Thursday, January 17, 2008

blame the artist UPDATE

In an earlier post, wondering about certain professional creators championed by the "Fair" copyright crowd, I wrote:


Does Stephen (sic) Page of the Barenaked Ladies ever lie in bed at night and worry even a little bit about how he -- or better yet, other, lesser known, perhaps just-starting-out musicians -- will survive, professionally, in a marketplace that shows increasing unconcern for his livelihood?

I wonder.

If he does, he's one smart dude because he's not talking about those worries out loud.


I now offer this clarification -- yes, it appears Steven Page (sorry for the original misspelling) does worry along those lines. In fact, in 2005, he worried so much that he prominently signed his name to a brief in the Metro-Goldwyn-Mayer Studios Inc. et al v. Grokster, Ltd. et al, Supreme Court of the United States case (decided in favour of MGM and related artists). This brief was written in support of MGM's position against Grokster, which was that the file-sharing site's primary business model was:

"distribution of software that was designed and is overwhelmingly used to infringe copyrighted music and movies on a massive scale."

and that:

"this defies the fundamental principle -- enshrined in the Constitution itself -- that creative output is a necessary part of this country’s economic and cultural “Progress,” and that such “Progress” will cease if creators and the technical teams that support them cannot earn a livelihood through their creative efforts."

I congratulate Mr. Page on walking the fine line available to artists who simultaneously respect their audience and yet demand legal protection for their livelihood.

Also, if it's not too much trouble, I see that Sheryl Crow is one of the co-signors, and I was just wondering... nevermind, wrong time and place.

Thanks to Warren for the tip.


Anonymous said...

I'm going to get depressed if I sign up on blogger just to respond to John's posts.

"..a necessary part of this country’s economic and cultural “Progress,” and that such “Progress” will cease if creators and the technical teams that support them cannot earn a livelihood through their creative efforts."

I mostly agree. I will most certainly disagree with you about how big a "technical team" needs to be and how much damage(or help) Grokster affected the sales of music but that is besides the point.

I am going to point attention to your use of "Fair" copyright crowd. That is the lowest shot I have seen you take so far. We are all fighting for fair copyright, even you(if not somewhat misguided). Your thinly veiled sarcasm is only cheapening the debate. Please post solid information/arguments in the future and stop taking cheep shots where you can find them.

John said...

That's interesting, because it is one of my life's goals to get you to sign onto Blogger so people actually know who is commenting.

There is nothing veiled about my sarcasm, Mr. Nobody, and the debate can't get much cheaper than it already is on the "Fair" copyright group itself. In fact, positioning one distinct side of an ongoing negotiation toward legislation as the "fair" side is just about as cheap as you can get, no?

I don't think I disguise which interests I'm trying to protect or represent in this debate. I have respect for a lot of what is said among the "Fair" people -- in fact I'm impressed with how close Dr. Geist's principles are to much of what has and will be said by professional creator groups on this issue (there are areas of disagreement -- I'm all for not weakening fair dealing, for instance, but the "pledge" is a weird and worrisome way to address that -- but nothing that can't be worked out around a committee table, I think).

I continue to wonder if anywhere near half of the people in the "Fair" camp have read and digested those principles. And most importantly, I can't help noting that nowhere in the principles does the very basic principle of respect for a creator's work appear.

Fair? I wonder. If we're really going to talk about a "fair" copyright law, shouldn't the founding principles of that "fairness" address all parties involved?

Anonymous said...

From what I can see, Prof Geist's copyright principles are all related to legislation. Most of them are very specific recommendations about the form that legislation should take. The exception - the pledge - is also about not weakening the legislation about fair dealing.

I don't see how you could possibly add "respect for a creator's work" into the Copyright Act. It's possible that you've got something more specific in mind, in which case, please share it :-)

As you say, the principles he's articulated are "close [...] to much of what has and will be said by professional creator groups on this issue". Doesn't that contradict your assertion that he's "positioning one distinct side of an ongoing negotiation toward legislation as the 'fair'" ?

