Only the shadow knows: Let the Geist games begin anew

Comments do not a plebiscite make

It’s well worth noting Patrick Ross’s post about the comments that were themselves posted by the Intellectual Property Enforcement Coordinator at the White House. (“Kudos to the White House for posting hundreds and hundreds of comments online in response to the call by Victoria Espinel, the U.S. Intellectual Property Enforcement Coordinator, for guidance on how to improve enforcement of IP rights. You can see them here.”) Hundreds of them were heart felt comments and life experiences of the professional creator community in America, and demonstrates the breadth of the creators who are affected by intellectual property laws from photographers to illustrators to songwriters to recording artists. As we have seen with the recent controversial use of essentially untraceable electronic form letters in the Canadian and UK copyright consultation and Digital Economy Act, real artists will write real letters with real life stories. These creators may not understand the nuances of IP law, but they understand how they are affected.

However, no one is trying to palm this commendable view into the minds and hearts of the creative electorate as some plebiscite or some form of “vote”. As we found in “A Dedicated Group of Like-Minded People” (Français) 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.”

Only the shadow knows

Contrast the IPEC’s treatment of the important but not generalizable enforcement responses with the latest blunder in public commentary by someone commenting under the sobriquet “SB” posting on Michael Geist’s blog. (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. SG-CIPPIC’s board includes Lessig and the EFF legal director, so it shouldn’t shock anyone that Geist’s objections to the legislation bears a strikikng resemblance to the EFF’s own anti-worker positions.)

“Your voice DOES make a difference. speaking from someone on the inside your letters DO make a difference….Doesn’t have to be long, better if its not a template letter. Just put the bill number and put that you don’t support it.”

The comment then goes on to instruct as to whom the letters should be sent.



“Someone on the inside”?

Having the benefit of a fire hose of disclosed information, I took a quick look through the info to see if there was anyone at Industry Canada who had the initials SB, and sure enough there is. But it seems so unlikely that anyone inside the government would be openly posting advice as to how best to oppose the government’s policies on the Geist blog. Would she really be willing to be that confrontational to her own minister? Is this the voice that uses Geist as a mouthpiece? Is this the shadow on the cave? That just seems so unlikely, it seems like it would have to be really throwing down the gauntlet in a bureaucratic sense, and that’s just not what bureaucrats do. Or at least ones that aren’t desperate.

And why would anyone counsel readers of the Geist blog—who we assume must be fellow sophisticates and smarter than the average bear—to merely scrawl the bill number, say “No” and make their mark? Why would they not counsel an enlightened discussion of the nuances of the bill?

Ah yes.

They can’t do that because the bill hasn’t been introduced yet.

Of course.

Once more into the leak, dear friends

Yet again, Geist seems to have had access to a confidential legislative document that I guess must be protected by some kind of privilege or at least a high degree of trust. And he leaked it. (Just like he was told?)

In reporting by the CBC and on his blog, Geist is again using those words that are unequivocal and precise. According to the CBC “In the end, Prime Minister Stephen Harper sided with Moore, Geist said.” Really? How does he know that? These are not hedged statements, these are statements someone makes who has access.

Kind of like “SB”.

Another interesting twist—Geist emphasizes that the letters to be sent to the government must be paper letters. I wonder why that is? Could it have something to do with the gamed copyright consultation online submissions that were filtered through a lobbying group? Don’t want to make the same mistake twice? And then Geist asks that his readers join his new Facebook group? Is that to somehow give the impression that everyone who joins the Facebook group also sent a paper letter?

Where the elites meet

There are a few interesting facts about the Geist playbook–all of which is so 1999.

1. Excluez les Français: As reported in the Toronto Globe and Mail (as well as artist blog, e.g.,”Re-doing the Math” by Canadian novelist John Degan) fortunately for everyone Canadian lawyer Richard Owens published a small study 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 by the Osgoode Hall’s IPOsgoode). Attorney Owens asks: “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.”

Geist’s reply is starkly revealing: “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 SB surely must be aware, while Geist’s obligations as an academic may not extend to Francophone outreach, as an “insider” at (presumably) Industry Canada, that obligation is much more precise on a government agency. If you could ever catch those crazy Québécois as they cavort about the Laurentians in the summertime to ask them a serious question.

2. It’s not a plebiscite

Geist clearly understands that the essentially anonymous form letters he encouraged the world to send in during the copyright consultations are clearly flawed and are clearly not a plebiscite–yet he keeps acting otherwise. With one great distinction.

He admonishes his followers to send in a new letter stating their objection to the bill–even if they sent a letter before–but this time “on paper“. And it must be mailed from within Canada with no stamps. Why? Because letters to Parliament require no postage if mailed from within Canada. This would clearly be an attempt to blunt (so to speak) the criticism from the Globe and Mail, Mr. Owens, Mr. Degan and others that the letter writing campaign sponsored by the CCER lobbying group. And, of course, the letters will simply be a reaction to the characterization of the leaked bill by Geist and SB. Such a letter would surely be more of a measurement of fealty to these two than to a considered judgment by the electorate?

The considered judgement by the electorate is called an “election” and neither Geist nor SB have ever stood for election by the sounds of it. (And at this rate, probably never will.)

3. Exclusion of working people

One of the most striking events in the last few months is the very welcome appearance of the AFL-CIO’s support for their creative members AFTRA, DGA, SAG, IATSE, AFM and the IBEW among others in the struggle against worldwide theft.

As we have seen, the borderless Internet does not permit one signatories to the overarching trade and human rights agreements that Canada has ratified to pick and choose how they will treat the results of the labor of other humans (regardless of whether they have ratified the WIPO Internet Treaties, a primary reason why Canada has trouble with the USTR). The AFL-CIO has clearly acknowledged that the Internet is a borderless infringement machine and I doubt that they intended to put an asterisk on that statement to read “*except for Canada–it’s OK for them to infringe.”

SoundExchange, for example, does not yet distinguish between the works of Canadians and anyone else. Those laws protect and remunerate all equally. Unlike the Canadian orphan works laws (some of the best on the planet), Internet theft does not stop at the border, whether it is state secrets, cybersecurity issues, or copyright infringement.

4. Yanks Under The Bed

Giest goes back to the bull pen for the old standby–jingoism. “The Canadian DMCA”. Hmmm. Is this something that his nearly 100% American SG-CIPPIC board came up with for him? Is this what Lessig told him to call it? Is this what the the U.S.-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP advises because they want to use Canada as an example to beat up the US Congress as part of their remodeled copyright act?

Can we please just once get past the fear mongering? There are no Yanks Under the Bed. Well…maybe in Geist’s own bed? Nahh…they are IN his bed.

Stay tuned, it all just gets curiouser and curiouser.

See also: A handy chart of government contracts with Lawbytes, Inc. f/s/o Michael Geist

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