Home > ccer, cippic, copyright consultations, industry canada, michael geist, pamela samuelson > Canadians Slimed as Copyright Consultation Concludes

Canadians Slimed as Copyright Consultation Concludes

September 21, 2009

For those of you who do not remember Canada’s 1970 “October Crisis”, it arose from two kidnappings and the murder of a senior Canadian government official by a Soviet-sponsored terrorist group, the Quebec Liberation Front. The Canadian Prime Minister declared martial law in Montreal.

This is, to my knowledge, the only time that martial law has been declared in North America since the U.S. Civil War. The October Crisis was about as real as it gets for North Americans until 9/11.

It’s important to watch what goes on in Canada for a host of reasons, not the least of which is that what gets started next door can move across the border – and not always for the better.

Take, for example, the “consultations” on “copyright reform” legislation that recently concluded in Canada. “Consultations” are more what we would call “field hearings” or a public “request for comments”, where the public are encouraged to provide their views on a particular piece of legislation – copyright, in this case.

This is, of course, an important moment for copyright opponents around the world, but particularly the EFF, Lawrence Lessig, the Samuelson-Glushko conglomerate, Google, and the rest. The Canadian situation is easy for these folks to handle because they have their Alcan of intellectual property, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (SM-CIPPIC) (the former Canadian Internet Policy and Public Interest Clinic) run by Their Man in Ottawa, Michael Geist, the recipient of substantial largesse from Canadian taxpayers. (Since an earlier post on the subject, I’ve received some material of considerable interest on that subject which I’m working my way through, gradually.)Canada’s copyright consultations show us yet again how practically every opportunity for public comment on the Internet is susceptible to being gamed. It’s a reminder of why we need journalists.

While researching the isoHunt case (isoHunt being what the Pirate Party of Canada recently labeled Canada’s “own Pirate Bay”), I ran across isoHunt’s Twitter account. I was struck—although not surprised–by this re-tweet (or is it re-twit?) by isoHunt: “@ccercanada has a nice letter wizard that takes only a minute to send. And do personalize with your views on copyright reform”.What in the world is that?

After a bit of poking around, we seem to have found what may be the baseline reason for a certain Geist’s fascination with “digital locks”. The Canadian Coalition for Electronic Rights (CCER) appears to be a trade association of 6 Canadian-based online stores that offer circumvention devices and services, such as the sale and installation of “mod chips” used to circumvent protections (aka “digital locks”) built into video game consoles, unauthorized video game accessories, and circumvention devices used to break into Apple iPhones.

The CCER’s (http://www.ccer.ca/) mission statement: “to represent our member companies and to act as a communication conduit between policy makers at both the federal and provincial levels of government. The CCER seeks to keeps its members informed of policy changes that will affect current and future business models.” That is—anything that would stop CCER member companies’ ability to free ride. We would say around here that CCER exists to promote false innovation.

So what is with this letter-writing wizard hosted by CCER and promoted by isoHunt? As anyone will notice on the email wizards on politicians’ websites (such as the U.S. House of Representatives), the politicians are not interested in helping people from outside their district express views. Let these people go to their own district or write a physical letter.
This is not lost on CCER. For the first thing you read on the CCER website is this statement: “The CCER physically mails a copy of every letter submitted via our letter wizard to each of the ministers responsible for copyright reform in Canada.” I see—so the physical mail will all have a Canadian postmark. Now why in the world would they want to do that and who is paying for all that printing and mailing to be done? (Not to mention the carbon footprint.)

This is the form letter—I’m reproducing it verbatim. Followers of Geist will note that the letter bears a striking resemblance to his checklist of wedge issues:

“Dear Ministers, As a consumer of digital media and electronics I stand to be greatly impacted [oh please, can we speak English?] by changes to the Canadian copyright regime [Is this all consumers or just Canadian consumers? Maybe they left it open ended to attract as wide—ahem—an audience as possible]. I am worried that this Government may wrongly adopt the American approach to digital copyright law as evidenced by prior draft bills including Bill C-61.

