Archive for April, 2010

AFL-CIO comes out for artist rights in Performance Rights Act

April 29, 2010 Comments off

It’s very encouraging that the AFLCIO (see “Workers Mobilizing to Get Fair Play for Music Artists“), the leading council of trade unions in America, has come out foursquare behind their members in the creative unions twice in the last 6 weeks or so. First, there was a resounding defense of the AFTRADGAIATSE-SAG anti-theft position paper in the net neutrality hearings (as well as several other major unions who filed comments such as the International Brotherhood of Electrical Workers). These unions were also in line with the Songwriters Guild of America that had been the lone voice opposing the loopholes in the “net neutrality” stalking horse that would permit rampant stealing to continue.

But yesterday the AFLCIO backed the professional creators in the quest for a performance right for sound recordings in the United States, and idea whose time has definitely come (and is about 30 years overdue if you ask me). Bear in mind, practically every other country in the world has a performance right for recording artists, vocalists and musicians when their recording is played on the air (including producers in some countries). Currently–these artists get zero. The purpose of the Performance Rights Act is to create an easy to use and easy to pay license for the recordings–bearing in mind that broadcasters already pay for the songs. The sound recording is just the flip side of the same accounting and tracking that is already being done. In fact, for larger stations, the typical software packages that the big stations use to track their playlists already accounts for the sound recording in a different part of the data.

We definitely welcome the support of the AFLCIO and the Obama administration in taking an aggressive posture to support professional creators, not to mention the domestic political clout of trade unions. We need all the help we can get to fight the hundreds of millions that Google alone spends in trying to undermine our rights and our business (Michael Geist notwithstanding).

And PS for those from Mollywood: No reason why you would know this, but “unions” are like these like people who come together to do like “collective bargaining” and they don’t take their pay in free food. In Mollywood, “collective bargaining” is venture capitalists setting a valuation, but in the United States, it’s a process that’s protected by the First Amendment of like the Constitution and stuff! OMG! And also by the National Labor Relations Act! It’s like the law, dude! And it’s not code! They also like negotiate working conditions and stuff, so don’t mention it to the code monkey in the next cubicle who you found laying on the floor naked in a pile of Ring Ding wrappers and Snapple bottles chanting “Lessig is God” or Eric might take back his options.

See also: Artist rights are human rights

See also: What Would Bob Do? (The Corporatization of Music)

Geist goes after Canadian labels group for "access"

April 29, 2010 Comments off

Yet another example of two-timing by Michael Geist (aka “he who shall not be named,” according to a prominent Canadian artist). (Geist is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP with its almost 100% American board). Geist, the non-lobbyist beneficiary of tens of thousands of public dollars in “consulting” contracts from Industry Canada (not to mention the receiving over $1 million in funding for his academic seat and projects from Industry Canada and other government bureaucracies–most charged with developing copyright laws for Canada), is criticizing the Canadian label trade association for too many meetings. And how do the people know how many meetings were had? Because the trade association is a registered lobbyist and has to disclose the meetings publicly.

To be clear, it would not seem that Geist is a “lobbyist” in a strict legal sense. But what do you call someone who is in frequent contact with a client who pays them to participate in a public debate knowing they will advocate a particular point of view? Particularly when those contracts are all just under the legal limits by which the public money has to be put out for competitive bid for the “work” concerned so the recipient is hand-picked. Which I understand to mean that if you worked at Industry Canada and you controlled the budget for particular work, you could hire your allies as long as you paid them under $25,000. Or what do you call someone who is promoting an advocacy campaign launched by a trade association? Maybe he was paid, maybe he wasn’t. Hard to say given the lack of transparency. But what we do know, thanks to CBC’s Wendy Mesley, Google, Yahoo, Rogers and Telus are all lobbying Geist pals Industry Canada and Heritage Canada (who Geist seems to be placing in the not so much column lately). About what? The yet to be introduced new copyright legislation. And let’s see–Google and Yahoo! are in Geist darling CCIA–see our discussion of his CCIA puff piece in “The Geist in the Hen House.”

Either Geist, or his minders at Industry Canada, seem very interested in what is being said to Heritage Minister James Moore. Two thoughts: Before Geist whines about a lack of transparency in others, he should clean his own house. I can’t believe that he could have obtained as much money and benefit from Industry Canada as he has without having many, many, many contacts of his own. And presumably he was talking about policy. But we don’t know what he said in these discussions. And the “we” in that sentence includes “we” in the global creative community because Geist is daily becoming less of Lessig’s understudy and is taking more of a lead in policies that affect our business.

And I’m so sure that he paid his own way to testify in Europe and New Zealand with no reimbursements. I’m so sure.

Sounds like…a lobbyist?

The Consultation of the Mikado Part 2: Geist is running his playbook again

April 28, 2010 Comments off

“Lizard People Drop ACTA Draft from Black Helicopter” says Andrew Orlowski in The Register, in a factually correct but hysterical send-up of the level of paranoia and vitriol that was whipped up into a hate smoothie by the anti-artist NGOs and their fellow travelers. Sensing their grip on WIPO was slipping, the “let artists eat cake” crowd spurred their pale nags out to the front of what we believe was a rather sparse parade. A parade that was likely financed by those who favor the weakest copyright enforcement regime they can get, and what they can’t weaken in the law they will weaken in enforcement.

I actually had a breathless young IP student come up to me after a panel to enquire about my views on “the hated ACTA” that was being backed by “The Cartel” (obviously someone who reads certain blogs). I am ashamed to say that I could not resist.

I said, “You do know who is really behind ACTA, right?”

This caused a sharp intake of breath. “No!”

I leaned in and whispered in my best stage whisper, suitable for the Scottish play:


She nodded knowingly. A neo-Baptist moment. I thought for a moment about whether I should tell her it’s a joke.

