The Owens analysis of the Canadian copyright consultations: what are the implications?

April 21st, 2010 by Barry Sookman Leave a reply »

Earlier this week, Richard Owens, the past chair of the board of directors of the University of Toronto Innovations Foundation, a member of the board and former Executive Director of the Centre for Innovation and Policy at the University of Toronto Faculty of Law, and an adjunct professor of copyright and technology law at the University of Toronto, published a critical analysis of last summer’s copyright consultation. In his paper, Noises Heard: Canada’s Recent Online Copyright Consultation Process: Teachings and Cautions, he concluded that the consultation “was systematically abused by a clandestine group of mod-chip distributors, foreign websites administrators and international BitTorrent users”.  His focus was on the form letter wizard made available by the Canadian Coalition for Electronic Rights (CCER), a group whose very businesses depends on the ability to make illegal copies of software and to circumvent technological measures.

In short, Mr. Owens asserted that the consultations were “gamed” by groups with strong pro-piracy biases.

The reaction to Mr. Owens’ article has been swift. The CCER responded with a blog yesterday. So did Prof. Geist. Others have also published blogs including Chris Castle, a well known entertainment lawyer, James Gannon a technology lawyer at my firm, and the Canadian novelist John Degen. The controversy has also gone mainstream, having now been reported in the Globe and Mail by Jeff Gray.

Mr Owens’ study raises many questions. Fundamentally, however, it calls into question the legitimacy of using a simple quantitative analysis of the submissions to make assertions about the kind of copyright reforms Canadians want. Prof. Geist, for example, regularly asserts that the overwhelming majority of submissions to the consultation rejected Bill C-61 and that thousands of Canadians “called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules”, based on a raw tally of submissions to the consultation. See, The Final Copyright Consultation Numbers: No Repeat Of Bill C-61 However, these submissions are  exactly what the CCER form letter advocated. It is no wonder that Prof. Geist responded so quickly to defend the CCER and its letter writing wizard.

To understand the controversy, the attempts to minimize it by the CCER and Prof. Geist, and its implications on the copyright reform process, one has to understand exactly what the Owens study found.

The study first provided some background about the CCER that users of its letter writing wizard and its form letter would not know about without doing significant research. According to the Owens study:

“The CCER is an advocacy and lobbying organization for sellers and distributors of ‘mod chips’, ‘flash carts’ and other circumvention devices and services.  Many of the CCER member companies are in the business of ‘modding’ video game consoles and handhelds to circumvent the copy protection built into them, enabling them to play pirated video games.  CCER and its member companies fiercely oppose anticircumvention legislation as it would affect their business (which is the whole point of anti-circumvention legislation).  Indeed, effective anti-circumvention legislation could affect their liberty (jail) and pocketbooks (fines).  An essential part of copyright reform would make it clear that their activities would benefit from no loophole—copyright reform is intended to curtail their activities as a matter of public policy. That is why the world, Canada included, negotiated the WIPO Copyright Treaty.”

Next, the Owens study analysed how the CCER letter wizard and form letter became so popular.  He found that to “ensure a high volume of Submissions, the CCER arranged for online forums of “modders” and BitTorrent (peer-to-peer file sharing communications protocol) information sites to encourage their readers to submit the form letter.” The CCER form letter was promoted by TorrentFreak, a European site which caters to the international BitTorrent community. It was promoted on sites like IsoHunt, a file sharing site which a US court recently found to be operating a business wholly dependent on infringement and which is about to be enjoined by the US court.

During the copyright consultation, Prof. Geist also endorsed the CCER letter writing wizard tool in a guest blog on TorrentFreak. In his post he provided a link directly to the CCER site and urged visitors to the TorrentFreak Bittorrent enthusiasts site to use the “tools” provided by the CCER to “process submissions”.  As James Gannon pointed out in his blog, TorrentFreak is a European site that caters to the international torrent community. According to Alexa, only 5% of its readers are Canadian.  TorrentFreak compiles weekly lists of the Top 10 most downloaded Albums, Movies and TV Shows on BitTorrent, with links to the torrent files that correspond to these works. Prof. Geist’s advocacy of the mod chip group’s letter writing wizard on the TorrentFreak site is perhaps surprising, but it should be kept in mind in considering his opinion on the legitimacy of submissions using the CCER wizard.