It is essential that Canadian copyright laws advance consumer and creator interests by not employing an all-encompassing prohibition on the development and manufacturing of circumvention devices and technologies, commercial trade of circumvention devices and technologies, the possession and/or utilization of any device or technology that can circumvent a TPM or DRM for a non-infringing purpose or otherwise lawful activity such as fair dealing, interoperability, time and format shifting. [Such as mod chips and phone cracks that CCER companies use to free ride on legitimate games, pirate networks and even limited downloads or subscription services?]

The Copyright Act should be amended to bring the backup copy provision into the 21st century by expanding the right to make an archival backup copy to all digital consumer products regardless of format or media. [Back up copies? Does anyone actually make backup copies outside of the legal briefs of the EFF? This is so 1999!]

Amendments to the Copyright Act seeking to add provisions relating to the liability of Internet intermediaries and subscriber actions should take a “notice and notice” approach that will provide the best balance between the protection of intellectual property rights and the fundamental rights of individual and academic expression. [Notice and notice and notice and notice and notice and notice and notice…how is that balanced? Pirates will ignore you anyway.]

Amendments to the Copyright Act need to ensure that statutory damages are limited and users must be protected from statutory damages if the user has good-faith to believe their actions and use of the work in question was fair and non-infringing, or if the user is engaged in purely private and non-commercial activity. [According to who? These are all legal determinations that can only be made in a lawsuit—this ensures that independent artists will never enforce their rights. Remember, The Pirate Bay and Google both claim that their infringements are “fair use”. Legitimate fair use, such as criticism, political speech, parody can be protected. The Geist system creates a regime where only the rich can enforce their rights if they think—for example—that mod chips are infringing. Note that they want to make it legal to sell circumvention devices to hack DRM so they can engage in a commercial activity to sell tools to users.]

The concept of technological neutrality is paramount when considering changes to Canada’s copyright regime that will withstand the test of time. The Government must not integrate protection for specific technologies or business models into any amendments to the Copyright Act (e.g. all-encompassing prohibition of circumvention devices and technologies). Any new legislation should be technologically-neutral to maintain flexibility into the future. [What in the world does this even mean? “Technologically neutral”? Don’t want the government to do something silly like protect property rights and create a market.]

To further foster innovation, creativity, competition and investment in Canada and to position Canada as a leader in the global digital economy, it is important to expand and protect the doctrine of fair dealing. As fair dealing will undoubtedly provide any new legislation with the elasticity to adapt to future business models and new forms of creativity. [“Fair dealing” is usually noncommercial or at least not disrupting to the existing market for the work being “dealt”. More gibberish.]

In order to direct and facilitate the digitization of Canadian heritage, a clear commitment needs to be made in order to preserve the current term of copyright. [You mean beyond the 5 minute copyright creators now enjoy? It takes about 5 minutes for a work to make it from an authorized release to an illegal p2p network.] A pre-determined and generally accepted public domain date must be established for the good of all Canadians and the preservation of the heritage we so proudly maintain. [This already exists, I believe.]

[And let’s stick ACTA in here, even though it doesn’t really belong—it’s on the list of Wedge Issues.] Finally, I strongly believe that as a member country actively engaged in the Anti-Counterfeiting Trade Agreement (ACTA) Canada should not allow this non-transparent trade agreement to override the democratic process and legal framework of the Canadian domestic Copyright Act. While supposedly designed to address counterfeit physical goods as well as Internet distribution and information technology, ACTA provisions may prove to over-ride any type of domestic copyright laws and negate the entire copyright reform process.

Fortunately, there remains time and opportunity for Canada to draft legislation to ensure that the rights, values and interests of all Canadians are reflected in a truly Canadian-to-the-core approach to copyright reform. I am encouraged by the public consultations on copyright that the Government is engaged in and I am confident that this will open up the development of Canadian copyright policy to more than just traditional lobby groups and the corporate interests that have directed policies in the past.
Sincerely,”

This is the letter that I wrote using the wizard:

Dear Ministers,

I just wanted to let you know that I am writing from the United States and if you receive this letter you will know that there is nothing whatsoever being done to block non-Canadians from using this letter-writing wizard from CCER.