He Who Shall Not Be Named

I think a survey of the literature would lead anyone fairly to agree that no one is more responsible for the recent ACTA paranoia and vitriol that works against the world’s artists than the very well funded Michael Geist (aka “he who shall not be named,” according to a prominent Canadian artist). (Geist is advisor to the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP with its almost 100% American board, and the paid consultant to Industry Canada under the many, many contracts that may—may—skirt the line on Canadian transparency laws and regulations for “untendered” payouts by government entities. Not to mention the hundreds of thousands that Industry Canada pays for his research chair.) Having cast himself in the play, he should expect to be reviewed.

But his recent obstructionist moves on ACTA have to be seen in the larger context of his role in blocking copyright reform in Canada that goes back years, and it is in this context and his recent ascendancy to the firmament of demigods of the global anti-artist movement that he must be examined. Lessig The Younger may not quite capture it, but it seems safe to guess that Geist is to certain of the Industry Canada bureaucrats what Lessig is to certain Google executives. A word to the wise—that’s not advice that is working out too well for Google.

As one of our biggest trading partners is gearing up for another attempt at bringing its copyright laws in line with the rest of the world, one can expect Geist to be taking a leading role in rallying the Cassandra chorus against professional creators and the working people who collaborate with them. His vocal opposition to ACTRA was just the prologue. The first act is yet to come. Double double, toil and trouble.

If You Think We Are Worked by Strings

When you review Geist’s activities over the recent attempts at bringing Canada in step with the interwoven tapestry of international copyright and human rights treaties that have been adopted by the international community to protect artists and culture, it is truly astonishing how Geist always seems to come up with leaks of otherwise secret documents at telling moments. He then appears to use those leaks to try to rally public opinion against the elected government officials—but strangely never the unelected bureaucrats–through a series of bluffs and bootstraps that have yet to actually materialize into political consequences. (See, e.g., “Swedish Pirate Party Membership Numbers Sink” .)

An illustration of these precisely timed leaks is Canada’s 2008 attempt to reform its copyright laws which was eventually introduced in the Canadian Parliament as Bill C-61. Echoing Lenin’s classic work, What is to be Done?, Geist’s posted “The Canadian DMCA: What You Can Do” on December 2, 2007. Bill C-61 wasn’t introduced until June 12, 2008. Yet some 6 months prior to the introduction of the bill, Geist tells his followers:

“Industry Minister Jim Prentice has simply decided to discard consumer, education, research, and privacy interests, ignore his own party’s policy platform, and cave into U.S. pressure.…I’m troubled by what is not in the bill. If Canada is to amend the copyright law, then surely we ought to address issues that affect individual Canadians such as protecting parody, time shifting, device shifting, and the making of backup copies. We should eliminate crown copyright and restrict statutory damages awards to cases of commercial infringement. Yet none of this will be in the bill.”

How did he know what was not in a bill that presumably was still being drafted and would not be introduced until the following June? And isn’t a draft bill subject to some kind of confidential treatment? It seems like it should be at least as confidential as the terms of an untendered contract.

From “Copyright Choices and Voices”, again discussing a Bill before it was ever introduced: “Sometime over the next two or three weeks, Industry Minister Jim Prentice will rise in the House of Commons and introduce copyright reform legislation. We can no longer speak of choices because those choices have already been made. … In the current environment and with the current Ministers, politics trumps policy.”

And again when the bill was introduced in June 2008, Geist posts (“[Former Minister of Industry] Prentice’s DMCA Deception”), replete with references to probably confidential inside information:

“With only two weeks left in the House of Commons calendar until the summer recess…Industry Minister Jim Prentice is likely to introduce his new copyright bill next week or during the first week of June. While Prentice continues to claim that he is actively working on a bill that meets the needs of creators and consumers, the talk in Ottawa is that the bill is done. The DMCA provisions that generated so much opposition last December are still there as Prentice is seemingly unwilling to [agree with Geist, and you know how that makes him stamp his little foot]….How will Prentice attempt to sell the Canadian DMCA? [I don’t know—how does Geist sell the US-backed SG-CIPPIC? Help a brother out, why doesn’t he?] Word is that the six months since the initial bill was shelved has yielded some changes, most notably reforms such as the legalization of time shifting (ie. recording television shows with a VCR/PVR) and possibly device shifting (ie. transfer a song from a store bought CD to an iPod). If the exceptions are undermined by the Canadian DMCA provisions, why is Prentice throwing them in? The answer is pretty clear. Prentice hopes that the media coverage will focus on these new “modernizing” provisions that he will claim benefit consumers, rather than on the DMCA-style anti-circumvention provisions that will lock down consumer products, harm research and security, raise privacy concerns, and create a restrictive new legal environment.”

And then when the bill was finally introduced, Geist admonishes his followers in “The Canadian DMCA: Check the Fine Print”:

“As expected, Prentice has provided a series of attention-grabbing provisions to consumers….These are good provisions that did not exist in the delayed December bill.”

“Prentice has simply decided”; “the talk in Ottawa”; “word is”; “why is Prentice throwing them in”; “Prentice hopes”; “have already been made”; “that did not exist in the delayed December bill”; “troubled by what is not in the bill”; “none of this will be in the bill”. This is not the language of guesswork, supposition or extrapolation.

It is very definite and precise.

It is the language of access.

You secret, dark and midnight hags

Not only is it the language of access, it is language designed to confront. But is it designed to let Minister Prentice know that the source of his attack is Geist himself armed with inside information? Or is the attacker someone else? Someone speaking through a mouthpiece, but whose shadow is only seen on the wall of the cave?

Time will tell. Stay tuned.

The problem with high level leaks is that there are only so many people who can have had that inside knowledge and leaked it to Geist, or as one politician put it, who can coil in the tall grass and leak. Now we all know that the science of hardball realpolitik is in part the science of leakage. We are not naïve. But spewing from someone who beats the drum about transparency and then dutifully leaks that which he is told by one of the “dedicated group of likeminded people” who are Inside? Tisk, tisk, naughty, naughty schoolboy.

