Wednesday, February 16, 2011

not free as in beer; free as in STFU Degen!

So, the other day I posted about The Writers' Union of Canada's great video on YouTube warning about potential damage to professional writing and publishing in Canada if Bill C-32 (Canada's Copyright Modernization Act) passes unamended.

In my posting I predicted a nasty backlash from the free culture crowd. "Immediate and vitriolic criticism" is how I put it. And so it goes. The video went out early Tuesday morning, and the first bile was vented before noon. Check my previous posting for examples, or just go check the YouTube location of the video in the link above.

One of the quickest commenters was self-styled copyfighter Cory Doctorow. Mr. Doctorow is a very successful sci-fi and Y/A novelist, who has a side career lecturing every other writer about free culture.

I engaged with Cory on YouTube, because it was clear to me that he was labouring under a misunderstanding about the video and the opinions expressed therein. Specifically, I questioned Cory on his understanding of Canadian copyright law and the fair dealing provision.

Here's Doctorow on the subject:
"...educators should -- along with journalists and critics -- be allowed to quote "non-significant" portions of creative works without permission. I learned to write in the Canadian school system from teachers who felt free to use handouts with brief quotes, without paying a license. Why should I get paid for what I got for free?"

And here's my response:
"collective licensing is not about brief quotes -- it's about large-scale copying for industrial use. Educators ALREADY have the exact same fair dealing rights as the rest of us where quoting is concerned."

Soon after this point in the discussion, Doctorow bowed out. I thought maybe he'd gone away to do some reading on actual copyright law, but a tweet from Michael Geist later in the day pointed me to a posting on Boing Boing where Doctorow ramped up his attack on Canadian writers, calling us and our copyright collective liars for daring to understand fair dealing better than he does. You can see that posting here:

Canadian copyright collecting society uses lies to pit creators against schools


It seemed to me this posting depended on the same fatal misunderstanding of fair dealing to make its execrable points about Canadian writers, so I commented to that effect. A subsequent commenter accused me of intentionally confusing the issue and suggested the collective I belong to is "parasitic." I attempted to correct the facts there as well.

Today, I've noticed two things. First, parts of one of my comments on Boing Boing have been "disemvoweled" -- all the vowels have been removed from the words to make them near impossible to read with any comfort. Also my years-old Boing Boing account has suddenly been canceled. I can no longer comment as myself on Boing Boing.

Free culture loves to make the point that they mean free as in speech, not free as in beer. I see now what this means is that the speech that is free is Mr. Doctorow's, while mine is attacked, censored and denied.

BTW, all credit to Boing Boing -- they are honest about their disrespect for comments. Their comment policy states:

"Offensive, inappropriate, or just plain annoying comments may be deleted or disemvoweled."

I guess I offended Mr. Doctorow. Interestingly, their comment policy also states that they want:

"Factual corrections! We make mistakes, we fix 'em."

Since the bulk of my comment was a factual correction, I do expect to see Boing Boing's correction about Canadian fair dealing any minute now.

Aaaany minute now.

Here's my Boing Boing comment, with all the vowels attached (the revoweled sections are in italics):

@Mikael,

The confusion you're experiencing is the result of facts colliding with your ideological worldview. I'm sure it's hard cutting through all the talking points coming from the free culture epicenter - are you also on Geist's mailing list, or does he just feed Cory?


The fact is, you and Cory both are just flat-out wrong about how fair dealing works in Canadian classrooms. There isn't a teacher or professor in the land who is restricted from exercising the right to quote, or any other fair dealing right enjoyed by the rest of us Canadian citizens. Wrong is what you are. How else can I say it?

But I want to thank you for, perhaps unintentionally, making the connection between the expanded fair dealing Geist is campaigning for (which would be a significant and costly change in the balance of copyright in Canada) and getting universities and school boards out of their collective license responsibilities. Canadian writers have received a lot of condescending pats on the head from the free culture advocates. "Don't worry, there's still the six-part test set out by the Supreme Court. No-one's trying to deep-six your rights or destroy your established licensing structures."

Except that's exactly what is being attempted, and you have just admitted it. No fair dealing right allows for the massive, industrial copying of large sections of published works into coursepacks. Yet as course materials move from physical to digital packaging, the free culture lobby is trying to argue that somehow the exact same actual use of the exact same material will suddenly be fair. The record of this advice from Geist and others is public and goes back at least half a decade.

