Monday, December 17, 2007

Royal Commission on Why We're All Yelling at Each Other

Reflecting on all the copyright craziness that has happened in the last week or so, I despaired over the weekend that this ongoing, neverending issue looks as though it will be resolved not according to what is good and right for all parties, but according to which argument gets the best press and therefore threatens the current government the most.

We've got corporate rights-holders on one side -- too often and too regrettably represented by the extreme maximalist argument. Also known as the "stodgy old folks with impaired vision" and "folks who have invested heavily in Canadian culture." They're working their networks, sending their message to Ottawa.

We've got the user rights and consumer advocates on the other side -- too often and too regrettably represented by the extreme minimalist argument. Also known as "the people," and "kids these days." They're recruiting nervous rock stars and following a red-sashed, swashbuckling Michael Geist to the barricades.

In the middle we have traditional creators wondering why everyone can't just get along. We tend to say "it's a bit more complicated than that," far too often, and with our heads swiveling from side to side. We get called greedy a lot, from both sides, but we're used to that from the also ongoing and never-ending arts-funding debates.

Well, a voice of reason has arisen. Chris Moore over at the Creators Copyright Coalition blog thinks it might be time for the ultimate in Canadian solutions -- a royal commission.

I officially endorse this idea.

Enough shouting. No more flash mobs invading parties, no more half-formed accusations of influence peddling. Let's get some sandwiches and muffins, and sit down in public until we work this damn thing out.


Unknown said...

I agree that we need thorough public consultation on this issue. But the proposal you link to reads, "Let’s not have a new copyright bill, at least not one with any substantive changes beyond the WIPO ratification minimums."

This means implementing the WIPO treaty - including the contentious provisions that would make it illegal to circumvent DRM. Canadians would have to wait for years before addressing any of the concerns of creators and users who are hampered by copyright restrictions. That's not a middle way at all.

We know - and can see from the U.S. experience - that protecting DRM 1) prevents consumers from making legitimate use of material, 2) wrests from consumers control over their own property, and 3) leads to centralization of control over technology and creators - to the detriment of artists and innovators.

Michael Geist's position is hardly "extreme minimalist" or "swashbuckling". Geist simply presents the dangers of WIPO ratification and maximalist copyright. The evidence is that the vast majority are opposed to WIPO ratification (Russell McOrmond calculated that in the 2001 consultation, 93% of submissions that dealt with DRM were opposed to WIPO ratification).

It is not extreme to oppose draconian new regulation, nor to propose implementing U.S.-style Fair Use provisions, nor even to argue that statutory licensing is a practical alternative to a futile new war-on-drugs against virtually everyone under the age of 30. The Economist magazine has advocated reducing copyright terms to a maximum of 28 years. I know academics specialized in this area who would abolish it outright.

So yes, let's have our commission - without first selling out to the copyright extremists.

John said...


Thanks for reiterating my point. Your sign-off

So yes, let's have our commission - without first selling out to the copyright extremists.

is a marvelous example of the kind of rhetoric I'd like a commission to get past. Chris Moore has his own opinions about WIPO. I'd like him to have a chance to express them in public without an immediate smackdown. I have read quite carefully through Russell McOrmond's analysis of WIPO, and I fail to see the threat. You and I probably agree on whether or not TPMs work in the marketplace, and on whether certain types of DRM should even be legal, but disagree on a philosophical point about circumvention and the hampering of creativity. Because of that, I could live with either of Chris' suggestions.

As to Geist -- I reserve the right to express my opinion about both his cause and his methods on my own blog. That said -- please don't misrepresent my own words. I did not call Geist an extreme minimalist. I said that side is too often represented by those kinds of views. Different. On the other hand, I'm pretty sure he owns and wears a red sash and regularly says things like "yo, ho, ho and a bottle of rum." There might even be a video of it up on YouTube.

Check out his latest piece in today's Star:

In this instance, Canadians increasingly recognized the detrimental effect of the proposed copyright reforms on consumer rights, privacy and free speech, and were moved to act.

You may appreciate this kind of single-sided analysis from your public academics, but I hope for better. Gosh, I hope we start to formulate all public policy through Facebook.

Unknown said...

I'm afraid the objective view you're looking for simply doesn't exist - and can't exist. In order to find an apparently unbiased position, you must choose criteria for determining "what is good and right for all parties". There is no one right answer. That is the nature of politics. You will never be able to get away from divergent interests.

From my perspective, your post is rife with bias - claiming be "traditional" and "in the middle", saying you are more aware of copyright's complexities. It certainly looks to me as though you wish to imply that Gest is with the pirates ("red-sashed", "barricades"). If that is not your intent then I retract my accusation.

