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The Price of Support

February 28, 2011

As the Canadian Parliament labors over a far-reaching revision of the Canadian copyright law, the old mailbox is filling up with interesting items.  MTP readers will recall that we have a healthy skepticism of the blurred line between academia, non-governmental organizations and government, whether it’s the FCC or Industry Canada.

MTP has previously pointed out (see links below) the rather curious series of contracts between Industry Canada and Michael Geist, the odd communications regarding the questionable “p2p study”, dubious letter writing campaigns sponsored by modchip resellers that were promoted by Geist and regurgitated by the Canadian bureaucracy.  And now—now, yet another “report” paid for by the Canadian government to compliment the “piracy is good for you yum yum” p2p study and perpetuate some rather bizarre assertions.

And it’s not just that it was paid for by the government—Industry Canada in this case (which will come as no surprise to you if you have been following along in previous posts here).  It’s paid for in that extra special way that many of Geist’s contracts (through his Lawbytes, Inc. company) and the p2p “study” was paid for.  Always just a little bit less than the amount required for public disclosure.  Indeed, not just disclosure but an amount that would require a public “tender” of the contract for open bidding on the project.

Meaning that if the amount paid goes over the minimum, Industry Canada could not designate the person who would do the writing who presumably would produce the result they intended.  Why else would they do it that way so consistently?  Which, of course, is the whole point behind having these rules in the first place—the public is not benefited by results oriented work product.

Of course, it’s not my money and not my country, but it all goes into the pot of bootstrapping studies, surveys and academic literature that is designed to weaken artists, including American artists, and that makes it our business, too.

The McGill University Conference

McGill University is a well-respected institution but like so many academic settings, it has been the scene of rather strange and results-oriented conferences on the subject of copyright and the music industry.  One such conference was the 2007 “Pop and Policy” conference that included the traveling copyleft performers mixed with a few music business folk to provide the veneer of credibility.  There were no gluttons for punishment—meaning there was no panelist from a major label, although major labels were apparently a subject of much discussion and vitriol.

How do I know this?  According to internal correspondence at Industry Canada, Susan Bincoletto, the Director General of Industry Canada apparently wanted to support the conference.  It appears that Industry Canada’s lawful options to express this support were limited. 

So Industry Canada commissioned a report that is essentially a transcript of the conference panels avec le spin—for $9,500.  Actually, just under the $10,000 limit that would have required public disclosure of the payment (see Treasury Board of Canada Contracting Policy Section 5.1.4 “Deputy heads are required to publicly disclose quarterly, within one month after the close of each quarter, contracts entered into or amendments valued at over $10,000.”)

$9,500 was offered and accepted—apparently no negotiation.  Yes, very cooperative people at McGill.  And who did Industry Canada pick to author the report?   Tina Piper, who used to work for Creative Commons Canada, and seems to have never met an IP right she didn’t want to criticize.  Meaning that her selection generally seems to be just about as likely to produce the desired result as the selection process for the bizarre Industry Canada “music study”.  You know, the one that says copyright theft actually stimulates sales and is good for you yum, yum (See The Industry Canada Music Study Part 1 and Part 2).  And if this was the intention, the Industry Canada crowd was NOT going to be disappointed because the eventual “study” was a tour de force direct from the copyleft playbook.  

The McGill Conference Report

Like so many of these academic papers and conferences, the McGill report has some pretty major errors which would be startling if it wasn’t such a common occurrence. The report is divided into two sections, the first being the summary of the panels written by Piper, and the second being a more direct play by play of the panel topics themselves.  Typical of the anti-copyright crowd, many of the errors are statements of fact that one could only believe if one did no fact checking whatsoever or accepted uncritically propositions that should seem questionable to the most casual observer.

Like so many gatherings of technology fans and anti-copyright activists, the fundamental false start is confounding the record company’s distribution role with the record company’s role in identifying, developing and investing in artists.  It should be abundantly clear to anyone who actually works in the music business that not every artist wants to be self-distributed, the long tail is a myth as applied to the music business, and record companies are still the dominant investors in artists regardless of how distribution is given effect.

Aside from a few who believed that somehow they could pick hits based on some measure of past “popularity” indicating future success, most tech companies have steered clear of the music creation end of the business.

Another myth that the conference report accepts uncritically is the idea that there is no market in sample clearances.  It should also be abundantly clear to anyone who is even a casual observer of record sales or the charts, that hip hop sells records.  A lot of records.  Hip hop also utilizes samples.  There has been a market for sample clearances since the late 1980s or early 1990s.  That is a good 20 years now.

