Thursday, June 24, 2010

how fair is Fair? how balanced is Balanced?

Recent media reports are indicating the copyright debate has turned ugly. The controversy centers on a speech given Tuesday by Heritage Minister James Moore in which he discussed the federal government’s copyright reform Bill C-32. C-32 was introduced recently, and will be discussed by a special Parliamentary committee once all the MPs are back from their summer break. Widely reported are Moore’s comments near the end of the speech in which he warns of those opposed to all copyright reform entirely and, in fact, all copyright. The speech is on video at various locations. You can see it here (part one) and here (part two).

For me, any claims that the debate is turning ugly are about seven years behind the times. That’s just for me. There are many other professional creators who have been arguing their rights under copyright for a lot longer than I have. The debate turned ugly for me, in 2003, the first time someone accused me (and by extension all professional artists) of being greedy, privileged and disrespectful to the rights of consumers (“maybe if you wrote something worth reading, people would want to pay for it”, etc.).

Those attacks happened immediately after my very first public comment on copyright. I had barely put my own words down on paper, and someone had already angrily, self-righteously pigeonholed me – greedy, out-of-touch, privileged artist that I am.*

Consumer advocate and occasional law professor, Michael Geist, is having a great time right now claiming Minister Moore’s more pointed comments – about those “who pretend to be experts, who the media all cite” – were aimed squarely at him, and that Moore has dismissed any and all criticism of the proposed Bill C-32. From Geist’s many blog postings on the Minister’s remarks:

“I'm under no illusion here. Yesterday, I asked in a post who Moore's "radical extremists" are. The video suggests that he thinks it is me and the thousands of other Canadians who have argued for fair copyright…”

Of course, Michael Geist is free to see himself in whatever shiny, reflective surface onto which his eyes fall, but I think it’s far more likely that Minister Moore was making reference to the many and very active copyright abolitionists who follow Geist’s every blog posting with an endless stream of anti-corporate, anti-American, often anti-artist invective.

Go ahead, have a read of any representative sampling of Geist’s comment stream (if you have some time on your hands, scroll up some 700 or so comments from here). Notice how anyone with an opinion not consistent with established and approved copyleft principles is almost immediately labeled a troll or a corporate shill and very aggressively discouraged from further conversation. There is a mob-like, pile-on energy at work over there that is mildly intimidating at its most benign, and downright terrifying at its extremes.

And this energy is not restricted to Geist’s only occasionally moderated comments stream (Geist does enter into discussion on the comment streams, but as far as I can tell only to personally answer critics, not to discourage the nastiness of his acolytes).

Now have a look at the Balanced Copyright Facebook page. Balanced Copyright for Canada is an advocacy group unashamedly representing professional cultural workers on the industry side. After Dr. Geist called them The Copyright Lobby's Astroturf Campaign in Support of C-32, many of his blog-followers made their way over to the Balanced Copyright Facebook page to pile on to the comment streams there and make now familiar accusations of corporate interest and dishonest messaging.

The gist of complaint against the group seems to be that they cannot possibly stand for balance in copyright, since they originate from only one side of the debate (the corporate side). I leave it to others to tease out the logic in that accusation, because I have yet to find it. The balance I’m familiar with requires two sides acting in concert to come to an agreement. If only one side is allowed to comment, there is no balance.

Of course, on the other side of the street from Balanced Copyright for Canada is Fair Copyright for Canada, a much older Facebook group from which many of Balanced Copyright’s loudest critics seem to originate. Fair Copyright was started by, yes, Michael Geist a couple of years back when the copyright reform bill of the day was called C-61, not C-32. I can make the happy claim of being one of the very first members of Fair Copyright.** I like fairness. I think artists should be treated fairly in copyright reform. I am also a member of Balanced Copyright for Canada. To me, these two concepts - fairness and balance - should not be the exclusive property of Fox News… they should belong to all citizens.

