The Spy Who Consulted Them: A Closer Look at Lawbytes, Inc. f/s/o Michael Geist

If you follow what passes for intellectual property policy “debate” online, you will no doubt have heard the anti-copyright amen chorus warming up about the lack of public consultation in the negotiation of the Anticounterfeiting Trade Agreement, or ACTA.

This wringing of hands and wailing of the amici has particular resonance amongst non-governmental organizations, their advisors, their academic rock stars and breathless acolytes. The non-governmental organizations and academics, most prominently the very well funded Michael Geist, advisor to the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP, who most frequently attach themselves to the negotiation of international copyright treaties originating in Geneva are particularly incensed.

These “NGOs” complain that the public is insufficiently consulted by—governmental organizations. In other words, the NGOs (self-appointed, frequently astroturf groups with shadowy funding) are complaining that the representatives of the public are insufficiently representative. Only the NGOs and professoriate provide the correct level of consultation because—because—I’m not really sure why. Probably because that by definition they’re not elected? Because all governments are corrupt and only the NGOs and their academics provide the correct level of independent purity? And in the case of ACTA, are corrupted by “Hollywood”, those demon sheep from Malibu?

I don’t know the reason that ACTA is being handled outside of the clutches of the NGOs, but I do know that they don’t like it. Of course, if it becomes obvious that it is possible to actually get international IP agreements negotiated with only input from duly elected representatives—kind of the point in “representative government”—then this spike in irrelevance cannot be good for NGO fundraising.

Unless–you’re a very well funded consulting academic, such as the very well funded Michael Geist and his Lawbytes, Inc. company, consultant to government (see The Geist in the Machine for more detail on Lawbytes, Inc.). And no academic is stirring the paranoia pot on ACTA more vigorously than Geist. But Geist’s wailing follows a familiar formula—his enemies are “Hollywood” the Evil Ones From Malibu whose orcish hand is everywhere twisting nasty keys in the famous digital locks. Secrecy and skullduggery abound. Secret contracts by government agencies are a particularly specious example of this treachery. As Geist told us in his editorial “Gov’t Copyright Lobbying Contract Raises Accountability Concerns” that was critical of another government contract with the Creators’ Rights Alliance (supported by unseen documents obtained by someone under the Canadian Access to Information Act, which is similar to the US Freedom of Information Act, an interesting process):

“[Geist’s repurposed blog/op-ed tells us that] [t]he [Creators’ Rights Alliance or “CRA”] contract raises several issues. First, there is some doubt that CRA is a group that needs government funding for lobbying purposes. While several of its smaller members could undoubtedly use the support given that these associations typically lack the resources to provide ongoing representation, larger collectives such as Access Copyright and SOCAN already employ external lobbyists with millions of dollars budgeted for copyright regulatory hearings and reform.

Even if backing the CRA can be justified, the manner in which this contract was established elicits some concerns. Last summer, the contract was submitted through the Advance Contract Award Notification program, whereby the Ministry notified potential contractors that it intended to award a contract to CRA to promote the interests of Canada’ s creative community. Other parties were given 15 days in early July to submit a counter-proposal. When none were submitted, Canadian Heritage was free to proceed with the contract.

The structure of the contract itself appears to have raised some eyebrows within Canadian Heritage. As the funding was being considered, an internal memo noted that the Copyright Policy Branch ‘would be funding an organization through this contract to provide comments on government policy. There is a concern that the Copyright Policy Branch would be setting an unwanted precedent in such matters.’

To address that issue, a different branch within the same Cultural Affairs department administers the contract.

Internal correspondence also reveals that the contract was designed to further the department’ s own policy objectives. A senior official outlined the rationale behind the proposed contract, stating in an email that once the CRA funding was complete, ‘we should have streamlined, stable funding to an organization whose structure, purpose and activities suit our own policy needs.’”

Geist very eloquently lays down his concerns about transparency and openness in government contracting to protect the taxpayer, indeed, not just the taxpayer but the world at large, from the evil grasp of “lobbyists” furthering a government bureaucracy’s own agenda.

Like Enid Strict, Saturday Night Live’s “Church Lady,” only Geist can protect the public from this depraved force, only he has access to leaked documents that always seem to show up right on cue, only he has a curious degree of knowledge about information available to only a few policymakers, and only he can hold the Canadian government accountable (and more recently world governments as well). But unlike both his NGO pals and the Church Lady, Lawbytes, Inc. got tens of thousands of dollars from Industry Canada for consulting, not to mention the million dollars or so that the Canadian governments have paid to support Geist in whatever it is he does. And yet–it seems like they got the consultation they paid for. And what they paid wasn’t chopped broccoli.

But to date there is no evidence that Lawbytes, Inc.’s contracts were awarded using this “Advance Contract Award Notification” program that Geist criticizes for lacking the beloved transparency. It looks like the contracts and then the money were just handed out, including one contract that paid almost—but not quite–$25,000 for a single day’s work over Christmas break.

I have been unable to find any mention of these payments in Geist’s blogs or op-eds or repurposed blogs or reblogged op-eds, and have been unable to determine exactly what the work product was that was tied to these contracts. “This is entirely by design to move away from transparency to a small coalition of the willing who are determined to keep it as secret as possible.” Oh, no, wait—that was Geist waxing conspiratorial about ACTA in the Washington Post on a sojourn to the District of Columbia, not self-examination regarding the many Lawbytes, Inc. contracts from someone at Industry Canada.

The only written work product I have been able to find that corresponds to the $85,000 or so in payments to Lawbytes, Inc. appears to be Geist’s blogging, reblogging, opining and repurposing of blogging opining and a book against copyright reform that he edited around the time Lawbytes, Inc. got one of its many government consulting contracts.

What does it all mean? I’m so confused. But then I’m just a country lawyer and I’m not as smart as these city fellers.

Stay tuned.

See also: Fair Copyright Canada and 100,000 Voters Who Don’t Exist