Loreena McKennitt's argument from authority

I’m in the home stretch of finishing a first draft of my dissertation – today I have to cut half of my closely argued, heavily cited justification for using historical institutionalism to theorize regional integration – so I don’t have a lot of time to spend on this. But I feel the need to weigh in on the Loreena McKennitt’s pro-copyright-reform op-ed that’s doing the rounds.

Geist and McOrmond have already addressed the substance of McKennitt’s argument. But what’s surprising is that there is so little to address. We have McKennitt, an accomplished musician, arguing that the Internet has made it harder for musicians to make a living, that the Internet is hurting industries that are dependent on the music industry, and that therefore we need copyright reform.

I’ve always been struck by the degree to which the copyright debate is driven by polemics, rather than empiricism, and McKennitt’s article does little to break this trend. The big hint that this is a polemic comes at the end, where McKennitt says that she welcomes “copyright reform legislation” without even talking about what, exactly, in Bill C-32 – the actual copyright reform legislation before Parliament – would support a “thriving creative environment where artists are paid and the communities where they live and work reap the rewards” (which sounds good to me).

No matter where you stand on copyright, it should be obvious to anyone that not all copyright laws are created equal. There is a difference between “copyright reform legislation” and “good copyright reform legislation,” even if “good” is in the eye of the beholder.

Yet McKennitt doesn’t tell the reader why (or even if) she likes this particular bill. Rather than engaging with critics on its substance, she relies exclusively on an argument from authority to dismiss “activists and academics” as using “crafted language” to attack artists with “so-called ‘user rights’.” Shades of James Moore’s “radical extremists” comment, and equally as helpful for Canadians wanting a substantive policy debate.

It also doesn’t help that McKennitt seems to be asking of copyright more than it can give. Copyright is supposed to maximize a) the creation; and b) the distribution of creative works. Because creative works are made from already-existing creative works, we have to ensure that copyright is not so restrictive as to limit future production. That’s it.

Justifying stronger copyright based on the wellbeing of popcorn sellers, HMV employees, “parts of the touring industry” and even artists’ quality of life (ask a garbage collector if their salary or hours are fair) serves only to confuse the issue. These activities matter to copyright only to the extent that they fulfill the end of maximizing the creation and distribution of creative works. If they do, then tell us why copyright is the best way to ensure that, say, sound engineers, get paid.

If these activities can be replaced without hindering creation or distribution (seriously: popcorn vendors?), then tell us why we should care. If they are valued for other reasons, then we can lobby our government to provide other means of support. The cultural industries are supported by much, much more than just copyright law.

I have no doubt that Ms. McKennitt is sincere in her views on the importance of copyright to both her livelihood and music production. But she’s not doing anyone, especially herself, any favours by not discussing the particulars of copyright law. As I’ve said before, make your case for particular changes. Show us how particular reforms will help improve the creation and distribution of creative works. Tell us why you think specific critiques of the bill are wrong.

But, please, don’t engage in ad hominem attacks while refusing to engage on the substance of the issue. As my favourite blogger, Ta-Nehisi Coates, put it yesterday:

Overheated invective offers your adversaries a way out. You may have the superior argument, but a string of ad hominem allows your opponents to change the subject, and reduces you in his or her eyes, and in the eyes of your unswayed audience.

This style of argument betrays a disrespect for people (including other musicians!) who happen to disagree with you, while giving your critics an excuse to dismiss your arguments entirely. If would be nice if the copyright debate could move beyond it.

"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.

Bill C-32: Copyright debate turns ugly. Again.

And here I was hoping that we could debate Bill C-32 rationally, if not calmly. Instead, we have our Minister of Canadian Heritage characterizing critics of Bill C-32 as: “Those absolutists out there, who are babyish in their approach to copyright legislation,” and who really want to see copyright destroyed. Who calls on people to “Make sure that those voices who try to find technical, non-sensical, fear-mongering reasons to oppose copyright reform are confronted every step of the way and they are defeated.”

Let’s leave aside the fact that if there are technical problems with C-32, we should hope that Parliament would fix them. Let's be clear: Minister Moore's attempted framing of the copyright debate as a battle between those who believe in copyright and those who don't is absolute nonsense. Copyright legislation always involves reaching a compromise among very disparate groups. What we're seeing right now is a debate between these groups, all of which have much to win and lose.

It’s not as simple as users v. creators. Copyright has never been about only making sure creators get paid. More often than not, it’s been about ensuring publishers have an incentive to distribute creators’ works, a means to the end of ensuring that books, movies, music and so on get produced and distributed .

In addition to creators, distributors and publishers, who still play an important role in helping creators be heard, must get their due: your record companies, Hollywood, ISPs, book publishers, Apple, and so forth.

A good bill would also take into account the creators of tomorrow, who depend on easy access to existing works to create their own books and music. It would minimize the roadblocks to the creation of professors’ lesson plans, and make it as easy as possible for researchers and authors to get the books they need to conduct their research.

It would also ensure that no existing industry is protected from competition by a future, more efficient business model.

Of course, it must also take into account those individuals who listen to music, read books, use computer programs and watch movies. This is more than mere consumption: it is the very way in which we advance ourselves as a society. Anything that needlessly limits our access to information presents a fundamental problem for our society.

And, contrary to what Heritage Minister Moore suggests, it’s not as if there’s a whole lot of evidence that stronger copyright protection even encourages production. I hesitate to say this, because doing so is a one-way ticket out of the respectable policy debate, but it is a completely defensible position, both empirically and theoretically, that we’d be better off with no copyright, or a drastically different copyright regime. Opponents of this view have to (or should have to, I guess) address it through reasoned debate, not polemical assertions.

Given all these interests and legitimate conflicts, is it surprising that certain groups object to what’s in Bill C-32? Bill C-32 creates winners and losers. While I, as a creator and citizen, might object to the way Bill C-32 would override the limitations and exceptions that are integral to any copyright law by giving the final say on rights to whoever owns the digital lock on a work or device, I also know that there is a policy argument to be made for this view.

(The argument for the strong legal protection of Technological Protection Measures (TPMs) is as follows:

• Canada’s treaty obligations require the imposition of “adequate legal protection and effective legal remedies” for the protection of TPMs.
• These TPMs are needed in order to encourage the wide digital distribution of creative works: movies, music, video games, books.
• Without this protection, Canada will enjoy a suboptimal level of digital production and distribution.
• Since TPMs can be broken, often quite easily, we have to outlaw all tools that can break TPMs (adequate legal protection).
• Finally, crucially, the social benefit from doing all this outweighs the social costs, such as the restriction of existing rights and allowing the owners of these digital locks, rather than copyright law, to set the terms on which people can access and use even works they have legally purchased.)

Heritage Minister Moore’s insulting comments represent an attempt to demonize and delegitimize those who have legitimate concerns with (and alternative proposals to) what he and Industry Minister Tony Clement have proposed. If you dismiss your critics, you don’t have to deal with their arguments.

I would hope that we, as Canadians, expect better from our government. If Moore believes in his legislation (and, as I indicated, there is a legitimate policy argument to be made for it), then he should have the confidence to defend it on its own terms. Explain to us why you think that Bill C-32’s approach to TPMs is better than the bill proposed by the Liberal government in 2005 (which would have made it a crime to break a lock only for the purposes of violating the underlying copyright).

Make the case. But, please, dial down the rhetoric, and start treating all your constituents with respect.