Hands off my copy, right?

July 19, 2010 by · 27 Comments 

It’s probably an exercise in futility to cross-post material here and on Quillblog, since I suspect the overlap in readership is close to 100%, but just in case, I’ll direct your attention to my latest QB post, where I gas on about copyright (it’s more interesting than it sounds, I promise). The post was prompted by an article in The Wall Street Journal that complained about how traditional copyright restrictions are too complicated and costly to endure in the digital age. That article was picked up by Richard Curtis, who extended its argument, saying that securing permission to reprint copyrighted material is “extremely tedious” and that the current copyright battles are “intolerable and will simply have to stop.”

You can probably guess where yr. humble correspondent comes down on this subject, but in case there’s any doubt, here’s the Quillblog money shot:

The rationale for [Curtis’s] conclusion seems to be that traditional copyright protections make the production of enhanced e-books too complicated, meaning that only “auteurs” who produce, write, edit, direct, and score their own material will be able to create them. The faulty assumption here is that just because a particular technology (i.e. the ability to “mash up” videos, text, music, etc. to produce enhanced e-books) exists, everyone should be able to exploit it without restriction. This is the new digital fundamentalism, and it is deleterious to the notion that artists deserve to be adequately compensated for their artistic output.

This “intolerable” controversy is particularly germane in Canada, where amendments to the Copyright Act are currently being considered by Parliament. Michael Geist, Cory Doctorow, and others have spoken out against the so-called “digital lock” provisions in the amended Act, arguing that these amendments place too many restrictions on the rights of consumers. So far, one of the only voices I’ve heard speak out in defence of creators‘ rights has been John Degen, literature officer for the Ontario Arts Council, who has been roundly excoriated for his trouble. I think it’s high time more people spoke on behalf of content creators. Without them, all those consumers’ rights the digital fundamentalists and evangelists crow about won’t mean a whole hell of a lot.

Comments

27 Responses to “Hands off my copy, right?”
  1. August says:

    The problem, and I can’t believe how many people miss this, with the “digital lock” portion of the act is not that it makes it illegal to break them (because if you’re breaking them for unlawful purposes, that makes perfect sense), it’s that criminalizes breaking digital locks *even for the purpose of making lawful use of digital/intellectual property you have lawfully purchased*. That is, and always has been, the biggest problem with the digital lock provisions in the act.

    It’s just like John Degen getting so worked up defending the pro-industry lobbying group from what he perceives to be folks who think that corporations supporting their interests is somehow “wrong”. What sailed swiftly over his head at an apparently tremendous height is that the problem is not, and never was, that it’s “industry” sponsored. It’s that the corporate sponsors misrepresented the group as a grass-roots, citizen’s action movement, which it absolutely isn’t. Lobbying is fine. Lying about who is doing the lobbying is not. It is utter nonsense to suggest that Degen is the only person speaking out for creator’s rights; what he is, is one of the few people speaking out in favour of the late 20th Century model of creator’s rights, which I might add is dramatically different (in that it offers far more rights to the copyright holder–notice that I did not say creator) from how copyright worked for the, what, three hundred plus years that it had been around prior to that. And that was not at all about granting more rights to creators; it was entirely the result of corporate entities with no effective lifespans being able to purchase and control intellectual property, the work-for-hire kind in particular. If anything, the corporate lobby has spent the last four decades working hard to make sure that no works ever enter the public domain again, and that is not healthy in the slightest.

    Do I believe in the complete abolition of copyright? Of course not; after all I’m a creator myself. But do I believe that the corporate lobby absolutely does not have my or any other creator’s best-interests at heart, and something needs to change, and change dramatically, and not just for reasons of technology. I don’t pretend to have all the answers, but I am equally disgusted by both Cory Doctorow’s and John Degen’s points of view. Doctorow preaches the insanity of an idealized Utopian future that can never come to pass, and Degen is looking through equally rose-coloured glasses at a past that never was, and a present that certainly doesn’t exist from my point of view.

  2. Anonymous says:

    This ^^^^^

    I want a version of Bill C-32 to pass that includes language which means the fair-use circumvention of digital locks is protected instead of prohibited.

    If that were the case, I’d evangelize this bill to my friends tomorrow.

    I want copyright holders to get compensated for their hard work. I’m one of them! I just don’t want to lose my reasonable rights in the process!

    It seems like most copyright holders make the completely non-sequitur assumption that anyone not in support of this bill is pro-piracy. That’s insane. Don’t be so childish.

  3. Zygo says:

    I’m a content creator, and I speak on behalf of myself. Does that count?

    I haven’t spoken very much in terms of creators rights because I think we creators have plenty of rights already. Creators have the right to unilaterally and more or less arbitrarily dictate the terms under which their work can be copied, distributed, and even presented to the public for more than half a century after the end of their lives (more or less, depending on a series of complicated rules of historical origin). Anyone who doesn’t play along can be dragged into court and given the choice between compliance and bankruptcy. People who both infringe and commercially exploit protected works on a large scale get criminal charges with investigation and prosecution costs paid by taxpayers. Creators are not obligated to make themselves accessible for licensing inquiries from the public, nor do they lose their rights if they do nothing constructive to maintain them. Creators get rights if they do nothing at all (OK, it’s a whole lot easier to assert your rights if your work is registered somewhere, but not impossible). Seriously, what more rights do we need? How much is enough?

