Thursday, December 20, 2007

Welcome to Deadwood -- leave your guns and politics at the bar

For over a year now, I've been trying to work out the politics of the current copyright fight. Specifically, what do your views on copyright say about your political leanings? It should be no surprise to anyone deep in this discussion that there is no easy answer to that question. This posting will not even try for an answer, but I will do some, hopefully, interesting analysis of the rhetoric. Interesting for me, anyway. It's my blog after all.

So let's start with some political disclosure -- not that long ago I made a speech at an NDP nomination meeting in the Etobicoke Lakeshore riding. My main goal there was to stimulate the federal election campaign in my own neighbourhood and make sure the parachuting Michael Ignatieff was not simply handed the Parliamentary seat. Nothing personal, Mr. Ignatieff. There was a very real risk that I would actually win the nomination and have to run as an NDP candidate against Ignatieff. I didn't particularly want to be a candidate, for all sorts of good, personal reasons, but it was a risk I was willing to take for the cause of democratic process. So that's me. Solid NDP and Liberal roots. Do Charlie Angus (NDP critic on copyright reform) and I agree on copyright? Still to be determined, but I can't say much for the NDP's politicking on the "made in the U.S.A copyright legislation" so far. Ugh, grandstanding.

Last week, I found myself writing a blog posting partly in defense of Conservative Industry Minister Jim Prentice -- also, in my opinion, for the cause of democratic process. Alright then.

Today, the Financial Post has published an article labeling Dr. Michael Geist's movement The Telecom Trotskyites -- this criticism seemingly based on the nearness of the word commons to communism. That suggests, of course, that the good (or bad, depending on your own leanings) lefty position on copyright is for "fair" copyright, as defined by the anti-Canadian DMCA message of recent days. The good lefty online journal seems to support this leftish lean -- see Wayne Macphail's piece on copyright, previously blogged about here. Certainly, Macphail's piece, and much of the rhetoric on the Fair Copyright Facebook Group wall contains that key element of good Canadian leftyness -- anti-Americanism. American copyright, stay away from me -- Macphail's title plays on (thanks to fair dealing) the old Guess Who song American Woman (side point -- hasn't Randy Bachman been in actual legal disputes to reasonably protect his own copyright?). Michael Geist, just last night on Strombo, suggested that Canadian copyright lobbyists are mere mouthpieces for American corporations.

Okay, so where are we now? Good lefties in Canada are against American-style aggressive copyright and American corporations, and are for "fair" copyright (as yet to be defined).

Except, the good lefty online journal Straight Goods picked up some of my blog writing in support of strong copyright for artists and professional creators, suggesting they might just think a bit differently from their fellow lefties over at rabble.

As well, part of the current "fair" copyright push is the position that Canada should adopt the American bundle of access and use provisions called Fair Use over Canada's existing bundle called Fair Dealing -- so the anti-American stick is one that apparently only swings in one direction. The American model is unconscionably evil, except when we really like it.

It gets weirder, and ever more muddled.

Good lefty, Charlie Angus posted the file sharing proposal of the Songwriters Association of Canada onto the Facebook group Fair Copyright for Canada. This proposal's preface runs like this:

The plan we propose would not change or interfere with the way Canadians receive their music. No one would be sued for the online sharing of songs. On the contrary, the sharing of music on Peer-to-Peer networks and similar technologies would become perfectly legal. In addition, Music Publishers and Record Labels would be fairly compensated for the crucial role they play in supporting Canadian music creators.

I believe Angus posted this proposal hoping to find some middle ground. He is, after all, a songwriter himself and has made income from the copyright on his songs. For the record, I love his songs. And how did the proposal fare in the group? Well, there was some support, but there were also some less than enthusiastic responses, and the logic in those responses has bearing on this discussion. One response in particular likens the proposal to a music tax, and the commenter complains that he does not use enough music to justify paying the tax. I've heard the same argument against the blank media levy -- I don't rip music onto my CDs, so why should I pay a levy for uses I will not take advantage of? Now, there are all sorts of ways I disagree with that logic, but that's not the point.

The point is -- where else on the political spectrum do we see this kind of anti-taxation, I-only-want-to-pay-for-what-I-use sort of logic? Well, um, here in fact (the US Republican Party). Why should I pay such high property tax in Toronto if I don't choose to use the schools, transit or community service? I should only pay for what I use? User payments... user payments... where have I heard that before? Oh yeah, here (Mike Harris' Common Sense Revolution).

With this in mind, I can't help noticing as well that one of the main thrusts in this current struggle is consumer rights. I've bought something; I should be able to do with it what I like. Trotskyites for the consumer? Wha?

The anti-DRM and anti-TPM thrust is really about individual property rights. Both good lefties and good righties believe that no one should be able to come into your home and put a lock on your stuff. But shouldn't both left and right also oppose someone breaking your own personal locks and taking your stuff? I would hope so.