Fair is foul and foul is fair, apparently. Last night, while discussing copyright with various folks on Twitter, I was informed that my membership in Fair Copyright for Canada (York Region Chapter) had been revoked. To quote the tweet***:

“@jkdegen was booted from FCFC -YR after several attacks on FCFC from his extremist views.” And it didn’t stop there. The Fair Copyright representative added: “His remarks in group not consistent w/ FCFC principles” AND “He's been attacking FCFC principles and Geist.”

Well… wow. My extremist views can be boiled down to this consistent message – Copyright should protect the rights of artists. As we reform copyright for the digital age, let’s make sure we don’t harm the artists it was intended to protect.

You know, fairness, balance.

I continue to comment on the Balanced Copyright for Canada group, and I suppose I would over at Fair Copyright for Canada, if they chose to allow me to do so.

*In the course of my copy-debating over the years I have been called:

greedy, out-of-touch, a non-techie who doesn’t understand software, a copyright maximalist, all sorts of variations of stupid, a “creator of the past,” a corporate shill, a corporate apologist, in the pockets of corporations, a non-Canadian, a spammer, a troll, in it for the money, cowardly, blind, a control-freak, someone who wants to sue fans, grandmothers, teenagers and little children, someone who hates the blind… you get the picture.

My favorite attack came last week, when someone on Twitter informed me that I am too old to understand where copyright needs to go – this polite person had actually Googled me and looked up my birthdate, quoting it back to me as though I wasn’t aware of it (born two years before the Leafs last Stanley Cup win… how could I forget?). He then said something like “It’s too bad we will lose good**** writers like @jkdegen…”

Um, when will we lose me? Why will we lose me? I know I’m ancient and all, but…

**I was also one of the first season ticket holders for the Toronto FC MLS team. I’m a bit of an early-adopter that way, though I did wait for over a year to buy an iPhone.

***Quoting a tweet; is that a twuote?

****He may have actually said great writers like @jkdegen,” but besides being greedy and out-of-touch, I’m modest.

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Gruesome said...

Sorry they blocked you, that was inappropriate. I have also been blocked form the copyright alliance blog. I don't support digital locks perhaps because I've been stung in the past by being an early adopter of an LCD that was not HDCP compliant. It gnaws on me that when I purchase a product and it enters my home I am not aloud to use it as I wish, Format shifting etc. I wish there was some way to bring both sides together and find a solution that everyone would feel pleased with.
I've never downloaded content that I have not paid for. I do believe that artists should be compensated. I myself am a photographer and I realize that my field has been somewhat less affected than yours and others. I do believe that consumers should exercise their rights by not buying items they find distasteful or inadequate. This is the reason I have not purchased a blu-ray player and will only buy books from the bookstore. There is no kindle in my future. I do believe that artists should be compensated.
Unfortunately the masses will complain and then buy it anyway, part of being Canadian I think.
Would it be acceptable to you personally to allow consumers to break digital locks for non infringing purposes? Knowing that those that disregard copyright law will continue to break locks regardless of c32.

Pieter Hulshoff said...

Dear John,

Though I agree that it was and is inappropriate to call you names for defending your copyrights, I do believe professor Geist had a point with regards to minister Moore's comment. The literal text was: "The only people who are opposed to this legislation are really two groups of radical extremists.". Considering that Geist opposes (part of) this legislation, I think that his assumption that he falls into these 2 groups of "radical extremists" according to minister Moore is accurate. The other groups he mentioned on his blog also oppose (part of) this legislation, and based on minister Moore's words should also be considered "radical extremists".

Now, perhaps minister Moore didn't mean these words exactly as he said them, but so far he denies even having said them in the first place (despite videos being online proving otherwise).

Anonymous said...

TPM is like Calvinball except the creator gets to make the rules, you the player (consumer) do not. So now you are subject to the creators rules which are subject to change at any time. If you fail to comply at any time with the creator's rules you will be fined as criminal. Programs can be incredibly dynamic, do not doubt this.

TPM is one-sided Calvinball, and let me tell you this, when one side gets to make all of the rules, you're not in a position to negotiate.

Also the suggestion that consumer should vote with their dollars instead of their self-interest and votes is insulting, we're Canadians too and we're allowed to express our selves to our Representatives and tell them how we feel. Not everything has to be delegated to the market.