    C-32 does give away some rights creators used to have; however, this can hardly be surprising, since creators have all possible rights by default in copyright law. Every time copyright law gets changed, consumers and creators gain a few rights here and lose a few there. We treat some creators differently from others, because musicians, authors, photographers, and filmmakers have traditionally had very different businesses and interacted with their consumers in very different ways. This is a point of contention for digital media because computers treat music, books, pictures and video in exactly the same way, and the digital media people would like to have one set of rules to follow instead of four (or however many there are).

    Now, I don’t really care if digital media has four sets of rules, or six, or 20, or just one. What I do care about is digital media people replacing all of the rules with new ones that supercede copyright law entirely.

    Digital locks as written in C-32 are hugely dangerous things. They create a class of software that gets to do whatever it wants with no legal oversight, and its actions are protected by the full force of criminal law. We have other laws and rights that aren’t related to copyright (contract, property, privacy, commerce) which get trumped by the software that also implements digital locks. Note the “also” in that sentence–it’s important. Technology that implements digital locks protects all of the software in a device, not just the parts that are covered by C-32, so all kinds of consumer abuses can be protected by copyright law simply because one digital lock protected by copyright law is sufficient to lock down all the software in a device. We’ve seen huge security and privacy problems arising from the software that implement digital locks already. These aren’t abstract concepts–they’re concrete, physical realities, like the Sony BMG rootkit that infected millions of computers and gave attackers instant total control over them.

    We need to encourage as much independent scrutiny of the technology around us as possible, and making it illegal to do so is a huge step in the wrong direction. There’s a clever set of exceptions in C-32 which allow people who lawfully break copy protection for a living to continue to do so–but it prevents them from selling their services or tools to anyone else. That means the people who are going to be watching what the digital lock software is doing are corporations (who can do it themselves) and criminals (who don’t care whether what they’re doing is legal or not). Right now, some concerned citizens and academic researchers are doing this kind of work too, but we can expect that public service to stop once it becomes illegal. This is a huge problem when the devices with the digital locks in them are important parts of consumers’ lives, like cell phones.

    I’m not sure how any creator can support the digital lock provisions in bill C-32 (with one single exception: technology companies who operate media distribution networks and consumer devices that consume from them). Whether it’s intentional or not, the lock provisions in C-32 will be very good at creating media distribution monopolies tied to consumer devices which in turn will be tied back to the media distribution company (so you won’t be able to load your own content onto the devices without the permission of the company that sold the device to you, because the device makers won’t provide that feature in their software, and it will be illegal to break the digital lock to install different software). That will in turn mean fewer distribution options for creators, with market power placed in the hands of the distributors (assuming they can keep criminals who are attracted by the prospect of large-scale exploitation of defenseless consumers off their distribution networks). You can be sure that once the distributors have control, they’ll use that control to dictate prices to both creators and consumers. Again, we have concrete examples of this–look at what iTunes has done to the music industry so far, or the exponentially growing number of security breaches exposing consumer private data that are occurring on iPhones these days.

  4. VS says:

    I am getting SO tired of the consumer rights argument. To think that we have the right to do whatever we want, whenever we want, however we want, is ridiculous. We have the right to buy what we want, from whom we want. We SHOULDN’T have the right to take other people’s work and throw it up on a P2P site for everyone to freely enjoy, while the site makes a fortune in ad dollars, and the creator gets nothing. It’s unacceptable, its theft, and it’s NOT a consumer’s right to contribute to that culture. This Bill isn’t mandating creators to use TPMs, but if creators choose to do so, they deserve to have that choice respected. Just like if I lock my door when I go out, I deserve to have a law in place that protects me if someone breaks in. Why is there such difficulty in understanding this in the intellectual property world?

  5. Andrew S says:

    There is nothing unreasonable about making it illegal to break digital locks.

    The point that is sailing over your head at high altitude, August, is that there is no such thing as breaking digital locks for legal purposes. If I sell a product under certain terms and conditions, terms and conditions that are enforced by digital locks, then breaking those terms and conditions violates the law as it now stands. Toughening the penalties for that act changes nothing, The contract made on sale supercedes your interpretation of fair dealing.

    Ultimately, consumers will vote against DRM with their wallets, and rights holders will realize that digital locks aren’t in their own best interests.

  6. August says:

    Actually, Andrew, that’s complete horseshit. The new act is pretty specific about what fair dealing means under the law (or would mean), and in this country, private contracts that run contrary to the law are invalid. Meaning that you can set all the terms and conditions you want, but if fair dealing under the law allows me to do something prohibited by those terms and conditions, your terms and conditions *are invalid*. Period. So if the law says that I can burn a CD to give to my friend (and right now it does: that is lawful behaviour in Canada), nobody, not even the copyright holder who presented me with non-negotiable terms and conditions saying otherwise, gets to tell me I can’t, even if I have to break a digital lock to do it.

    The digital lock provision we’re all up in arms about does not toughen the penalties for breaking digital locks, because right now *there aren’t any*. What the act, as written, does is allow for private contracts to supercede federal law (which, right now, they cannot). That that is stupidity of the first water.

  7. Finn Harvor says:

    “and rights holders will realize that digital locks aren’t in their own best interests.”

