at 18 (Sept. 2019) (Ph.D. thesis, University of Warwick) (on file with University of Warwick Library). 178. Jun Mai, Communist Party Warns of Gap Between ‘Public and Official Opinion,’ S. CHINA MORNING POST (Feb. 21, 2016, 2:59 AM), https://www.scmp.com/news/china/policiespolitics/article/1914661/communist-party-warns-gap-between-public-and-official. 179. Xinhua Jinping’s Explanation of the “Decision on Major Issues Concerning Comprehensively Deepening Reform”] ,中华 人民共和国中央人民政府[CENT. PEOPLE’S GOV’T OF CHINA] (Nov. 15, 2013, 7:09 PM), https://www.gov.cn/ldhd/2013-11/15/content_2528186.htm. 180. Censorship Practices of the People’s Republic of China, U.S.-CHINA ECON. AND SEC. REV. COMM’N, Report], 2024), https://www.uscc.gov/research/censorship-practices-peoples-republic-china.

Net, 习近平关于全面深化改革若干重大问题的决定的说明[Xi

[hereinafter

Censorship

(Feb.

20,

at

181. Tom Zeller Jr., The Internet Black Hole That Is North Korea, N.Y. TIMES (Oct. 23, 2006), https://www.nytimes.com/2006/10/23/technology/23link.html (“While other restrictive regimes have sought to limit the Internet, North Korea has chosen to stay off the grid entirely.”). 182. Baogang Guo, Political Legitimacy and China’s Transition, J. CHINESE POL. SCI., at 11–13 (2003) (observing this model during China’s opening up). 183. Li-Wen Lin & Curtis J. Milhaupt, We are the (National) Champions: Understanding the Mechanisms of State Capitalism in China, 65 STAN. L. REV 697, 734 (2013). 184. See Shitong Qiao, Finance Against Law: The Case of China, 64 HARV. INT’L L. J. 431, 435 (2023). 185. 中央关于深化文化体制改革若干重大问题的决定 [Decision of the CPC Central Committee on Major Issues Pertaining to Deepening Reform of the Cultural System] [hereinafter Decision for Reform of the Cultural System], 中华人民共和国中央人民政府 [The St. Council of China] (Oct. 25, 2011, 9:18 PM), http://www.gov.cn/jrzg/2011-10/25/content_1978202.html. 186. Id.

187. See 习近平谈关于加快完善互联网管理领导体制 [Xi Jinping Discusses Speeding Up the Improvement of Internet Regulation and Leadership System], 中华人民共和国国家互联网和信息办公 室 [Cyberspace Admin. of China] (Feb. 25, 2014, 4:59 PM), http://www.cac.gov.cn/201402/25/c_133142284.html. 188. See Jayadeva Ranade, Inside China: Third Party Plenum, November 2013, 243 Inst. of Peace & Conflict Stud. 1, 1–2 (2013), https://www.files.ethz.ch/isn/175054/IB243-Ranade-Plenum.pdf. 189. See 中共中央关于全面深化改革若干重大问题的决定 [The CCP Central Committee Decision on Several Important Issues of Comprehensively Deepening Reform], 中华人民共和国中央人 民政府 [The St. Council of China] (Nov. 15, 2013, 6:57 PM), http://www.gov.cn/jrzg/201311/15/content_2528179.html. 190. 中央网络安全和信息化领导小组成立 [Establishment of the Central Small Leading Group on Internet Security and Information], 中华人民共和国国务院新闻办公室 [The St. Council Info. Off. of China] (Feb. 28, 2014, 2:40 PM), https://www.cac.gov.cn/2014-02/28/c_126397488.html. 191. Xi Jinping Discusses Speeding Up the Improvement of Internet Regulation and Leadership System, supra note 187. 192. Horsley, supra note 40. 193. See infra text accompanying footnotes 196–197. 194. 国务院办公厅关于印发进一步深化”互联网+政务服务”推进政务服务”一网、一门、一次