These appeals to the illegal p2p file sharing community by sites that profit from weak or non-existent copyright laws to fight digital piracy, TorrentFreak which publicises and encourages uses of these sites, and Prof. Geist were intended to solicit the international file sharing community to use the CCER letter writing wizard to submit form letters to the Canadian copyright consultations asking for anorexic protection for technological measures (to keep the mod chip manufacturers and distributors in business), a right to make back-up copies of  works (so that mod chip users can legally make circumvented copies of software for use with their mod chips), “flexible fair dealing” (to help ensure that any reverse engineering of game consoles or game software by mod chip manufacturers is excused from infringement), and notice and notice and not a graduated response system or notice and takedown and the elimination of statutory damages (so that mod chip users would have no deterrents in downloading game software that can be played on circumvented consoles that CCER members could make available).

Of course, the p2p file sharing community that was solicited to make these submissions would not know these subtleties of copyright law that are needed to keep mod chip manufacturers or distributors like CCER’s members in business. But, they would like the appeal to notice and notice rather than graduated response and/or notice and takedown because notice and notice, without any sanction, would do nothing to deter them from continuing to illegally share copyright materials over the Internet. The gamers would like weak anti-circumvention laws because it would give them a way of playing pirated games downloaded from p2p services. And they would similarly like the proposed amendment to statutory damages to protect them financially for their file sharing activities. CCER’s letter writing wizard was quick to use and its message, to the extent it was read, would have been very appealing to a community tied together by “free culture”-anti-copyright values, the values required by CCER members to stay in business.

Was the CCER letter writing wizard successful? According to the Owens study the CCER letter writing wizard was wildly successful. Of the total 8,266 submissions to the consultation, 5,805, or 70.23%, of them were transmitted using the CCER letter writing wizard.

Mr Owens then addresses head on the claims made by Prof. Geist that Canadians want weak copyright laws including weak protection for technological measures based on submissions to the consultation. He states:

“To date, the limited analysis of the Copyright Consultations has simply been quantitative, principally consisting of adding up form letters.  While Professor Michael Geist, for example, has found that the “overwhelming majority” of the Submissions “rejected Bill C-61”, he fails to mention the fact that 95% of these submissions came from the CCER Form Letter.”

Mr Owens then points out that when one takes the CCER form letter out of the equation the conclusions made by Prof. Geist about the consultations cannot be supported. He also states the obvious fact that Prof. Geist’s  “terse  analysis” did not consider “the lack of transparency and accountability in the Consultation process.”

What is interesting is that the CCER blog published yesterday to refute Mr Owens’ assertions does not deny any of his central assertions. It did not deny operating the letter writing wizard; the nature of its business, or the CCER members’ financial and business reasons for opposing effective copyright reform.

The CCER does not allege that it took explicit steps to ensure the transparency of its position or role in the reform process. It asserts that it has “always fully disclosed who our coalition members are and what our position is on the future of copyright in Canada.” Yet, in their own position paper they described themselves as “an advocacy group dedicated to the preservation of user rights throughout the copyright reform process in Canada”. This misleadingly suggests they were attempting to project an image of a public interest group rather than a trade association.

Nor does the CCER allege that it took steps to geo-filter or geo-block submissions from non-Canadians. As Chris Castle pointed out in his blog yesterday and in a previous blog Fair Copyright Canada and 100,000 Voters Who Don’t Exist, his own letter to the consultation submitted from the US using the CCER letter wizard got through. Nor does the CCER deny that its system permitted the same person to submit multiple submissions to the consultation.

The CCER stated that it had “no formal affiliation, agreement, or for that matter any interest in any “BitTorrent site”.” But, Mr Owens did not claim that the CCER entered into a “formal” conspiracy agreement with anyone to achieve its goals or contend that CCER operated or owned or had an “interest” in any BitTorrent site.

Prof. Geist attempted to refute Mr Owens’ assertions in his blog yesterday. However, his refutations did nothing to shake the conclusions in the study. What does he say?