For what is going on here appears to be that someone in the government is leaking to an attention-starved academic who in turn is using that information to attack the government’s own Ministers, as well as trying to influence the electorate. Partly due to a desire to appear “in the know,” perhaps, or partly due to something else, perhaps something else far more tangible and mundane. Geist’s sophomoric “What Can You Do” post was mostly a list of whom in government his followers could write to about their views. Yes, literally about as sophisticated as “write your Member of Parliament.” Except that he offered a long list of people that his followers could write from the Prime Minister to their dog catcher, including some online “petitions”.

As we saw with the questionable practices that Industry Canada bureaucrats apparently did nothing to discourage in the most recent Canadian copyright consultations, this business of online letter writing is now being perfected into a rather bizarre exercise in mustering a ghostly army of secret “voters”.

As was reported by the Toronto Globe and Mail, Canadian lawyer Richard Owens conducted a study of the use of these anonymous form letters in the consultation and questioned the provenance of the letters altogether:

“For instance, 70% of the total submissions were “form letters” originating from a single little-known group of modchip sellers and distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent-related sites. As a result, it appears that many of the submissions were not even made by Canadians. Our study raises serious issues regarding the design and results of the public consultations, and of the need to ensure that future online consultations are better designed to properly represent the views and interests of the Canadian body politic….”

Pretty stinky. (This kind of thing is jumping the gene pool–now it’s happening in the UK as well, see “Web Politics: The honeymoon is over“).

And I almost forgot—included in Geist’s “What Can You Do” list was an invitation to his followers to join Geist’s Fair Copyright Facebook group. What is amazing to me is that the fact that this group had a lot of “friends” was evidently viewed in some circles as evidence of some political influence. Yet any form of “protest” that involved mobilizing bodies by the Fair Copyright group was by any yardstick an abject failure.

So the point isn’t how people choose to express themselves politically (if these speakers really exist). All’s fair.

The point is spin. The point is bluff. The point is bootstrapping. It’s fair to ask how much weight should be attributed to various inputs from the electorate and whether having Facebook friends or online casual voting actually mean anything tangible on which policy should be based.

This is the point of the Obama administration’s recent cautionary memo and it’s the point of several posts on MTP (see below). It’s also common sense good government.

Now it would not surprise me if Geist, like most academics, thought himself intellectually superior to music industry types. But I promise you this—if any A&R at a record company came in all breathless about a band because the group had a bunch of Facebook friends but couldn’t draw a crowd at their local, they’d be laughed out of the music business. All the “impressions” in the world, all the “eyeballs” online don’t mean anything if there are no butts in seats. We live in RR—real reality—not AR—augmented reality. This is the oldest trick in the online playbook. Not to mention the fact that Canada’s privacy minister blasted Facebook for its privacy policies.

If you examine the literature of online political campaigning, you will see a sophisticated niche developing that is directed at the only thing that really means anything in political campaigns—on election day, can you get butts to the polls to vote for your candidate. Period. If you can’t do that, then your activities are weighted accordingly. As in not at all.

It is Not Bootstrapping, it is Simply Court Etiquette

Flash forward to today, and we find that Geist is agitating in anticipation of new copyright reform legislation. This is a familiar pattern of leaks, scaremongering and Yanks Under the Bed. This week, just as Geist had previously slagged then-Industry Minister Prentice, he went after James Moore, the current Canadian Heritage Minister in the Hill Times (Heritage Canada being, as the name suggests, one of the departments that guards Canadian culture):

“James Moore has carefully crafted an image as “Canada’s iPod Minister.” Young, bilingual, and tech-savvy, Moore has expressed regular support for the benefits of the Internet and is always ready with a quick “tweet” for his many followers [jealous?]. Yet according to the scuttlebutt throughout the copyright community [which ‘copyright community’ is Geist part of exactly?] Moore may be less iPod and more iPadlock [oh, please]. As the government readies its much anticipated copyright package, Moore is said to be pressing for a virtual repeat of Bill C-61, the most anti-consumer copyright proposal in Canadian history [Really? According to whom?]…. [T]he national copyright consultation…generated thousands of responses, the majority of which called on the government to abandon the C-61 approach in favour of copyright rules that struck a better balance between the interests of creators and consumers.”

Now this is a very interesting criticism. The legitimacy of the “thousands of responses, the majority of which called on the government” to adopt the Geist agenda have been at a minimum found wanting and I think really have been shown to be a shoddy example of what Internet luminaries like Cass Sunstein of the Obama administration’s Office of Management and Budget have warned against.

It bears repeating that Mr. Sunstein recently issued a memo to the heads of executive branch departments and regulatory agencies which dealt with the use of social media and web-based interactive technologies. The memo warned that “[b]ecause, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”

As one source noted, “[A] million Americans can Digg or retweet an important blog post, but government officials shouldn’t use that popularity as an indicator of the post’s value. That’s not always a bad thing considering that a dedicated group of like-minded people can game a casual voting system.”

Mr. Sunstein is clearly trying to establish best practices for the U.S. government to allow the government to benefit from the good of using the Internet to further legitimate policy making goals while avoiding the bad. Avoiding the bad includes a prohibition on basing policy decisions on the use of information that is or could be gamed in the formation of public policy by “a dedicated group of like-minded people”—inside or outside of the government. Several Canadian writers have discussed these issues at length, including the shoddy CCER form letters (as have MTP in Secret Ballots, Not Secret Voters, 100,000 Voters Who Don’t Exist, and A Dedicated Group of Likeminded People).

For the gaming can be played from outside—or inside—the government. I would submit to you that you are watching the process unfold before your eyes. Someone wrote a form letter to be used in the online submission process. That letter just coincidentally hit all of Geist’s criticisms of C-61 and then some. The CCER form letter not only could have been gamed, it was in fact gamed. I know because I gamed it.