    The remarks about breaking digital locks already being illegal, and therefore making the act more illegal not effective is well taken — though I suspect that there are “degrees of illegality”, and the same people who illegally download music or, in the case of that young German artist [quote, unquote] a while back who “mixed” work, would balk at performing muggings or B&Es.

    It seems to me that the real issue here is one of the cultural attitudes we create. As a realist, I understand where Geist and co. are coming from. As an artist, I’m agin the bleedin sponge-heads. What Degen has been arguing for for some time now is that the artists’ *intent* be respected; those who wish can offer their material under a creative commons licence or whatever it is that allows the degree of fluidity that they feel comfortable with.

    And granted some “copyright leakage” is inevitable, and, yes, beneficial primarily to large, corporate publishers that can factor in these losses as a cost of doing business (something that I have yet to see Corey Doctorow fully acknowledge, since not all writers are in the same celebrity league as he is). In the case of lesser knowns, the stakes are much higher: being shafted, being robbed of intellectual property, being vulnerable to the sociopathic vacuum cleaners that are elements in any society, and do not feel compunction about stealing as much as they can of others’ work and ideas. The issue remains: what will stop the slippery slope to rip-offery?

  8. August says:

    Okay, so my last comment may have come off as harsh, so I’ll explain a little better using a real world example.

    Right now, format-shifting is technically against the law. If you purchase a physical copy of Radiohead’s “Hail to the Thief” album, and want to transfer the music to your iPod, you have to buy a digital copy. If you use the CD to make MP3 files and then transfer them to your iPod, then you have broken the law once, by shifting copyrighted music from one format to another. But, as I know from experience, “Hail to the Thief” is loaded with DRM (digital locks, basically), so you have to circumvent it to perform the format shifting (what I did, when I realized the CD I bought was DRM’d out the wazoo, was pirate a clean digital copy to get it on my iPod). The way the law currently stands, you’ve still only broken the law once, because circumventing the DRM isn’t actually illegal, only the act of format shifting is.

    If C-32 passes as written, you will be perfectly within your rights under fair dealing to create MP3 copies of the music on the physical copy of “Hail to the Thief” that you’ve purchased, and put them on your iPod. There may be a license agreement printed on the CD somewhere that says you can’t do that, but that constitutes a private contract. Because this is Canada, the fair dealing rights granted to you by C-32 render that section of the license agreement invalid, and you’re good to go.

    However, the label (EMI), possibly even contrary to the wishes of the actual copyright holder (Radiohead), has placed DRM on “Hail to the Thief” in order to enforce that portion of the license agreement. A portion, let me remind you, that has been rendered void by Canadian law. So you circumvent the DRM and make MP3s to put on your iPod. Well, you’ve exercised a legitimate right granted to you by fair dealing under the law. But C-32 also says that circumventing DRM is against the law. So what just happened? An invalid, unlawful clause in a private contract written by EMI has just superceded rights granted to you under federal legislation.

    If C-32 passes as written, DRM becomes a kind of corporate notwithstanding clause, a cheap and easy way to invalidate any number of rights and privileges granted by law to citizens who have made legitimate purchases. A private contract could potential have more power in the sphere of intellectual property than federal legislation.

  9. Andrew S says:

    A private contract that is more specific than the law is not the same thing as a private contract that runs contrary to the law. This is a very important distinction. A contract in which you agree to something illegal, such as a prize fight, is not legal, but parties may still agree to terms that restrict rights that they might otherwise hold. Contracts of this sort are agreed to every day — an obvious example being the contract you sign when you accept a severance package.

    To carry your argument, August, you need to be able to cite a specific decision in which the court ruled that the personal use exemption under fair dealing overrode a private contract. As far as I’m aware, that decision does not exist — the ruling of the court was that the personal use exemption overrode the copyright in general, not an agreed contract with more specific terms.

  10. Degen says:

    What I love most in this endless debate is seeing my position defined for me — what Degen believes is…

    Say anything opposed to the consumer-first reform position, and you are pigeon-holed as stuck in the past, a buggy-whip salesman lamenting the rise of automobiles.

    I’m happy to go with the changing times. If there is a brave new digital world for creators just around the corner, I say let’s turn that corner. As an artist, I’d simply like to turn that corner with all my rights intact (thank you very much).

    The astroturfing accusation against the Balanced Copyright group was inaccurate, politically motivated and grossly hypocritical. It was, in my opinion, an intentional attempt to discredit the opinions and concerns of an identifiable segment of ordinary citizens before they had a chance to voice those concerns. What Dr. Geist’s movement has utterly failed to do is bring any truly representative group of professional creators into their stated reform agenda. I have personally made attempts to end that alienation. I have called for big-tent leadership again and again. But there’s no room in the tent, ceratinly not for us old-timey buggy whippers wearing rose-coloured glasses.

  11. August says:

    Andrew: It’s interesting that you bring up labour law, because it’s actually an excellent example of what I’m talking about. You can indeed make contracts “more specific” under labour law, but only if those specifics grant more than the minimum rights guaranteed by law. You can have a contract that grants more than minimum wage, for example, but not less, regardless of what other perks are given lieu. Likewise vacation time, emergency leave, and so on. You can get infinitely more specific with private contracts and they will still be valid, provided they don’t sign away rights guaranteed under the law. (There are a handful of exceptions, but they are trade-offs with pretty rigid and specific limitations, ie. you can take away Right X, but only if you double Rights Y and Z. You don’t get to choose your own trade-offs.) There’s actually several class action lawsuits relating to the banking and service sectors before the courts right now (and at least one successful action already, if I remember correctly) in which verbal agreements were made, though admittedly under pressure, for employees to agree to work unpaid overtime. It turns out the employees can agree to it all they want, but the company still has to pay up. I have friends who work in HR for large service sector corporations, and they are worried that they will lose their shirts from lawsuits if word gets out. It turns out half the service sector works, with a wink and a nod, under illegal agreements.

