Archive for November, 2009

Rogers Communications and Human Rights

November 27, 2009 Comments off

Rogers Communications has made plenty of money from the music business. Like many ISPs it had to decide whether to cross the piracy Rubicon. Was it going to stay on the right side with creators and work on sustainable innovation or cross over to the wrong side with Google and many others and pursue false innovation. I summarized that choice in an op-ed in the San Francisco Chronicle:

“Innovation is a two-way street. Wrapping yourself in the flag of ‘innovation’ does not excuse you from respecting economic rights or legal accountability online any more than it does offline. Most public companies are beginning to agree with Serge Sasseville of Canadian communications giant Quebecor that public companies answer not only to CEOs, shareholders and creditors, but as ‘a good corporate citizen, [we] cannot remain insensitive to the piracy problems affecting the survival of content producers and rights holders.’

Contrast Sasseville’s admonition with RealNetworks CEO Rob Glaser, quoted in an Associated Press story on RealDVD: ‘If you want to steal, we remind you what the rules are, and we discourage you from doing it, but we’re not your nanny.’

The differences are obvious.”

Justice Souter writing in the unanimous U.S. Supreme Court decision in Grokster (125 S.Ct. 2764 (2005)) put a still finer edge on the issue: “We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”

Rogers’ station KISS FM provides an excellent example of that clear expression of its intent to foster infringement and trade on false innovation in what is essentially a station identity music video in part featuring a young actor—presumably hired by Rogers for the purpose—holding up her hand toward the camera and revealing the words “I NEVER PAY FOR MUSIC”.

And the actor is standing in front of one of the few remaining record stores when she is photographed just to add insult to injury. It seems highly unlikely that capturing this image in just this way was organic or unrehearsed.

Rogers gets a young actor to carry a message that undermines creators. Classic.

I discovered this sorry state of affairs in James Gannon’s blog, IP, Innovation and Culture. He summarizes his view of the messaging from the KISS video this way: “From what I can tell, the message of the video appears to be that the quintessential depiction of Toronto life includes visiting the CN Tower, going to Wonderland, watching a Maple Leaf game and downloading music without paying for it while rubbing it in the face of retailers.”

This video is essentially an identity ad for the station. These generally emphasize the musical format of the station associated with images and personalities that the station wants the public to associate with them. Ironically, Gannon had a link to the “official” version of the KISS FM video that was available on YouTube, but it’s apparently been taken down now.

This slice of life will come as no surprise to anyone who follows the piracy situation internationally, particularly in Canada. Canada has long been identified as a hotbed of international piracy, particularly of intellectual property. In fact, Canada was elevated to elite status amongst pirates this year when the U.S. Trade Representative put the country on the “Special 301” list alongside the worst pirates in the world. (See “What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)”). This in part because Canada has yet to ratify the WIPO Internet Treaties which have languished in Ottawa for over a decade, but mostly because Canada is well known as a facilitator of Internet piracy.

This fact was recently confirmed by the Organization of Economic Coooperation and Development (despite the efforts of the very well funded Michael Geist of the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and (apparently) of the elusive Lawbytes, Inc. to obfuscate these results in favor of false innovation).
Given Canada’s serious problems with Internet piracy and intellectual property rights in general, tech leaders like Rogers are hardly in a position to be hiring young actors to carry their pro-piracy message and funding that messaging efforts with monies raised from the public financial markets. Like Google, these false innovators use their economic might from the public sale of stock to crush opposition from artists, authors and other creators. Or just out-litigate them $1 million to $1.

The Canadian government largely just stands by and lets this happen. This is a real shame as some of the best music of several generations comes from Canada and it is home to some of the best music towns on the continent–starting with Toronto.

So not only does the Canadian government fail to live up to its obligations under the unratified WIPO Internet treaties, the government also fails to live up to treaty obligations that it has undertaken—such as the International Covenant on Economic, Social and Cultural Rights (specifically Article 15, paragraph 1(c) of the Covenant) which provides “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author.”

