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The Geist in the Hen House

March 3, 2012 2 comments
[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

Analysis of our new copyright law according to Samuelson and others

March 2, 2010 Comments off

After a particularly contentious negotiation, I told the other side I had one final comment. I asked to have the definition of “Territory” modified to say “the Universe, including, without limitation, the orbit of Earth, any and all planetary satellites natural or made by Man, including the satellite currently known as The Moon, the planets of the Solar System, whether now known or hereafter discovered, and any and all parallel universes, whether normal, paranormal or abnormal.”

This was, of course a joke. Not a great one, but a joke nonetheless.

Little did I know…For those of you who follow the works of the Samuelson-Glushko association of law schools (including the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, the Alcan of IP), you will not be surprised to see a version of the parallel universe in the new proposed copyright law (Canadians–look out, it’s probably coming your way, too, courtesy of the US-backed SG-CIPPIC.)

Tom Sydnor has an excellent critique of the Law of the Parallel Universe in his post Public Knowledge’s “Copyright Reform Act of 2010”: More Banal Cheerleading-for-Piracy.

ACTA Misreporting: Anatomy of a Smear

November 14, 2009 Comments off

Managing the blogosphere is hard work. The very well funded Michael Geist recently showed up in an MSM tech blog going on about his currently favorite moral panic—so to speak–the Anticounterfeiting Trade Agreements (or “ACTA”).

One can’t help noticing that there has been a blister pop of activity trashing ACTA by the anti-creator labor crowd, including Lessig’s Change Congress (I thought he was out of the copyright destruction game?) and other signers of a letter to President Obama.

ACTA is throwing up the usual fund-raising muck from those in the Destroy Artists coalition. After you’ve read this post ask yourself which of these headlines is more correct:

Geist Given More Millions By Canada For Saving Canadians From Yankee Content Industries ACTA Threat”

or

“Public Knowledge Excludes Geist, Leverages Google Influence With Obama to Preserve Anti-Jobs/Pro-Piracy Provisions in ACTA”

As MTP readers know, the opposition to ACTA centers around the bureaucratic imperative of NGOs of dubious funding sources that are used to bullying creators in Geneva and who have been excluded from the ACTA negotiation process at the drafting stage. Like any other treaty, these groups will be able to lobby to the full extent of the law when ACTA is ratified by the member states, a mix of economic players. It should not be surprising that they are trying to elbow their way to the table by any means necessary in case someone found a way to do business without them.

So the ACTA blister pop truly is a moral panic without legitimacy or provenance. But that isn’t good enough for those who want to be sure that all professional creators—including journalists, recording artists, songwriters, authors, directors, screenwriters and actors–are unemployed. Not to mention unit production managers, electrical workers, makeup artists and set designers.

Thus there is much sound and fury from Geist, Public Knowledge and the EFF & Co. about “secret treaties” compared to the Patriot Act which is total gobbledygook. The latest moral panic by these groups about ACTA stems from a leak by an inside man at the recent ACTA meetings among the member states.

Nate Anderson at Ars Technica described the leaked document as “a written account of an oral report on a draft document that was itself still being altered.” In other words—shakey.

Yet Geist got the MSM to write a story based on—what exactly? Something that happened in that place down near the place we used to go back in the day but not too far?

Geist tells the trusting reporter that ACTA is wrapped in secrecy due to the “entertainment industry” (note that he carefully excludes journalists and their employers from the secret group–journalists who are definitely getting hurt as badly as other creators).

But if you actually read the leaked memo, i.e., fact checked, you might note that it says the following:“[The US Trade Representative] indicated that these internal discussions were sensitive due to different points of view regarding the internet chapter both within the Administration, with Congress and among stakeholders (content providers on one side, supporters of internet “freedom” on the other). Consequently, they have to delay the release of the initial text longer than initially expected.”

“Supporters of internet ‘freedom’.” I wonder who that might be. Whoever it is, it would appear that the ACTA talks are not quite so secret after all, eh? In fact, Ars says: “In fact, we know it was still being altered at the time because lawyers for groups like CCIA and Public Knowledge were invited to see the draft, comment on it, and later see it again when some changes had been made.” My, my, that sounds like negotiating to me.

I thought it was a secret negotiation controlled by the evil Yankee content industries? Of course what Geist & Co. are up in arms about is trying to promote the idea that ACTA means that 3 strikes/graduated response/HADOPI type regulation will become the law in the ACTA signatories and some jobs in the professional creative industries (such as those represented by IATSE, DGA, SAG, AFTRA) might be preserved from the Google onslaught and that there might be some quid for the pro quo of safe harbors. Can’t have that.

But the leaked memo goes on:“On the limitations from 3rd party liability: to benefit from safe-harbours, ISPs need to put in place policies to deter unauthorised storage and transmission of IP infringing content (ex: clauses in customers’ contracts allowing, inter alia, a graduated response). From what we understood, the US will not propose that authorities need to create such systems. Instead they require some self-regulation by ISPs.”

That soft quid pro quo is a long, long way from what the anti-artist bullies are going on about. (It also appears that the leaker asked that the paper not be published immediately per Wired, so apparently Geist violated that request.)

So the reference to “unprecedented level of secrecy” in Geist’s presentation “The ACTA Threat” does not seem to be much secrecy at all, particularly because groups like Public Knowledge (who consistently oppose professional journalists, songwriters, artists, illustrators photographers and other creators) seem to clearly be involved.

Despite the shout out by Ars to their BFF (“We love you Corey!!”), even they seem to think there much less to the Geist Great Secrecy Obsession than meets the eye to a large extent. (This may explain why in the Great Circularity Geist doesn’t seem to mention Ars and vice versa. See “The Circular Awards 2009—now with added Astroturf”.) But check out the Great Circularity of this moral panic:

Geist obtains the leaked ACTA document and writes a speculative post based on the memo—a blog about a written account of an oral report on a draft document that was itself still being altered.

Then Geist’s post gets picked up by the EFF “Deep Thoughts” blog and Huffington and Puffington who make it even more inflammatory than Geist post also gets picked up by the Ars BFF, who goes all the way to comparing it to the hated Patriot Act.

And then Geist fans flames with what appear to be reinterpretations of his own posts and feeding what seems clearly to be misinformation to the press, who don’t bother to fact check.

But then Ars and more serious folks (or said another way, folks who have been burned before) actually take the time to review the source material before going to print, although many journalists, exemplifying citizen journalism at its finest, simply rely on the “moral panic” (such as http://www.guardian.co.uk/technology/2009/nov/11/acta-trade-agreement).

Geist then continues to fan the moral panic in other press outlets that don’t have the time or inclination to find out what’s going on: http://www.thestar.com/news/sciencetech/technology/article/722987–law-bytes-secret-talks-threaten-copyright-policy

So which headline is the right one?

It’s clearly not a “secret” process. There’s a negotiation going on that the USTR at least is seeing to it involves Public Knowledge (and presumably Google, although that remains to be seen).

So what’s the problem?

Somebody not getting enough attention?

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