    John: I did some looking into the BCC astroturfing claims, and it turns out you’re wrong. When the BCC membership list was leaked, for example, it consisted mostly of CRIA executives and employees (you may remember that they are the group of labels that is mostly the Canadian branches of American labels; a great many of the Canadian labels broke off a few years back because they found the CRIA was lobbying contrary to the interests and wishes of their artists–you may also recall that they are being sued by many of their own artists for copyright infringement on a scale so massive as to be without precedent). Their advisory board is again, made up mostly of CRIA lawyers and executives, with one CIMA exec, a couple TV folks, a celebrity chef and a token C-List musician who hasn’t lived in Canada for more than a decade. That’s pretty much a textbook case of astroturfing, dude. You may also recall that this is largely the same group of folks who flooded the town-hall sessions of the public consultation with paid lobbyists to heckle the proceedings.

    If Geist or anyone else can discredit someone simply by saying who they are and what they done in the past with regards to this issue, then I think it’s fair to say they have discredited themselves.

    And just for the record, I’ve been reading some responses to C-32 from artist groups (CIMA, WGC, etc), and they seem to largely not give a damn about the digital locks provisions (the biggest issue for me), and seem mostly concerned with things like collective licensing and royalty collection from WIPO/ACTA treaty partners. There are also some complaints that the penalties for digital infringement in C-32 should look more like the recent British bill, but as it turns out that bill is so harsh there is some question as to whether it’s even constitutional. Craziness, eh?

    It looks like Canadians — artists and consumers alike — are largely sick of big tents; perhaps they see our big tent political parties and lobbying groups and have simply concluded that kind of all-embracing, compromising blandness will lead to a half-assed new regime too similar to the old half-assed regime: slow, mediocre, and increasingly useless.

  12. Degen says:

    That’s the danger of listening only to the alarmists. What’s wrong with an interested industry starting an advocacy group for people in that industry? Culture workers are regular Canadians… and they are gathering around that group.

    Check out the Balanced Copyright facebook page. Other than the Canadian Writers and Readers for Copyright Justice page (which is also excellent) there isn’t a more active and… well, balanced discussion of C-32 happening, and I include Geist’s blog and the original Fair Copyright for Canada group, which boasts over 87,000 one-click members who no longer really talk about the issue.

    For astroturf, the Balanced Copyright site has some passionate, living roots.

    For a great example of how forthright and genuine Geist can be on these issues, check out his comments on my blog today. I have $20 on him running for office in the next five years.

  13. August says:

    John, you’ve once again missed the point completely. There is nothing wrong with an engaged industry (although “engaged” isn’t exactly the word I’d used, and it wasn’t “alarmists” who spoke out about the heckling, it was citizens who were twittering from the town hall meetings who complain they were literally being shouted at by CRIA reps who had previously spoken when they got their turn to speak).

    The problem is that the BCC site refused to acknowledge that it was an industry group until it was publicly outed as one. Do you not see the difference? Nobody is saying industry shouldn’t be involved, and nobody is saying industry sponsorship can’t lead to genuine discussion (although I am certainly saying that the CRIA is a genuinely corrupt lobby). What is being said, and I want you to read carefully now, is that it is unethical to represent yourself as a group founded for a by citizens, when you are in fact a group founded by a corporate lobby. Okay? Got that? If citizens become involved, then great. But that doesn’t change the origins of the group, the actions of its sponsors, nor the fact that one of its first acts was to misrepresent its own origins.

    I will look into the discussion, John, because I want to see what you mean when you say “balanced”. If you can’t wrap your head around why some folks see ethical complications in a newly-founded lobby eliding the fact that they take money and advice from an established lobby embroiled in corruption scandals and trials for committing the very illegal acts they are lmeant to be lobbying against, then I doubt it jibes with what I mean.

  14. August says:

    I’d also like to object to the term “alarmist”. It’s plainly inaccurate. Alarmists cry foul largely with no point of reference for their fears. Here in Canada, we have a pretty good model of the negative side-effects of US-style copyright legislation. It’s called the DMCA.

    There are a great number of folks who have lived with the DMCA for more than a decade now, and generally agree that it’s a complete clusterfuck. Let’s look at some of the groups, companies, and so on who oppose it, shall we?

    The American Library Association, the Institute of Electrical and Electronics Engineers, Philips Consumer Electronics North America, the Consumer Electronics Association, the Electronic Frontier Foundation, Consumers Union, the Consumer Federation of America, Public Knowledge, the American Foundation for the Blind, the United States Telecom Association, and the Computer and Communications Industry Association, the American Association of Law Libraries, NetCoalition (an Internet Service Provider industry lobby), Intel, Sun Microsystems, Verizon Communications, SBC, Qwest, Gateway and BellSouth, among many others.