Rogers and the Government of Canada might do well to remember that the rights of artists to the benefit of their interests in their work is a human right—a protectable human right. Mocking the protection of these rights is not funny and should never be exploited.

New Music 11-22-09

November 22, 2009 Comments off

Authors Stand Up Against Piracy

November 20, 2009 Comments off

I heard a leading novelist asked where he got the ideas for his books. He said that he kept a journal and wrote down every detail of his life. He’d keep a very precise account of what he did every day and what he thought every day and then one day he began to lie. And he’d lie a little more and a little more and then one day he was writing his next work of fiction.

I remember attending a policy conference in DC a few years ago with a friend of mine who also has a long history in the not so new “new media” side of the music business. The keynote was given by yet another self-appointed authority on our business. After the first 50 words or so, I said, that’s a lie. My friend nodded. Another 50 words and he said, that’s another lie. I nodded. Another 50 words and we looked at each other. This work of fiction wasn’t going to be a best seller. “Coffee?” I asked. Snide? Yes. But it was so early in the morning to stomach all the mistakes.

Later that day one of the open source academics (I think his name was Eben) spoke with the naive arrogance of someone who thinks he has figured out the music business with insufficient (or no) study. When confronted with the problems of getting permission from rights holders, he said it would be simple because we are all on the Internet. This is, of course, laughable. I pointed out to him that he must have never cleared samples for a rap record. Blank looks. And then he said that artists losing income from illegal file bartering would have nothing to complain of because they could just sell another t-shirt.

Of course this has nothing to do with songwriters who just write songs, and is one of the mistakes about the ecostructure of the music business that has been answered so many times that the continued restating of it by those who should know better becomes demonstrably willful ignorance.

So it is with authors. Like songwriters, authors only have their books, the lucky ones might sell some ancillary rights–to paraphrase the professor, the authors losing their ability to sustain themselves need only make another movie from their books.

Michelle Gagnon has an excellent post on The Kill Zone that describes first hand what authors are now enduring in the name of innovation. This stark picture of life as an author tells the story of how writers are now suffering the same fate as songwriters. The alarming tale will no doubt bring joy to the heart of the AmeriKat and the EFFluviati. As Fred von Lohman said, “Artists will just have to learn to get along on less money.”

All in the name of “innovation”. Aren’t we lucky.

ACTA Misreporting: Anatomy of a Smear

November 14, 2009 Comments off

Managing the blogosphere is hard work. The very well funded Michael Geist recently showed up in an MSM tech blog going on about his currently favorite moral panic—so to speak–the Anticounterfeiting Trade Agreements (or “ACTA”).

One can’t help noticing that there has been a blister pop of activity trashing ACTA by the anti-creator labor crowd, including Lessig’s Change Congress (I thought he was out of the copyright destruction game?) and other signers of a letter to President Obama.

ACTA is throwing up the usual fund-raising muck from those in the Destroy Artists coalition. After you’ve read this post ask yourself which of these headlines is more correct:

Geist Given More Millions By Canada For Saving Canadians From Yankee Content Industries ACTA Threat”


“Public Knowledge Excludes Geist, Leverages Google Influence With Obama to Preserve Anti-Jobs/Pro-Piracy Provisions in ACTA”

As MTP readers know, the opposition to ACTA centers around the bureaucratic imperative of NGOs of dubious funding sources that are used to bullying creators in Geneva and who have been excluded from the ACTA negotiation process at the drafting stage. Like any other treaty, these groups will be able to lobby to the full extent of the law when ACTA is ratified by the member states, a mix of economic players. It should not be surprising that they are trying to elbow their way to the table by any means necessary in case someone found a way to do business without them.

So the ACTA blister pop truly is a moral panic without legitimacy or provenance. But that isn’t good enough for those who want to be sure that all professional creators—including journalists, recording artists, songwriters, authors, directors, screenwriters and actors–are unemployed. Not to mention unit production managers, electrical workers, makeup artists and set designers.