To the anonymous Canadian writer, I'm not sure how anyone could think that noting the fact that a teacher or janitor is paid for their work constitutes an "attack" on those professions. Then again, when the full influence of the Boing Boing authority calls it an attack, I can see a lot of folks buying that line.

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Oh, and Happy Freedom to Read Week next week, everyone. Especially you, Mr. Doctorow!

23 comments:

Darryl said...

"First, parts of one of my comments on Boing Boing have been "disemvoweled" -- all the vowels have been removed from the words to make them near impossible to read with any comfort. Also my years-old Boing Boing account has suddenly been canceled. I can no longer comment as myself on Boing Boing."

And nothing of value was lost. I think I was able to make out the two sentences that were "disemvoweled" (cute trick!) and they amounted to nothing other than a cheap shot accusing the other poster of not being able to think for himself. It's a common refrain from you unfortunately. As I said yesterday, you often throw the first punch in these exchanges.

Regarding losing your account. If indeed that is true, and it is not simply a server issue, I am disappointed. I would have thought Cory's threshold for unacceptable behaviour would be a lot higher.

That being said of course, this is NOT a free speech issue. It's a private server. You allow unrestricted comments on your site, and kudos to you for doing so. Others such as Sookman are moderated, and others still (such as Gannon) do not allow comments at all. Everyone has a right to set their own behaviour and participation policy within their domains. Get over it.

Jason Chesworth said...

If a work is commercially available, it is not included in the Fair Dealing exemption under C-32.

How can you keep suggesting that the works of professional authors are being made legally available to schools for free with the language that's in the proposed bill?

To be clear, I don't support C-32 either, I'm just trying to wrap my head around your argument.

Eo Nomine said...

"That being said of course, this is NOT a free speech issue. It's a private server."

Of course, technically you're right... it's more of a deep and unabiding hypocrisy issue. Cory is almost always one of the first in line to yell censorship and/or publicly mock take-down notices of ANY kind, and profess the American 1st Amendment "Defend to the Death Your Right to Say it" ethos of free culture. Yet, when confronted with comments he disagrees with, or has arbitratily decided are "just annoying", he eliminates them. That's his prerogative, but clearly demonstrates his actual commitment to freedom of expression: he'll "Defend to the Death Your Right to Say It As Long As It is Idealogical Consistent With My Worldview, otherwise STFU"

"If a work is commercially available, it is not included in the Fair Dealing exemption under C-32."

Jason, not sure where you got that from but I can assure you that's not true. Two of the sex fair dealing factor articulated by the Supreme Court pertain to a works commercial availability: Alternative of the Dealing, where the court considers whether the exercise of fair dealing without compensation is reasonably necessary to achieve the ultimate purpose (ie were there alternatives, like licensing or non-copyrighted works); and Effect of the Dealing on the Work, where the court considers whether the dealing is likely to compete with the market for the work. It's important to note that neither of these factors are determinative, and are weighed equally with all other factors in making a determination of whether a specific dealing is "fair" or not.

If you were right, then no work ever sold could be subject to any form of fair dealing. I suspect most, including John, would actually not want this outcome. In fact, if the addition to education to the list of allowable purposes under fair dealing really only did what Cory and others describe (allow teachers to make small excerpts), than I suspect that the professional writers and publishing community would be a whole lot less concerned about it than they are.

Crockett said...

John, for all the abuse you get you give it back just as hard. I'm not sure the over lamenting is doing you much good. I do have to agree though that your open forum policy is quite commendable, and shows poorly on those who do not reciprocate. As you know I believe open discourse is the only way to arrive at solutions.

I'm in Liverpool today, visited Conwy castle yesterday and back to London tomorrow. I'll hit the Tate before hopping back across the pond.

On another note, as I was wondering the mall I checked out a booth for Sky networks. Their Internet & mobile packages here are very generous compared to ours. Shockingly so. The UBB reversal was needed I think to ensure some competitiveness to our own market.

Jason Chesworth said...

Eo,

(2) Subsection 29.4(3) of the Act is replaced by the following:


If work commercially available


(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition “commercially available” in section 2, in a medium that is appropriate for the purposes referred to in those subsections.

John said...

Thanks Eo Nomine, if that is your real name :)

I would go just a bit further and say that Darry isn't even technically correct. There's a disturbing moral reletavism at play in his, and others, excusing of this form of censorship as "not a free speech issue."

