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China: Blogger goes to court

Back in late February, bridge blogger I, Yee wrote a post on the plight of Yetaai, an open source programmer in Shanghai who had noticed that a website of his had been blocked. Yetaai did some tests and discovered the problem originated within the China Telecom network, so he phoned them up and was told the problem was “irreversible”. What China Telecom wouldn't do was put that in writing, so he did some more tests, got them notarized, and took China Telecom to court.

“Robust personal accounting with function of double entry booking, e-billing, tax processing, budgeting, and foreign currency ex rate revaluation,” is the description of the open source private accounting software his website, now hosted on SourceForge, provides.

With his numbers of supporters growing, a court date had originally been set for May 29, but on the day before the first hearing, the judge announced the trial would be postponed. On Friday, August 3, Yetaai's first hearing was held; here‘s what he wrote afterwards:

8月3日的第一次开庭

August 3, first court session began

庭审纪实
一审之前

Court records prior to the first hearing

可能一直关注本案的网友还记得法院对一审本来的排期是5月29日,后来延期了。

Net friends who have been following this case all along might remember that the court had originally scheduled this hearing for May 29, which was later postponed.

6月18日,我到新的公司报到,案子输赢不能掌控,就算赢了也不能当饭吃,生活还必须得继续。

June 18: I reported in at my new job. Whether this case wins or loses is out of my control, but even if I win, it won't feed my family. Life must go on.

7月11日,到北京出差,参加一个ERP系统实施项目,预计十月结束。项目经理是个老外,和我的沟通很不错,我也希望能帮到他。

July 11: off to Beijing for a business trip, take part in ERP system implementation project, duration expected to last ten months. The project manager is a laowai, and we have a lot to talk about. I just hope I can help him.

7月27日礼拜五下午约两点:打电话给法官,他确认法院正在排期,应该是在8月3日礼拜五。

Approx. 2:00 pm, Friday, July 27: I phone the judge, he confirms that the court is now scheduling my case, which looks to be held on Friday, August 3.

7月30日礼拜一约10点:收到李立律师的通知,法院的传票已经到达,定于定于2007年08月03日上午09时00分在上海市浦东新区丁香路 611号本部第三法庭开庭审理。下午收到了新传票的扫描复印件。考虑到项目正在集成测试,三个顾问要应付三十个用户,就决定让律师单独参加庭审算了。

Approx. 10:00 am, Monday, July 30, I receive notice from my lawyer Li Li that my summons has arrived and my hearing is set to be heard at 9:00 am on August 3, 2007 in courtroom 3 at #611 Dingxiang Road, Pudong New District, Shanghai. In the afternoon I receive a scanned copy of the new summons. In consideration of the product integration testing, with just us three consultants available to answer all thirty clients’ questions, I decide to let my lawyer attend the court hearing alone.

8月1日礼拜三下午1点,突然接到李立的电话,称法庭上需要所有的证据的原始件。它们现在在我酒店的文件箱里!

One pm, Wednesday, August 1: Lawyer Li suddenly calls, saying the court needs original copies of all evidence to be submitted. They're all in the file box back in my hotel room!

晚上7点,宅急送的快递员冒雨到达,我十分不放心的将原始件交给了他。他告诉我,最迟将在8月3日送达,我说那我就死定了。请他特别关照,我愿意付加急费。小伙子笑了,不收,说我们会特别关照的,一定明天送到。付小费,不收。看着他冒着大雨骑自行车离去,我心酸得厉害,小伙子本人是在加班吧。我还心慌得厉害,他有一个商业承诺,但是不知道他的公司是否能兑现。回到房间,静坐了大概一个小时,终于下定决心,返回上海参加庭审。同时拨通快递小伙的电话,要求退货,不料他说快递已经上车了,正在前往飞机场的途中。

Seven pm, the ZJS courier has braved the rain to come to the hotel, and I'm completely not comfortable with giving him the originals. He tells me they'll arrive on August 3 at the latest. I say I'll be dead then. I ask him to take extra care, even offering to add a little express fee. The little guy laughs, and refuses, saying they will take extra care, and that it's guaranteed to arrive the next day. I try and give a tip. He refuses. Watching him go back out into the rain and peddle away on his bike, I can't help but feel really bitter, that guy's working overtime already as it is. But still I'm at my rope's end. He's got his business commitment, but I don't know if his company is able to honor it. I go back to my room and sit quietly for an hour, and then I end I make up my mind: tomorrow I'll go back to Shanghai and attend the court hearing. Right away I phone the courier guy and ask him to return the package, but to my surprise he says it's already left in the truck and is now on the way to the airport.

