"Radical extremists" and the smearing of Michael Geist

Note: I actually wrote most of this early last week, but never got around to posting it, what with the dissertation and all. Too bad, since in light of Heritage Minister James Moore’s recent comments about the opponents of Bill C-32, it’s pretty timely.

Onward!

True story: Back when I was deciding on a dissertation topic, I settled on digital copyright policy as a way to try to understand North American regional governance because I thought it would be a technical issue of little interest to most people.

Finished laughing yet?

But seriously: Over the past four years, I’ve learned differently, but I have to say, as someone who came to the issue from the outside, so to speak, I am routinely shocked by the vitriol and personal attacks that characterize parts of the copyright debate.

As a political scientist, it’s particularly interesting (if dispiriting) to observe the misleading, highly personal, borderline-unprofessional attacks that have been launched against Michael Geist. Russell McOrmond has a few other examples on hand.

(Disclosure: I interviewed Geist for my dissertation – it would be pretty hard to write about the politics of Canadian copyright without doing so – and one of his colleagues at the University of Ottawa is on my dissertation committee. I may also be contributing to a Geist-edited volume. In keeping with the spirit of this posting, though, I hope you'll critique my argument, not my affiliations.)

They’ve been nasty. In some circles, he has been referred to as “he who shall not be named” and worse. This fellow's colourful tale of an Industry Canada-Michael Geist-Pamela Samuelson (an American law professor) conspiracy to strip authors of their human rights, complete with an org chart describing the conspiracy is unhinged, to say the least. Throw in the Freemasons and you’d have a fair-to-middling Dan Brown novel.

(For anyone interested in an actual study of Canadian copyright-related decision making, check out Simon Doyle’s Prey to Thievery. It’s based on Access to Information requests and interviews with many of the principals involved in the run-up to Bill C-60, the Liberal’s 2005 attempt to implement Canada’s treaty obligations. Turns out that the civil servants at both Industry and Canadian Heritage had serious misgivings about adopting DMCA-style copyright amendments in 2005. The conspiracy widens!)

And now we have Canadian Heritage Minister’s James Moore’s thinly veiled ad hominem attack on Geist.

These denigrating attacks are noteworthy because, as a fair reading of Geist’s work demonstrates, he’s not exactly a radical. I understand radicals; being in university, I know radicals, and Geist ain’t one. A radical would be someone who calls for the elimination of copyright and Canada’s withdrawal from the Berne Convention and TRIPS (though even this position is theoretically and empirically defensible). They’re not the type of person who calls for public consultations, proposes amendments to legislation and works with the bureaucracy and government officials to promote his views.

If his methods don’t scream radical, neither do his actual policy positions.

Far from calling for the impoverishment of authors, the need to balance the legitimate interests of the many groups involved in copyright reform is a common theme throughout Geist’s voluminous writings. Geist argues that this balance has been tipped too far in favour of copyright owners (who are primarily publishers and distributors, not creators) at the expense of those who use creative works, either as an end product, or as an input to the creation of future creative works.

Those who claim to know what Geist really believes, evidence be damned, as Moore claims to in his speech, might want to recall how well all that soul-sensing worked out for George Dubya.

Geist's views are exactly as radical as the 1971 Economic Council of Canada report into copyright and intellectual property, which everybody interested in copyright should read, if only to mourn the extent to which the debate has deteriorated in the intervening four decades (annoyingly, it's not available online). The Economic Council argued that incentives to produce copyrightable works should not encourage either overproduction or overprotection.

That’s an economic-y way of saying pretty much the same thing as Geist: a good copyright law should provide incentives to create without tilting the playing field too much in favour of any one interest group.

Unsurprisingly, some copyright interests refuse to concede the point of Geist – and of the Economic Council of Canada, and of every copyright law that’s ever been written – that users’ rights are an intrinsic part of copyright law, not an addition. Copyright is about dissemination, not just protection. At some point, too much protection will hinder dissemination and access. Currently, protection (so goes Geist’s argument, and he’s not alone) is hindering dissemination and access. Simple as that.

So, if Geist isn’t a fire-breathing radical, why the hate? Two reasons, I’d argue:

1. It’s all about money, and it’s nothing new. Every time a technological change creates a new interest group, these new groups inevitably come into conflict with the entrenched interests that had previously divided the copyright money jar amongst themselves. A new player in town means another group whose interests will conflict with the material interests of the old-boys club. As you can imagine, this political fight can get rough. Previously, it was VCR manufacturers horning in on the action. Before that, photocopiers. Before that, the recording and motion picture industries. And before them, the makers of piano rolls.

You get the idea.

This time around, individuals as a group are one of the main threats to the status quo. Digital technology and the Internet have lowered the cost of production and distribution, making individuals competitive with the industrial giants that previously were essential to getting creative works to the masses. Despite the fact that copyright has always affected individuals, individual users previously had not been represented in the debate.

In Canada, Geist has emerged as this interest group’s most effective spokesperson.Thanks to social-network technology and some canny positioning by Geist, users are now at the table, and their (legitimate) interests unsurprisingly clash with those of some creators and publishers/distributors. Quick example: If users have the right to control what they do with their legally purchased digital works, then obviously the copyright owner doesn’t.

2. Geist is effective. If Geist just stuck to writing his Toronto Star column or took the traditional academic route of publishing in obscure journals, established copyright interests wouldn’t spare him more than a letter to the editor. Instead, he not only knows his topic, he has proven himself a canny political operative. He was the first person in Canada to use effectively social-networking sites like Facebook for political purposes. He also clearly is interested in achieving what's possible: unlike true radicals, he’s interested in compromise. Michael Geist is no Maude Barlow.

In a way, the anti-Geist vitriol is a tribute to the rising strength of this new copyright interest group: individual Canadians. Copyright is a high-stakes game, and people don’t waste their time attacking people and views that don’t matter.

The upshot of all this is that Geist has become a convenient lightening rod for those interested in dismissing critics’ views without engaging them. It’s a high-risk strategy. If voters buy the vilification of all those opposed to Bill C-32 as "radical extremists," then Geist’s critics can win the debate. But there's also the possibility that voters may ask if the bill's proponents are engaging in character assassination rather than rational policy debate because the proponents' actual arguments aren't that convincing.