”改革实施方案的通知 [General Office of the State Council on the issuance of further deepening the “Internet + government services” to promote government services “one network, one door, one time” reform implementation program notice], 中华人民共和国中央人民政府 [THE CENTRAL GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA] (June 22, 2018), https://www.gov.cn/zhengce/content/201806/22/content_5300516.html. 195. Wang, supra note 177, at 17–18. 196. Id. at 35–36. 197. Id. at 13. 198. See Ellen P. Goodman, The First Amendment Opportunism of Digital Platforms, GERMAN MARSHALL FUND OF THE U.S. (Feb. 11, 2019), https://www.gmfus.org/news/first-amendment-

not

opportunism-digital-platforms. 199. Jodi L. Short et al., The Dog That Didn’t Bark: Looking for Techno-Libertarian Ideology in a Decade of Public Discourse about Big Tech Regulation, 19 OHIO ST. TECH. L.J. 1, 1 (2022). 200. Raphael Boyd, From X to Bluesky: why are people fleeing Elon Musk’s ‘digital town square’?, THE GUARDIAN (Dec. 11, 2024) https://www.theguardian.com/media/2024/dec/11/from-x-to-blueskywhy-are-people-abandoning-twitter-digital-town-square; Zoe Williams, Why I have finally quit Facebook (it’s 2025), https://www.theguardian.com/commentisfree/2025/jan/14/why-i-have-finally-quit-facebook-its-notjust-about-fact-checking. 201. Panna Kemenes, WeChat Business accounts and how to use them, WISE (Nov. 24, 2022), https://wise.com/us/blog/wechat-business. 202. Isaac & Schleifer, supra note 39. 203. Wang, supra note 177, at 187. 204. Id. at 188.

fact-checking),

GUARDIAN

about

(Jan.

just

14,

Paper

(2015) 中央统战部首度轮训新媒体从业人员，陈彤张一鸣邓⻜等在列.

205. Id. 206. Id. 207. See id. at 245–46. 208. The https://www.thepaper.cn/newsDetail_forward_1333069 quoted in Wang, supra note 177, at 217. 209. Wang, supra note 177, at 218. 210. Id. at 219. 211. Id. at 202. 212. Id. at 209–13 (analyzing how the Chinese government conducts surveillance of citizens through user data collected by digital platforms). 213. Id. at 210. 214. Id. at 213.

215. Id. 216. Id. at 239. 217. Id. 218. Id. 219. Lotus Ruan et al., One App, Two Systems: How WeChat uses one censorship policy in China and another internationally, Citizen Lab (Nov. 30, 2016), https://citizenlab.ca/2016/11/wechat-chinacensorship-one-app-two-systems/. 220. Patrick H. O’Neill, How WeChat Censors Private Conversations, Automatically in Real Time, MIT Tech. Rev. (July 15, 2019), https://www.technologyreview.com/s/613962/how-wechatcensors-private-conversations-automatically-in-real-time/.

221. Janna Anderson & Lee Rainie, Many Tech Experts Say Digital Disruption Will Hurt Democracy, Pew Rsch. Ctr. (Feb. 21, 2020), https://www.pewresearch.org/internet/2020/02/21/manytech-experts-say-digital-disruption-will-hurt-democracy/. 222. Cohen, supra note 48, at 183–84. 223. Damjan Jugovic Spajic, Piracy Is Back: Piracy Statistics for 2024, DataProt (Feb. 6, 2024), https://dataprot.net/statistics/piracy-statistics/. 224. “No interactive service shall be granted an exclusive license under section 106(6) for the performance of a sound recording publicly by means of digital audio transmission for a period in excess of 12 months . . . .” Digital Performance Rights in Sound Recordings Act of 1995, §3, Pub. L. No. 104-39, 109 Stat. 336, https://www.copyright.gov/legislation/pl104-39.html. 225. See, e.g., RANDALL PEERENBOOM, CHINA’S LONG MARCH TOWARD RULE OF LAW (2002).