Setting the Record Straight on the Copyright Lobby’s Latest Smear Campaign

The National Post ran a story yesterday (picked up today by Terence Corcoran) focused on the efforts of a series of IP lawyers who represent the music, movie, and software industries (including copyright collectives) to pressure the Canadian Bar Association to withdraw its submission on Bill C-32 (now C-11). The submission isn’t particularly damaging to their clients’ interests, but it does demonstrate the deep divisions that exist within the legal profession about the government’s copyright reform bill, particularly the misgivings over the digital lock rules. Given the ongoing effort of these industries and their representatives to inaccurately paint Canada as a piracy haven and of the need to follow the U.S. approach on digital locks, it would seem that any crack in that armour is viewed as a threat. With false claims of plagiarism and insinuations of policy laundering, this post sets the record straight.

Last month, two of Canada’s leading proponents of the iPod Tax, Casey Chisick, a registered lobbyist for the CMRRA, and Claude Brunet, a one-time lobbyist and current lawyer for the Canadian Private Copying Collective, wrote a letter to the CBA to complain about its submission. The letter claims that it plagiarizes content I wrote without providing appropriate attribution. While presumably that makes me the victim of plagiarism, I believe this to be false and a fairly transparent smear campaign.

In the summer of 2008, I was a member of the CBA’s Copyright Policy committee and participated in an effort to develop a submission for Bill C-61, the first Conservative copyright bill. The bill died a few months after introduction but the work, which included contributions from lawyers from across the country (including some representing copyright collectives) was largely completed. In April 2010, two months before Bill C-32 was introduced, the committee was disbanded as there was an inability to reach agreement on how to address the soon-to-be introduced bill.  That was the last I heard of the committee until February 2011, when it released its submission, which does not take a specific position on issues but adopts a balanced approach by pointing to the differing views within the bar. The CBA apparently moved forward with a smaller working group without disclosing the membership in order to limit outside interference. 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. It 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. That strikes me as a perfectly reasonable approach since committees will often use prior committee work and such work never includes attribution to a particular individual. Once work is developed by a committee, it is treated as the work of the committee, not a single individual.

None of this was a big secret to the IP lawyers who signed the letter, particularly since some were on the CBA committee at the time that it was disbanded. Rather, it is a shameful attempt to smear the CBA, to discredit a balanced submission, and to take a swipe at me in the process. I think this says far more about those who put their name to the letter than it does about me or the CBA (signatories include McCarthy lawyers Barry Sookman, Dan Glover, Neil Finckelstein, and Steve Mason; Osler lawyer Lee Webster; Blakes lawyer Sheldon Burshtein, Gowlings lawyer Susan Abramovitch, Cassels Brock lawyers Chisick, Timothy Pinos and Stephen Selznick, Heenan lawyer Bob Tarantino, Goodmans lawyers Tara Parker and David Zitzerman; Fasken lawyer David Wotherspoon, Norton Rose lawyers Brunet and Madeleine Lamothe-Samson as well as lawyers from CRIA, CMPA, CMPDA, Access Copyright, and the ESAC). The attempt to generate media attention is clearly designed to distract from the SOPA-style demands many of their clients are promoting. The best way to counter this smear campaign is to speak out one more time on C-11 by writing to your MP, the Ministers or members of the C-11 committee by saying no to the outrageous demands such as website blocking or warrantless disclosure of subscriber information and yes to modest reforms to the digital lock rules.

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  1. Not Authorized…
    I clicked on “speak out one more time” but I get an authorization error.

  2. I read the NP piece before this, and even then it was so obviously a painfully stretched bit of logic. Trying to compare it with the Conference Board of Canada debacle put the last nail in the coffin of creditability.

  3. Stretching logic does not seem to be a problem for Mr. Degen …

    I wonder if he will reference this rebuttal, or be content with a single filtered cheer from his mascot Mr. Crawley.

  4. @Crockett
    I wouldn’t count on it. Degan is not one to suffer views different from his own.

  5. @Crockett
    Only if he thinks he has a winning argument. I suspect he is quite happy now in his own little blog world content spew the truth as he sees it with his little cheering section to cheer him on, and ignore any meaningful dialogue on the topic.

    A better place to get meaningful information about the Bill itself is Russell McOrmond’s site Russell has dedicated a lot of his time over the years to try to make the dialogue on copyright as fair and balanced as possible. Jessie Brown featured him on search engine this week too.

  6. Truthiness Alert says:

    Who`s Smearing Who?
    Instead of addressing the serious concerns raised, Geist accuses the “copyright lobby” of engaging in a smear campaign, pathetically/ironically smearing the motives of the letter writers in the process. Funny, he neglects to mention that leading IP academics and even counsel for an ISP signed the letter to the CBA. Inconvenient facts. Don’t really fit the theory, do they professor? Oh, and many of the lawyers whose motives he smears by name represent both users and creators. See the full list of signatories at: Could it be that they really are concerned by the apparent manipulation of the CBA submission?

  7. Truthiness Alert says:

    Who`s Smearing Who?
    All this begs the question: when Michael Geist quoted passages of the CBA submission that he knew he had personally written in order to show that the CBA agreed with him, why did he feel compelled to write: “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.” That statement is misleading at best. The CBA now says the opposite. See Policy laundering, anyone?

  8. Un-Trusted Computi9ng says:

    @Truthiness Alert
    Using Chris Castle’s blog as an example of a reasonable pro-copyright stance is like saying that Ann Coulter on a crystal meth binge is a sensible conservative.

    Copyright maximalists can have their soapboxes too, but this guy’s out to lunch.

  9. My Post on the FP article


    For Michael Geist’s rebuttal please see at his site:

    Basically he said he was part of offering opinions to a panel for the previous bill, he holds no claim to them and they are free to use them as they wish then or now. No citation necessary.

    For my opinion, the ‘majority of the IP lawyers’ who are upset with the CBA submission are really upset that it does not fully support the wishes of their clients … namely the content holding industries. Geist on the other hand seems more interested in protecting the rights of independent artists & consumers, kind of the legal aid of IP law 😀

    Finally, I have to wonder at Terence’s motives as he labels those who I assume are not in agreement with him as “members of the Internet liberation army” who (and this is rich), “find copyright enforcement to be an infringement on their rights as consumers”

    Neither I, nor others I know who oppose stronger copyright, are against actually enforcing copyright. Rather, we are concerned that copyright law maintain a balance of creator & consumer rights while achieving it’s original purpose of promoting culture for the good of society as a whole (look it up).

    One would think in making statements like this he would be aware of the issues. As Bill C-30 showed us, just because you don’t agree with all of one side of an issue holds, you are not necessarily part of a liberation army … nor a cabal of child pornographers.

    Mr. Corcoran, you may join the majority of the Tory bench, and their circus of absurdness we have been subjected to these past months.

  10. @Truthiness
    His position seems perfectly valid to me. I mean, if the complaint was that they didn’t attribute him when they used something of his and he’s fine with it, what’s the point of bringing it up other than to muddy the waters and try to make the submission seem less valid? Certainly seems like a smear campaign to me.

    Plus the blog you linked seems to be missing a few facts, which is not surprising.

  11. Copyright Minimalist says:

    “Truthiness” is an example of Poe’s Law.
    Truthiness Alert’s comment’s are indiscernible from either being ironic, or just a troll from an industry lobby group.

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