8月2日请好假。通知李立,我将出庭。他建议我们8:30在法庭门口碰头,再简单交流一下。晚上搭乘飞机晚点,预定7点起飞的飞机到9点才开始登机,夜里十一点半,飞机飞抵虹桥,十二点多踏进家门。

August 2: I successfully apply for time off. I notify Li Li that I will be appearing in court. He suggests that we meet in front of the courthouse at 8:30, to go over the basics of the case one more time. At night the plane is late taking off. Departure was scheduled for 7 pm but we don't take off until 9, landing at Hongqiao at 11:30, setting foot at home just after midnight.

8月3日早7点11分,接到李立的短消息,说快递已经送到。起床,早饭时看到儿子,想起”The Insider”中Jeffery Wigand希望他的女儿能看到他的揭发烟草公司的电视节目。轻轻叹了一声气。我是想带儿子去旁听法庭,不过,老婆不同意,不希望儿子接触这种她所谓劳命伤财的事情。媒体?我的口哨声也不错,不过还是省省吧!

7:11 am, August 3: I receive a text message from Li Li, saying the couriered package has already arrived. I get out of bed and at breakfast when I see my son I'm reminded of Jeffery Wigand in The Insider, hoping his daughter will see him on TV exposing the tobacco companies. I heave a little sigh. I want to take my son to court to listen, but the wife doesn't agree. She doesn't want our son coming in contact with what she calls this waste of time and money. The media? I'm a good whistler, but I think I'll save that for later!

8月3日早7点30分,老婆还是开车送我去法院,然后她将去上班。“从这里拐弯”,我提醒她,老婆猛地把车停到了我说的车道。“都是你,旁边的车道都绿灯了。”“这边挺好走的。”老婆闷声不吭。“旁边座的那个家伙怎么那么可恨,又要天天和他打交道。无论他怎么笑,我都看着来气!恨不得给他一耳光,以后凡是都得听我的。”老婆听着这个HIPHOP,终于笑了。停车,kiss,飞吻,我爱你。
庭审

7:30 am, August 3: My wife drives me to the courthouse on her way to work. “Turn here”, I tell her, and my wife madly slams on the breaks, stopping at the road I've said to go down. “Good call, all the other lanes are on green right now.” “But this is a good route.” My wife says nothing. “You see that guy over there? I hate him, yet every day I have to go by him. Even when he's smiling, just looking at him ticks me off! I hate him enough to go up and slap him one. From now on he'll be listening to me.” My wife listens to my attempt at hip-hop, and finally smiles. She stops, we kiss. I turn and blow her another kiss, mouthing: ‘I love you.’

发了一个短信谢谢快递员小伙,他回答我他为能向我提供服务很快乐。

I send a text message to the courier guy, thanking him. He replies saying he was happy to have been of service.

法院大门口认识了维基百科的苑明理先生特地赶来旁听此次庭审,他很支持我们的做法。

At the entrance to the courthouse I see my acquaintance, the wikipedian Yuan Mingli [zh], who has come here especially just to listen to my court hearing. He's very supportive of what we're doing.

9:00整,法官打开了第三法庭的大门。终于见到了电信的两名代表。

9:00 am on the dot, the judge pushes open the doors to courtroom 3. Finally I meet China Telecom‘s two representatives.

蔡东辉法官很年轻,审判长和人民陪审员介绍时没有来得及记下名字,书记员钱丽莹。两名电信的代表名字似乎叫乐迎伟和王向东。乐是一个很漂亮的年轻女士,王是一个个高偏瘦的先生。法官轮流介绍时,我试图和每个人都微笑一下,除了蔡法官外,没有得到回应。大约介绍完毕时,我注意到有了第二个旁听者,很有精神头的一个年轻人,我也冲他笑一下,他回应我一个持续了几秒中的盯视。我猜他是电信一方的。庭审结束时,他和乐王两位一起默默交谈了一会。不过,直到他走时也没有再给我们一个眼神。

Judge Cai Donghui is very young, and when he introduces the chief justice and People's Jurors, I don't get their names down quickly enough. The secretary's name is Qian Liying. It seems the two China Telecom representatives’ names are Le Yingwei and Wang Xiangdong. Le is a very pretty, young woman, and Wang is a tall man slightly on the skinny side. As the judge goes around introducing people, I try and smile to each of them. Except for judge Chai, nobody responds. Right when the introductions are done, I notice a second observer on the side, a very spirited-looking young guy. I smile at him too, but he just stares straight at me for a few seconds in return. I guess he's on the China Telecom side. Later when the hearing is over, I see him, Le and Wang talking quietly for a moment, though right up until he leaves he doesn't give me a second glance.