Sincerely,
Chris Castle

I did have to list my address as “Los Angeles, Quebec” because there was a drop down box that limited my choices, but I used my own zip code and clearly identified myself as writing from the US using my real name and email address.The wizard told me:

Your Letter Has Been Successfully Sent

Your letter has been successfully emailed to Prime Minister Harper, Minister of Industry Tony Clement and Minister of Canadian Heritage James Moore regarding your concerns about copyright reform in Canada. CCER will also print and physically mail your letter to each of the recipients on your behalf.

Click here to return to the main page of the site

Well, so much for that. In the words of the form letter, “Fortunately, there remains time and opportunity for Canada to draft legislation to ensure that the rights, values and interests of all Canadians are reflected in a truly Canadian-to-the-core approach to copyright reform.”

Yes, sir. Sacrement, we are truly the maudit Canadiens to the core in Los Angeles, Quebec, ostie tabarnac décâlisser.

But wait, there’s more. CCER has a link to an article by “Ernesto [Che Guevara?]”, founder and editor-in-chief of TorrentFreak. TorrentFreak is a go-to resource for those looking to pirate copyrighted material. On a weekly basis, it compiles lists of Top 10 most downloaded Albums, Movies and TV Shows on BitTorrent, with links to the torrent files that correspond to these works. TorrentFreak typically features tips on CDs, DVDs, video games and other software that have leaked onto BitTorrent before being released, their quality and where to find them. They’re real coy about it: “(“We can’t link to the torrent for obvious reasons, but it’s not hard to find” – with a link to a search engine).

They rank the “Top BitTorrent Sites”. After the Pirate Bay conviction, they helpfully provided their readers “25 Great Pirate Bay Alternatives” (you can guess how many are legitimate authorized services). Oh yes, they appear to have an editorial policy: they encourage people to cancel their Blockbuster membership and use BitTorrent instead (http://torrentfreak.com/sorry-blockbuster-but-i-love-p2p/) Their “TorrentFreak TV” features the Pirate Bay logo in its video chyrons.
“Ernesto’s” post is entitled “Prevent Canada from Becoming a Copyright Police State”. The juxtaposition of the nom-de-plume and “police state” is not without irony. Ernesto encourages his readers to use the CCER wizard.

But who is “Ernesto” encouraging? TorrentFreak is based in the Netherlands. According to Alexa a grand total of 5% of readers are Canadian. So like the CCER, “Ernesto” is effectively encouraging the international torrent community to “speak out on [Canadian] copyright”
And it’s working. One commenter says:

“Letter sent! Do the same everyone! Just use the wizard linked in the article. If your [sic] not from Canada, just google some address there or something 😛 Most bittorrent sites are hosted in Canada, so this is epic loose [err, sic – unless this is Dutch, or perhaps an awkward attempt at Bolivian revolutionary syntax] for everyone!”

While on TorrentFreak, I began poking around. It turns out “Ernesto” is not the only person using TorrentFreak to direct aficionados to the CCER wizard. Guess who else has a post up there? A “guest post” to be precise. None other than Michael GeistIndustry Canada’s Million Dollar Man.  It’s under the cleverly worded heading “Canadians Caught as Copyright Consultation Nears ConclusionGeist conveniently directs TorrentFreaks to the CCER letter-writing wizard for residents of Los Angeles, Quebec – the same one promoted by isoHunt – via a link to CCER’s website. Oh, but this is limited to Canadian torrent freaks, right? All 5% of them. Unless they’re from Los Angeles, Quebec, I guess.

Now why–when Geist has a perfectly good anti-copyright reform Facebook group (which by the way, is not limited to Canadians)–would he find the need to expand his reach to international TorrentFreaks?

Spend 5 minutes on TorrentFreak and you will get the idea. They hate—and I think that’s exactly the right word–everything about the professional creative community. Why would the very well-funded Geist feel the need to reach out to the pirate community to encourage them to write to express their views to the Canadian government? Ah yes, it’s all about the Big Scare for Industry Canada’s Million Dollar Man, drive those wedges in deep and make sure you throw in a few incantations of “DMCA”, “digital locks” and other evocations of Yanks Under the Bed. That would be Yanks Under the Bed at Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (SM-CIPPIC), the Alcan of IP.