  • Claim: A few other entities used form letters besides CCER accounting for a total of a 45 submissions. Response: This hardly undermines the serious assertions about the lack of transparency of the CCER or the overwhelming skewing of raw statistics about what Canadians want in copyright reform.
  • Claim: The concern with Torrent Freak is misplaced “as it is widely used as a source of original reporting on digital issues” including by me in twitter postings. Response: Prof. Geist makes a fundamental mistake in equating my reporting what TorrentFreak may say to subscribers who follow me on Twitter (or on my blog) and soliciting TorrentFreak readers to participate in the consultations. By Prof. Geist’s logic, reporting on a criminal organisation like the mob in a news article is no different than surveying or soliciting the mob’s views on stiffer penalties for racketeering and then asserting that the public doesn’t believe stiffer penalties are needed to fight organized crime based on the survey.
  • Claim: The people who used the letter writing wizard were well enough informed to be able to make credible and useful submissions to the consultations. Response: There is no evidence one way or the other about the skill or expertise of those over 5,000 people who clicked on the letter wizard to make a submission to the consultation. One does not need to be a lawyer to have views about copyright, as Prof. Geist pointed out. However, one does have to assume that users of electronic form letters do not give submissions the same level of thought as “scratch” submissions. But, Prof. Geist misses the fundamental point that the demographics of the senders are highly biased towards anti-copyright views and are much more amendable to the policy laundering tactics of the CCER. (By the way, Prof. Geist misstates my critique of his the Fair Copyright for Canada Facebook group. My criticism was not that individuals in such groups are incapable of forming independent views or that consultations are “useless”. My claim was that he so misrepresented the issues that ordinary citizens would be misled in their views about copyright. It is the same point I made about his scaremongering in the media about ACTA. It is not that the public can’t make informed decisions. It is that the ordinary citizen will have a hard time recognizing when something he or she reads or hears from a well known professor is not accurate.)
  • Claim: The lack of francophone participation in the consultation process “perhaps… reflects the fact that francophones are not nearly as concerned with creator-focused copyright as some suggest (or perhaps many decided they wanted to do something else with their summer)”. Response: This is a shocking statement. It is well known that creators from Quebec are passionate about their culture and its protection by copyright and other means.In fact, many pro-copyright representatives dominated the Montreal townhall. It is much more likely that when the over 5,000 submissions from the CCER letter writing wizard are disregarded there would be a much higher percentage of participants from Quebec. I haven’t examined the statistics to know. But, I believe it is incorrect to assume that if Quebecers did not participate actively in the consultations it is because of any lack of concern.

So where does this leave us? Does it mean that the consultations were a waste of time or not useful? Of course not. As Mr Owens pointed out, there were many very well thought out submissions provided to the government from all walks of life and from all communities across our country. We as Canadians had lively and challenging debates during the roundtables and townhalls, in the press, in the submissions, and elsewhere.

Does it mean that the consultation was tainted? No. The ONLINE exercise was perverted; manipulated, like a financial market. But, as a whole the exercise was a success and there are records of the opinions expressed by Canadians in the townhalls, roundtables and in the written submissions. The two Ministers travelled across this country, during the summer, and consulted with a wide range of Canadians –listening to them, asking questions, caring enough about the issue to learn about it in a way no other politicians have done before. They are to be congratulated for eliciting such diverse views about copyright.

Does it mean the government or those well informed about the copyright consultation process were duped by the CCER? No. Many people who examined the consultations closely had noticed exactly what Mr Owens did. In fact, I alluded to this in a blog I did last November in which I estimated, based on a sampling I had asked a student to do for me, that 65% of the submissions to the consultation were received from the CCER letter writing wizard. Last February I also wrote a blog with my Reflections on the liberal roundtable on the digital economy in which I pointed out that Prof. Geist’s proposal for weak protection of technological measures would provide no protection for makers of video games and game consoles and that was why the CCER was “so active in the copyright reform process and together with Prof. Geist argued for such ineffective protection for TPMs”. Neither the CCER nor Prof. Geist disputed my assertions back then. To do so would, presumably, have drawn more attention to them.

What has changed now is that the issue is fully in the public view. Mr Owens’ study shows there is credible, indeed compelling, evidence that some people tried to game the consultations. Now that this is known, we need to reject unqualified statements made about the views of Canadians simply by using misleading statistics and counting on no one taking a closer look. It simply cannot be credibility asserted that the submissions to the consultation show that the majority of submissions to the consultation rejected Bill C-61 and that thousands of Canadians “called for flexible fair dealing and a link between copyright infringement and anti-circumvention rules”.

* Since posting this I noticed that TorrentFreak also posted a reply.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

 

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