Michael Geist said...


I'll leave aside the various unnecessary shots you take at me in this post and simply make two comments.

First, I do not moderate my blog. Posting the occasional response to correct a factual issue is not moderation. Unlike blogs from people such as Castle, Sookman, and Gannon, it all gets posted, whether supportive or critical.

Second, I had absolutely nothing to do with you being removed from the York Region Chapter group and disagree with the decision to do so. I do not administer that group, did not create that group, and I am not a member of that group. I am happy there are local chapters, but they do own their own thing. As you well know, you have posted frequently to the Fair Copyright for Canada group and never had a single post removed.


Anonymous said...

Mr. Degen,

Mr. Degen, over the course of the past few months, yourself and the group you align yourself with have been personally attacking those that have signed on for FCFC principles. As an administrator of the group I have an obligation to protect it's members from such personal attacks. You have not been offering any meaningful debate on this subject over the past few months. The fact you are bringing this up to attack Geist once again after not being so concerned about this a few nights ago supports my administrative decision.

jkdegen: @jkoblovsky well, I'll be crying in my beer tonight - no more FCFC-YR for me 9:17 PM Jun

We've had the consultation, the draft bill is out. You are welcome to FCFC-YR if you stop personally attacking members of this group and offer up meaningful discussion on balanced reform. If you persist on the personal attacks, you will remain banned.

Geist didn't boot you I did, and this blog post is exactly why.

Anonymous said...

I just want to clarify a point here. What I mean by meaningful discussion is related in the FCFC-YR group.

For the sake of artists and creators, we need to be discussing at this point economic data and facts. We don't need to be attacking each other here. The government has already taken a stance on copyright, and we have a real opportunity to move forward with balanced reform. Granted there are different views on what that balance is, but attacking the personal credibility on all sides at this point in time should be long over with due to the decisions that have been made on reform.

It isn't a personal game here anymore it's a political one that creators have chosen. Attack the research, not the person. Attack the person, and the only one that belittles is yourself and your position at a time when both are important to all sides. I think that's important for everyone to understand. Moore's comments don't represent the calm needed in this. Infact Moore may have called out Geists position on copyright, but he also called out yours. That's not how we should be approaching things at this time.

You are welcome back into FCFC-YR if you stop the personal attacks, and your posts look to me more of a civilized discussion.

John said...

Mr. Koblovsky,

Well, now I am a bit confused. Mr. Geist says he is NOT a member of your group; you say I have been removed for attacking members of the group; and to prove your assertion you point to this very posting, where (you say) I am attacking Mr. Geist.

Is your intention with the group to discuss fair copyright principles, or is your intention to protect the reputation of Michael Geist.

I remain unconcerned about rejoining the group, since it clearly has nothing to do with either fairness or copyright - two topics In which I am interested.

I am concerned, however, about this accusation that I have made personal attacks on FCFC members. My purpose in joining FCFC was to bring a professional artist perspective to discussion there. I'm not in the copyright debate to attack, but rather to defend.

John said...

And please tell me - what is this group I "align myself with" you refer to in your first comment?

Anonymous said...

"I remain unconcerned about rejoining the group, since it clearly has nothing to do with either fairness or copyright - two topics In which I am interested."

Than why would you start a fiasco and bring this up in a blog post if it remains unimportant.

You have attacked fair copyright principles, and Geist. Blocking you from the group was an attempt to protect members of FCFC-YR from any possible attacks on those members that may have followed as a result.

I'm not saying that you would do this, just that there seemed to be at the time a risk that this could happen, and rather than risk this I took an admin decision to protect those in FCFC-YR for attacks and ban you.

I'm not going to discuss this any further with you since it seems to be unimportant to you, and I'm sorry if I hurt your feelings.

Darryl said...

"I'm not in the copyright debate to attack, but rather to defend."

Teh heh, yes, and the best defence is a strong offence.

I haven't been participating in the FCFC groups, but I have seen what you do on other sites, especially when you have a cloak of anonymity to go along with it. You can be quite different from how you behave yourself in your own home or at sites where your opinion is closer to the majority.