    There’s also a great post listing many of the negative effects of the DMCA, including malicious lawsuits ( though it doesn’t list the ones aimed at children), censorship, the undermining of fair use, its chilling effects on scientific research (including why scientists are specifically avoiding working in the United States because of it), and so on: http://www.eff.org/wp/unintended-consequences-under-dmca

    Basically, after 12 years of the DMCA, nobody, *nobody* approves of the thing except some extremely large corporations who mostly represent distribution networks rather than the folks who actually make things, and it’s being chipped away at by regulators, legislators, and the courts as people are more and more coming to realize that it’s done far more harm than good.

    Now I don’t agree with a lot of what Geist, Doctorow, and company propose as alternatives, but I don’t think it’s right to call them “alarmists” because they saw our government modeling legislation on what has largely been acknowledged as a colossal cock-up by our cousins to the south and said “hey, that’s probably not a good idea”.

    It’s every bit as ridiculous as those idiots who called you “greedy”.

  15. Degen says:

    Oh well, I wrote a longer response and it was lost to the security code. I’m too busy to repeat it all.

    Just this then — August, I think our differences are ideological, not a question of understanding.

    There’s an awful lot of (alarmist) wolf-crying… “DMCA! DMCA!”… and has been for ten years now, through three different reform bills. There’s a standard copyleft playbook for dismissing and ridiculing rightsholder voices in the reform process, and it was used against Balanced Copyright.

    I really don’t need for you to believe that. It’s my opinion — “just like Degen” some would say, dismissively.

    Thanks for the history lesson on the DMCA. You say the EFF is opposed to it? Then it must be the very spawn of Satan. We should definitely not invite Hollywood’s unethical corporate lobbyists into our parliamentary backrooms to write our legislation based on the DMCA.

  16. August says:

    “There’s an awful lot of (alarmist) wolf-crying… “DMCA! DMCA!”… and has been for ten years now, through three different reform bills. There’s a standard copyleft playbook for dismissing and ridiculing rightsholder voices in the reform process, and it was used against Balanced Copyright.”

    John, you have not once–anywhere, ever, from what I have seen–said or written a single thing that actually counters the claims about BCC, except to say that it’s “political” and “not true”, and then to dismiss it, as you just did here, as the “standard copyleft playbook for dismissing and ridiculing rightsholder voices”. Sort of exactly the same way you think folks are dismissing your opinion, a la “just like Degen.”

    I understand that you don’t like the EFF (though there are many other organizations I mentioned), but there are two reasons I linked to that page. First, it’s handily lists a variety of ills brought about by the DMCA all in one place, but more importantly, it cites and links to sources outside the EFF (like news agencies) for its evidence. And all you can do is make mocking comments about the “the spawn of Satan.” Quelle dismissive.

    Above, you wrote: “For a great example of how forthright and genuine Geist can be on these issues, check out his comments on my blog today. I have $20 on him running for office in the next five years.”

    So I did. Here’s the thing, John: he wrote a very clear response, interpreting the Access Copyright decision, but you’re right, he did use some very careful phrasing, in part because the specific language (“such as” versus an absolute list of exceptions, to use his very example) can make a dramatic difference in the implications of the ruling, and in turn his opinion of it. You did disagree with some of his interpretations, but mostly you responded by mocking his tone and sentence structure, and claiming he was not commenting in good faith, after he walked you through his opinion twice, in clear language (and after that, a third time, in over-simplified language). Eventually he got frustrated by your comments, which were becoming little more than the written equivalent of mocking schoolyard impersonations in a sing-song voice, and he left. Even your other commenters called you on it. And what did you do? You come here and dismiss his clearly-articulated positions as “alarmist” and “hypocritical”, without ever once actually saying why, or making a point by point argument. Just as you did not respond to me when I brought up CRIA corruption (and idea so uncontroversial that it’s even in their Wikipedia entry), or any other specific point I raised.

    I fear that you are all hat and no trousers on this, John. When you have engaged in actual point-by-point discussion (instead of just ignoring specific issues raised, as you mostly did here), you’ve quickly devolved into sarcasm and other kinds of mocking. If anyone has been dismissive of your opinions (and reading the comments here, and on your blog, I’m not at all convinced they have been), I think it’s largely because your attitude invites it.

    Good day, sir.

  17. Degen says:

    Wait, nevermind. Geist now loves the DMCA:

    http://www.michaelgeist.ca/content/view/5243/135/#comments

    Am I really the only one (besides Beatty) tired of this neverending shell-game?

  18. August says:

    John, how does “Both the DMCA and C-32 suffer from the fundamental flaw” translate into “loves”?

    It doesn’t, and you know it. If you read the post, what Geist is actually saying is that the recent Library of Congress ruling actually adjusts the DMCA so it is less harmful, though he still finds it, as he said, “flawed”.

    If you see a shell game, it’s only because you’re looking so hard for one that you can’t see anything else.

  19. Degen says:

    Beattie – sorry about the misspelling. I hate it when it happens to me, so I regret the error.

    August – you have some standard buttons there, and it seems like I press them. That’s okay. I have long given up trying to change the minds of anti-CRIA, anti-DMCA, anti-etc. true believers. Every thing I say is interpreted as mocking and unserious, and it seems I can never provide enough information. Funny, because I’m very serious about both copyright law and intellectual honesty. Where you read “a very clear response” from Geist, I read unrelenting weasel. Where you read my “other commenters call[ing] me on it,” I read one of Geist’s most loyal followers embarrassingly protecting the leader. Perhaps I’m just more used to all that weirdness than you are.

