The Geist in the Hen House

March 3, 2012
[Editor Charlie says: This post originally appeared February 25, 2010.]

As some day it may happen that a victim must be found,
I’ve got a little list — I’ve got a little list
Of society offenders who might well be underground,
And who never would be missed — who never would be missed!

I Have A Little List, from The Mikado
By William Schwenck Gilbert and Arthur Sullivan
Copyright 1885

Michael Geist gave his robust analysis of the Special 301 process, perhaps as part of one of his many lucrative Lawbytes, Inc. contracts from bureaucrats at the Canadian Ministry of Industry or perhaps not? That connection is probably classified SECRET, so maybe we’ll never know. But Geist seems to think that the person we should be asking about what the hens think about the strength of the hen house door–is the fox.

Specifically, in one of his blog/op-eds or repurposed versions of the same (I lose track) he treats us to this fine example of the “Kow-Tow Syndrome” as he trots out his little list of foxes trying their best to guard the hen house:

“As the U.S. prepares its 2010 edition [of the USTR’s Special 301 Report], for the first time it invited the public to provide their comments on the process and the link between intellectual property and trade policy. Among the hundreds of submissions, one from the Computer and Communications Industry Association [“CCIA“] stands out as critically important to Canada.

The CCIA represents a who’s who of the technology business world, with a membership roster that includes Microsoft, Google, T-Mobile, Fujitsu, AMD, eBay, Intuit, Oracle, and Yahoo. While critics of Canadian policy might expect these business heavyweights to chime in with their own criticisms, they took the opposite approach.

Rather than building on the tired narrative that the current law is an embarrassment, the message from the technology world was that Canada is actually doing just fine. The CCIA warned that including Canada on the list of countries that need reforms undermines the credibility of the process, adding ‘Canada’s current copyright law and practice clearly satisfy the statutory ‘adequate and effective’ standard. Indeed, in a number respects, Canada’s laws are more protective of creators than those of the United States.’…That the world’s leading technology companies are speaking out on this issue should send a strong signal to Industry Minister Tony Clement and Canadian Heritage Minister James Moore about how Canadian law is actually viewed by [the mainly US and no Canadian] leading companies that sit at the heart of a Canadian digital strategy.”

Ever looking for his wedge issue, Geist now wants to try to pit the Special 301 process as a fight amongst “the world’s leading technology companies” and…someone. Now who might that someone be? I’d suggest that the people at the heart of any digital strategy–Canadian or otherwise–are not a slew of huge US corporations, but rather startups and investors. And when it comes to media based companies and policies, the creative community–artists, musicians, journalists, authors, all of whom have been roughly treated at best by some CCIA members such as Google. (Google is, of course, in a class by itself–no country is accusing the other CCIA members of “cultural rape.”)

Let me boldly state–the chicken comes before the egg. And if the worldwide condemnation of Google Books is any indication, if the chickens disappeared the eggs would be missed.

If you want to find out what the hens think about the strength of the door guarding the hen house that keeps out the foxes, who would you ask? Would you ask the hens what a hen thinks, or would you ask a fox what the hen thinks?

Geist is clearly someone who not only has never represented an artist, but I can’t imagine he could even know any or many. I can tell you from personal experience that the only thought I’ve ever heard anyone at CCIA express about what happens to artists in the face of the Google onslaught, is of the “they can always sell another T-shirt” species. These guys are lobbyists through and through and they do not give a hoot about the creative community. In fact, analogously to Geist’s “Yanks Under the Bed” approach, CCIA finds the “RIAA Under the Bed” at every turn. (Of course in Geist’s case it’s easy to find the Yanks, they’re at the US-backed Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP where Geist is an advisor–all part of the interconnected web of Silicon Valley boards, investors, consultants currently under investigation.)

In other words–they know nothing about the business they are doing their best to ruin. And then there’s Google. If CCIA does much to represent the interests of anyone but Google, I would be shocked.

I first experienced the Kow-Tow Syndrome with tech types in Silicon Valley. The fundamental characteristic of KTS is that the victim subsumes their own personality with the views of a larger entity–because the larger entity must be right because they are big. For example, when negotiating a contract with AOL in the pre-disaster days (i.e., before the merger with a perfectly good media company that AOL ran into the ground), I noticed the agreement did not have an audit clause and I put one in. When the draft was returned to me, the audit clause was gone.

I asked why did they take out my audit clause. I had a legitimate reason to ask for it as they were in control of certain information flows and we were not. I was told that AOL had decided that it was not a good use of AOL’s resources to allow themselves to be audited.

I tried to fight this a few times but was finally told to let it go by the client. They are a big company so we have to do what they want was the rationale.

My parting words to AOL: You can take it out but take some advice. Don’t ever buy a record company because you will never run that “*!X%” past artists. And a few weeks later they announced the merger. And that worked out so well for them.

Compare the Kow-Tow Syndrome to negotiating on behalf of artists. I can’t even venture a guess as to the expletives that would follow from an artist reacting to a recitation of the “we’re big so we’re right” scenario, and frankly any record company that wants to stay in business tries to avoid “policy” based negotiation responses. Whatever the rationale, the one thing a record company rarely ever says is the equivalent of “get on your knees because we’re big and big is right.”

So when Geist wants to find out what the hens think, he might do better to ask a hen, not ask the fox what the hens think. Because bigger is not better, might is not right, and artists need all the protection they can get when faced with the Bad Boys of CCIA. Which is really just a lobbying arm of Google, and I don’t for the life of me understand why the other members pay their dues, which have to be gigantic sums.

Don’t forget–artist rights are human rights, and if there’s one thing we know for certain, it is that CCIA member Google would not give a single Jimmy Chu from Marissa Meyer’s trousseau–a wardrobe worthy of a sartorial sister major label executive–to protect the human rights of the many creators who pay their part for the shoes.

If you two Gulfstream families disagree, you can just wobble your wings.

See also: A handy chart of Lawbytes government contracts
See also: A handy chart of Geist operations

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

  1. June 26, 2010 at 15:20

    I would be fine with licensing, but I also would be fine with allowing authors to grant rights to whomever they want however they want. Remixing, for example, potentially infringes moral rights of authors every bit as much as it can infringe IP rights. Web 2.0 in its majesty allows both the rich and poor artist to be ripped off equally. 🙂

  2. June 28, 2010 at 01:20

    Ah, but that is what the Creative Commons is for.

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