Dunno the specifics here, but the accusation is certianly within the relm of possibility.

Thanks for the laugh John.

Anonymous said...


"Also the suggestion that consumer should vote with their dollars instead of their self-interest and votes is insulting, we're Canadians too and we're allowed to express our selves to our Representatives and tell them how we feel."

My personal thoughts on this and outside of FCFC.

In order to assert the changes needed to enforce such an economic change, our constitution would need to change to allow for such enforcement. The only thing we can do as creators is set up deterrence, and deterrences that are set up in countries around this ideology have been proven not to work around the globe. I fail to see the factual understanding by creators how that would be different here in Canada.

Second, for centuries our economy and business has been based on the market and consumer demands, not the demands of industry. It very much puzzles me the sense of entitlement over the consumer some in the creative industry have, when for centuries this type of attitude has been proven only in those who have died out and become unsuccessful. It's not an advisable business policy in the economy all of us are faced with, especially after the 2008 market crash.

What we should be discussing here is what's needed to ensure industry follows the demand of the market, and consumers and build methods of compensation around these demands that are realistic to the new economic situation of consumer confidence, and start increasing the pay cheques of creators rather than focusing money on failed attempts at lobbying society to accept an undemocratic and socialist approach to business. JMO...

Anonymous said...

Clarification of point. I apologize, I was directly speaking about enforcement of DRM, and the enforcement with respect to consumer infringement online. Along with government intervention on deterrence in which Degen supports and others he has aligned himself with support.

I'm not against their positions just curious in them. There's been a lot of rhetoric, and not enough real explanations of logical non emotional points on this coming from the creative community.

Maybe Mr. Degen can come up with some supportive economic and business arguments to help me understand a bit more on his perspective here.

My understanding here is that those calling for artistic rights, are concerned about pay for their creative works and reputation.

Pieter Hulshoff said...

Out of curiosity I had a look at FCFC-YR, but I have as of yet been unable to find the mentioned personal attacks. I assume they have taken place somewhere else. Since I would appreciate being able to judge for myself what happened, can anyone point me to some of the reasons why John was removed from the group?

Chris Castle said...

Just for the record, I started a policy a few years ago of not posting comments that are not signed with an actual name. This is because I sign my name to everything on the blog and if you want to comment on what I sign my name to, you can sign yours, too.

I also don't post threatening comments, although I do refer them. Likewise I don't post comments with links because I'm not going to take responsibility for any links (self-promoting or otherwise). I've posted plenty of comments by people who don't agree with me over the years, including a responsive email from Geist with his permission.

This policy is clearly stated on the landing page, and is not that different that the policy that many publications are coming to at an increasing rate. It also avoids the formation of what Lanier calls "the mob switch." Also a lot more interesting.

Russell McOrmond said...


You suggest that your views can be boiled down to "Copyright should protect the rights of artists. As we reform copyright for the digital age, let’s make sure we don’t harm the artists it was intended to protect."

As a software author that is concerned about the interests of fellow software and non-software copyright holders, that is the core of my views as well.

And yet the two of us have been disagreeing with each other for many years, and recently it has become more and more heated.

In my evaluation you have subscribed to some pretty extreme views which I consider to be very harmful to the interests of creators, including both book authors and software authors (the sectors each of us come from).

I believe you have allowed yourself to become so angry and extreme in your views that you have lost sight of people that can be said to be in the "centre" of the debate, people who can't be legitimately said to be either focused on creators' rights or audience rights like Michael Geist.

As a creator I consider Geist to be a great ally. He has over the years convinced me to no longer be opposed to ratification of the two 1996 WIPO treaties (despite their questionable origins), and to focus on interpretations of these treaties that might help rather than harm fellow creators.

Given this, I find it offensive when people try to shift the debate by claiming the centre is an extreme, or participate in the various unfounded character assassinations against Geist. I have been a reader of your blog for a while, and up until you started to add questioning of my qualifications as a technical person with 30 years of technical experience, I even actively participated.

