Friday, April 15, 2011

the Bank of Gannon

I've always suspected that practicing law is a licence to print money, but I used to think that was just an expression. Of course, that was before the Internet showed us all the copy has just as much value as the original and needs to be recopied and spread around as freely as possible to help build our exciting new culture.

James Gannon is an IP lawyer at the influential law firm of McCarthy T├ętrault in Toronto. His personal blog has been the site of some of the most meticulous and sharp-minded research and analysis of the ongoing (some might say "never-ending" -- some others might say "depressingly relentless") copyright reform process and the various new free culture theories gumming up the works for real world cultural workers.

Today, in a cheeky little blog post -- How I Learned to Stop Worrying and Love the Copy -- Gannon skewers several of the most popular free culture canards such as ...
the problem with copyright is legacy businesses clinging to obsolete models instead of embracing the digital age;

there's a moral and ethical difference between illicit personal use and illicit commercial use;

the big corporations deserve to have their copies stolen because they make too much money anyway;

and, of course, copy-protection can't work anyway, so why bother even trying.

For some reason, a lot of otherwise clear-thinking folk have no problem applying free culture logic to the original work of artists and cultural creators; and do so regularly to justify behind-closed-door online behaviours they'd be ashamed to repeat in public, in the physical world of real life. Someone who would never even think of walking out of a bookstore with a copy of a book they hadn't paid for will happily download a pirated e-copy of that same book. Simply insert the appropriate free culture rationalization, and it's all good.

Gannon's Swiftian modest proposal for his new personal "copying" practice asks us to consider what might happen if the same "logical" rationalizations used for content piracy were applied to paper money.

When I start making my own copies of Canadian bills, it’s going to be strictly for my own personal use. Buying gas and groceries, paying bills, a nice restaurant or two maybe. Perhaps I’d share the bills with a few friends or family, but I definitely wouldn’t be producing counterfeit bills on a commercial scale with the intent of re-selling them. That would be wrong and hurtful to the economy...
... What if I want to film a movie and need some fake money for a mob scene? As long as I can think of one legal example where I would want to copy bank bills, then there is no justification for the use of technological measures to stop me from doing so.

Thank James Gannon -- an hilarious end to a crazy week.

(image courtesy kevindooley on flickr, under an Attribution 2.0 Generic (CC BY 2.0) licence)

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James Gannon said...

Thanks for your kind words, John. Glad you found the post entertaining!

Crockett said...

Here you go John ... #rebuttal inserted from a non-avowed 'free culture' thinker#.

Entertaining! As is in pure fiction.

As for logical ... well read on.

Of course taking something because someone 'has too much money' is not justifiable. Neither is distributing without consent. But oversimplification of other issues such as equating depriving a physical inventory item to making a duplicate is disingenuous.

As for Gannon's thought experiment ... Now of course if you print money you are devaluing everyone else's [governments do this but that is a topic for another day], so in essence this is stealing from everybody and causing actual widespread harm. In the case of copying media without consent (which I don't condone personally) you are 'possibly' harming the copyright holder, assuming you would have otherwise purchased it.

Now as John well knows, I do not condone piracy and encourage people to pay the the asking price for media they consume or go without [or to somewhere offering better value].

I understand there are moral and ethical issues at play here, and rightly so, as well as more complex issues of control, licencing, distribution enforement & public domain/enrichment, but I'm afraid the 'Bank of Gannon' is a little too unbeleivable even for art.

Darryl said...

I would also add that going out and buying things with your 'copied' money does not exactly quality as 'personal use'. It is in fact, exactly the same kind of distribution that even pirate lovers such as myself object too.

If Gannon really were to only use it personally, (as fire starter, to hang on a wall, friendly game of poker, etc... ) then you're right! no one would have been harmed, and except for the fact that it would be both difficult to maintain, and to tempting to use otherwise, I would say say such uses of 'copied' money SHOULD be perfectly legal.

It is interesting to note at this point that the Canadian Mint fought with the city of Toronto over the use of images of the penny in an ad campaign. Deplorable!

So I'm glad you found Gannon's post entertaining, it is a pity though that it was so removed from the truth that the moral messages you had hoped was there, in fact wasn't. Better luck next time.

John said...

Hmmm, it's hard to tell what Darryl means exactly. Functional sentences and grammar would help.