Overwhelmingly, despite the rampant anti-Americanism and the appeal to "the commons," the recent "fair" copyright protest, to me, resembles the "We the people..." and "pursuit of happiness" appeal to unfettered individual freedom rooted in the beginnings of the United States of America. There it is before us, an endless online vista and we are individuals in a vast untapped continent of common wealth. Do we dump all our iPods in the harbour -- sorry, harbor -- and throw off the shackles of the old world?

Okay, then what? Well, then, perhaps we will all live in the beautiful little town of Deadwood, without all those annoying laws and taxes and limits on our individual freedoms. Yeah... Deadwood. Good times.

Happy Holidays all! My blogging will be sporadic for awhile as I reflect on peace and goodwill toward all mankind.

PS -- I note that Michael Geist has posted today clearly in support of a Royal Commission or some such. I recognize that he has said it before, but it is worth having a look at his posting just to see all those names aligned together on this call. Well done.

Maybe Christmas, he thought, means a little bit more.


Anonymous said...

Hi John,

Good analysis. I suspect that this is why none of the political parties have much of a position on copyright other than the obligatory nods in the directions of "the creators" and "balance".

I don't think it's inconsistent to say both "let's not just pass the law the US is asking for" and "some of the stuff in the US's Copyright Act is good", particularly as the stuff I personally feel is good in their Act all pre-dates the DMCA and WIPO ratification, and that's the big push we're hearing from the US.

I read a number of blogs from all sorts of different political positions, and I've seen very similar positions from people on opposite ends of the political spectrum and very different positions from people on the same end.

John said...

Thank you , Chris... wait a second, don't we normally disagree?

Of course it's not inconsistent -- which is what makes the anti-American rhetoric a bit silly.

Happy holidays.

Unknown said...

Many issues don't fit neatly into political ideologies. It's the job of politicians and partisans to try to put them there so that they can use them. Journalists also like neat categories - it makes for nice clean conflict storylines, and may suit their interests.

It isn't anti-American to say we don't want the American government and entertainment companies writing our legislation. It isn't anti-American to say we want the interests of Canadians to be put first. It isn't anti-American to be firmly opposed to what the American government and American companies see as their interests. This law will be made in Canada, it will apply to Canadians, and it should be written by Canadians. The fact is that the U.S. has exerted tremendous pressure on our government - and Canadians need to know that. Many of us who oppose this legislation sympathize deeply with Americans who have suffered under their DMCA.

Copyright, as it happens, is not a property right - though that's what proponents of draconian copyright want to turn it into. But this talk in terms of absolute individual rights leaves behind some of the most important dimensions of this conflict.

As it stands, copyright threatens the freedom of people to participate in their own society. One facet of that participation - a facet well understood in Canada - is cultural. On the Facebook group, people say, "our culture should not be owned". Someone named Gabriel captured it perfectly in a comment on Geist's blog: "the difference between seeing Culture as a product that people buy or Culture as a collective story that belongs to everyone."

The barrier separating the audience from the artist is dissolving. Ordinary people are becoming creators. It doesn't matter that we might not create great works, or that we might not please mass audiences: creation is more a practice than a product. Through the act of creation we learn, and we become active participants in their communities. Two centuries ago, artists found their "divine spark" and became more than craftsmen; that insight led to the fight for the rights of the artist. Today, whole generations are finding they have a bit of that spark too. But now the rights of the artist are being used in an attempt to preserve the authority of the few, and relegate the rest of us to the passive role of the audience.

Russell McOrmond said...

I think the "anti-American" commentary (not by you, but elsewhere) is a bit simplistic. While the United States government have decided on a direction they want to take the so-called "Knowledge Economy", it was in fact creator groups who put those ideas into their heads.

The fact that I fundamentally disagree with the policy direction of any specific countries government doesn't make me anti that country.

For a fully "Made in Canada" debate, we can look at some of the most influential Quebec unions who together form DAMI©. My post about their platform is titled DAMI©’s platform: Wiping out competing methods of production, distribution, funding, so you can easily guess where I stand on their proposals.

I think most people in these unions would consider themselves far more worried about being pushed out by US culture than people outside of Quebec, which further makes the anti-American aspect of the debate overly simplistic.

With the "Fair Copyright for Canada" Facebook group I think it is more defined by the few viewpoints that it doesn't represent, than any sort of shared vision about what it does represent. I think it is 32K and growing Canadians who recognize the importance of this issue, not that hold any specific position. While I disagree with quite a few of the views in that group, I am still excited that a growing number of people are getting involved.