    Perhaps I’m also someone who right now has to suppress the urge to laugh out loud at your faith in CRIA’s wikipedia entry. Are you really referencing wikipedia as a source for unbiased, non-politicized information?

    I am also used to the departure in a huff. It’s in the playbook. “Clearly you won’t engage with me exactly the way I want you to, so I bid you good day sir.”

    Alright, whatever. Please remember that this discussion began when you mockingly dismissed my ideas, with no clear understanding of what it is I have actually said.

  20. Degen says:

    August – of course the DMCA is still flawed; it protects rightsholders.That doesn’t stop Geist from now holding up the DMCA as the good cop to Canada’s bad, and wishing we’d move more in the American direction. Suddenly, designing laws based on the DMCA is not such a bad idea. Except the American law ALWAYS contained the mechanism that has been recently used to provide these exceptions (which are potentially far more contained and controlled than Geist interprets them). And C-32 contains a very similar mechanism for reform – a fact Geist completely ignores in this column. He’s aware of it, for sure, because he’s written about it before, but it doesn’t fit the argument so it’s out.

    Catching the very studied and deliberate omissions takes some practice. For instance, Geist is very happy to quote any creator or small new creator group who can form the sentence “suing fans is a bad business model;” yet he has studiously ignored the views of established creator groups who regularly comment with greater subtlety and clarity on copyright reform. It would be easy to read Geist’s website and conclude that Canadian artists agree with him, when very often and in large numbers they do not. That’s some creative omiting; and I object to it.

    Similarly, Geist will dip into his comments section to “correct” anyone who makes a forceful objection to his posts, but he won’t do the same thing to correct laughable utopian interpretations of his ideas. Instead, he backs out of this responsibility with a lame “I don’t moderate my comments.” Not good enough from the CRC in Internet law.

    What I’m trying to criticize here is not so much the content; but the tactics. I actually occasionally agree (not often, but occasionally) with Geist when I can finally figure out where he really stands on specifics. I don’t see why he has to be so sideways about delivering his opinion all the time. If he is going to advocate for consumers first and foremost, more power to him; but I’d like him to drop what I see as a centrist pose. He is the Canada Research Chair in Internet and E-Commerce Law, a position that, in my opinion, requires a broader perspective and a genuine seeking for balance for all stakeholders.

    What he really wants, as he suggests, is the “such as” wording that will eliminate the need to define fair dealing categories. And I suspect it bothers him not one bit that a “such as” insertion would open the door to extremely broad interpretations that will almost certainly damage creators and rightsholders. But why concentrate on messy details like that, when you can shine everything up with a beautiful user rights gloss? Yay for the little guy!

    I think there has been a calculation that there will be no “such as” insertion coming anytime soon, and so now the push is to back-door it with a bottomless bucket of exception requests. In my opinion, these tactics are akin to a hardline Republican attacking the US federal government’s taxation powers. The aim is to weaken copyright law to the point where it can be drowned in the bathtub. Again, my opinion, but it is an opinion formed from years of study and observation.

    Agree, disagree. I will continue to observe and comment.

  21. August says:

    John, you haven’t provided any information that I asked for (specifically, how Geist & Co’s claims about BCC are false). Provide one thing. Just one. An actual statement of fact support by evidence. All I’m asking for is one. You’ve provided none. Not once, ever. I’ve every blog post you’ve written since early June, and all your comments here, and you’ve written a lot of hyperbole and complained a lot about not being taken seriously, but have never once responded with anything more factual than “inaccurate, politically motivated and grossly hypocritical”. So I’m asking, John, begging, in fact, for you to quit ignoring the question: explain how and why Geist’s statement is those things. I’ve explained why I think Geist is accurate in his astroturfing claim. In the parlance of the street, man up already.

    Also, here’s the relevant passage on the CRIA copyright infringement action from Wikipedia that I cite as evidence of institutional corruption. Please explain how it is biased and politicized:

    =====

    iAdditionally, in October 2008, the four main members of the CRIA were sued by the estate of Chet Baker and several other artists for copyright infringement. The major claims in this lawsuit are as follows:

    * That some three hundred thousand works were illegally distributed by the CRIA’s members, and

    * That they failed to seek proper licensing and distribution agreements with the creators of the aforementioned works, instead placing the works on what is colloquially referred to as a “pending list” (i.e., any payments to be made for the use of the aforementioned works are reserved, pending an agreement with the artists who created the works).

    As the standard punitive damages for each act of infringement is set at $20,000, and there are three hundred thousand works on the “pending lists”, the CRIA may face punitive damages of a minimum of $6 billion.

    =====

    In addition, as you’re clearly an intelligent, articulate guy, I can only imagine you’re taking the piss regarding your attitude in the comments of the blog post I mentioned. Either that or you simply think I’m an imbecile. There are passages in “A Modest Proposal” that are less mocking than you were. And if you truly found Geist’s language opaque and misleading (and I do not believe you did, given the level of writing I know you are capable of; the very post of yours he commented on is written in much same style), then I can only imagine you must require a lawyer to explain the sweepstakes on the back of your cereal box.

