The Long, and Long of the Proposed Copyright Act

THAT BRANDON LARABY is a bit of a corker.  Imagine -- reading through the entire new proposed Copyright Act & posting his thoughts on it.

For an act of citizenry & a view slightly un-Geistian, check out Brandon's odyssey comparing the old and new copyright acts.  Parts One, Two, Three, Four and Five are available at his digs.

It's not particularly exciting -- policy never is -- but it's nice to see a regular guy trying to bull his way through a piece of legislation that's potentially going to have such great effect on us all.

The New Copyright Bill in 50 Words or Less

THERE'LL BE MORE later, including the WGC's reaction to the bill, but basically, to parse the new copyright bill:

If you're a consumer:  you get some concessions for fair dealing, timeshifting, format shifting, parody, satire & YouTube -- unless there's a digital lock on the content, in which case you're fucked.

If you're a content creator:  you're just fucked.

If you're a huge multinational company in the bricks & mortar business:  you get a "get out of freedom free" card -- no restrictions on placing digital locks on anything.  So basically, you get a license to fuck.

So, same old story.

The "Copyfight" Reaches Epistemic Closure

THERE ARE MANY, many arguments you can make about the societal benefits of limiting the terms of copyright.

Unfortunately, you won't find many of them in the comments section on Michael Geist's site.

Geist has staked out his territory -- as an academic and law professor, he believes in an expansion for fair use/fair dealing and frowns upon mechanisms such as digital locks that prevent people from using purchased content the way they want.  Through newspaper columns, consistent advocacy on the issue, and assiduous courting of so-called "copyleft"ists, "copyfighters," and other creatively-monikered folk, he's become the de facto clearinghouse for a so-called "consumer-focused" view of copyright reform.

As I've argued previously here, and privately in friendly emails with Geist himself, what's consistently missing from his site (and from the points of view of his commenters) is any realistic representation from the creators of artistic works.

See it's quite easy to rail against copyright when the enemy is a huge multigloobinial copomoration breathing fire out its greasy lawyer-tusks, but wee people have a dog in the hunt too when it comes to protecting their intellectual property.

Not that you'd know it from Geist's site.

Argue politely or otherwise that the content creator's opinion is a little light on the ground, and you're very quickly met with rhetoric & indifference, ranging to outright hostility.   In some cases, you're lumped in with the corporate weasels because they're the most fun to fight.  (The blowback from suing customers is the single greatest mistake made in this area in recent years. It's emboldened the immoral, and given fire to the muddleheaded. It's like a layer of volcanic ash-gunk that covers anyone who tries to argue the creator's side.)

Otherwise, you're treated to a lovely, shopworn, half-assed screed on the "you can't stop the ocean" style argument about making money in the new world.  (Seriously, hands up anybody who's been hearing this argument since before the last dot.com bust?) 

There's nothing quite like a lecture on economic models given by people who don't seem to really grasp how it works, and who don't realize that arguing theoretics to someone with a concrete, measurable and immediate economic interest is a bit insensitive at best, and monstrous at worst.  It's especially welcoming when you spend a whole lot of your daily life discussing monetization with other groups, seeing presentations from Comscore, interacting with people working to monetize online efforts everyday. The newsflash, of course, is that nobody's figured it out yet. Not Jill, not The New York Times. We're all still waiting for that 9-year old girl in Passaic, N.J. to show us the way.  (Pick it up, there, Heidi. We're dyin' out here.)

In the meantime, one is supposed to put up with people who argue with a straight face that the baby & the bathwater must be thrown out. Because ... well ... um... because.

I didn't expect a whole lot of sympathy or a whole lot of uptake-taking on the Geist droids. What did strike me, though, is that in the lobs of arguments I've heard a hundred times before, nobody asked a question.  Nobody.  Nobody asked for a clarification about how TV is financed, or maybe how the "tour and merchandising" model of artist recoupment doesn't work across all forms.  See,  in the closed circle of "copyfight debate" they know how artists have it wrong, how corporations have it wrong, and the way forward is already completely decided.

