The International Law Scholarship of Samuel Clemens

Mark Twain’s recently re-released The Treaty With China: Its Provisions Explained is a fascinating read. As the Journal of Transnational American Studies, Spring 2010, writes:

A good candidate for ‘the most under-appreciated work by Mark Twain’ would be ‘The Treaty With China,’ which he published in the New York Tribune in 1868. This piece, which is an early statement of Twain’s opposition to imperialism and which conveys his vision of how the U.S. ought to behave on the global stage, has not been reprinted since its original publication until now.

Mark Twain’s approach to the rights of “the Chinaman” were rather exceptional for his time period, and his commentary on the treaty is not what I would have expected. I hadn’t known of Twain’s interest in international law, but I feel as if his opening comments on the 1868 Treaty ought to be inscribed on the inside cover of an international law casebook somewhere: “Apart from its grave importance, the subject is really as entertaining as any I know of.”

The text of the treaty itself and Twain’s comments on it are equally fascinating, if for no other reason then for the jarring contrasts displayed between the treaties of today and the treaties of the 1800s, as well as for Twain’s own curmudgeonly and yet empathetic racism. On the portion of the treaty allowing for naturalization of Chinese residents, he writes:

The idea of making negroes citizens of the United States was startling and disagreeable to me, but I have become reconciled to it; and being reconciled to it, and the ice being broken and the principle established, I am now ready for all comers. The idea of seeing a Chinaman a citizen of the United States would have been almost appalling to me a few years ago, but I suppose I can live through it now.

This is, keep in mind, the opinions of a man who was a radical for his day, and who was considered to be something of an extremist on the issue of racial equality.

Twain’s droll asides about tangential matters of international affairs are also entertaining:

It will be observed by Article 3 that the Chinese consuls will be placed upon the same footing as those from Russia and Great Britain, and that no mention is made of France. The authorities got into trouble with a French consul in San Francisco, once, and, in order to pacify Napoleon, the United States enlarged the privileges of French consuls beyond those enjoyed by the consuls of all other countries.

But one part of the essay that caught my eye was Article 4, which provides for freedom of religion for both U.S. and Chinese citizens.

The old treaty protected “Christian” citizens of the United States from persecution. The new one is broader. It protects our citizens “of every religious persuasion”—Jews, Mormons, and all. It also protects Chinamen in this country in the worship of their own gods after their own fashions, and also relieves them of all “disabilities” suffered by them heretofore on account of their religion.

The Tianjin Treaty of 1858 was an unequal treaty, entered into at the conclusion of the first part of the second Opium War. Although a series of bilateral treaties were created, France, England, the U.S., and Russia were all involved in forcing the Chinese Empire into granting each of them a large number of concessions. It also provided for the protection of Christian missionaries and their converts in China:

ARTICLE XXIX: The principles of the Christian religion, as professed by the Protestant and Roman Catholic churches, are recognized as teaching men to do good, and to do to others as they would have others do to them. Hereafter those who quietly profess and teach these doctrines shall not be harassed or persecuted on account of their faith. Any person, whether citizen of the United States or Chinese convert, who, according to these tenets, peaceably teach and practice the principles of Christianity, shall in no case be interfered with or molested.

Now there’s an interesting piece of treaty work. As far as I am aware, it was never the subject of a court case, although it would have been extremely interesting to see the outcome if it had been. Under modern application of the First Amendment, this portion of the treaty is clearly a violation of the Establishment Clause, and therefore ineffective as a matter of domestic law. However, the law only puts an obligation on a foreign state, and not on the U.S. — on both a domestic and international level, the U.S. is not required to enact any laws or take any actions as a result of this Article, so it is extremely unlikely any plaintiff would have ever had standing to challenge it. But even if it is Constitutionally null, such a treaty would still exist on the international plane, leaving China with an obligation to the U.S. to protect its Christian converts.

More than anything, I love the fact that in 1858, the idea of international law being used to impose duties upon a nation with regard to how it treated its own citizens had already been established. Of course, it only restricts how China is to treat its Christian citizens, but still — a limited international law recognizing freedom of religion did exist, in the mid-19th century. And the 1868 version of the treaty is even more expansive, although it provides only for the protection of non-Christian Americans in China. Non-Christians in China were, alas, left unregulated by international law. Still, Twain seemed to feel that the protection of religious freedoms in China was already well provided for:

China is one of the few countries where perfect religious freedom prevails. It is one of the few countries where no disabilities are inflicted on a man for his religion’s sake, in the matter of holding office and embezzling the public funds. A Jesuit priest was formerly the Vice-President of the Board of Public Works, an exceedingly high position, and the present Viceroy of two important provinces is a Mohammedan. There are a great many Mohammedans in China.