It’s truly extraordinary that someone who is as closely connected to the Canadian government as Geist, and whose enterprises receive a staggering amount of taxpayer dollars, would use TorrentFreak in a flimsy attempt to reach so-called “Canadians” in what he clearly has identified as a prime audience—international supporters of the Pirate Bay.

That would be the Pirate Bay whose founders are on their way to prison.

  1. September 22, 2009 at 08:46

    Considering all comments must be approved by you I do not expect for this comment to end up being displayed because it is apparent you have an overtly heavy bias towards the existing copyright lobby and any comments that would not agree with you are obviously going to be censored off of it to create a false impression that everyone agrees with you.IsoHunt if you would take the time to read up on things has a history of complying with DMCA Takedown notices and has a process for rights holders to remove infringing torrents similar to the requirements for a DMCA takedown notice. Which is a much higher amount of cooperation with rights holders than The Pirate Bay offered. Part of the reason for The Pirate Bay was to show the US-centric copyright lobby that laws passed in the US do not have global jurisdiction.That said the DMCA has it's own flaws. The disparity between the accuser and the accused. The accuser can make any takedown notices they require with impunity. However, the accused has to counter-notice UNDER PENALTY OF PURJURY. For it to be more fair and balanced the accuser and the accused should both have to issue notices under penalty of purjury.The fact of the matter is that these 'digital locks' are being used to prevent consumers from exercising their 'Fair Dealing' rights. The difference between 'Fair Dealing' (Canadian) and 'Fair Use' (US) is that the former is a RIGHT, the latter is a DEFENSE for copyright infringement. Therefore content producers are trying to remove our rights through the use of DRM and TPMs (same thing, different names for teh same ends). The copyright lobby blows millions of dollars on DRM/TPM schemes every year and how much piracy is reduced because of it? Probably none, it more than likely INCREASES piracy due to the fact that the cracked/hacked versions are now superior to the DRM/TPM encumbered versions. Thus they begin to lose those who would be legitimate customers because DRM/TPM lock them out of the content they've purchsed already.As for the whole 'international support' angle. I would like to note that the copyright lobby does so through its national incorpoated versions of themselves. Sometimes without even maintaining a presence within the country (such as Sweden where they lobbied hard there to get them to deal with The Pirate Bay despite not having an office there). It is only fair that citizens of other countries be permitted to weigh in on legislation that more than likely will be used as a template by their own governments for copyright reform. I have no objection with individuals writing letters to legislative bodies outside of their own country provideded that they do not misrepresent themselves as a citizen or resident.As for ACTA it does fit within the confines of what is considered 'Copyright Consultation' because from seeing some of the preliminary requirements that were leaked via Wikileaks.org it is apparent that such a treaty is likely to try to implement the Copyright Lobby's wet dreams. The fact that in many governments international treaties do not require to pass through a legislative body to take effect is ultimately letting the Copyright Lobby short circuit the democratic process of multiple governments. Which is nothing short of an attempt to destroy democracy.As for the copyright reform crowd (which is what the Pirate Party of Canada is about) and not the general 'everything should be free!' people. You'll find they're quite reasonable. They just want a reasonable limited term for copyright (say something in the 5-20 year range). Limited liability for non-commercial copyright infringement so we dont get rediculous and stupid judgements for like $200,000 for 5-7 songs which are $0.99 on iTunes. And to keep non-commercial copyright infringement a civil issue, not something to incorporate into the Criminal Code of Canada. Noone should goto jail for sharing a song, or movie or what have you without any profit motive behind it.

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  2. September 22, 2009 at 12:59

    Just for the record, occasionally I take pity on the fearful and post particularly good examples of a point of view even if the poster doesn't have the courage in his convictions to actually sign his name.Imagine if Patrick Henry cried out "Liberty or Death" but would only give is name as "Ernesto" and no other details. Would we still be talking about him?I would point out that the main thrust of the post being commented on was none of the above, but the fact that CCER, Geist, isoHunt appear to be gaming the letter wizard under the flag of truth, justice and the Canadian way. These points were not addressed.

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