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

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

April 28, 2010

“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:

“Satan.”

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

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