When the copyright town hall chugged into Toronto last year, there was the predictable over-representation from the recorded music industry (the guys you love to hate) defending a business model that nobody outside of a record company would even dream of sticking up for anymore.
 Their arguments, hiding sins of excess from an industry that took exploitation of talent and practically forged a whole separate art form out of it -- screwitecture, let's call it...such are the documented excesses of the record industry that we shant go into them here.  

The fact that arguing for copyright for content creators involves sitting at the table with these guys is kind of like having to put up with pervy Uncle Eddie at the family wedding.  You hold your breath and try not to look as embarrassed as you really are inside.  (And you keep your ass out of reach of his freaky hands.)

But aside from the majors, there were some thoughtful contributions from creator groups -- and some truly passionate representations from artists & creators themselves.

That night, both before & after the town all, the brief chats I had with artists & creators mirrored  each and every conversation I've had with somebody who makes things for a living.   I'm always amazed by the thoughtful, measured attempt to wrestle with creator rights versus consumer good.  Most are unhappy with the current law, thinking it does too little to protect in some areas and too much to restrict in others.  There is no uniformity in boundaries or solution, but there is always a heartfelt, honest attempt to grapple with how to expand consumer rights in the way the digital world practically demands, without losing the thread that allows for fair renumeration.

When it came to the so-called copyfight side, however, we were treated to a few people arguing flat out in favour of piracy and a couple of university students, stumbling, ill-informed, unsure, arguing something that they felt in their heart but couldn't articulate clearly.  The failure was easy to understand. This was the real world, not the safe harbours of copyfight central, where the tiny demographic slice of internet people all agree.  They weren't playing to their closed epistemic circle.  Must have been scary.

You see the shallowness of understanding of the creator side in the response to organizations' like the WGC's position on collective licensing.  Based on already running, successful collection societies that are running in Europe to compensate rights holders for things like PVR use, timeshifting, tv rebroadcasting and such, the WGC proposes that one solution be a levy system. They're quick to jump on the "levy" part and scream how it's unfair, will never work, etc, but miss the second part of it, where the WGC suggests that now-illegal uses be made legal in exchange.

See, that's negotiation.  You give something up, you get something.

But even when you take out the pirates who don't think you should pay for anything, the bulk of copyfans in Geist Nation still approach the idea of negotiating a new copyright law as...say it with me, now:

"Gimme."

Even Geist's vaunted expansion in fair-dealing for academic use goes against the current grain.  Starting from "it should be free" goes against what's in place now with academic copying for textbooks & other materials.  If the cost is too onerous and does restrict legitimate research use, then obviously that needs to be looked at.   But it's a measure of the exclusion of the artist from Geist's roundtable that it seems to be an article of faith that "free" must be the default.  Well, uh... huh? Why?  Are Profs going to lecture for free now, too?  What about students. When you get those degrees & jobs are you gonna go work for free?

There's so much I wish for for consumers in a copyright bill.  I think terms of 75 years for copyright is ridiculous. I think that parody & satire should be codified so that Disney, or me, or anyone can't order a YouTube video removed through copyright law as a cudgel and censorious act to quash a video that makes a valid, socially desirable criticism.  Or even a wicked parody.  I want recognition of mashup art & I want consumers who pay for content to be able to use that content and view it on whichever device they want.

All these are points of negotiation, but I do have to say that I'm far less passionate about pushing them forward than I otherwise might have been because I know there is a significant constituency that believes I should have no rights over my creations at all.  A constituency that wants to speak for me, and then dismiss my voice as "not relevant to where digital culture is going." 

Finally, to those of us who have a longer-than-undergrad view of changing culture, one should remember and take the lesson of the 'original mashup' -- the audio sample.

There was a fierce battle at the beginning of the hiphop era over sampling.  Copyright holders sued to remove & ban songs that used unauthorized samples.   The law was used as a cudgel, sometimes with the blessing of the original artist, sometimes not.  The thought was that the sample devalued the original work.  People who wanted to use samples argued that it was new art, that it deserved to be heard.  Suggestions were made about licensing samples, making the whole thing legal -- and for a while there was squawking over that, too.  It would be too hard to decide the value. Who would police it?  Is it a good idea?

The point is, it got worked out.  Maybe artists couldn't use as many samples as they wanted, but the culture changed & absorbed the change, and everybody learned how to deal with it.