But, I think I'm hearing both of you say that file-sharing without permission of the copyright holder is wrong.


If it's wrong, why aren't you two fighting alongside "big content" to have illegal filesharers shut down or at least made responsible for their actions?

I believe I'm also hearing Crockett saying that the devaluing of someone else's intangibly valued property is "stealing" and the cause of "widespread harm." Since Darryl joined the conversation only to "add" to Crockett's rebuttal, I think it's safe to assume he agrees with that point.


Wait, do I see Darryl making a distinction between rights pertaining to a copy of something and the wholly different and more valuable rights pertaining to the original? I believe I do.


You fellows have clearly learned a lot from my blog. It's time now to start putting your education into practice.

You have grasped the pebbles from my palm. You may leave, grasshoppers.

Crockett said...

John, I really think when you come right down to it that we are not that far apart on many issues. I do take issue though with your characterization [as in this latest op-ed] of what you call 'free culture' thinkers, which paints them as being greedily simple minded and not caring about creators at all. Many, myself included, are very concerned at their plight.

I enjoy being entertained & appreciate art. I support those whom I connect with by purchasing their works. I grieve at the loss of a favorite artist or show that is cancelled partly for lack of eyeballs on the right medium.

I also think it is shameful the return most creators get for their work. Sure there are some superstars, but the majority get pennies on the dollar while the 'handlers' get their big piece of pie. So John, why don't I fight along 'Big content'? Because they are a big part of the problem. Creators need to be 'creative'. take control and yes, as you say, move outside those darn old business models. Get better returns for your work and create more art for the world. Everyone wins ... except for needless middle management.

Finally, I know this is hard to see from your copyright purist perspective. But the relationship between the creator and consumer is a symbiotic one. It is also one where many the consumer feels they are not getting good value. I believe, and yes we may disagree on this, that this is the source of the endemic infringement we see today.

Take Netflix for example. Pretty much all that is on their catalog is also available on torrents. So why is it a service that is exploding in popularity? Why are people actually paying for something they can get for free? Hmm, it could be things like value, selection, convinience & service. And why is Bell, Rogers & Shaw trying to legislate it out of the market? Is it concern for the consumer? No. Is it concern for the rights holders? No. Is it becasue of their shareholders and $16,000 DAILY pensions to the company founders? Oh, probably.

There are simple solutions John, but they rarely come from simple people.

Darryl said...

"But, I think I'm hearing both of you say that file-sharing without permission of the copyright holder is wrong."

Crockett's made that position clear many times, though you keep missing it so he has to keep repeating himself, repeating himself.

I haven't a clue how you read that into anything I wrote though, but then again I've witnessed many of your logical contortions in the past so I can't say I'm surprised, and see no point in asking you to qualify it either. I'm sure no one but one of your committed disciples would be able to follow the twisted logic anyway.

John said...


You had me at "I haven't a clue."

Anonymous said...

"Except for the fact that it would be both difficult to maintain, and too tempting to use otherwise."

Well, there is that, huh?

Darryl said...

John, it is something about the way you argue that give me this overwhelming urge to say "I know you are, but what am I?"

Must just be that youthful manner of yours, eh?

Gruesome said...

I think the arguments you have in bold are mostly straw man arguments.
I've never heard anyone refer to the problem of copyright being obsolete business models.
I've seen the argument that people infringe because of obsolete business models.
While I choose not to infringe myself, I also choose not to spend money on business models I don't find attractive.
I find individuals like me never discussed by Big Media, but starting to be satisfied by innovative firms like valve and netflix.
I've heard plenty of justification that for some reason never gets addressed in the manner of your straw man arguments.
The one I hear most often, "I spend tons on Media but do downlaod stuff I would never buy, my media budget has even grown"
Others" I pay for an expensive cable package and still download the TV shows I could stream from my Cable company because it simply works better"
"I can't get the media where I live in any other way"
"If I like it I'll go out and buy it but I'm tired of watching a movie halfway through and not being able to return it for a refund"
(Actually theaters are quite good for this, if you see a movie and you think it stinks ask for a refund, you might at least get free movie passes)
"I can't even watch Hi def movies unless I rip them because my HDTV in not HDCP compatible."