John said...

No, Chris, it doesn't contradict my assertion at all, and it's odd that you would think so.

Geist writes "I would point to eight key principles that should be addressed to maintain a balanced, fair approach to Canadian copyright law" but the balance in his principles is weighted to consumers of electronics and users of copyrighted material. It's all well and good to stand up for "consumer- and user-friendly" copyright when that is your primary focus, but that primary focus is a bit obscured by the generic marketing term "fair," wouldn't you say?

I'm not a huge fan of forcing legislators to take pledges restricting the scope of their work -- it puts me in mind of the neo-con "no new taxes" pledge that all but destroyed the moderate wing of the US Republican Party -- but I will point again to Geist's pledge, which is his the first "principle" he lists.

You said you can't see how respect for creators could possibly fit into this list of principles. If the purpose of Geist's pledge is to ensure that new legislation does not weaken fair dealing, why could there not also be a principle addressing the need for any new legislation to not weaken the important rights of professional creators? Wouldn't that be a fair and balanced approach?

I note as well that in his principle of expanded fair dealing, the emphasis again is on users. How difficult would it be to include in such a principle the idea that any expansion of this important use-provision must be carefully considered so as not to eliminate or render impotent the existing rights of creators (which is a valid creator concern when people start talking about expanding the existing exceptions)?

I say again, a truly "fair" list of principles would address, and attempt to balance, the needs of all parties. This list does not, and therefore the use of the word "fair" in the title is pure marketing.

Anonymous said...

Any expansion of fair dealing is going to take away something from the rightsholders (not necessarily from the creators :-)), just as any expansion of the rights of rightsholders is going to take away from the rights of users and owners of copies.

From that perspective, it's a zero-sum game, as far as I can see. So from that perspective, I guess you're right that Prof Geist is taking a pro-user stance.

As for labeling, I'll just note that he isn't taking a hard-line "free works for everyone, DRM illegal" stance but is instead aiming for a more moderate middle ground (of course it may not look like it's in the middle if you're way off to one side).

I disagree that "respect for copyright" means "not weaken the rights of professional creators", but as you threw in "important", I guess that's reasonable. So which are the "unimportant" rights that you're willing to bargain with ? (oh, and what about the poor amateur creators ?)

The key thing to me is whether taking rights away from rightsholders actually does any real harm to creators or not (and conversely whether there is any harm to users or owners of copies in expanding the rights granted to rightsholders). For example, I don't see that any creators would be harmed by making it legal for us to use our VCRs or PVRs to watch TV programmes later than they are broadcast. So I personally would consider that to be "fair" even though it takes rights away from rightsholders.

I know that I would be harmed by a blanket ban on circumventing DRM, because I own European DVDs that I can only watch here by circumventing the DRM.

Russell McOrmond said...

What I find frustrating, John, is that you needed to have that "clarification" at all. You seem to believe that creators who aren't singing the identical tune as you somehow need to 'clarify' that they actually want to get paid for their work, or that they are otherwise respective of and trying to protect the interests of creators.

Why do you need this clarification, and why are you attributing so much blame for what concerns you on fellow creators?

You sing what you state is a tune of respect for creators in the context of a copyright debate, and yet so far haven't clarified hat changes you want made or not made to the copyright act. Saying "respect for creators" isn't helpful as we agree on this, and the very existence of the Copyright act indicates Canada's interest in respecting creators.

Canada has already ratified numerous treaties which include the 3-step test, which includes the 3-step test for limitations and exceptions (certain special cases, not conflict with a normal exploitation of the work, not unreasonably prejudice the legitimate interests of the rights holder), so the principle that you want is already core to the debate and don't need to be part of Geist's principles as they already exist as legal obligations.

Lets try to get more concrete than redundantly restating the status-quo with all the emotional hand-waiving, and instead talk more concrete as Mr. Geist does about actual changes being proposed or changes to actual treaties and/or domestic legislation required to achieve specific clearly stated public policy goals.