As to the Songwriters proposal: I have always supported the idea of collective licensing as a way to deal with non-commercial sharing and mashup of music, movies and television. I am beginning to feel forced to step back from that position given DAMI© and some of the "consumer" folks on the Facebook group think it is reasonable to extend this to all creativity -- effectively wiping out the competitive FLOSS software marketplace, etc.

Do people understand the different marketplaces well enough to know why collective licensing works well to enable some forms of creativity, but would destroy others?

If the DAMI© platform gains any steam, I may be forced into a simplistic opposition to compulsory/extended licensing just to protect the very existence of the creative sector I am in.

Best of the season for you as well! Hope that some day independent creators will be able to sing seasonal carols from the same song sheet! Right now we don't seem to even be using the same language.

John said...


What a beautiful world you imagine -- and right before the hoidays too. I'm all warm inside.

I also note that in Star Trek, they don't use money -- while those who wrote, acted in, composed for (etc.) Star Trek had to use actual cash to buy their groceries on the way home from the studio.

Look, patronizing lectures on what it means to be an artist are all well and good -- I mean, you should come out to one of our professional artist secret meetings if you really want to hear about what we can learn and experience "through the act of creation." We artists love that crap. It makes us feel even more special than we already think we are.

But, as you have mentioned, copyright (for the most part) ain't about any of that. Who, other than professional artsist, gets the privilege of being the vanguard for your Utopia? Are you working for no money while you wait for this magical society in which our culture is not owned?

Hockey is a big part of our culture -- (subliminal message) buy my book, The Uninvited Guest, a novel about hockey and totalitarianism (end subliminal message) -- so I guess you'll be lecturing the NHL Player's Association next on how they should not expect to be paid. Good luck with that.

Russell? Chris? Michael Geist? Any thoughts on this utopian vision?

Russell McOrmond said...


I wrote about a similar topic in my BLOG yesterday,

The Generational Divide in copyright morality or creativity experience?

The important part is at the end, which is the false choices we have been given between allowing all citizens to participate in culture, and the ability of professional creators to put food on the table.

It is what you are often talking about, which is the extremes in this debate seeming to have the largest voice, leaving those us in the middle (and I do consider you and I an "us" even if we appear to have different positions) who want some sensible middle ground nearly invisible.

I believe it is wrong to suggest that everything on the Internet should be treated as if it is $free/gratis or free/libre. I believe it is equally wrong to suggest that everything on the Internet is commercially motivated, or that royalties should be collected for every use, or that royalty collection is the only possible or viable commercial business model for any type of creativity (See DAMI©’s platform for an example of that extremism, worse in my mind than the anti-copyright extremists).

I happen to believe that traditional copyright law protects these wide variety of creative motivations better than the recent proposals do. There are things which I believe would improve the situation, but I believe the current direction will only make things worse and cause ever decreasing respect for the legitimate commercial and non-commercial interests of creators.

Remember: I'm in this debate first to protect tangible IT property rights, next to protect the interests of independent creators (and the full spectrum of methods of production, distribution and funding), and third (and to be honest, last) the interests of "Consumers" (whatever that means) of our creativity.

When I hear the phrase "consumers rights" in this debate I personally perk up and hear "owners of digital technology" (creators and audiences) and not licensees of digital content. I realize that is not always what is intended, but I wish it were :-)

P.S. Wish you wrote a book about copyright -- I'm not a Hockey fan, or a fan of any other sports (unless copyfighting is considered a sport ;-), but would love to purchase and read some of your work.

Unknown said...

I never suggested artists should not be paid, so your response is off base. (Also, I have no idea what Star Trek has do do with anything.)

You seem to think that unless culture is owned, artists will be unable to make a living from their work. Russell calls this a false choice, and I agree. On the contrary: excessive copyright is a hindrance to artists and diminishes culture. (Although this would be a perfectly rational way to decrease the supply of art and artists in order to increase the market value of the few who remain.)

My final argument, which you call patronizing, wasn't about you. It wasn't about professional artists. It was about me - and people like me - who are not "artists", but for whom creative activity and participation in culture are valuable and irreplaceable parts of life. By talking about artists, I was trying to explain this by appealing to your sense that creativity is more than just a way to make money. I am afraid you seem to be missing the point entirely.

This activity and participation are no Utopia: they are happening already. They always have done, but now they are becoming increasingly common. They are under attack. Nevertheless, they are certainly more real than the fantasy that technical protection measures will stop piracy.

John said...

Oy, it never ends.

I am talking about artists being paid, so can we keep the ordinary people are becoming creators theoretical discussion to a more appropriate thread.

Ages ago, I wrote a related blog item on the THIS Magazine blog and asked what is so wrong with artists trying to protect their work and incomes in a limited fashion -- and much of the response then was the same as this. Why am I not allowed to dig into the economics of this stuff without being sidetracked into this other stuff?