As we have seen in the disclosed documents discussed in another post, Industry Canada bureaucrats clearly knew that the overwhelming majority of these form letters came from the same source—from CCER.

Pause there. The consultation had two key components for open public comment: live town halls and anonymous online submissions. The plan at Industry Canada seems to have been to have many more online submissions by God knows who than there were real live people show up at the town halls. Geist then could use those online submissions as the basis for claiming that a “majority” of Canadians favored his platform as expressed in the CCER letter. And when you read that quotation above “[T]he national copyright consultation…generated thousands of responses, the majority of which called on the government to abandon the C-61 approach….” did you think he was talking about Canadians? He doesn’t say that. He just says the “majority of” the thousands of responses.

If you read the CCER form letter that comprises the “majority of responses”, it is hard to believe that the drafter of that letter could just have coincidentally zeroed in on all of the issues important to Geist and that he plans on opposing if copyright reform legislation is introduced. The CCER (some of whose leaders apparently were among the first to join Geist’s new Facebook group for what that’s worth) just happened to have an articulate rendering of Geist’s principle beefs with past copyright reform legislation and that letter just happens to make up the “majority” of online responses. At the core of this bootstrapping seems to be the belief that the unelected academic somehow has superior legitimacy to the purportedly “unpure” elected representative—why, because Geist has more Facebook “friends”? No, the ministers are just blindly doing the bidding of the Yanks Under The Bed.

This is truly, truly cynical. Like Lessig the Elder, Lessig the Younger has yet to stand for office. The people he slags have. The voters have spoken on this score. They put “butts in seats” as we say in the music business. But Geist doesn’t focus much on the real people.

Just the ghostly army that Richard Owens demonstrates he tried to gin up.

If you think we are worked by strings,
Like a Japanese marionette,
You don’t understand these things:
It is simply Court etiquette.

If You Want to Know Who We Are
from The Mikado
By William Schwenck Gilbert and Arthur Sullivan
Copyright 1885

See also: A handy chart of Lawbytes government contracts

See also: A Dedicated Group of Likeminded People

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

See also: What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)

See also: Artist rights are human rights

See also: The Spy Who Consulted Me Redux: The Consultation of the Mikado

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist

Google’s Blind Side: The Smartest Guys in the Room Can’t Handle the Truth pt. 2

April 25, 2010 Comments off


There is an excellent opinion piece in Forbes by Ronald Cass, former dean of the Boston University law school. In Google’s Blind Side, he makes many good points about the unacknowledged liability exposure that Google has to the many copyright infringement cases pending against the company, and makes an overarching point that cuts against the Veoh case.

He also gives a very well-articulated explanation of why the Electronic Frontier Foundation’s interpretation of the DMCA (and that of many other Google apologists) is entirely wrong as a matter of law.

“EFF wants to expand the [DMCA safe] harbor for providers by requiring direct notice of each individual posting of copyrighted work (followed by a decision not to act), reasoning that “take down” incentives under DMCA are enough. This rewrites the law, which recognizes that providers often are in much better position than copyright owners to find violations. There’s too much material for an individual right holder to screen, too many “private” sections of sites that copyright holders can’t see (though providers can) and more efficient alternatives for reducing the amount of pirated material on sites that reward piracy. Unlike EFF, Congress refused to insulate the more efficient screener who has reason to suspect piracy and is the one making money off it.” [emphasis MTP]

It is absurd to think that the Congress intended to offer the safe harbor to those who were able to litigate their liability to a final, non-appealable judgement on a packet-by-packet basis. If the EFF’s interpretation of the law obtained, the DMCA would essentially be granting a compulsory license that was paid for only to those who could afford to litigate. The Google-opoply interpretation of the DMCA safe harbor creates three classes of rights owners–those who can afford to send the notice and sue, those who can’t afford to send the notices or sue, and those who have given up in dispair. (See Jim deLong’s excellent piece Google the Destroyer.) And this is exactly the situation Google wants. For as EFF litigation mastermind Fred von Lohman said to me, “artists will just have to learn to get along on less money.”

As we have said on MTP many times, Google has some serious exposure in the Viacom case and the often overlooked class action case which includes many plaintiffs who in theory could individually be entitled to damages equal to Viacom (such as the Premier League and the NMPA). A billion here and a billion there, and pretty soon you’re talking about real money, even for Google.

And that’s just YouTube. This, combined with the litigation (perhaps brought by the United States, France, Germany or New Zealand for starters) that is inevitably going to arise out of the stunningly ill-advised Google Books debacle, is enough to put a significant dent in Google’s stock price.

And remember–the Google founders went way, way out of their way on the very edges of corporate law in the go-go years of the Dot Bomb boom to make sure that they and only they would have ultimate control of Google. (Does anyone doubt that the SEC would probably never allow another Google-type IPO in the current environment?) With control comes responsibility–and liability. And it all points back guess where? The smartest guys in the room.

There may be some companies that are “too big to fail,” in the popular mantra, but Google is not one of them. Neither are the artists who they are systematically destroying.

None of this should come as a surprise given the long, long line of cases where Google apolotists Lessig, Nesson, the EFF et al have done a brilliant job of making the losing argument.

Judgment will out.

See also: Artist Rights Are Human Rights

See also: How Many DMCA Notices Are Too Many?

See also: Veoh: Is Continuous Monitoring Really the Law?

See also: Lessig’s Bad Advice Redux

See also: Google to EMI: Stop Me Before I Infringe Again!

See also: “An End Run Around Copyright As We Know It”: U.S. Register of Copyright Marybeth Peters on Google Books

Music Supported Here

April 24, 2010 Comments off

One of the unexpected highlights of the FCC’s request for public comments on its proposed “net neutrality” regulations was the coming together of many trade unions in the US. The American Federation of Radio and Television Artists, the Directors Guild of America, the International Alliance of Theatrical and Stage Employees and the Screen Actors Guild all filed a joint comment, the Songwriters Guild of America filed their own and the American Federation of Musicians filed separately. Several unions outside the professional creative unions also filed comments, as did the American Association of Independent Music.