The activities you think are wrong with respect to the unauthorized online distribution of the works of professional book authors are already infringing according to the existing version of the Canadian Copyright act. Since you bring up this type of infringement in the context of debates about the *COPYRIGHT ACT*, then I suspect you believe there are changes needed? Do you want to increase statutory damages beyond the minimum of $500 or the maximum of $20,000 per infringement (IE: per different file infringed)? Do you want to transform all forms of infringement to be criminal law such that crown must investigate and prosecute the infringements rather than copyright holders?

Please don't divert from my question by hand-waiving and talking about changing the minds of individual Canadians. We agree about the need for respect (for all concerned, not just audiences!), but that is an entirely different topic from the discussion about changing the text within the Canadian Copyright act!

I think it is obvious we disagree on the evaluation of Michael Geist. I consider him one of the greatest allies of Canadian creators, and he has proven to me many times over that he is very concerned with the interests of creators.

Yes, Geist is for protecting fair dealings -- the majority of which are follow-on creators rights. This is that required balance between the interests of past copyright holders, and current creators.

Yes, Geist is for protecting the interests of users of technology -- which again includes creators. While some older book authors can unplug and go back to a manual typewriter, most creativity these days is more technologically assisted, so protection of the rights of technology owners is in and of itself a protection of creators' rights for the vast majority of creators!

The act we are discussing is the Canadian Copyright Act, not the "Manual typewriter using book authors act", so please lets try to stick to the topic ;-)

P.S. Steven and others signed on to that brief before they realized the direction this issue was taking. Their creation of CMCC is more recent, and is in many ways a corrective modernization of the position they took during Grokster. I've said things in the past that I have more nuanced positions on today as well. Their principle about not being for digital locks (with DRM being primarily about locks on devices) is all about not blaming creators of multi-purpose technology which owners might abuse to infringe copyright. It is the infringers who the law should target, not creators of multi-purpose technology.

John said...


I'm impressed by how you see me as waving my hands in the air dramatically -- presumably to distract the general public from the meat of this debate -- and yet you have nothing critical to say about some of the more ridiculous behaviour sanctioned by the "fair" copyright crowd. If there were going to be Oscars for silly hand-waving, I wouldn't even be one of the four rejected nominees, let alone the winner.

And, of course, therein lies much of the trouble for me. Your write:

the principle that you want is already core to the debate and don't need to be part of Geist's principles as they already exist as legal obligations.

... and yet the folks who call for elimination of traditional creator rights, hell elimination of copyright altogether (why should artists expect extra payment for things they've created?, etc.) are all hanging out on the Fair Copyright facebook group, not my humble little blog. If my concerns are at the core of this debate and therefore don't need to be stated as core principles (not sure of your logic there), why do many, many of the commenters over there not seem to understand that fact, and how hard would it be for the "fair" minded to correct them?

I'll be very busy today, since the Creators' Copyright Coalition is releasing their position on copyright -- as you know since it was sent to you -- but when you start loading your rhetorical weapons to shoot at this traditonal creator position (over a dozen different groups are represented in that position), do me a favour and don't call them "creators of the past."

I'm not sure where you get the idea that I blame creators for my concerns. I stand with all creators in trying to find a workable balance for everyone. I try not to dismiss anyone as old and outdated, and therefore not deserving of a table-setting at the great fairness banquet.

Russell McOrmond said...


The reason I don't feel the need to 'apologize' for any views posted to the Fair Copyright for Canada group that I don't agree with is the same reason I don't feel the need to apologize for the views expressed by members of the CCC that I don't agree with, or the views of telecom CEO's I don't agree with, or for people at Microsoft or other parts of the software/tech industry, or so-on. These are all groups of people that I could easily be identified with that have expressed positions as a group (CCC, Microsoft -- The Fair Copyright forum can't speak as a group) that I don't agree with.

What we know about the Fair Copyright for Canada group is that it is made up of people who have an interest in copyright. It is far more inclusive than say the CCC which is managed by a group who claim to represent narrow subset of copyright holders, and has never seemed like a place that a modern creators' rights person like myself could belong. The Fair Copyright group includes people on all sides of the debate that I agree with in some ways, and disagree with in other ways.