I'm NOT talking about about the cultural commons. I have nothing against the cultural commons. I don't even make a distinction between ordinary people and creators. There is nothing extraordinary about creators. And the ONLY thing different about professional creators is that somehow, because we live in a market economy, we need to make money from our creativity.

For some slightly more abstract reasons like privacy and freedom of speech, we also need to maintain an element of limited control over our expressions of creativity (moral rights, including the right of attribution, etc.) -- but that is true of anyone, creator or ordinary person.

I don't perpetuate the fantasy that TPMs will stop piracy. On the contrary, I say respect for copyright will stop most piracy, except the nasty kind that respects no law.

Ordinary people of the cultural commons have nothing to fear from me and my kind.

That said, since ordinary people have always, always been free to join in cultural production, and since so many of the rules and traditions of that production are founded in respect -- even, I would argue, the tradition of parody -- why should different rules suddenly apply just because suddenly more ordinary people are choosing to participate?

Anonymous said...

"Why am I not allowed to dig into the economics of this stuff without being sidetracked into this other stuff?"

Personally, I think the economic side is where most of the big issues lie.

How's this for an interesting starting point :
If most people aren't willing to pay for a copy of a work, basic economics says that you can't make a living charging for copies of works.
(note that I don't believe that the first art is true today, but it easily could be true in the near future)

I'll accept your criticism of my "buggy whips" analogy, John, and replace it with "email service". People are no longer willing to pay for email service, hence the creators of email services have to either do something else or find a different business model. Should they be asking for the government to intervene ?

From what you've said elsewhere, it seems you'd like to convince people that they should be willing to pay for copies of your works. That' approach. I guess I'd just wish you luck on that adventure.

John said...

Chris, that is an interesting starting point, but I think it may be located in the town of Deadwood.

If it is indeed true that most people aren't willing to pay for a copy of a work (and I share your doubt about this assertion), it just may be that the current (some might say utopian) culture of lawlessness online has encouraged this state of affairs, with little to no regard for whether or not it is right.

I have absolutely no problem with the idea of changing business models, and in fact I welcome change if it brings me more independence in my career, but whatever the new business model, I want it to be rooted in the laws and values of my society -- not in Deadwood.

Russell McOrmond said...

"why should different rules suddenly apply just because suddenly more ordinary people are choosing to participate?"

In the case of books, your primary form of creativity, the means of production (authoring/etc) hasn't really changed much. The means of distribution has, given manufacturing many copies for distribution was previously an industrial activity, but is now something that can be done in a lesser format (digital copying/delivery) so cheap it isn't worth metering.

The change is even more dramatic in areas like music which had its own specialized "banking" sector (Called music labels) which financed the huge costs of the technology required to record, edit, and distribute recorded music. Now that someone with a few thousand dollars of equipment can do an equivalent in their own home, these historical industrial components of our economy have been made redundant.

This radical change in technology is why the rules need to change: the rules previously allowed creators to regulate primarily industrial activities, and thus their current form made sense. Now that they apply to the activities of private citizens, I truly believe that "clarifying and simplifying the act" should be the prime directive for all copyright revision.

I happen to believe Copyright has been flipped on its head: previously it was about private citizen creators being able to regulate industrial activities, and now we primarily see copyright being used by industrial-era corporations to regulate the activities of private citizens.

While I realize you are primarily concerned with books being distributed online illegally for free (And remember: this activity is already illegal, so no new copyright changes are needed), but the book sector is one of the creative sectors that has changed the least in recent decades.

One way to deal with the recent changes might be to separate industrial activity from non-industrial activity. This shows up in the discussion partly in the context of statutory damages and the suggestion that the minimum should be lowered (or eradicated) for non-commercial activities. It is also increasingly showing up in questions about formalities (renewals, creating a searchable database of commercial creativity), and the call for simplifying and clarifying the term of copyright.

As to the "culture of lawlessness online", I believe that you need to stop looking at private citizens and put some of the blame on some politicians and industries like the recording industry. They have been perpetuating the myth that current law is not strong enough to allow music labels to sue for unauthorized P2P filesharing of music. There is absolutely no evidence this is the case (The Federal Court of Appeals gave them a blueprint to sue), and yet they are mis-educating the public as to the current state of the law.

I also think your sector is partly to blame as well. Your own members are pushing the idea that copyright needs to change in order to allow them to protect their rights online. The message in that is the false suggestion that current copyright law doesn't protect those rights. You are in fact telling people that it is not lawless to ignore copyright online. I disagree with you, and believe that far too many people are currently lawless and need to be educated -- by people who don't have a political ax to grind who would spread misinformation.

Please don't claim that I'm blaming the victim, as I am not. I happen to believe the victim in all this are those of us that know that current copyright law is relatively not that bad, and have so many people claiming otherwise in an attempt to justify making it far worse.