The bad road we started down in the digital realm is that the first responders -- the canary in the coal mine -- was the music industry. And they responded badly, first by denying there was a problem for too long, and then being talked into a strategy where suing your customers and trying intimidation was the answer.  It wasn't.  We lost a lot of time to that silliness.

A solution will come in the copyright debate, too. It might take a few tries, it might mean a bad law needs to be amended, but eventually we will wind up with something that allows, hopefully, for the most socially desirable outcome that balances a right for renumeration for labour with socially desirable consumer use.

Geist protests that he does the best he can, and doesn't agree with a lot of what's in his comment sections, but leaves it open in the spirit of the internet.  That may be so.  But the degree to which the Geistians have a hand in the future of copyright is directly inverse to the degree to which they continue to close ranks and insist they have all the answers, and everyone else is "the man."

* * *

A note on comments on this post: this is a post on the semiotics of the debate. You want to critique what I have to say, go to town. But we're not arguing copyright in this thread, for the same reason that I closed comments the other day -- I'm not interested in having the same boring debate I've had a hundred times with people who simply aren't listening.

The State of the Copyright Debate

I LIKE MICHAEL GEIST.  I think he's smart, I think he's provocative and writes well and certainly knows his issues from his perspective.  But when he reports on creators' issues (and challenges going forward) with any new copyright law, this is the general quality of comment he attracts from his legions of copyright fans:

Heres a tip...
Hey, creators of music, movies, any type of IP, heres a tip. The world is changing, they way you do business has to change as well.
Try creating something that people will actually PAY for, like something decent for a change 

Oh to be twenty-one (or thirty-three) and to be so blasé and dismissive about complex issues.

The problem with the copyfans & the fair use now advocates of all stripes is that they have a wonderful ability to view the debate in the most simple of terms.  We can categorize those terms thusly:

Gimme.

The problem with gimme, of course, is that it's hard to plug into any kind of self-sustaining economic model by which artists get paid for their labors.  Add to this the fundamental ignorance that people seem to have about the entire structure by which content creators currently get paid. You'll often hear this expressed as "I buy a book once, why do I have to keep paying for it?" or some such thing.

The impression seems to be that the true value of the art is paid for by the consumer at point-of-purchase. And that artists and content creators want some cushy deal that nobody else gets. (Ie: I paint your house once, and you keep paying me to paint your house for five more years, or until five years after I die, or whatever.)

What makes the idea of the art fundamentally different is three factors:  1) reproducability 2) timelines of creation 3) life of the artist

In the case of 1) reproducability let's take a painting, like the Picasso that sold for a record number this week.  It's easy to understand why that fetched so much: it's unique.  Picasso painted it, and it's the only one, and people like Picassos.

Consider what it would be like if the Rolling Stones had recorded, say, Exile on Main Street and everybody knew how great it was, maybe there had been a listening party or something, and then only one person could buy it.  How much would that recording be worth?  What about The Godfather? There was a film fest in 1972 and they showed The Godfather and everybody went apeshit, and then Francis Ford Coppola sold the film -- the original negative -- to one guy.  And then only he got to show it to friends & lucky people. How much would that cost?

Obviously with these kinds of art, a market developed for reproductions. In fact the whole model of making money was based on reproduction & distribution of those copies.  The artist creator gets a percentage of each copy, mass produced, rather than imbue all the value in the one, unique work. (ie: the painting, though in the case of the Picasso, there is both -- reproduction rights, and the value of hte unique original.)  So we bought our Picasso posters & prints for dorm room walls, and our Godfather DVD or VHS box sets.  So long as everything was physical, it was hunky dory.  But digitization changed the value proposition -- because now the physical product that would kick back whatever percentage to the artist (instead of its true value in a lump up front a la the auctioned Picasso) doesn't sell anymore. Now, digital bits can flow freely -- and do -- through bit torrent networks & sharing sites & burned copies handed from friend to friend to friend.

"I pay for cable so I've paid already so I shouldn't have to pay a levy for a PVR."

No, Chester. What you did there, was pay for the pipe to bring content into your home.  You paid the admission price to the museum.  That doesn't give you the right to go home with the Picasso.  You can be as petulant as you want; stamp your feet all you like. The facts are just not on your side here.