Thus there is much sound and fury from Geist, Public Knowledge and the EFF & Co. about “secret treaties” compared to the Patriot Act which is total gobbledygook. The latest moral panic by these groups about ACTA stems from a leak by an inside man at the recent ACTA meetings among the member states.

Nate Anderson at Ars Technica described the leaked document as “a written account of an oral report on a draft document that was itself still being altered.” In other words—shakey.

Yet Geist got the MSM to write a story based on—what exactly? Something that happened in that place down near the place we used to go back in the day but not too far?

Geist tells the trusting reporter that ACTA is wrapped in secrecy due to the “entertainment industry” (note that he carefully excludes journalists and their employers from the secret group–journalists who are definitely getting hurt as badly as other creators).

But if you actually read the leaked memo, i.e., fact checked, you might note that it says the following:“[The US Trade Representative] indicated that these internal discussions were sensitive due to different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet “freedom” on the other). Consequently, they have to delay the release of the initial text longer than initially expected.”

“Supporters of internet ‘freedom’.” I wonder who that might be. Whoever it is, it would appear that the ACTA talks are not quite so secret after all, eh? In fact, Ars says: “In fact, we know it was still being altered at the time because lawyers for groups like CCIA and Public Knowledge were invited to see the draft, comment on it, and later see it again when some changes had been made.” My, my, that sounds like negotiating to me.

I thought it was a secret negotiation controlled by the evil Yankee content industries? Of course what Geist & Co. are up in arms about is trying to promote the idea that ACTA means that 3 strikes/graduated response/HADOPI type regulation will become the law in the ACTA signatories and some jobs in the professional creative industries (such as those represented by IATSE, DGA, SAG, AFTRA) might be preserved from the Google onslaught and that there might be some quid for the pro quo of safe harbors. Can’t have that.

But the leaked memo goes on:“On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs.”

That soft quid pro quo is a long, long way from what the anti-artist bullies are going on about. (It also appears that the leaker asked that the paper not be published immediately per Wired, so apparently Geist violated that request.)

So the reference to “unprecedented level of secrecy” in Geist’s presentation “The ACTA Threat” does not seem to be much secrecy at all, particularly because groups like Public Knowledge (who consistently oppose professional journalists, songwriters, artists, illustrators photographers and other creators) seem to clearly be involved.

Despite the shout out by Ars to their BFF (“We love you Corey!!”), even they seem to think there much less to the Geist Great Secrecy Obsession than meets the eye to a large extent. (This may explain why in the Great Circularity Geist doesn’t seem to mention Ars and vice versa. See “The Circular Awards 2009—now with added Astroturf”.) But check out the Great Circularity of this moral panic:

Geist obtains the leaked ACTA document and writes a speculative post based on the memo—a blog about a written account of an oral report on a draft document that was itself still being altered.

Then Geist’s post gets picked up by the EFF “Deep Thoughts” blog and Huffington and Puffington who make it even more inflammatory than Geist post also gets picked up by the Ars BFF, who goes all the way to comparing it to the hated Patriot Act.

And then Geist fans flames with what appear to be reinterpretations of his own posts and feeding what seems clearly to be misinformation to the press, who don’t bother to fact check.

But then Ars and more serious folks (or said another way, folks who have been burned before) actually take the time to review the source material before going to print, although many journalists, exemplifying citizen journalism at its finest, simply rely on the “moral panic” (such as

Geist then continues to fan the moral panic in other press outlets that don’t have the time or inclination to find out what’s going on:–law-bytes-secret-talks-threaten-copyright-policy

So which headline is the right one?

It’s clearly not a “secret” process. There’s a negotiation going on that the USTR at least is seeing to it involves Public Knowledge (and presumably Google, although that remains to be seen).

So what’s the problem?

Somebody not getting enough attention?

100,000 Voters Who Don’t Exist

November 10, 2009 Comments off

There is an apocryphal quotation attributed to GEN William Tecumseh Sherman that is instructive. When asked why he would not run for President, GEN Sherman reportedly said, “I will not entrust my good name to 100,000 people I have never met.”

