The Professor Has No Clothes

The Canadian government is reportedly introducing new copyright reform legislation today, apparently drafted by Industry Canada (cold comfort to MTP readers). The legislation is the beginning of the next act in the passion play of 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 100% American external advisory board, and the paid consultant to Industry Canada. SG-CIPPIC’s external board includes the EFF and EPIC board member Professor Pamela Samuelson, the director of EPIC, the EFF legal director and Lessig, so it shouldn’t shock anyone that Geist’s views bear a striking resemblance to the EFF’s own anti-worker positions (especially their direct opposition to the AFL-CIO’s positions in the net neutrality comments). See also Lessig’s “The Starving Artist Canard”.)

It is important to remember that any national copyright legislation passed that includes jurisdiction over the Internet not only affects the rights of national creators, it automatically affects the rights of all creators. So it is grossly unfair to creators for any country to adopt legislation that is out of step with the rest of the world, particularly when that country’s creators enjoy greater protection outside their national borders than within.

Because Canada has waited a good 10 years to reform its copyright law, what constitutes being “out of step” is quite clear.

Geist has devoted himself to stopping any copyright reform legislation in Canada as well as the world. And it is the international aspects of Canadian national copyright legislation as well as Geist’s relentless attacks on the international treatment of copyright that make his motives clear. If your goal is to become a threat to artists and if you relentlessly pursue that goal, don’t be surprised if someone thinks you are trying to threaten artists.

Geist always returns to the old chestnut of jingoism. To hear his narrative, Canadian lawmakers are kowtowing to “the U.S.”, there are Yanks Under the Bed, and Canadians should not bend to U.S. interests. Coming from someone closely associated with the Silicon Valley-based Samuelson-Glushko network of law schools, that is a bit rich. It seems that the Yanks are not under his bed, they are in it.

However, while his devotion to jingoism is so disconnected from commercial reality as to be laughable (and disingenuous), his tactics are right out of the mind of a resentful grounded schoolboy with an Internet account.

It’s pretty obvious that significant support for Geist’s views has been found wanting outside of his group of spinners. As Canadian lawyer Richard Owens has observed, the most recent debacle with the Canadian copyright consultation letter writing wizard promoted by Geist and the Canadian Coalition for Electronic Rights (“CCER”) resulted in a process that was tainted at best due to the ability of non-Canadians to submit letters. (Possibly with the help of Industry Canada bureaucrats.) After the controversial CCER letter writing wizard was laid to rest, Geist (as well as the self-described “insider” known as “SB”) began imploring readers of his blog to send paper letters to their MPs extolling his views and to sign up for a new Facebook group.

It remains to be seen how many paper letters were ever sent, but the Facebook signups have certainly plateaued in the low thousands and it seems that the most frequent poster—is guess who?

Likewise, Geist’s Twitter campaign (equally flawed if you are trying to measure Canadian reaction) seems to have topped out below 100 tweets. When last checked today, two of Geist’s tweets essentially labeling Prime Minster Harper as an American puppet had exactly—exactly—53 tweets each. Exactly 53. Not 50, 51, 52. Exactly 53. Two different tweets.

Now I’m sure that if you posted something on one of the Bit Torrent fanboy sites you could probably get a larger reaction from the worldwide group of downloaders (which is exactly what Geist did with the CCER wizard according to Mr. Owens). But I don’t know what that would really mean. Which is why I have the same reservations about all these online “petitions” from CCER to YouCut. I don’t know what they measure. Reservations shared by Cass Sunstein, by the way.

The Wizard Without A Country

There has long been an abiding yearning among the digerati for a physical place to park servers that would be outside the law, a lawless place where the elite could somehow vanish and do nasty things to their heart’s content. For example, when Lessig’s group invited the leader of the Pirate Party to speak and raise money at the school, the person who introduced the leader declared Stanford to be a “Temporary Autonomous Zone” (“TAZ”) in the tradition of the anarchist Hakim Bey, hero to cyberpunks and ravers.

So it should come as no surprise that the net effect of Geist’s meanderings is to promote Canada as just such a place. Geist is conducting a more subtle revolution from inside Industry Canada, an important cabinet level ministry of the Canadian government), but the effects of adopting his ideas perpetuate anarchy online. And he utilizes a kind of digital jingoism to try to roil up the global anonymous mob.

It is no longer possible for an economic actor in the global economy to act as if what they do has consequences only for them. If the current crisis hasn’t brought that home, I really don’t know what else it will take. This is conclusively true on the Internet, and one of the best examples is protecting copyright online.

In 2005, certain elements of the lunatic fringe in France tried to sneak a “global licensing” bill through the National Assembly during the Christmas recess. “Global licensing” would essentially have legalized file stealing. There was much sound and fury, much reading of Lessig and Fisher by the handful of ultra left MPs who managed to get their bill passed the lower body due to a quirk in parliamentary procedure. The bill was resoundingly defeated, and international pressure was intense.

Google Books is another example of how the courts of a single economic actor have to take into account the global consequences of allowing a US company to impose its will on international copyright in a way that affects artists around the world. Again, the international pressure on the court is intense–as it should be.

These are but two examples of why there can be no Temporary Autonomous Zone when it comes to international copyright. Canada is one of the countries most vehemently opposing Google Books—as they should. A US court should respect the norms of the international community when it comes to actions that have a direct and negative effect on the rights of creators from other countries. This is why Michael Geist’s long history of jingoism regarding Canadian copyright law is utterly misplaced. It is perfectly acceptable for Canadians to have a Canadian solution for Canadian creators within Canada. But that kind of antiquated jurisdictional thinking simply can’t work for the rest of the creators of the world when it comes to the Internet. Particularly when the TAZ is next door.

You cannot make one rule of law enforcement for infringing Canadian content and another for everyone else’s works because you cannot distinguish between the two online. We may get to that point some day, but we’re 12 years into this problem now and it’s not getting done. And I’ve personally tried to do it and I know how hard it is to do.

If Geist wants to have a made in Canada rule just for made in Canada content, that’s fine as long as Canada doesn’t become a TAZ in the process. But when it comes to the online world, he can’t and it will.

This is why it is so important to have an international understanding about these things. No country should be able to impose a radically different online regime over international creators who had no say in how their works were treated.

Geist may as well try to keep Arctic cold fronts in Canada as isolate Canada from the world’s intellectual property agreements.

As Paul Krugman once said, “[I]n the 21st century, technology, not patriotism, has become the last refuge of a scoundrel.”

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News from the Goolag Since 2006 ~ A survival guide to the creative apocalypse: We follow issues and opinion important to professional creators. Data is the new exposure.

The Professor Has No Clothes

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