Scholars are lead by their analysis to take positions. They must be - otherwise, their work is purposeless and detached from reality. Dr. Geist picked criteria and reached conclusions; both are evident in the passage you quote. It would be irresponsible of him not to take a position. This is true for all academics, from climate change scientists to economists.

I didn't call Chris Moore an extremist. But that's who will win if WIPO is ratified. His proposal sounds very much like a recapitulation of Bill C-60, which would harm creators, consumers, and citizens, while benefiting only some (mostly American) distributors, publishers, and technology firms. Here is my non-technical explanation of why:

Of course that too is biased: it privileges creators, consumers, and economic efficiency; it largely ignores citizens; it assumes innovation and creativity are unqualified goods; and it assumes creators and consumers are necessarily separate groups.

Russell McOrmond said...


Geof is right. What Chris wrote is a demonstration of the problem, not a fix for the problem.

Come in and shoot all my livestock, and then lets have a town hall meeting to ask why anyone might be upset.

Bad timing is the most kind way of explaining that suggestion.

You haven't been convinced of the problems I (and hundreds of thousands of other people worldwide) have with the WIPO Internet treaties (specifically, anti-circumvention and paracopyright).

By the same token, you have never convinced me that any of the threats you are concerned with exist at all either (IE: It seems you have members unwilling to enforce their existing rights, not the need for any new rights).

But this is part of the debate that we need to have. The problem is, civility in a conversation will be that much harder if done after WIPO Internet treaty ratification than before. After ratification, all I will be able to talk about is work nationally and internationally with the goal of abrogating and replacing these treaties.

You know this is true: I only became involved in Copyright at all because of the Paracopyight provisions that are largely unrelated to reasonable notions of copyright. That isn't to say that I won't care about real-copyright if we don't implement paracopyright, but that real-copyright won't be able to be a priority.

John said...

What is most sad here, for me, is that a real, good-faith suggestion on the table here, and it is being summarily dismissed by the same old rhetoric the suggestion seeks to get past.

Chris Moore has expressed a preference and said yes to an open, fair hearing on it. You two have expressed a preference and said no to an open, fair hearing.

I can live with a royal commission pre-ratification (as noted in my latest public posting), though it's not my preference, but I'm sensing no such flexibility from my fellow commenters.

What is so wrong with a future involving , as Russell describes it, work nationally and internationally with the goal of abrogating and replacing these treaties? Doesn't that imply forward progress on your side?

And actually Geof, I'm mixing my metaphors a bit with Geist. I'm seeing him these days more as Errol Flynn, or one of those guys in the broadway stage production of Les Miserables, so think French Revolution more than actual piracy (I leave it to him to confirm whether or not he likes rum). I mean, look at the pose he strikes in his Facebook photo. Would a sword be out of place?

I imagine Geist might find all this complimentary. After all, those guys were all great dancers.

John said...

And Geof, so you don't think I'm just ignoring your points about Geist, see his comment in this remarkably balanced Toronto Star article about the copyfight:

"When public consultations were held on this issue in 2001, there were 600 submissions and that was seen as a lot. There were more calls and letters to the minister's office in one week this time," says Geist.

Even someone without a doctorate should know and publicly recognize the difference between a submission to an official public consultation and a quick angry phone call to a Minister's voice mail. Talk about purposeless and detached from reality.

I expect my global warming hero scientists to present data, and to be as meticulously precise as possible in interpreting it. I expect nothing less from Geist in his very public responsibility. The quote above is, in my opinion, unfortunately imprecise and misleading. I'm not saying that's deliberate -- just very unfortunate given the current state of debate on this issue.

Russell McOrmond said...

You have an interesting concept of forward progress.

If women lost the right to vote tomorrow, this would get many people active in an area of politics that they had not been in. Is this considered progress - or the opposite? People who would otherwise be focused on forward-looking initiatives would have to concentrate on stopping this backward motion, and this would mean all progressive activism would suffer.

I have updated my article on the WCT based on your comments (specifically article 11). I am curious if the current version helps explain the risk better?

I do not consider it a constructive suggestion to try to bring people into this commission until after ratification, rather than before ratification (with my hope that we never ratify). After ratification people will be focused on stopping the backward motion initiated by this ratification, rather than working constructively with each other on forward motion.

I am not saying "no to an open, fair hearing". What I am saying is that for many of us having it after WIPO Internet treaty ratification is like contemplating locking the barn door after all the horses have already been shot. In my case, I may simply not have time to participate in this "open, fair hearing" as my energies will need to be elsewhere fighting anti-circumvention.