So it is in public life. But in the digital constituency, you not only have to worry about the people you never met, you have to worry about the voters who don’t exist.

Industry Canada recently undertook good faith consultations with the Canadian public regarding potential new copyright legislation. The consultations lasted three months and included meetings in all major Canadian cities. In an effort to afford Canadian citizens an opportunity to be heard, the Minister of Industry, Tony Clement, opened the consultation to comments delivered solely online—and there’s the problem. As we are learning, opening the filtering hatch to the data smog of the Internet exposes you to all kinds of creepy crawly pollution from digital natives who can waylay the unwary explorer.

In that regard, Minister Clement might take some solace from GEN Sherman—the Minister has had his own good name tagged with the dirty little hands of the anti-copyright crowd during the recent Canadian consultations on a new copyright law. This is most prominently displayed in the controversy over the letter writing wizard created by the Canadian Coalition for Electronic Rights (a mod chip makers trade association) that allowed users to send a pre-fabricated letter to a predetermined but undisclosed list of ministers and Members of Parliament. The letter advocated a wide variety of anti-copyright—and especially anticircumvention—issues.

Some of you may recall that after stumbling upon the very well funded Michael Geist’s posting on Torrent Freak encouraging Torrent Freak readers to use the CCER wizard, I sent my own letter through the wizard, clearly identifying who I was and that I was testing the system to see if it could be gamed.

I did not expect to hear anything further from my test email as it was so obviously gamed. And yet I received the following over Minister Clement’s name:

“From: []
Sent: Monday, November 09, 2009 3:32 PM
To: [My Email]
Subject: Copyright

Thank you for your e-mail regarding copyright. I appreciate being advised of your views and have noted your comments. [There were none of either.]

Like you, many people are concerned with copyright and its implications in our increasingly digital environment. The Government of Canada believes that Canadians themselves must be able to contribute if future legislation is to be a true reflection of Canada’s interests. For this reason, the Honourable James Moore, Minister of Canadian Heritage, and I have recently concluded nationwide consultations to solicit Canadians’ opinions on the important issue of copyright.

The consultations took place from July 20 to September 13, 2009, and were a step forward in fulfilling the government’s commitment to ensure a modern and responsive legislative framework. Our goal was to give Canadians from across the country a chance to express their views on how the government should approach the modernization of copyright laws.

Through these consultations, we have heard the views of a wide range of individuals and organizations. More information about these consultations, including access to transcripts of the roundtable and town hall discussions and to the submissions of participants, can be found at the Copyright Consultations website at

At this time, we are taking stock of the submissions made by Canadians [really? How do you know?] and the discussions that took place during the consultation period. With these in mind, the federal government will draft and table new legislation. Although the consultations have concluded, rest assured that your comments will be given due consideration as we move forward with copyright modernization.

Once again, thank you for writing and please accept my best wishes.

Yours sincerely,

Tony Clement”

I am certain that Minister Clement has no idea that his name was signed to this particular email—but someone—someone—at Industry Canada presumably knows or should know that they sent this email in their boss’s name in response to what was clearly labeled an attempt—albeit for the greater good—to game the process.

And that attempt to game the process clearly succeeded.

So riddle me this: If my email didn’t trip up the system at Industry Canada, what would it take exactly?

Naturally—the very well funded Michael Geist is in the middle of this controversy (largely a controversy of his own making). (Geist is the head of the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (the Alcan of IP).)

According to CBC: “Geist said Industry Canada was not posting hundreds of letters written by Canadians and submitted through the website of the Canadian Coalition for Electronic Rights, a group that is following the consultations. Individuals who modified the CCER’s form letter, or who wrote their own opinions and submitted them through the group’s website, simply had their names added to one letter representing the organization.

Not posting those modified and individual letters to the copyright consultation website is tantamount to altering the views of the authors, Geist said.

