Home > Uncategorized > Dissembling on Factiness Six Times Before Breakfast: Is the Geist Scandal Widening?

Dissembling on Factiness Six Times Before Breakfast: Is the Geist Scandal Widening?

March 8, 2012

“There is no use trying,” said Alice.  “One can’t believe impossible things.” “I dare say you haven’t had much practice,” said the Queen. “Why, sometimes I’ve believed as many as six impossible things before breakfast.”

Alice’s Adventures in Wonderland, by Lewis Carroll

Professor Geist’s woes were the subject of another article, this time in the Financial Post by the erudite Terence Corcoran, “The Copyright Bar’s Geist Writer” which takes Professor Geist to task about the unattributed use of his own writings in a submission to the Canadian Parliament by the Canadian Bar Association I wrote about previously.  The CBA’s dance around “plagiarism”(or what Corcoran cleverly refers to as “Geist writing”) is rather breathtaking.  Breathtaking that is for its “parsiness” alone, and parse it does.

But Corcoran also makes this further point:

“Interesting though it may be, there’s more to the bar association policy paper than the Geist-writer angle. Letters obtained by the Financial Post show that about 60 of the bar’s leading copyright experts originally objected to the association’s handling of the copyright panel back in 2010…The committee, including Prof. Geist and another blog activist, Howard Knopf, reached what the association refers to as “an impasse.” So it appointed a secret “working group” that would write up the association’s formal filing on the copyright legislation and submit it to Ottawa as the CBA policy paper.

By the accounts of some of the brightest legal brains in the copyright field, the use of a secret working group to draft policy is unprecedented. Even though Prof. Geist was not on the secret panel, Mr. Knopf remained. The final policy paper, aside from incorporating Prof. Geist’s opinions, also presented a rag-tag of views that appeared to give legitimacy to claims and arguments that in no way represented the views of Canada’s intellectual property legal community.”

The signers of the letter are a wide variety of intellectual property lawyers including several of Professor Geist’s fellow academics.  The signers’ names and their affiliations are listed in plain view.  It should come as no surprise that many CBA members didn’t like the submission, and not because of who their clients are.  It’s just possible–just maybe possibly possible–that they didn’t like the submission because it was trying to pretend to be more than it was.  That’s what they complained of before and what they complain of now, so maybe they really are complaining because they really do believe it.

In a definitive demonstration of what some might call “truthiness,” Professor Geist’s response to Corcoran is to attack the issue of apparent plagiarism—only part of the story—and also to try to pass off the complaints by these members of the bar as a “smear campaign” by the “copyright lobby”.  I’m not quite sure who is being “smeared” or about what, but what does appear clear is that no one is denying that this submission used Geist’s writings, not even Geist  No one is denying that the use was not attributed.  What is being denied is that it was “plagiarism”—and why not?

Because even though there were huge word-for-word lifts directly from that star of “Winning the Web,” complete with the kind of typos that spellcheck won’t catch, we are asked to believe there was no plagiarism because Geist agreed to have his work used.  Geist says on the one hand:

“I had no involvement in this committee: I was not a member, do not know the list of members, and had no involvement in the drafting of its submission. The submission points to the wide range of perspectives within the copyright bar, including digital lock reforms.”

On the other hand, he says:

 “[The submission] includes content that I likely submitted as a member of the committee in 2008. The committee appears to have used some of the earlier materials in crafting its Bill C-32 submission.”

 Parsiness.  As Rick Perry might say, he was in the committee before he was out of the committee.

The CBA President didn’t quite say it that way.  She said:  [Professor Geist] and other expert practitioners and academics participated in the drafting of this submission.”

Not parisness.  At least not about his participation, or one might say “involvement”.

 But all of this misses a major point.  The problem for Professor Geist is not so much whether he did or didn’t contribute to the submission, directly or indirectly.  A huge chunk of his work clearly showed up, it clearly was not attributed and if you can get comfortable with that, then you should.

The real problem is what author John Degen has called “factiness”:   The public statements that Professor Geist made after the release of the submission.

These statements do not require parsing what is and is not plagiarism, which I find to be something of a rabbit hole that while telling, is not something anyone will know to be true absent a full-blown investigation.  Warranted, perhaps, but something that could only come from the CBA itself which has shown little appetite for self-examination. 

The problem is what Professor Geist said after the release of the submission:

“The Canadian Bar Association, which represents 37,000 lawyers, law professors, and students from across the country, has released an important submission on Bill C-32. The submission, which was approved as a public statement by both the National Intellectual Property and the Privacy and Access Law Sections of the CBA, does a nice job setting out the debate over Bill C-32 (I was once a member of the CBA’s Copyright Policy section but was not involved in the drafting of the Bill C-32 document).” (emphasis mine).

If anyone read that statement, I think a fair conclusion is that Professor Geist meant what he said—he was not involved.  “Involved” should include having worked on and recognizing pages and pages of quotations from your own writing.

That has nothing to do with anyone who signed the complaining letter, nothing to do with what your definition of “is” is, nothing to do with who worked for whom when or who does or doesn’t have ulterior motives.

He said he wasn’t involved and then he said he was.  Which is true?

Why should anyone care outside of Canada?  Because the legislation at issue is not solely a Canadian law solely applying to Canadian copyrights solely in Canada.  It applies to any copyright exploited on the Internet from within Canada.  That matters to all artists, songwriters, film makers foreign and domestic.  So we all care—or should care—about what this all means.

How is it that his university isn’t looking into this apparent contradiction, and how in the world is the CBA justifying doing nothing—when, as Corcoran said “it’s safe to say we may have a scandal on our hands.”

He holds a “Canada Research Chair” at the University of Ottawa.  That is a significant honor and financial benefit to his university.  Have any other Canada Research Chairs done the same?  Were they treated with equal parsiness?

Where else has this happened?  Professor Geist has received many, many contracts from the Canadian government.  Will anyone take a look at that work product to see if the same problem occurred?

Maybe practice makes perfect. 

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