The submissions to a consultation were possible because there was a consultation for people to make submissions to. There is no consultation at this time, so no way to find out how many submissions there would be. (Although, given the "Counterfeiting and Piracy is theft" debacle, I now many submission to any committee where they are studying anything even remotely related).

That said, I disagree with the underlying suggestion. I believe that making a submission to an existing public consultation is much easier than cold-calling your MP and having a conversation on copyright. While some of us made large submissions, somewhere near 234 of the approximately 700 total submissions were identified as being a variation of an EFF form letter.

Given the vast majority of people in the only consultation we had rejected WIPO Internet treaty ratification, and people you think are being "constructive" are promoting it (and your preference is post-ratification), it is justified that people are getting more and more frustrated at the situation. This can't possibly be considered a way to reduce the amount of yelling at each other that is happening. If anything, this suggestion can only increase the yelling.

I am curious: If the government interpreted the WIPO Internet treaties the way I state they will, would that change your mind? Do you think I should not remain focused on the most fundamental interests of software authors: software choice? If computer owners can't make their own software choices, no exclusive rights of any kind can help a software author.

John said...


It probably won't surprise you that I disagree with your analogy concerning women's suffrage. I don't see anything causing anywhere near that extreme a restriction on anyone's rights in the Canadian DMCA fears. I see any bill at this point, flawed as they all inevitably are, as forward progress. Myt progress is more plodding and deliberate than you'd prefer, but that's how me and my tribe move sometimes, and I don't think it's necessarily a bad thing.

Aagain, even with your changes, your fears on WIPO are fears of worst case "interpretation." At this point, that is entirely theoretical (in this country), and even being clawed back by the courts and market in the US -- isn't Sony being slapped-down over the rootkit debacle, and aren't we glad the US system still works to do the slapping? What is NOT theoretical is the ongoing and I would even say increasing trend of freelance writer work being used digitally without permission and/or payment.

Pardon me if my actual problem -- which you insist on calling a threat, as though it is not happening -- trumps your theoretical "this might happen if the law is misinterpreted."

Russell McOrmond said...

Pardon me, but existing copyright law solves your "actual problem", so that problem is really off-topic for a debate about proposed changes. Your community is unwilling or unable to enforce your exiting rights, so creating new or stronger exclusive rights clearly can't help.

See my reply to your Straight Goods article (For reasons you likely know, none of my letters to Straight Goods have been published).

I agree you have an "actual problem", but disagree that this has anything to do with most of the current copyright proposals, and definitely has nothing to do with the WIPO Internet treaties.

The only proposal that seems to relate is the CMEC/AccessCopyright proposal for educational use of the Internet, and I think I've been quite vocal about my opposition to that proposal as well.

Having lawsuits in the fringes about the inevitable harmful effects of anti-circumvention legislation doesn't deal with the core problem: this policy doesn't solve any problems (the proponents of this legislation are relying on science fiction, not science), and only creates many new problems. Most of these new problems are not being debated in the courts in the United States, and in fact their government is intent on making things worse for creators (See their Orwellian double-speak named "PRO IP" proposal).

My problem relates to actual Copyright proposals and is not theoretical -- I am concerned about how the WIPO Internet treaties have been interpreted in every country that has implemented or discussed them. The fact that the language is interpreted by a technologically literate person different was aimed at fellow technical people so that they won't be confused into silence.

Yup -- this seems to be a sure fire way to reduce the yelling at each other. Chris's suggestion seems to only have increased frustration.. *sigh*

John said...

Hey Russell,

Don't be sighing all over my blog! Never despair, my friend. We're Canadian.

I have no idea how they do things over at Straight Goods. They contacted me and asked for permission to re-use bits of my blog. As Mr. Incredible might say, they're not affiliated with me.

Anonymous said...

The only problem I have with Chris's proposal, which I other wise think is a good idea is that he says "after ratifying WIPO".

To dumb it right down, that sounds to me like "These people here are asking for X, Y and Z, while these over here want A, B and C, so why don't we give the first group X and then have a proper discussion and find out how to make everyone happy ?"

Of course the second group of people are going to have a problem with that proposal, and of course it's going to be "why not have the discussion first to figure out whether X is actually a good idea at all ?"

Unknown said...

It makes sense to me to hold out on doing anything before public consultation. That seems to be the fair, balanced thing you are looking for. You say that:

"I see any bill at this point, flawed as they all inevitably are, as forward progress."

Yet you also obviously understand that there are those who disagree with you on this. If you're looking for a way to sort through all of this, let's do the sorting before making any decisions. I'm saying this just as I'm sure you would be saying it if it was suggested that we make all forms of DRM illegal, then have a public consultation. That's hardly fair and I expect you would have a problem with that, just as our side has a problem with ratifying WIPO before a public consultation.