Artist Development vs. Distribution

The panels also made another fundamental mistake so common to tech-heavy conferences—they confound artist development with distribution.  Yes, recording costs have come down.  Yes, the cost of Internet distribution is lower than physical. For example, one panel was entitled “The Paradise of Infinite Storage”.  What in the world does storage have to do with artist development or selling records to anybody? 

And then we are regaled with a panel on the proposal by the Songwriters Association of Canada which we have discussed in some detail on MTP (most recently in “The Triumph of the Middleman: How not to monetize file sharing”).  Most of these proposals are regurgitations of McGill conference participant Terry Fisher’s proposal in his book Promises to Keep.   Despite its curious title, my view of the book is that it abrogates every promise the government has ever made regarding copyright and to a certain extent private property rights.  The relevant section is this one:

“In brief, here’s how such a system would work. A creator who wished to collect revenue when his or her song or film was heard or watched would register it with the Copyright Office. With registration would come a unique file name, which would be used to track transmissions of digital copies of the work. The government would raise, through taxes, sufficient money to compensate registrants for making their works available to the public. Using techniques pioneered by American and European performing rights organizations and television rating services, a government agency would estimate the frequency with which each song and film was heard or watched by consumers. Each registrant would then periodically be paid by the agency a share of the tax revenues proportional to the relative popularity of his or her creation. Once this system were in place, we would modify copyright law to eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings. Music and films would thus be readily available, legally, for free.”  (Emphasis mine.)

Now with all due respect to the U.S. Copyright Office, recall that there is a backlog of hundreds of thousands of registrations at the Copyright Office.  Also recall that the Copyright Office was opposed to being tasked with maintaining an archive of orphan works due to the administrative burden—and cost.  Fisher’s idea—which formed the basis for Noank Media, a private company that was promoted at the McGill conference and in the Industry Canada report—is essentially a couple steps removed from the nationalization of the entertainment industry.  While Fisher doesn’t really say if he thinks that the government should own works of authorship, he pretty clearly states that the government would set the price at which the works could be “sold”.  And if the government could set the price at which works could be sold on otherwise illegal p2p transmissions, why stop there?

So Fisher’s idea is at best a poorly thought out, ivory tower, Rube Goldberg cartoon, and is at worst a bright and shiny object that the anti-copyright crowd can point to as a “solution”—and yet this is the core idea of the Songwriters Association of Canada and Noank Media, both of which are promoted in the Industry Canada conference report.  And unless you’re big on Chinese repertoire, you could safely say that Noank has hit the market with a resounding thud.

In a word: Bunk

The report uncritically makes assertions like “clearing the rights to one song may involve negotiations with 10 or more rights holders inevitably limiting innovative solutions.”  This is, of course, an equivocation.  First of all, the report speaks of a “song” and appears to confound “song” with “sound recording”.  While it is true that there are some recordings that have 10 or more owners, it is not true that all recordings have 10 or more owners.  This is a quantificational fallacy called proof by example (this apple is red so all apples are red). 

Even if you didn’t know that most songs don’t have 10 or more owners, wouldn’t you ask yourself if having multiple writers on a song is a natural function of the creation of that song, or due to a sample?  That is, that there is some understandable reason for it and that having a bunch of creators on a work is not a plot by a multinational corporation—just maybe?

So isn’t the assertion that the natural creation process itself is opposed to “innovation”—and we all know that anything that opposes “innovation” must give way to innovation, especially at places like Creative Commons (and its backers like Google, who contributed $1.5 million to CCC in 2008)?  If the nature of creation itself suppresses technological innovation, how do you explain the success of iTunes, Amazon, Netflix, and so on?  Is there something magical about these companies that enables them to rise above the stifling nature of creativity?  Or is it more likely that the Industry Canada report is just poorly and uncritically thought out?  Or as we say in the trade, bunk.

Will You Believe Me or Your Own Eyes?

Once again, Industry Canada is perpetuating and funding extreme views that undermine artist rights.  They are doing it by funding “reports” that are little more than straight repetition of a very one-sided advocacy of platforms from the ivory tower.  And Industry Canada bureaucrats do it—once again—by manipulating the rules to further a results oriented agenda that undermines the rights of Canadian artists and any other artist whose works are being stolen online.

Industry Canada decided they wanted to “support” the conference and then the bureaucrats tried to find a way to justify spending the money on a “deliverable”—“same/similar to the UofO [University of Ottawa] conference”.  And we know at the University of Ottawa?

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

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

See also: The Professor Has No Clothes

See also re undtendered contracts: The Industry Canada Music Study Part I and Part II

See also more about untendered contracts: Only The Shadow Knows Part 1 and Part 2

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