It was encouraging to see this outpouring of union support for the speech-related aspects of the proposed regulations but resounding rejection of any gamesmanship with the “nondiscrimination” rules applied to the fundamental discrimination–between legal and illegal activity. This nuanced view is sadly lacking in these public discussions.

The far-ranging opposition of unions to the piracy that is ravaging their members was capped off by a statement by the primary association of unions in America, the AFLCIO. The AFLCIO clearly supported their member unions and should put to rest forever (although I know it won’t) the claims of “big media” opposing “the little guy” in discussions of piracy. As anyone who is even remotely close to our business can tell you, it is the independent artist who aspires to become a professional who is hurt the most by the consumer electronics industry and their many apologists masquerading as “consumer advocates”.

We’re happy to add to the blog roll this week a new site operated by the British Musicians Union, which has this “About” statement:

“Music Supported Here is a new movement from the Musicians’ Union.
It’s a campaign for all musicians.

It’s about the simple but important principle that musicians should
not get ripped-off in the digital world.

For musicians, it will be a way to publicise and debate the issue
and to remind fans that you want to control your rights.

It’s a platform for musicians to raise their profile and direct their fans to
their own stores and websites: a source of music controlled by the musicians.

And for music fans it’s a way to say that you don’t rip-off musicians.

By supporting musicians’ rights, we’re supporting music.”

Answer to Controlled Compositions Pt. 1

April 23, 2010 Comments off

This is the worksheet for the controlled compositions problem posed in Controlled Compositions Pt. 1


The deal memo for your record deal has this section:

Controlled Compositions: 10 x 3/4, 5 on EP, 2 on Single, bumps to 87.5 and full at gold and platinum, full on digital and club, 3/4 of 3/4 on mid and budget, protection for 2 outside, rate fixed on delivery, no crossing, paid on royalty bearing, US and Canada.

What did you just agree?

You just agreed to the following maximum mechanical rates, all based on 75% of the minimum statutory rate in effect at the date that you deliver your recordings to your record company. Each cap is multiplied times the minimum statutory rate. The current minimum statutory rate is $0.091 so we will use that rate for the example. 75% of that rate is $0.06825.

LP: 10 x controlled rate or $0.6825
EP: 5 x controlled rate or $0.3412
Single: 2 x controlled rate or $0.1365
Download: 1 x controlled rate or $0.0910
Club: 10 x $0.0910
Midprice: 10 x 3/4 of controlled rate or $0.5118
Budget: 10 x 3/4 of controlled rate or $0.5118

If the equivalent of 2 songs are written or co-written with songwriters who do not accept the controlled compositions clause, then those songs will be treated as controlled for purposes of calculating the maximum mechanical rate.

These rates only apply in the US and Canada (but note that the CMRRA sets special terms benefiting songwriters for sales in Canada under controlled composition clauses).

Mechanical royalties cannot be cross-collateralized to recoup advances under the artist agreement against mechanical royalties, except in specific circumstances (the “Four Horsemen of the Apocolypse”): Unexcused overbudget, union penalties, overpayments and indemnity claims.

“A Dedicated Group of Like-Minded People”

April 20, 2010 Comments off


Cass Sunstein of the Obama administration’s Office of Management and Budget recently issued a memo to the heads of executive branch departments and regulatory agencies which dealt with the use of social media and web-based interactive technologies. Specifically, the memo warned that “[b]ecause, in general, the results of online rankings, ratings, and tagging (e.g., number of votes or top rank) are not statistically generalizable, they should not be used as the basis for policy or planning.”

As one source noted, “[A] million Americans can Digg or retweet an important blog post, but government officials shouldn’t use that popularity as an indicator of the post’s value. That’s not always a bad thing considering that a dedicated group of like-minded people can game a casual voting system.”

Mr. Sunstein—who some might call something of an Internet evangelist—is clearly trying to establish best practices for the U.S. government to allow the government to benefit from the good of using the Internet to further legitimate policy making goals while avoiding the bad. Avoiding the bad includes a prohibition on basing policy decisions on the use of information that is or could be gamed in the formation of public policy by “a dedicated group of like-minded people.”And the gaming can be done before or after the fact, and the “like-minded people” can be outside—or inside—the government.

It is not a very large leap to imagine a truly Orwellian world where the government finds that the public supports its policies because it uses information that its anonymized supporters intentionally game or are encouraged to game to produce the desired result. As we noted in Fair Copyright Canada and 100,000 Voters Who Don’t Exist , the legitimate desire by governments to use the Internet to engage with the governed is to be admired. But if the process is selectively managed by bureaucrats with an agenda, it is to be greeted with considerable caution if not outright suspicion.

Recall that we were very suspicious of Industry Canada’s use of anonymous public submissions over the Internet in the most recent public “consultation” on copyright reform in Canada. (For U.S. readers, the Industry Canada “consultation” process closely approximates a combination of field hearings by the Copyright Office and a request for comments from the public.) For mysterious reasons, Industry Canada bureaucrats charged with administering the consultation failed to implement even the most rudimentary controls to screen or qualify these anonymous public submissions. Not only did the Industry Canada bureaucracy fail to implement even rudimentary controls, but they also completely overlooked obvious flaws in the submissions themselves—flaws easily exploited by “a dedicated group of like-minded people.” Unfortunately, Minister Tony Clement was not given the information he needed to realize that his many public statements about the success of the consultation process will forever have an asterisk by them—“*except for the totally gamed online submissions.”