    “Please remember that this discussion began when you mockingly dismissed my ideas, with no clear understanding of what it is I have actually said.”

    Bullshit. No other word for it. I did not mock you. In fact, I went back and read some of your blog posts before writing what I did (about late 20th Century copyright), and I stand by it. The model you espouse, as it relates to current legislation, is one that my reading (not just from Geist et all) leads me to believe grew largely out of legislation that was passed in the United States with more than a little help from corporate lobbying in the latter half of the 20th Century, some of which found its way here (Micky Mouse legislation, anyone?) thanks to considerable pressure from our largest trading partner. Who, by the way, makes no bones about exerting that pressure. I wasn’t mocking you, I’m saying I think that model is profoundly broken, and I find it an absurd (and occasionally disgusting) position, given that it largely creates a power imbalance between distributors and *every other stakeholder*. There are times when it benefits other groups, but those times are mostly outweighed by the power it gives middlemen. I’m not a copylefter (I don’t believe in legalizing digital piracy, or granting free, unlimited use to educational institutions to all copyrighted materials, for example), but I do think that copyright law as it stands needs to lean in that direction (as opposed to marching headlong off its cliff).

    But then I also think that ethics needs to trump winning the argument. Which is why I wouldn’t take money or advice for my cause from the CRIA anymore than I would from Dov Charney, even if we saw eye to eye on the issues. What they have done wouldn’t let me.

    So hit me with it, John. One piece of information other than name calling or “woe is me”.

  22. August says:

    Well John, I’m glad to see you stepped up (before my comment was written, and I admit it was written partly out of frustration).

    I’ll have to look closer at what you claim about his tactics; more than a decade of seeing comments turn into cussing and epithets and “first!” have led me to ignore them on all but a handful of blogs (like this one).

    I can see his rationale for including “such as” language, though; we’ve now had years of legal uncertainty, loophole exploitation, and the time it takes to craft or even alter legislation this important–or hell, to get MPs and ministers to even notice it’s needed–is simply untenable. I think we need legislation with built-in mechanisms and fine-tuning via judicial testing in order to keep pace with social and technological change, or at the very least to not lag too far behind. It’s a principle I agree with.

    As for his role as a Canada Research Chair, I don’t think it’s incumbent upon him to be moderate. There is this assumption that academia is, or should be, neutral in some way. I wanted to be a professional academic once (and indeed, worked as research assistant to a Canada Research Chair), and I can assure you that academia is no such thing, nor would academics, even in the hard sciences, believe that they must be neutral, or look at all ideas and all sides as though they have equal merit. Dispassionate isn’t the same as neutral, after all, even for those who feel that state is an achievable or desirable goal.

    I do think Geist is centrist, but that’s because I’m near (though not at) his position, and I see people to both my left and right who look to be batshit insane.

  23. Degen says:

    August – Please note, many of the years we’ve had waiting for reform legislation might have been less painful if C-60 had met less copyleft opposition from the usual suspects shouting the usual anti-Americanisms. And if fewer well-intentioned politicians had been demonized by the copyleft as being in the pockets of American entertainment interests. Of course, we now hear from the same folks that C-60 would have been preferable to what we have now. Nice.

    Let’s talk journalistic practice. In his latest column Geist mentions “critics fearing that anytime a digital lock is used, it would trump virtually all other rights,” which is just a bizarre disassociation from his own championing of that very idea. He is the the “critics” he’s referring to. What do you even call that?

    Hidden in all of this is an industrial conflict of epic proportions. Those who want content to have inherent tangible economic value (traditional creators and rightsholders), and those who want content to be free so they can layer it with advertising (Google, et al.). Who does Geist relentlessly criticize, and who gets off very lightly in his analysis? Go ahead — search “Google” on the Geist website. The sympathy is clear, if you have eyes to see it.

    I want more from my country’s scholars. That’s the bottom line for me.

  24. August says:

    John, I really, really want you to stop lumping everyone who disagrees with you in with the “copyleft” movement. For one thing, it misrepresents the concept of “copyleft.” It’s specifically a set of licensing agreements developed for the open source software movement that have since branched out to other forms of creative endeavours. At no point, that I have seen, have copylefters ever insisted that these licensing agreements apply to everyone and all copyrightable works; in fact, to insist that they do is rather to miss the point of copyleft. The whole idea is to give the rights holder more choice. (So if, for example, someone signs a distribution deal for their work, but then a year or two down the line decides they want to give a charity the right to distribute an altered version for a one-time fundraiser or something, then the distributor can’t sue the living buhjeezus out of the charity–which in the US, anyway, can actually happen under the current system.) While I am not opposed to the idea of allowing this type of licensing to exist, it isn’t really what I care about, in terms of copyright reform, and to lump me and every other opponent of C-32 or C-60 under that banner is more than a little ridiculous.