It's unfortunate the hostility that a company like Netflix gets from content providers.
I really think innovators are the actual pathway to a returned respect for copyright as they make things easier and remove barriers that bring value back to the content.
I think copyright issues may fade as a primary concern as more free legal content becomes available and better competition or consumer dollars ramps up I see an even larger devaluation of content coming.
I know you'll say nothing is free, someone pays. But we may be looking at a return of something like the over the air days where watching is free and advertising foots the bill.
Look at the hundreds of YouTube stars that are making more than six figures allowing free viewing of their content.
We're already seeing the 1000 channel universe of 24/7 low budget reality TV Shows
Hey how does "The Real Writers of Toronto" sound?

John said...

Sounds to me like some folks need to illegally download a sense of humour, because they sure haven't developed one through legitimate channels.

Now, Gruesome...

I guess you haven't been reading either my blog or Michael Geist's for very long. Those four free culture canards are paraphrasings from Darryl, his alter-ego Cap'n Hook, or (when not one of those two brain surgeons) just take your pick from any comment stream after any media story on copyright in the last five years.

As to "individuals like you," I sympathize with your desire to consume cultural content in ways that aren't quite ready yet. It's a problem.

I need to point out that I absolutely do not share your problem. I feel I live in a time and place offering the greatest, most affordable and most easily obtainable cultural product ever in the history of civilization...

... not entirely unrelated aside - anybody see last night's episode of Upstairs, Downstairs? I loved it when Sir Hallam Holland upbraids his sister-in-law for joining the British Union of Fascists. He yells something like "You have allied yourself to an ideology of which you have absolutely no understanding!" She had joined the fascists because she was bored and looking for entertainment.

But let's get back to your problem.

Does your problem obtaining entertainment justify copyright infringement? That's the central question. I say, unequivocally, no it does not.

Geist and his posse either hesitate to answer that question or equivocate when they do answer, and that, sir, is the self-produced indictment of "free culture" you see reflected in Gannon's funny tribute.


Your main worry about Rogers, et al seems to be that they are rich profit-making corporations intent on competing with other profit-making corporations -- unless you believe Netflix is an altruistic not-for-profit in the business only to bring low cost movies to the consumer.

I refer you to Canard #3.

Crockett said...

@Degen "Your main worry about Rogers, et al seems to be that they are rich profit-making corporations intent on competing with other profit-making corporations"

John, I have no problem with people or corporations making a profit. I do have a problem with anti-competitive behavior.

I also have a problem with governments or their appointed bodies that are tasked with keeping a balance between the needs of business and the public, from failing to do so.

The creative sector cries loud and large if they feel they are being disadvantaged in the slightest. At least give the same latitude to those being gouged elsewhere ... show some solidarity :D

John said...


Who am I showing solidarity with... myself? Do you think I have some special "creator" deal with Rogers or Bell for my cable? I'm just as much a consumer as you -- I'm just one who can see perspectives outside my wallet.

I have tons of friends in the culture biz and two kids. I probably spend more on cultural content than all my commenters combined (well, that's an easy one, since many of my commenters don't pay for cultural content).

The point we disagree on, I think, is that there's an imbalance that needs to be addressed by weakening artists rights. You try making a living as a regulated Canadian cultural business and then tell me it's easy to compete with unregulated American competitors (who already enjoy an economies of scale advantage) dumping their content over the border.

You might want to check your anti-corporate fly. It appears to be unzipped.

Crockett said...

John, calm down. How exactly does opposing telecom service providers from gouging the public weaken creator's rights?

Who said anything about weakening artist's rights? I'm not sure how you tied those together.

If you were truly interested in safe guarding Canadian culture you would support the platform of some of the political parties that pledge to directly fund CANADIAN talent and industries rather than a unfair poll levy that would mostly go to corporate America.

Crockett said...

John, I know you don't like to see cross posting, but I think the audience here would benefit from the questions I posed.

I suspect it must be really tiring in your world, and I mean that sincerely, it is a lot of work you put out. It's like you are lone voice against the throng of the misinformed, battling against the 'Great Satan' that disperses his lies to the masses.

Go ahead and tell me that the name Geist did not just pop into your head ;-)

Seriously though, if the naysayers are so misinformed maybe it would be better to actually speak to questions people pose rather than spend all your considerable energy just tearing people down. I know people rag on you all the time but one must try to rise above that if they actually want to make a difference and change minds.