I am currently having my arguments and facts challenged on the same Boing Boing stream where my words are mangled and my participation is denied. In the limited instance of that blog posting and that comment stream, Cory Doctorow is the authority -- the state -- and he is actively silencing my dissent.

That's censorship. To say I can always go elsehwre to voice my views is like saying Libyans can always move to Egypt.

The idea that authors are objecting to short quotations and references to their works is absurd. Through our collective, we do not require any licensing for those uses. Access Copyright is explicit about recognizing those uses as fair dealing.

Darryl said...

"I am currently having my arguments and facts challenged on the same Boing Boing stream where my words are mangled and my participation is denied. In the limited instance of that blog posting and that comment stream, Cory Doctorow is the authority -- the state -- and he is actively silencing my dissent."

And then you go on to draw comparisons with Libya and Egypt? Give it up man. If your argument were true, then all bloggers should have to provide an unresticted forum for the people they criticize to respond in. In addition that would make sites like Gannon's the Gitmo of cyberspace. Where is your indignity with that? Or do you only object when 'free culture' supports moderate their sites?

I agree Cory's response was an overstep, and I am disappointed, (especially given his claimed philosophy) but if you are going to be indignant about it, you should at least show some consistency in how you display it.

John said...

Darryl,

Believe me, I don't expect you to get the subtleties of the moral argument here. You've shown your relativism for years here.

For others, there's a difference between moderation, or not accepting comments and what is happening at Boing Boing. Cory began a debate (with some pretty nasty language aimed at writers), I joined the debate, he locked me out and tore my words to pieces.

Darryl said...

John, you mean these words?

"The confusion you're experiencing is the result of facts colliding with your ideological worldview. I'm sure it's hard cutting through all the talking points coming from the free culture epicenter - are you also on Geist's mailing list, or does he just feed Cory?"

and

"To the anonymous Canadian writer, I'm not sure how anyone could think that noting the fact that a teacher or janitor is paid for their work constitutes an "attack" on these professions. Then again, when the full influence of the Boing Boing authority calls it an attack, I can see a lot of folks buying that line."

(don't you love search engine caches!)



I'm not sure what you are upset about. Your words added absolutely nothing to the conversation, and were inflammatory.

But you're right. I don't see the difference. In both cases the site owners are exerting control over what gets posted in a way they are comfortable with. It is their site. If they only want to accept views that agree with their own, that is their prerogative. Sites like CCC and Sookman display very few dissenting comments. Of course you don't see the ones that don't get posted because they are moderated before instead of after. I've had a similar experiences as you in exchanges with Sookman (queue ad-hominum attack regarding value of my posts) where my follow up arguments simple don't get posted rather than being obfuscated.

You need to stop being a hypocrite and condemn all these sites, or simply accept that it is the site owners right to allow what ever comments they want whenever they want.

Crockett said...

I have pointed out such selective indignation on John's part before.

eg. Blasting Geist's site but silent on balancedcopyrightforcanada [a Non sequitur if there ever was one].

But then we all have our faults.

Jason Chesworth said...

Eo,

To be clear, I'm reading the proposed language as saying that it *is* considered copyright infringement if a commercially available work is copied, even in a school.

Is this wrong? John?

"(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available"

John said...

Geez, you guys would be zinging me good if I were able to agree with anything you reference.

As I said before, there is a difference between simple moderation or not accepting comments, and the hypocritical debate avoidance that goes on at Boing Boing. The Violet Blue incident from a couple years back is not forgotten, and they now have a well-earned reputation for intolerant and unfair manipulation of free speech. None of which I would bother to worry about -- there's a lot of intolerant folks in the world, and most are far more pernicious than that crew -- if it weren't so extreme. Banned for disagreeing with Cory? Banned for tone on a posting that calls me and my firends "liars" and "extortionists?"

I get that moderation, technically, is not censorship. My point is that Boing Boing does not moderate. They claim to moderate, but what they actually do is actively censor dissenting opinion. I do NOT believe Barry Sookman does the same. He doesn't draw you to his blog so he can silence you. And he doesn't ditch your offending comment while allowing equally offensive ones to stand.

Crockett's Geist reference is just silly. My disagreement with Fair Copyright is that it is such weak populism (they also ban folks, btw) that it would take someone with zero understanding of scholarly authority to claim its membership numbers mean anything. It has utterly failed to generate meaningful discussion on copyright reform, and yet is regularly referenced - most recently by Geist in front of the C32 committee - as a reliable indication of how the Canadian public feels about the incredibly complicated reforms being discussed.