    Among the reasons the politicians have been “demonized as in the pockets of American entertainment interests” is largely because it appears that they often are. While in some ways Bill C-60 was better than C-32, it still wasn’t good enough (and C-60 died due to a change in government; you may also be thinking of C-61, which was the Tory government’s last attempt at copyright reform). “Better than this” isn’t the same as “good enough to make into law”, and it’s more than a little absurd of you to be suggesting that such distinctions can’t be made. The DRM provisions were every bit as bad there as they are here (and there were areas in need of urgent clarification that were simply not addressed), and those have time and again been the sticking points between us and our US cousins, and it’s a little curious that we keep getting put on piracy watch lists as a “haven” only when we’re putting copyright legislation up; it’s especially interesting when our current laws on the subject are stricter than many other nations who have been shown to harbour piracy on a larger scale, yet never appear on any US watch lists (and according to the WTO, the US is in fact the largest and most flagrant violator, with an unresolved ruling against them going back almost a decade). It was also no secret that when C-61 was crafted, the only stakeholder consultations the government held was with “industry” representatives (and by “industry” I mean distributors, not creators–let’s not fool ourselves into thinking that groups like the CRIA are an artist’s lobby), and then mostly of American corporations with operations in Canada. There were cases of “no comment” all around when ministers were questioned on this subject. If other stakeholders had been consulted, the government refused to name them, they refused to come forward, and nobody had any idea who they were. But the US “industry” reps very clearly *had been* consulted. In the case of C-32, the findings of the public consultation were flat out ignored. In fact the DRM provisions were once again crafted along the US model, something that (I agree here with Geist) is not necessary to meet our WIPO requirements, and is in fact the exact opposite of the direction pointed to by the public consultation. It’s really, really hard not to see this as politicians caving to pressure from abroad.

    As far as “journalist practices” are concerned, you’re probably right that Geist should identify himself among the critics. I can’t really say this is a major sticking point for me, though. He’s not denying he’s said or done anything he’s actually said or done, and I don’t think that he’s hiding his associations, so while it’s not the best practice in the world, I’m not going to lose sleep over it.

    “Hidden in all of this is an industrial conflict of epic proportions. Those who want content to have inherent tangible economic value (traditional creators and rightsholders), and those who want content to be free so they can layer it with advertising (Google, et al.). Who does Geist relentlessly criticize, and who gets off very lightly in his analysis? Go ahead — search “Google” on the Geist website. The sympathy is clear, if you have eyes to see it.”

    I think this is a blatant misrepresentation of the issue. There way, way more than two sides to the disagreement about copyright reform. Not every opponent to C-32 as it stands wants an ad-sponsored free-for-all. In fact, I would argue that most do not. It should be very clear by now that I oppose C-32 as it is written, and yet I also oppose Google’s practices of copying copyrighted materials and making them available online with advertising (in fact, I work for the Internet Archive making digital copies of public domain books, and *only* public domain books, with some exceptions—the government sent us documents covered under Crown Copyright, for example; in those cases we have explicit permission from the rights holder). As I have said above, my complaint with the bill is largely related to DRM (though I would like to see Crown Copyright substantially reformed), as I believe those provisions to be hugely damaging, as I stated more than once above. Believing that citizens (I really despise the terms “consumer” to describe people, especially in legislation, of all places; it allows us to limit how we think of people to specific economic roles, rather than being active in a broad spectrum of civic activity) should have more rights under the law with respect to copyright is absolutely not inconsistent with the idea that “content” (another word I dislike) has inherent economic value (or other kinds of value, which I believe cannot be easily divorced). To suggest that it is has always been the part of your ideas that I find, as I said in my first post above, “disgusting.” It implies that anyone who believes there is currently an imbalance in the law in a certain direction, and wants to address that imbalance, is somehow looking to steal from you. It’s very hard to have a reasonable discussion with someone when you start out by calling them a thief. Probably just as hard as it is when they start by calling you greedy, no?

  25. Degen says:

    Oh, my. Really, no offence intended August, but I just can’t keep going around this block. I know the legislative history of recent copyright reform in Canada. As a non-“industry” representative, I personally consulted with government on C-60, C-61 and C-32.

    As a citizen, I’ll just keep writing the crazy-ass things I believe about copyright, and you go ahead and keep disagreeing with them. Do me a favour though and try not to generalize so freely with my thoughts. I don’t recognize myself in the ways you describe me.

    I get it, though. I’m mostly wrong, and when I’m right it doesn’t matter because my worries are unimportant. This is very familar territory.

  26. August says:

    “Do me a favour though and try not to generalize so freely with my thoughts. I don’t recognize myself in the ways you describe me.”

    Doesn’t really matter, does it? Most of us don’t recognize what we look like from other perspectives.

    I’ll tell you what, John: I’ll quit summarizing your opinions as they appear to me when you quit misrepresenting the positions of your opponents to make this sound like some kind of epic struggle between good and evil.

    “I get it, though. I’m mostly wrong, and when I’m right it doesn’t matter because my worries are unimportant. This is very familar territory.”

    Good lord, man. “Woe is me” is not an argument.

  27. I have distilled this argument down to one simple word: choice.

    If a writer/publisher wants to lock up their content for whatever reason then they should do that.

    If a creator does not see any value in locking up their content or is interested in having that content appropriated, used, remixed, read, shared, etc… by others then he/she should proceed as they wish.

    The dust-up over Bill C32 is really aimed at helping the gaming and film industries keep tabs on their digital content.

    I think that Bill C32 is essentially useless for books. As new writers/creators, aware of the potential within the digital space will simply choose to retain digital rights or work their contracts to include ‘no DRM’ provisions.

    Bill C32 only looks backward and it will be forgotten in very little time.

    Great arguments here, tho, Steven. Thanks for providing the opportunity.