Richard Owens’ Study

Neither Mr. Sunstein nor we are alone in focusing on these important issues–as reported in the Toronto Globe and Mail, fortunately for everyone Canadian lawyer Richard Owens has done some excellent research on the results of the failures of bureaucrats at Industry Canada in the copyright consultations (see “Noises Heard: Canada’s Recent Online Consultation Process–Teachings and Cautions” published on the IPOsgoode intellectual property blog at the prestigious Osgoode Hall law school in Toronto and “Re-doing the Math” by Canadian novelist John Degan). Remember—the consultations are conducted for the purpose of the government receiving testimony from Canadians to be used in the formulation of public policy regarding Canadian intellectual property laws. The total breakdown that followed during the Canadian experience is a lesson to us all. My references to the teaching moment in Mr. Sunstein’s memorandum is not by way of saying that the U.S. approach is the better one, but rather as an illustration of how one government is seeking to both embrace the Internet and insulate itself from the Internet at the same time.

Mr. Owens’ study of the Canadian copyright consultation concludes that:

“While the results of our study revealed a sharp gender, age and Anglophone bias in the submissions, of particular concern is the apparent lack of verification of identity, uniqueness, age (voting or otherwise) or citizenship of those making the submissions. For instance, 70% of the total submissions were “form letters” originating from a single little-known group of modchip distributors – the Canadian Coalition for Electronic Rights (CCER) – that had its form letter extensively circulated internationally on BitTorrent related sites. As a result, it appears that many of the submissions were not even made by Canadians. Our study raises serious issues regarding the design and results of the public consultations, and of the need to ensure that future online consultations are better designed to properly represent the views and interests of the Canadian body politic….

The next step the Departments must take is to openly publish the results of their own analyses of the Submissions, acknowledge the limitations of the Consultation, and to prepare legislation from a much more informed perspective. The Departments are custodians of the long-term interests of Canadians in their artistic, innovative and cultural endeavors. To fulfill their duty of stewardship, a system of intellectual property rights must be based on a fair, informed and representative consultation process. Unfortunately, none of these three criteria were met in the online Consultation associated with copyright reform. An online public consultation on a highly technical and complex area of law might provide some degree of useful context, but by and large it can accomplish little that will be of direct application. Much more useful is to solicit the opinions of the members of the communities that are truly informed. In Canada, that is certainly a large enough population to yield a great many useful submissions.”

Mr. Sunstein’s admonition fits nicely with Mr. Owens’ conclusions. However, neither of them have the benefit of many, many leaked documents relating to the uncritical acceptance by Industry Canada bureaucrats of the overwhelming number of CCER form letters received by Industry Canada outside of their normal process.

But I do.

I confess that the first time I saw this CCER letter writing wizard it seemed deeply, deeply flawed. So flawed, in fact, that it was hard to imagine anyone gullible enough to fall for it. But leave that to one side for now.

I would start by pointing out that we submitted our own version of the corrupted CCER form letter, clearly pointing out that if the Ministers received our letter, they had been gamed. Apparently they did, because we received a form response back over Minster Clement’s name (as described in detail in Fair Copyright Canada and 100,000 Voters Who Don’t Exist) that confirmed his receipt of our letter through the CCER wizard—which clearly stated that we were submitting it to test whether the system was being gamed. It appears that Mr. Sunstein’s worst fears materialized.

So my own conclusion about this process after having read the leaked documents is that there is such a curious lack of criticism about the CCER letter wizard that it leads me to believe that not only did the bureaucrats recognize the letter as coming from a “dedicated group of like-minded people,” but also that “dedicated group” may include bureaucrats at Industry Canada. Or as one Tennessean put it in another context, “What Did They Know and When Did They Know It?”

The entire process is so seamlessly designed to produce a particular result, it raises a serious question of who thought of what when and whether the CCER letter was all part of the plan hatched by Industry Canada bureaucrats with their fellow travelers to game the consultation process.

What is interesting about the way that the CCER letters are treated in the leaked documents is that no one—no one—ever says that there are a suspiciously large number of form letter submissions coming from an unverifiable source. For example, in a July 27, 2009 email thread, one bureaucrat says in an email to her superior, Edward Malota, “I should note that several [of the then 400 online submissions] are form letters penned by the Canadian Coalition for Electronic Rights. Perhaps we should mention the presence of form letters in the note [to superiors]?”

Malota’s response: “Any changes to recommend to this sentence? ‘As of July 27, a range of stakeholders have made approximately 400 submissions, including a significant number of form letters by the Canadian Coalition for Electronic Rights.’”At a time when the junior bureaucrat knew that Industry Canada had received 184 submissions, 150 of which were CCER form letters, she edited statement to change it to: “As of July 27, a range of stakeholders have made approximately 400 submissions, including a significant number of form letters most of which we believe were penned by the Canadian Coalition for Electronic Rights.”

I find this to be incredible—“most of which we believe were penned”? No, actually the overwhelming majority of which we now know were generated from who knows where by the CCER. (See Owens’ study for handy pie chart.)

Malota’s response? “Thanks!” Pip, pip, cheerio.

Wasn’t it the responsibility of the more senior to temper the enthusiasm of the junior? Perhaps not for the “dedicated group of like-minded individuals”. Or said another way (with sincere apologies to Bay Area residents with long memories)—they drank the Koolaide.

At that point the die was cast, and appears to be how policy was to be made—a prime example of Mr. Sunstein’s concerns. It seems obvious that those who could have stopped using the CCER letters not only did not, but seem to have at least tacitly agreed among themselves that lack of probative value of the ubiquitous CCER form letters was to be downplayed and used by Industry Canada to further its own agenda.

If there were any form letters that were not CCER, I saw no mention of it in this exchange. The only place that there seems to be any doubt that the form letters were from CCER is in the way that the information was shaped that would flow up the chain of command.

On July 29, 2009, Colette Downey, apparently a midlevel bureaucrat, says to the junior person, “Also want to be sure that you are acting as a “Transformer”…so that you transmit interesting content or trends to me and the rest of the team as it comes in, informally if that’s the best way to communicate it.”