By the way, I will not be taking your lead and trying to discredit and dismiss large numbers of people who happen to include individuals I disagree with. I will be commenting on the views of CCC which I agree and disagree with (and yes, I notice that ratifying WIPO Internet treaties is there, and it's attack on creator-controlled technology), and will not presume agreement and dismiss all those who feel these groups represent them.

John said...

Why is it when I disagree with a position I'm trying to discredit people, and when others disagree with me they are engaging in a spirited debate? I have a problem with emoticons, so just imagine me smiling right now.

I find it interesting you would interpret my posting as trying to discredit Steven Page (is that what you mean?). For heaven's sake, why would I discredit someone I think has advanced a gutsy, nuanced stance on copyright?

It is completely disingenuous for anyone to suggest the Fair Copyright group was set up as, and intended to be, an open forum for all positions on copyright. That has never been the party line in that particular, highly politically motivated group -- which is at the root of my criticism of that group. Really, my criticism -- which Mr. Nobody seems to think is veiled (ironic, no, that an anonymous poster would accuse someone else of wearing a veil?) -- is aimed at the group's adoption of a politically strategic name that suggests open direction, when in fact a very particular direction is being actively advocated.

Canadian Citizens for an End to all Taxation! Swift Boat Veterans for Fair Copyright!

Again, advocate what you will -- and here I'm speaking to anyone, not just Russell -- just be honest about what you're advocating. I have never suggested I'm not primarily interested in protecting the existing rights of traditional creators such as published authors, professional composers, etc. All members of the CCC who support the recent statement signed their individual group names to it, and those groups all represent significant numbers of individual members who give their support to the statement through the governance principles enacted by their associations (that's real, working democracy in action, btw -- not perfect, but working). And also btw, those memberships total approximately 100,000 individual Canadians, which I notice is a significantly higher number than 40,000 -- but let's not start a size comparison.

My support for the traditional creator side doesn't mean I'm not interested in "fairness," though my experience in advancing that position on the Fair copyright group suggests many running the show over there would question my dedication to fairness.

Russell, I trust you to bring thoughtful criticism to the CCC postion. That's where "my side" will begin if we ever get to Ottawa. You begin over on "your side" and my strong faith is that given the honestness and good intentions of both (or however many), we will meet somewhere in the middle.

Then there will be beer.

Anonymous said...

Personally, John, my problem is that you seem to be trying to discredit the fair copyright group because some of the people there advocate significantly less, or even no copyright.

Yes, those people are there, but they're certainly in the minority of the people posting regularly. I also see people like yourself there, and yet you don't use that as an argument for the group not actually representing a "Fair" position :-)

It feels to me like a very diverse group with a wide range of opinions, which is pretty much what I would expect in a group trying to find a "fair" copyright regime.

John said...

Chris -- if by "discredit" you mean "place in the appropriate context," then yes that's what I'm trying to do.

The very fact that the intro notes to the group declare that Jim Prentice intends to bring in the Canadian DMCA places the group in a very well-defined position within an ongoing debate. That's a starting point for discussion of a wide range of opinions?


SirLiveAlot said...

And if you continued reading John it continues on to say "This group was formed to help ensure that the government hears from concerned Canadians. It features news about the bill, tips on making the public voice heard, and updates on local events. With regular postings and links to other content, it also provides a central spot for people to learn more about Canadian copyright reform."

You say "That's a starting point for discussion of a wide range of opinions?

My answer is yes. Also, you made me sign up on blogger. I'm going to go pout now.

Anonymous said...


It seems to me that that there is nothing inconsistent between the CMCC's current platform and the clear support Page and others from the CMCC lent to MGM. As you know, the U.S. Supreme Court unanimously found that Grokster intentionally facilitated infringement of copyright through the distribution of its file sharing software and that its principal intent was to bring about copyright infringement for its own financial gain. In the words of the U.S. Supreme Court, Grokster's "unlawful objective" was "unmistakable".