辩论的过程主要是蔡法官宣读程序,审判长掌握节奏,也会提一些问题,比如什么是代理服务器等等,李立和乐小姐主辨,我有时候会做一点补充,主要是一些事实的细节。我方的要求主要是被告修复故障,说明故障的原因,并赔偿一些费用,如公证,上网费等。律师费虽然相对较高,但赔偿律师费的要求因为我方事先准备不充分,当庭放弃了。由于对于双方对于身份和服务合同的认定都没有异议。辩论的主要焦点很快就集中到如下两点。

The debate process consists primarily of Judge Cai reading out the procedures; the chief justice from time to time puts forth a few questions, like ‘what's a proxy server?’ etc. Li Li and Ms. Le lead most of the debate, with me supplying the occasional detail, mostly factual details. My side's demand is for the defendant to repair the glitch, explain the reason for the breakdown, and to compensate for some expenses, like the notarization, internet fees, etc. Although the legal fees are quite high, because my side was insufficient in preparing the demand for compensation of legal fees beforehand, the dismissed it. As both sides recognize the opposite party's identity and service contract, there is no debate. The majority of the debate quickly focuses on the following two points:

1. 不能访问网站的现象是否在服务现场(我租赁的ADSL线路终端介入地点)发生了。原告的主要证据是公证书和送达对方法定代表人的公证函。公证书是在公证处的办公室对其电脑上网进行的一系列操作的记录。公证函描述了原告碰到问题后,向电信服务中心报修的电话和对其“非回复性原因”的答复不满意的投诉。被告承认收到了报修电话和公证函。承认没有对公证函回复。被告认为,公证书记录的行为地址不在服务现场,要求认定无效。进而认为,公证函的内容和本案无关,因此没有回复我的公证函。我方认为,公证处也是通过上海电信的互联网宽带接入,(这一点在公证书中并未明确说明,但对方也未反驳,不过我在做公证的时候询问过公证员,确实如此,同时他们使用ADSL直接接入,没有通过公司网络。即便对方反驳,我方也有其他辅助性证据,因为公证书的访问结果的一个屏幕拷贝是电信的广告页面,而且包含情欲挑逗性质的照片。),按照互联网的公众理解,在不同的接入点访问同样的URL应该获得同样的结果,否则,应该是接入点进行了操纵。考虑到公证处的公信力,和本案电话申诉的细节,应认定原告陈述的事实属实。

1. Whether the occurrence of being unable to visit websites occurred at the site of service (my paid ADSL connection access point). The complainant's key evidence is the notarization, and the notarized letter sent to the opposite party's representatives. The notarization is a record of a series of operations carried out on the notary public's office computers. The notarized letter recounts that after the complainant encountered the problem, he complained to China Telecom's complaint center's telephone repair line, and was unsatisfied with their response of ‘irreversible reasons’. The defendant admits that it received the telephone call and the notarized letter, also admitting that it did not respond to the letter. The defendant feels that because the address at which the recording of the behavior took place was not in a service area, that the demand is invalid. Furthermore, they feel that the content of the notarized letter has nothing to do with this case, and this was the reason it was not replied to. My side maintains that the notary public also accessed the internet with China Telecom broadband also in Shanghai (this point was not specified clearly in the notarized letter, but they did not dispute it, though as I was preparing the letter to be notarized, I'd asked one of the notaries and they confirmed that they had used an ADSL connection in the test, and not the the office's own network. Even if they had disputed this, my side had already prepared complementary evidence, a screenshot of the China Telecom mainpage, along with the erotic and lewd photos to be found there), and according to a public understanding of how the internet functions, visiting the same URL from different access points should produce the same result. If not, then controls are being carried out at the access point. With the credibility of the notary office in mind, as well as the details of grievances made by telephone in this case, it's my belief that the facts related by the complainant are verified.