Informally? What does that mean, informally? Since when does a bureaucrat do anything “informally”—so there is no paper trail? And what exactly does the passive voice “if that’s the best way to communicate it” trail off to mean? If you decide that’s the best way?

The response from the junior: “I will do my best to send you and the group interesting submissions and trends – hopefully this is OK by email on weekly basis? As you know [CCER] has created a template letter in English and French on their website and has set up a wizard such that you can send the email without having to go through the consultations website. The template letter so far accounts for 230 of the 400 submissions. I included one of these letters in your package last Friday.”On August 13, 2009, another bureaucrat let the “team” know that CCER “has produced a form letter that has significantly increased submission rates over the last 24 hours. We’re receiving submissions nearly every minute today, a cautious estimate putting us over 500 in the last day. We’re about to Tweet this (happy?) news.”

“We”, that is, Industry Canada, are about to tweet the good news to the general public that a shadowy association of dubious legality has created a nearly untraceable form letter. So this would seem to mean that Industry Canada is actively promoting the use of the CCER form letter by the general public.

Not once—not one time—in all of these emails does anyone say anything like, “Gee, we better be sure that only Canadians are responding” or even, “Gee, we better be sure we can distinguish Canadian from non-Canadian submissions”. The CCER letter writing wizard advocates a self-described “Canadian-to-the-core” solution—wouldn’t you want to be sure that the phrase had some meaning?

Was Mike Lake Deceived?

There is an August 20, 2009 email (no doubt summarizing information to be used by Parliamentary Secretary Mike Lake at the Edmonton roundtable the next day) that clearly states: “Approx. 3000 submissions to date; 1,200 formal submissions and 2,000 letters. So far, just 15-20 formal submissions from associations, copyright lawyers, academics.” The majority of the submissions—not surprisingly—raise issues that are straight out of the CCER letter and the bureaucrats identify these issues as being important. This is, as we say in the trade, “bootstrapping.”

The bureaucrats then prepared “speaking notes” for Parliamentary Secretary Mike Lake to use at the Edmonton copyright roundtable on August 21, 2009 which included this sentence: “[In addition to the roundtables] we have opened up our website to submissions for all Canadians to share their views with us and with each other….So far, after some five weeks in operation, our website has gathered about [3,500 submissions check number closer to date]…”

So—if you heard Mike Lake say these words, you would probably assume that he meant what he said—that Industry Canada was taking submissions through its website for lots of Canadians to participate. Sounds great, right? Very egalitarian and digital.

The only problem is that it was not true. I’m sure that Mike Lake thought that it was true, I’m sure Mike Lake had no reason to think it wasn’t because the “dedicated group of like minded people” who likely knew it wasn’t true didn’t tell him that the overwhelming majority of the submissions were form letters from a shadowy group that were not even coming into the government through its own processes. Form letters that were being sent to the government in a way that intentionally masked their origin. Form letters that were very, very likely not even coming from Canadians, yet were clearly being identified as contributing to making policy.

Enter Derek Noon

And then we have Derek Noon. Derek Noon appears to have been put in charge of communicating to the “team” the updates on how the Industry Canada web activity is going. Who is he? His Twitter profile finds him interested in Creative Commons, Cory Doctorow and…Michael Geist (aka “he who shall not be named,” according to a prominent Canadian artist). His faculty mentor at university sounds like one of these Singularity believers who Jaron Lanier calls the “death denyers.” “I develop these concepts of “general intellect” and “immaterial labour,” and connect them to other Marxist concepts, such as that of “species being, ” to examine the historical trajectory and future possibilities of insurgencies in and alternatives to high capitalism amidst of [are you ready? Here comes the singularity] a cyborg world of digital networks and biotechnologies. My book, Cyber-Marx: Cycles and Circuits of Struggle in High-Technology Capitalism (Illinois University Press, 1999), is a first cut at some of these ideas.”

Let us ask a few questions about Derek Noon. Why would the copyright consultation “team” need to have someone in charge of reporting to them on the consultation website activity? Why wouldn’t the “team” just go look themselves? What was happening on the website that the experienced bureaucrat would want to insulate themselves from knowing? Why not just send an automated website analytics report? And even so, if they were going to pay special attention to what was being done on the web, why wasn’t that handled by the usual department PR hack or (digital) clipping service? Why did they need to burn up their headcount on one person in their group who was monitoring the web?

So on the eve of the Toronto town hall, certainly a significant, if not the most influential, audience the Minister is likely to have, what is Derek Noon’s report to the “team”?

“Online Activity, Aug 27. Toronto town hall will be a Tweetfest. Digital locks remain a hot topic. Wary praise of the consultations: ‘The online discussion forums—unlike most government run websites—have been boisterous. Geist’s blog suggesting IC altered submissions was circulated on BongBoing.”

Twitter, digital locks, “wary praise” and Geist. It actually sounds like a day in the life of Geist, doesn’t it?

More “Online Activity, Sept. 2. CCER Tweets…Positive description of Peterborough roundtable by attendee Howard Knopf who also posted their [sic] comments. This has been reposted by many bloggers/Twitters. Canadian Pirate Party starts to speak out on reasonable copyright balance.”

And that’s it for the week of September 2? That’s all that happened online on a hot topic like copyright reform in Canada? Really? CCER, Howard Knopf and the Canadian Pirate Party. It is not entirely clear that the “Canadian Pirate Party” actually existed at the time, but the Pirate Party was important enough to Derek Noon to take up 1/3 of the internal reporting on the copyright consultation. CCER “Tweets”? Why in the world would Industry Canada be spending time on CCER tweets? I guess that would depend on who was tweeting, wouldn’t it.

Another bureaucrat provides the “stats” for the August 31 to September 4 period. 4,710 submissions, 3,585 from CCER as is duly noted. No one—no one—seems the least surprised at this gross disparity in the submissions.