While I don't purport to know exactly the views of Page or others like him who are both part of the CMCC and signatories of the brief, I haven't seen anything in their writings since Grokster that suggests any "corrective modernization" of their position concerning their ability to make a living from their art while pleasing their fans, nor would I expect to -- ever. Some things don't change for very good, very old reason. And that's why I think you would be hard pressed to find anyone in the CMCC that would support the way Grokster did business. But I wouldn't take that as an attack on "creators of multi-purpose technolgy."

Warren Sheffer

Russell McOrmond said...

You can't take how Grokster was decided, and extrapolate from that what their voices could have caused. If the case had been decided differently, I suspect how people responded would also have been different.

At the time the labels were going after the Sony betamax case, wanting to hold all providers of products or services that could be abused to infringe copyright partly liable. We know that John and others agree with this type of thinking, given they state this in the CCC platform where it comes to ISP liability. It isn't a stretch holding ISPs partly liable for the conduct of their customers and holding hardware manufacturers and software authors partly liable for the conduct of their customers/users. Not-so-thin edge of the wedge...

Grokster fortunately retained Sony, and only discussed "promoting its use to infringe copyright", making those who are offering products/services intended to be used lawfully as not being liable. This protects, at least in the USA, some software developers, service providers, and hardware manufacturers from the attacks of copyright holders who want to blame innocent third parties rather than go after actual infringers.

Unfortunately Canadian law isn't as modern as US law when it comes to a living Fair Use regime (Most of our "modernizations" have been in favor of older copyright holders and institutional users), so we don't really know how similar cases would happen in Canada. I fear for the very future existence in Canada of the concept of VCRs, home computers, independent software authors and independent ISPs.

Anonymous said...


With respect, I don't quite understand your comment. There is nothing to extrapolate. The brief that prominent CMCCers signed unequivocally stated that there is nothing cool or "modern" about a business model that primarily depends on the “draw” of being able to illegally download copyrighted music and movies. The U.S. Supreme Court unamimously agreed. If the CMCCers thought Grokster was an "innocent third party", I trust they would not have signed the brief. But we know that that was not the case, and I trust that CMCCers continue to uphold the brief's clear message. There is nothing inconsistent with that message and the current copyright reform positions of the CMCC, the Songwriters and the CCC. Surprised? I'm not.


Russell McOrmond said...

What Grokster was doing was clearly wrong, and nobody (other than themselves and the abolish copyright fringe) were defending their actions. But there was far more than the Grokster special case at issue, given the USA (Like Canada, outside the province of Quebec) is a common law country.

What about BitTorrent? This is software being provided by a group who were not promoting infringing uses, but it is clear that it is being abused by others to infringe copyright.

What about the Apache Foundation, which provides software (HTTP servers, etc) which are also being abused to distribute infringing material?

(ETC -- you get the idea -- nearly all software offers some contribution to someone who can abuse it to infringe copyright).

What if the court had decided that all providers of software that could be abused to infringe copyright were partly liable, not just those like Grokster who had set up a service that used specific software to very deliberately infringe copyright?

What the court decided was far more nuanced than what some of the parties wanted them to decide.

The same is the case in Canadian examples. While the BMG vs. Doe case was happening, I was incorrectly seen as being in favor of the 29 accused filesharers. What I was actually concerned about was that adequate evidence of infringing activity be required by the courts, so that innocent bystanders could not be brought into a dragnet. I wanted BMG to provide this evidence, and bring the infringers to court and win. Their winning would have clarified in the courts once and for all that existing copyright law provides copyright holders the tools required to sue infringers using P2P tools to share without permission.

With current strong Canadian copyright law clarified, much of the scare-mongering used to justify draconian backward-facing changes to the law would have been gone.

We won the battle, but because CRIA members refused to bring evidence to a court we may loose the war given politicians don't understand the nuances of these court cases (or lack of them, in far too many situations).