Some people who wrote individual letters did get their submissions posted after complaining to Industry Canada, but Geist said that was not a fair way to deal with the issue.”

In case you didn’t see my earlier post on this subject (“Canadians Slimed as Copyright Consultation Concludes“), this is the CCER form letter at issue:

“Dear Ministers,

As a consumer of digital media and electronics I stand to be greatly impacted by changes to the Canadian copyright regime. 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.

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.
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.

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.

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.

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.

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. 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.

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.


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.

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 did use 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

So much for that.

Now one may well ask of CCER exactly what about their process made Geist so sure that “hundreds of letters written by Canadians” were getting through? Maybe it was because Geist was out beating the information superhighway on Torrent Freak and other sources of what commentators call the “copyhate” crowd to encourage the readers of Torrent Freak (overwhelmingly non-Canadian) to send “letters” through the CCER wizard?

I’m sure that if Geist is going to jump up and down and stamp his foot over the alleged failures of Minister Clement to post letters by Canadians, he must presumably have a very good idea of how to separate the letters written through the CCER wizard that were from Canadians and those that weren’t. I’d love to know what that process was, innovation being what it is and all. The highly innovative and very well funded Geist surely knows the answer.

But whatever the filtering process is, sacrament, it did not catch a letter from Los Angeles, Quebec ostie tabarnac décâlisser!

Minister Clement surely cannot be faulted for the failures of his staff to catch even the most obvious gaming of the CCER wizard. Like GEN Sherman, he must trust his good name to 100,000 people he’s never met. But some of them work for him, or at least he probably thought they did. That might be something to look into.

A little quick sampling of the posted letters suggests that a substantial number of them (perhaps over half) came from CCER. That might be something to look into, too.

For years now, there has been much sound and fury about the ghostly army of anonymous or pseudonymous anti-copyright, pro-mod chip, anti-music industry folks in Canada who pass themselves off as voters on Geist’s Facebook page. Canadian voters–supposedly.

The CCER letter writing wizard seems to be of very, very questionable provenance. Since the very well-funded Geist is all up in arms about it, even foisting accusations of “altering submissions” it seems like both he and those responsible at Industry Canada should come forward with a provable description of the CCER architecture that not only explains Geist’s assertions regarding “Canadians”, but also explains how letters from “Los Angeles, Quebec” got all the way through to Minister Clement. And puts the number of valid CCER letters “written by Canadians” in perspective.

This entire process is illustrative of the problems of the digital constituency that plague the online electorate, and is something to which careful attention must be paid.

Creepy Eric Schmidt says "don’t be creepy"

November 10, 2009 Comments off

Readers of MTP will understand why this headline caught my eye today: “Google Trying Not To Cross the Creepy Line

Well…it’s a little late for that. Really, truly, cataclysmically bad advice will hang that “creepy” sign around you and it’s very hard to get it off.

Great News Sultan, Pt. 2

November 5, 2009 Comments off

“What’s to stop students from paying for one month and downloading the whole collection? ‘Nothing,’ said Mr. Griffin….’Our gut tell us that the right model is flat fee, unlimited use.'”

Another Choruss sighting in the Chronicle of Higher Education (with a lovely picture of Peter Jenner and Jim Griffin courtesy of the Future of Music Coalition). I’m told that Jenner has been actively pushing a similar flat fee deal in the UK without much uptake.

The Chronicle also gives us the wonderful news that the Terry Fisher venture, Nowank Media, is planning on launching something in the fall fresh from testing in China. (China? Really? Maybe they can test it in a few other countries on that list with all that must-have government owned repertoire. At least Fisher is consistent, his version of collective licensing featured compulsory licensing and government pricing, which I’m sure the Chinese were happy to accommodate.)

Wow. I’ve kind of given up trying to pin down the inconsistencies in these stories over time, but if you have any interest in this topic….wait until somebody actually sees the actual service.

Until then, I guess you just have to say great news, sultan. Everything’s coming up roses.

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