2. 这一现象是否应该作为故障由电信处理,换句话说,按照双方合同约定的服务此现象是否应该由电信承担责任。如果承担,承担什么样的责任。原告要求对方对此的责任包括修复,或说明原因,对被告原先所给的“非回复性原因”,原告不能认可。被告提交了原告上网的记录,同时声称电信已经将原告的设备连接到互联网,证明这一通道连通,服务并无瑕疵。其服务仅限于连通这一通道。我方认为,对方提供的通道没有按照原告的要求从互联网上获取真实的信息,而是提供了一个虚假的广告性页面。这一通道不符合公众对互联网的常识性认知,又没有对用户进行事先告知。违反了其合约要求符合公众常识的规定。

2. Whether or not this occurrence is a malfunction to be handled by China Telecom; or, to put it another way, according to the services promised in the mutual contract, whether China Telecom should take responsibility for this occurrence. If responsibility is to be taken, taken to what extent. The complainant demands the opposite party take responsibility for this, including restoration of service or provision of an explanation of the problem, and maintains that the complainant cannot accept the defendant's original response of ‘irreversible reasons’. The defendant submitted the complainant's internet usage record, at the same time declaring that China Telecom had already provided the complainant with an internet connection, and that the connection was open, that there existed no flaws in the service. Their service is only limited to providing the connection. My side feels that the connection provided by the opposite party has not complied with the complainant's demands of being able to obtain true information from the internet, but instead have provided a false advertising page [the screenshot]. This connection does not correspond with the public common sense perception of what the internet is, nor does it inform the user in advance. Having violated the agreement, the demand is to move to to correspond withe the public common sense regulations.

具体辩论的过程比较繁琐,以后拿到庭审记录会张贴到此处的。

The process of the main debate was rather tedious; when the transcript of the court hearing is released, I'll post it here.

事后,李立律师对我说,他希望我本案能胜诉,中国的网友好运。但由于干扰本案判决的外部原因太多,牵扯的时间精力也太多,如果一审输掉的化,他不能再帮我打二审。我感觉他还是一个能力很强的律师,对业务很精通,互联网背景也很强。但缺少媒体和大众的支持,和我一起堂佶科德式的对抗强大的官僚机构,我也不能太强求他。

Following this, Lawyer Li Li said to me, he hopes my case will be successful, that it will be the good luck for China's netizens. But due to the excessive number of external departments interfering in the judgment of this case, and the excessive energy it will take up, if the first hearing loses, he won't be able to help me fight for a second hearing. I still feel he's a lawyer with very strong ability, and very proficient in his profession; his understanding of the internet is also very strong. But lacking media and public support in joining me to take on the big, powerful bureaucracy Don Quixote-style, I can't really force him.

送走李立,致电蔡东辉法官,询问他的一些看法,他表示目前还不太方便透露。同时他认为本案的一审宣判将会很快到来。但刚才李立律师告诉我,高院规定的期限是六个月。我不是太在意判决的快慢,我只需要一个公平的正义。但没有公众的压力,现在的法庭会进步到正确判决本案吗?也许我应该反过来期望法庭的胜诉能唤起公众对正义和平等的期望。我想我还是赶紧回家亲亲老婆吧,她还有很多地方等着我去寻找亲昵,真正的快乐!哪怕我是一个下等人?

Sending Li Li off, I called in on Judge Cai, asking him what some of his thoughts were. He expressed that at present it would be inconvenient to reveal them. At the same time, he felt that a verdict on this hearing would be issue would be released soon. But just minutes ago, Lawyer Li Li told me that the Supreme Court regulations are that verdicts can take as long as six months. I'm not too worried about how quickly or slowly the verdict comes, I just fair justice. But without public pressure, will courts today be able to improve to the point of delivering accurate judgments? Perhaps I ought to look at it another way, and hope that the whichever way the court awards will awaken the public's expectation of justice and equality. I think I ought to be hurrying home to give my wife a kiss, and all the other places on her waiting for me to come kiss them. That's true happiness! Even if I am just an inferior citizen.

6 comments

  • Anonymous

    China currently supplies its military with money five

    times the amount U.S, Britain, and Russia supply theirs.