Blather and intellectual dishonesty.

Balanced Copyright makes no claims to represent anyone other than interested members of Canada's creative economy and cultural industries. It is active, contains tons of comments (mostly from Mad Hatter) that disagree with everything it stands for, and carries (IMO) the real weight of authority for the 1300 or so folks who signed up and participate actively. It calls for balance, and engages in debate on what that means. It certainly does not lean on some vague notion of fairness. It has an opinion and fights for it (fairly).

Anonymous said...

John:

I'm astonished that you find the time to do all of this blogging with such energy in the service of creators and collectives while engaged in your day job as a "Literature Officer for the Ontario Arts Council, administering funding support to Ontario's writing, publishing and literary presenting community."

John said...

anonymous braveheart,

That's because I work through my lunches and breaks, put in a ton of unpaid overtime meeting with writers and publishers, and feel that being engaged in discussion about issues important to my constituency is an important personal addition to my professional life.

I wrote and published this posting after midnight this morning.

Anonymous said...

Your "constituency"? Maybe you should run for office.

Public servants don't have a "constituency".

They have jobs with a responsibility to serve taxpayers in a neutral, professional and unbiased manner.

Crockett said...

"They have jobs with a responsibility to serve taxpayers in a neutral, professional and unbiased manner."

lol ... Just like Michael Geist!?

There John, I thought I'd beat you to the punch and save you the trouble 0_o

Surprised, you missed that one ;)

John said...

Why, Mr. Crockett, I believe you are trying to seduce me.

anonymous captain courageous -- I guess, what you're trying to say is STFU Degen!

John said...

Jason,

I think the problem might be that folks are concentrating on the wrong section of the Act. You are trying to find specific permission under fair dealing. I am saying that everything that falls outside the purview of strict copyright is fair dealing. Maybe that's a mistake... maybe I should say it's public domain.

Either way, let's leave section 29 of the Act and go all the way back to Section 3 -- here's what I'm talking about (emphasis mine):

Copyright in works

3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof

It is, I believe, a generally accepted legal understanding in Canada that, therefore, insubstantial parts of a work are not even subject to copyright, so no-one is granted sole right over them. They are, therefore, fair game.

So commercial alternative or not, quoting short passages is a go.

(thanks to WS for the finger point - I knew it was in there somewhere)

Crockett said...

"Why, Mr. Crockett, I believe you are trying to seduce me."

John, as much as I enjoy our bavarder, I don't think I'm quite ready to take that step 0_0

Sandy Crawley said...

@Anonymous,

Your language lesson for Friday:

"Constituency:any body of supporters, customers, etc.; clientele."

So, civil servants have 'em, politicians have 'em, anyone trying to sell anything (even ideas) have 'em....

Since we're both "here" at johndegen.com, I guess you and I are part of John's constituency.

I certainly am.

Jason J. Kee said...

Jason,

Ah. You're referring to the specific exception for educational institutions in section 29.4. That's distinct from the addition of "education" as a new purpose to the general fair dealing exception in section 29.

So you're right, 29.4 does say that the specific exception for educational institutions doesn't apply if the work is "commercially available". BUT I'm also right that the general fair dealing exception in s. 29 does contain any such condition... meaning that an educator who uses a work that is commercially available could be within s.29 and off-side s.29.4 at the same time. Moreover, in CCH the SCC expressly stated that the general fair dealing exception in 29 applies first, and it's only if an institution's use does not fall within the general fair dealing exception do you look to see if other exceptions apply... so the addition of "education" as an allowable purpose under fair dealing basically trumps the specific educational institution exception in 29.4.

I will agree that having two separate exceptions basically makes no sense to me... if education is in general fair dealing, than it isn't at all clear to me why a separate exception should exist for educational institutions, especially when that exception is more limited.

Jason Chesworth said...

Jason - Thanks for your response. I'm reading s.29 as saying "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright."

I don't take this to say that Education is fair dealing in and of itself without question. To me, this says that "fair dealing" does not infringe copyright unless, as s.29.4 says, the work is commercially available. If so, then the use of a work in such a context would be considered infringement.

Again, I think that C-32 is a heinous bill, but this particular clause seems fair to me. I think that creators do have language in this context which protects them.

Jason Chesworth said...

I should clarify that I meant to say:

"I don't take this to say that *Educational use* is fair dealing, in and of itself, without question."