Interestingly, Twain had a much less favorable opinion on the degree of religious tolerance displayed in America:

If a Chinese missionary were to come disseminating his eternal truths among us, we would laugh at him first and bombard him with cabbages afterward. We would do this because we are civilized and enlightened. We would make him understand that he couldn’t peddle his eternal truths in this market.


Sad Keanu is Sad Because of Splash News’s Copyright Abuses

As internet memes go, Sad Keanu has been a relatively successful one. It surged onto the scene scarcely a month ago, on June 3rd, 2010, when the original poster put up the image with a caption that read: “I really enjoy acting… Because when I act, I’m not longer me.” Thanks to the mysterious forces that run the internet, the photo became destined for memedom, and rapidly gained in popularity, spawning websites, a charity called “Cheer Up Keanu,” and hundreds upon hundreds of photoshopped Sad Keanu images.

Unfortunately, two weeks later, the holder of the copyright on the photo, Splash News, decided that it had the right to put an end to the meme. They sent out a cease & desist letter to some of the meme’s promoters, and insisted that all Sad Keanu pictures be taken down. (Yeah, good luck with that, Splash.)

Hey Everyone,

Splash News has decided to keep their DMCA in place, as well as Tumblr, which means we may not publish any more of your awesome submissions and we must start to take down all of our previous 270+ posts. In addition, this blog will most likely be deleted in the next 48 hours by Tumblr because of the DMCA.

Although we do believe that it can fall under “fair use”, both myself and my partner don’t have any time or resources to fight it.

Thanks to everyone that helped out making this meme the most awesome one on the internet.


Because of the baseless takedown notice, was forced to take down all its Sad Keanu images, except for Sad Keanu images that have been so altered from the original image that the original photo is no longer present in a photorealistic state. (Legally, this is somewhat pointless; just because you use a Matrix-filter on the photo does not automatically make the photo un-infringing. But it seems to have satisfied Splash News, at any rate.)

The attempt to end the Sad Keanu meme through the use of a Digital Millennium Copyright Act takedown notice is wrong both from a legal perspective and from a normative one. Legally, the Sad Keanu meme is almost certainly not an unlawful infringement, as the meme is itself a parody of an unintentionally hilarious image, and, for that and various other reasons, is within the fair use exception. However, as the owners recognize, trying to fight off a baseless cease and desist letter is often far more daunting of a task than a party can feasibly attempt, and even if (when) the receive of the notice wins the case, their actual costs are still far greater than they would have been had they simply complied. So the owners of decided, as most people in this situations do, to comply with the extortion.

So even though the copyright holder has no valid legal right to order the take down of Sad Keanu, given Splash’s greater sophistication and resources, in actual practice, it is able to exercise a power over the copyrighted image that is massively broader in scope than is the actual legal right that they possess under copyright law.

Ignoring the strict merits of their case, however, Splash’s attempts to control the behavior of millions of people around the world, by preventing them from making or seeing Sad Keanus, is a perversion of copyright law. Sadly, copyright in the internet era is far too often used to stifle creativity, and to prevent the growth of user-created content. Allowing Splash Media to exercise their copyright power to end Sad Keanu does not serve a single policy interest of the United States, or the Copyright Act. None of the benefits provided by IP rights is served by this. Clearly, the total national production of paparazzi images will not be adversely affected if they are denied the ability to eliminate memes based on their photographs.

Moreover, absent the creation and perpetuation of the Sad Keanu meme, Splash News would have either no means or else very limited means of profiting from this image, once its initial run in the gossip magazines is complete. The Sad Keanu meme is not attempting to wrongfully exploit a value created by the copyright owner — rather, the Sad Keanu photo’s only source of value is the meme’s existence. In other words, if the “infringement” of the photo didn’t exist, the photo would be worthless. And if the “infringers” of the photo had been forced to pay for their use of the photo from the beginning, the meme would simply have never come to exist in the first place; people probably would’ve just gone and made some more lolcats instead.

But because the photo is now arguably famous — 99% of the credit for which can be given to the meme promoters and participants, and, at most, 1% to the copyright holder — the photo does conceivably hold some “value”, or at least it suggests there is a market for it out there, somewhere. How exactly to convert that value into a monetary return is a task to be addressed by the creative business savvy of the copyright owner — but one way that is guaranteed to not result in any profits for the owner is in sending draconian cease-and-desists to the very people who gave your product value in the first place.

This actually goes back the “fair use” factors under the Copyright Act, the last of which is the “effect of the use upon the potential market for or value of the copyrighted work.” In this case, the use of the Sad Keanu image to promote the meme actually created the potential market for the image and is responsible for the picture having a non-zero value. The takedown notice was little more than blackmail, and I hope that those who wish to parody the Sad Keanu image continue to do so, regardless of any litigation threats made my Splash Media.


p.s. Note to Splash News: if you want to sue me for use of the Sad Keanu image above, please go ahead. I think it’d be fun