Derek Noon reports again for the week of September 8. “Bloggers counting down the remaining days in the consultation. Geist’s “4000 submissions” post has been reposted frequently. CCER (form letter source) has updated their position statement.”

Are you beginning to get the idea that Derek Noon has a very narrow view of what constitutes “online activity”? Or maybe he doesn’t.

Maybe his readers do.

Maybe he knows that his readers are not really interested in all online activity (because there was a lot more). Maybe he knows they are just interested in certain online activity.

It All Starts With A Cigar

Former Secretary of State George Schultz had a great line during the Iran-Contra hearings—“It all starts with a cigar.” If you are going to take the public’s money and with it the public’s trust, don’t take a lobbyist’s cigar.

The point of all this is that when you read the email threads from within Industry Canada, it becomes increasingly obvious that there was something unholy going on. If I’m wrong about that, believe I am all ears. Please show me the evidence. I haven’t found it, Richard Owens hasn’t found it, and I frankly doubt that anyone else will find it either–because it doesn’t exist.

There are strange redactions that don’t seem to be necessary. There are references to emails sent in response to voice mails, and the voicemail recipient saying “I hope you don’t mind” that they are responding to voicemail with email. There are requests that this matter be handled “informally”.

There are ambiguous edits of language that create clearly misleading inferences. But most of all, there seems to be a fixation on maintaining a letter writing process that was clearly being promoted by Michael Geist, Industry Canada bureaucrats and it’s anyone’s guess who else.

The only conclusion that can properly be deduced is that somebody wanted to game the online submission process during the consultations because they were unsure of the result from the town halls.

Meaning that they were unsure of how many real people would actually show up to town halls which was the one part of this process that was not easily gamed. Moreover, they were unsure what those real people would actually say, so they wanted to create a ghostly online army that would say what the “dedicated group of like minded people” wanted them to say to compensate for the lack of real Canadians showing up at town halls who might speak their minds. Hence the ubiquitous form letter.

Why did Derek Noon limit his reporting up the chain to the very few sources he used—like the Canadian Pirate Party, against copyright reform? Why didn’t he include the other online reporting on the consultations? Do you think that a bureaucrat at his level would go rogue and just decide that he would make up his own mind about what would be relevant to his immediate audience?

No. More likely—he was doing exactly what he was told to do, perhaps “informally” in line with the admonition from Colette Downey. He was providing “informal” reports on exactly the people and the kind of activity that he knew would interest his audience.

But would the Minister himself have been in on this? It is unthinkable that the Minister would have any part of it, particularly given the many throne speeches supporting intellectual property. “Cultural creativity and innovation are vital not only to a lively Canadian cultural life, but also to Canada’s economic future. Our Government will proceed with legislation to modernize Canada’s copyright laws and ensure stronger protection for intellectual property.”

The direction of the Government is clear. Ministers, like cabinet secretaries, must rely on their staff. It seems obvious that Minster Clement was far too busy to reach down to the Derek Noon level, and he relied on his staff to provide him with accurate information, as did Mike Lake, I’m sure.

Little did they know that their staff was busily creating a ghostly “army” of voters who don’t exist. Or it sure looks that way.

Saving the Digital Democracy

Mr. Sunstein and Mr. Owens have put their fingers on an issue at the heart of incorporating the internet into the digital society–how can we preserve the confidence of the people in the democratic process in all its aspects while at the same time utilizing the tools that will enhance deliberation and responsiveness.

Mr. Owens sums it up nicely:

“[T]he Departments – if they have not done so already – need to answer a number of questions: How were the CCER (and the international BitTorrent community) able to dominate the process, accounting for 70% of the Submissions? Is the CCER involved, either directly or indirectly, in any other Canadian Copyright reform lobbying or activities to undermine the will of Canadians? Why did so few Canadians make substantive submissions on copyright reform and, in particular,why were Francophones and women so grossly underrepresented in the Consultation process? Unfortunately, given that the Consultations are over, the answers to these questions cannot save last summer’s Consultation process, but my hope is that the answers we find may help to remedy public copyright consultations in the future.”

Ask yourself if the consultation is a shining example of government playing by the rules. I suggest to you that at least with respect to the online submission process, the opposite is true. However well-intentioned the minsters may have been in conducting the consultations, they got really, really bad advice and were ill-served by the bureaucracy.

Like the core principles of representative democracy, it’s not as important who wins as it is that they won fair and square and played by the rules. The artists, songwriters, actors, directors, screenwriters, authors, illustrators, photographers–the professional creative community–deserve–and expect–no less. Not only in Canada, but everywhere.


It now appears that Geist has offered some defense of the CCER letters that Owens’ criticizes, which should come as no surprise. You have to wonder if he’s being paid by Industry Canada to respond, as it seems he’s being paid by Industry Canada for so many other things, why should this topic be different?

But it is this statement by Geist that really took the cake: “As for the lack of francophones [meaning French Canadians, largely citizens of Quebec or “Québécois”], perhaps it reflects the fact that francophones are not nearly as concerned with creator-focused copyright as some suggest (or perhaps many decided they wanted to do something else with their summer).”

As someone who played benefit concerts for René Lévesque when most English Canadians thought he was just a chain smoking whackjob (i.e., before his Parti Québécois swept into power in Quebec in 1976), I REALLY take issue with the idea that the carefree Québécois would rather go frolicking in Morin-Heights in the summer time than concern themselves with the weighty matters of state that concern Geist. This from a province that has produced a healthy professional creative class and international stars for decades when, frankly, their English countrymen were struggling for airplay on their own radio stations. But let’s let bygones be bygones on that score.

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

See also: What do Canada, Vietnam, China, Russia, Ukraine and Romania have in common? (And, no, it’s not future sites of the Creative Commons Internationale)

See also: Artist rights are human rights

See also: The Spy Who Consulted Me Redux: The Consultation of the Mikado

See also: A closer look at Lawbytes, Inc. f/s/o Michael Geist

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