    CLEARLY, LITTLE TAIWAN HAS GROWN TO SMALL TO SATISFY

    THE GROWING APPETITE OF THE HYPOCRITICAL CHINESE LEADERS

    WHO HAS POISONED MILLIONS OF ITS PEOPLE TO DEATH EVERY

    YEAR AND STILL TRY TO COVER UP THIS HIDEOUS TRUTH

    WITH TALKS AND DISCUSSIONS. THERE SOOO MANY OTHER EVEN

    WORSE TRUTHS ABOUT THESE LEADERS THAT WOULD TAKE UP

    PAGES TO DISCUSS IN DETAIL, SUCH AS INTENTIONALLY

    FUNDING TERROIST GROUPS FOR THE PURPOSE OF WEAKENING THE

    AMERICAN MILITARY AND SENDING OUT THOUSANDS OF CHINESE

    SPIES EVERY YEAR TO SEARCH FOR MILITARY AND SCIENTIFIC

    INFORMATION…

    PLEASE TAKE THIS MESSAGE SERIOUSLY AND REPORT TO THE

    FBI, INTERNATIONAL MEDIA, AND AMERICAN GOVERNMENT BEFORE

    CHINA’S MILITARY POWER GROWS TOO POWERFUL

    TO BE HANDLED…

  • Boycott the 2008 Beijing Olympics!

    The invested interests spend so much national wealth in preparing the Olympic Games to blandish the international, launch so much propaganda about the 2008 Olympics to gloss over official corruption and social inequality!

    At the last National People’s Congress session, China’s Wen wowed discretionarily for the “Chinese’s enthusiasm for the 2008 Olympics” – ignoring the voices of naysayers.

    Many feel the GDP comes from inflation. houses and food are all more expensive. China is falling into the capitalism seen in the 1800s, before the October Revolution.

    Most recent and upcoming college graduates from all over China squash in fancy metropolises, Beijing, Shanghai, Guangzhou, etc, while other provinces remain stagnant.

    Next spring, Chinese colleges and universities expect a record 4.95 million graduates, up 820,000 from this year. More than a million of them will wind up jobless, according to estimates.

    The proportion of people’s salaries to GDP has been falling year after year.The M2/GDP ratio is unusually high, 200% in 2005.All money is the ruling group’s money,all hardship is the mass’s hardship.Fight ,or die!

    No participate in the 2008 Beijing Olympics! No watch the games! No buy the mementos!

  • I am a little bit worry about the 2 previous comments that are promoting some radical thoughts. I am not qualified to assess if their suggestions are good or bad. But I would like to think that they are non-relevant with my lawsuit.

    No matter their suggestions are good or bad, they think that Chinese government is doing mayny stupid things. But current Chinese Government are the result of Chinese-selves historical selection and shaping. If they made mistakes, it will be mistakes of all Chinese. It will the shame of all Chinese. Chinese Government make decisions without input from common people but it’s the public to give their rights to make decision without public monitor.

    Each Chinese should have introspect on her/himself at first and express her/his love on democracy, freedom, equality, just all beautiful things they believe. Otherwise, a new government generated from good-purpose radical revolution maybe worse than the current one. I believe that we can have a better government if all Chinese can fight for freedom and equality through peaceful way by weapon of internet, law, modern media, and other peaceful ones.

    This is only the start to form a good community. A good community is the only way to start a good government. Look at Iraq, Japan after War II, Germany after War II, etc., the priority to form a good government is always common awareness of morality and democracy and education, etc., then a good community, then a good government.

  • Charles Liu

    “China currently supplies its military with money five times the amount U.S, Britain, and Russia supply theirs.”

    Complete BS, Anonymous. China spends 5% of what US spends on military on a per capata basis. They ain’t the one sinking 2 Billion a week in Iraq, we are.

    Here’s the proof:

    http://www.globalissues.org/Geopolitics/ArmsTrade/Spending.asp

  • […] an English account as well as a Chinese account of the trial. John Kennedy has also posted a translation on Global […]

  • visiter

    I am a chinese blogger.From July this year, my blog site on http://www.blogger.com and another one founded on http://www.wordspress.com later have been both “blocked”. At the same time, I can’t read any blog on the two site.

    I don’t understand because I havn’t written something in these two blogs.There is only one diary in the first site and three articles about my summer holiday in Beijing.They are not of politic compeletly.

    Now,I still can’t visit the two blog sevice sites.I have decide to give them up.But I hope someone can tell me some other BSP sites out of China. Then I can continue my diary writting. Thanks a lot!

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