I'll repost my questions to you plus a few extra:

Why should an iPod be 'levied' to one person who loads it with torrented music [or shifts it from their CD collection] and the same levy be applied to someone who pays for every song they directly purchase from iTunes?

Is that fair or equitable?

Do the funds gathered from the current and proposed levies go to Canadian artists exclusively or the majority to proportionally greater foreign parties?

Is the levy system the best way to foster Canadian creative workers and culture?

If not what other systems do you envision?

There you go John, real questions needing real answers. I sincerely look forward to you input, so some real discussions can occur. If I [or you] learn something new then all the better for everyone.

Crockett said...

* an added disclaimer. The conservative iPod tax smear campaign is both misleading and crass. I do not support it or them.

John said...


Knowing how Geist's comment filter treats my meatier answers, I'll cross-post my response to you here, so you'll have a chance of seeing it:

My considerable energies go to my work, my own writing, my family and to thinking about baseball, in no particular order. Since this blog is the source of so many incorrect assertions about issues affecting both my work and my writing, you will find me here occasionally, disagreeing with those assertions.

You ask a lot of questions and expect answers. You may have noticed that I occasionally ask questions of Dr. Geist, and get no answers -- still waiting for word on whether he supports Jesse Brown's stealing of creative content, btw. Your expectations of good behaviour seem to be tailored to your ideology. Not a great start for a reasoned discussion.
Me, I expect the same from everyone.

I'm not sure you understand the nature of a levy. It is not being suggested as a pay-per-use charge. The levy is proposed as an extension of an existing recording media levy that seeks to compensate artists for the use of blank recording media. THAT levy has faced all the same objections you raise about the proposed new levy, and still has been found by Canada's copyright laws to be a fair solution to a complicated problem. The extension does not apply exclusively to iPods, it is not set at $75 per unit and it is not a tax.

A levy such as this is, at its core, a recognition that copies have value and so creators should be compensated for them -- even private copies. At the moment, in Canada, that's where we stand. We agree through our laws that copies have value and therefore artists should be compensated for all copies. Since it is impossible to track personal copies, we don’t place the levy on them, but on media instead.

Is that fair to the consumer who does not torrent? The question is irrelevant. A levy is not a licence to infringe. It is in essence a royalty fee for the privilege of private copying. When you buy milk, you pay a hidden fee to subsidize Canada’s farmers and a dependable milk supply – those prices are not set by market demand alone, and the machinations on milk prices are not taxes going into the general fund. Same general idea with a blank media levy – the retail price has some artificial controls on it to protect a supply chain.

BTW, Geist's point about DRM trumping rights paid for under the levy is simply wrong, since a levy applied to a particular device does not by extension apply to all potential content; just to the content that works on that device. That's the incorrectness that I mentioned earlier. It's annoying, and disappointing from someone who should be clarifying rather than obfuscating.

As to revenues flowing out of the country – we belong to a larger world, and have signed agreements to cooperate and be good to that world. As long as Canadian artists are benefitting from a levy, I’m not sure why anyone should be upset that Canada respects its Berne Convention partners and flows copyright revenues to them.

Are levies the best system. No... and levies plus collective licensing plus cultural funding plus effective anti-piracy enforcement are ALSO not the best system. But they are workable and fair systems… if one accepts that each and every copy has value.

Call me when you hear back from Geist on the whole Jesse Brown thing.

John said...

I wrote the comment above on Geist's blog so, of course, "this blog" refers to his blog, not mine.

Crockett said...

John, thank you for taking the time to answer with thoughtful responses. We may not agree on everything but discussion is better than slinging mud.

As for my behavior I have made a concerted effort to contribute to the discussion and understand the 'cost culture' positions. At times I do unfortunately get frustrated and slide in a quip but John, really, do not posture that you do not do the same.

My motivation is not to get 'free stuff' but to highlight the opinions and frustrations of the average media consumer to counter the very focused world view that you put forward. In this I hope to move forward the discussion to come to workable solutions, rather than the obviously lacking situation we find ourselves in today.

It seems tactics of stronger copyright control, legislative lobbying, anti-competitive behavior, mis-implemented consumer education and punitive sanctions have done little move forward the state of the average creator.

It may be the time to work at coming to a greater understanding of all viewpoints, to be willing to compromise on both sides and generate a environment of goodwill and respect where a more functional relationship can flourish.