If someone said they asked you to leave a forum because they thought you were being rude and participating in unfounded character assassinations, I believe them. I have observed this behaviour first hand from various people alleging to represent "creators" at various conferences. I've had some pretty nasty things said about me as an independent software author from people alleging to represent the interests of other creators.

I agree with you that the debate turned ugly quite a while back, and it has been sad to watch you participating in that ugliness. When I first met you, and for some time after when we spoke in person, I thought you were just doing what you thought was in the best interests of professional writers. I am currently not so convinced.

Note: If you logged into one of the forums I administrate and posted messages I thought were inappropriate, I would remove them and/or you as well. This is not censorship, as you claim. You have your own forum here, and nobody is blocking you from saying what you want to say. There is no such thing as a right to say anything you want to say in someone elses forum.

You are perfectly able to delete this message from your forum if you felt like it. I don't think that would improve the debate any, but it is perfectly within your right to do so and doing so is not censorship.

Russell McOrmond said...

@Jason K

I am a software author, and the policy coordinator for CLUE: Canada's Association for Open Source. I've been asked by at least that creator community to help represent them.

My constructive criticism of Bill C-32 can be summarised by the following cut from a recent blog posting.

I'm a technical professional with nearly 30 years of experience. I'm not uncomfortable with technical protection measures, and in fact offer technologies and technology advice commercially as part of my business.

What I'm uncomfortable with is:

* legal protection for technical measures that can't exist in the real world.

* legal protection for technical measures in laws divorced from the legal construct that is being protected in technology.

If we were talking about legal protection for TPMs protecting contracts in contract law, legal protection for TPMs protecting e-commerce in e-commerce law (and so on), I would be supportive. Because we are talking about adding non-copyright related protection to TPMs in Copyright law, I am opposed.

The rest of the bill we can have reasonable debate and compromise about. I consider non-copyright related TPMs being protected in the Copyright act to be a show-stopper. I consider it to be of questionable constitutionality

Pieter Hulshoff said...

I think that just about any multimedia software developer not actively selling these TPMs is with Russell on this.

What I find about just as ridiculous though is this definition of "circumvention". If encryption is the lock, then how can it be "circumvention" if you use the key to open it? I bought a dvd, so apparently also the key to access the content on it. Why then would it be "circumvention" if I play it on an open source dvd player, and why would such an open source dvd player be considered a "circumvention" device illegal under the DMCA/EUCD/C-32 in its current form?

Andrew said...


I am really trying to see your point in all of this, but I can't really figure out what you stand for.

You say you stand for the artists and authors, but TPM measures clearly do not benefit these people. They clearly do not prevent large commercial pirating operations, while at the same time create unnecessary roadblocks for "regular" people who want to enjoy your work. Want to write a book, but haven't signed on to a publisher that supports the Amazon DRM? No Kindle version for your readers. You've just cut out a large portion of your market.

Imagine, then, what would happen when DRM is written into Canadian law. Want to move a movie from a DVD to your iPod? You'll have to pay again. Want to print out an eBook to read in the bathtub? Sorry. Can't do that. Want to watch a movie on your Linux computer? No dice. DRM has been used by Apple to prevent the music they sell from playing on other devices. That means that, unless you purchase an iPod from Apple, you don't get to participate in the largest online music store. (Thankfully, this is no longer the case. Largely because of the public outcry that DRM simply does not work.)

It could even get to the point where you can't listen to a song or watch a movie without having to pay for the privilege every time. It's a guaranteed, perpetual revenue stream. What company wouldn't want that?

But don't think for a minute that this means that the artists (musicians, authors, etc.) will see any more than a small fraction of this additional revenue. Record labels are notorious for locking artists in to very poor contracts. I can imagine publishers are not much better.

So, unless you are a record company or publishing executive, I'm having a hard time trying to figure out why you are so vehemently opposed to lifting the TPM clauses in C32. They're not there to protect you, they're there to protect the large centralized corporate machinery that has built their businesses as the middleman between artist and public, in the face of a more decentralized and direct relationship between these two groups.

Maybe you could explain yourself a little more?