The problem then as it currently exists in our imperfect world is that the cure has been worse than the disease.  People who've lawfully bought DVD's of their favorite show find they're locked down with DMCA anti copy crap that keeps them from playing them on the device they want, or from playing it on two computers, or streaming it to another location in their house... in short, the idea of what people want to do, lawfully, with the media they've bought and paid for has expanded, but the system is trying to keep it locked down.  This is retrograde and contrary to the way that people want to use media.

The idea of blanket licensing & levies is a more European idea that says, "look, people will use it how they use it.  We may not get 100% of the money for other uses, the way we used to when "other uses" meant film, TV sale, audio book on tape, trade paperback, etc. -- but we will at least get part of that money. And that is way better than suing your customers or gumming up everything with stupid digital locks that the nefarious types are just going to break anyway, leaving you in the position of punishing your most ardent fans or consumers.  And content creators are the last people who want that.

2) Timelines of creation.  Inevitably, when I challenge some asshole directly about "why should I have to keep paying blah blah blah" and find out what they do, they're somebody who wants to talk about things in terms of their job.  So let's do that.

We'll take me as an example.  I get paid to write now. It's a precarious job, because I'm totally self-employed, and I can't collect unemployment benefits. My income swings widely from year to year, yet I can't average the income, so when I make a lot, I can't put more of it away because I'm taxed like a Wall Street CEO, and when I make mouse fart money I can't even go on pogey.

Add to this the fact that, just like a doctor goes to Med School for years, and interns, and goes through residencies to get to where they are, I had to teach myself to write.  It took years.  More than a decade of pounding out crappy scripts in my spare time, not making a dime, working one or two jobs I hated.  Artists do the same thing, but have to somehow afford paints and brushes or canvases. There's more than one artist I know who spent their time choosing between whether to eat or buy another canvas one day.  I have a friend who's an opera singer who blows me away with the rundown of the costs of vocal coaching, exercises, money to go to places to audition, other professional training.  All of this to get to the point where -- if they're lucky -- if they're very, very, very lucky, you might hear of them, and maybe want to buy something they made.  Now you get to see if their investment in themselves-- let's call it "sweat equity" -- pays off.  We can all make fun of Michael Bublé now, but truth is the guy worked his ass off for a lot of years to learn his craft.   Watch a bit of Tréme and see how all those musicians enjoy cushy wonderful, gala-ridden lives getting to make a living.  I got a brave bit of prediction for you here:  those braying loudest on the copyright file: put you in that life and you couldn't cut it, even if you had the talent.

In short, part of what you're paying for that "every time" isn't the thing you've got in your hands. You're amortizing the entire apprenticeship period of that artist for when they weren't making a goddamn dime.

The timelines of creation are long.  And the initial purchase price of a movie ticket or a DVD rental or an Itunes track does not fully reflect that sweat equity.  In a world where the purchase of physical items breaks down, something needs to rise to replace that, so that the true value of the creative work can flow to the artist.  Believe me, left to themselves, the corporations will always figure out a way to get you to shell out more -- and for the most part, you'll do it happily -- be it a Happy Iron Man Meal or some piece of shit that you don't need.  And that will never flow back to the person who did the initial creating.  Joe Schuster & Jerry Siegel had to sue to get money out of Superman, the character they created that made Time Warner BILLIONS. No, where people like the brave commenter above leave the track is in trying to get the artist paid for their labour.  That's why these guys, so long as you bray about what your rights should be & crap all over efforts for artists to earn a living, or comment ignorantly as above....well....you can lick my sweaty neck.  (I was going somewhere else with that, but my Mom occasionally reads this blog. Hi Mom.  Thanks for the casserole.)

3) life of the artist

Let's take the case of Yann Martel.  Yann Martel was a big deal in 2001 for publishing Life of Pi.  Book clubs, Booker Prize, the whole magilla.  Martel's been working on his followup for years. It's 2010.  That's nine years. Nine years to come up with the new book.

And it came out. And critics are shitting all over it.  It's starting to look like it might be a big flopperoo.

Ouch.

Once again, the artist takes a huge risk -- and it might not pay off. And there's a limited number of those things that you have in you.  A novelist's career might span thirty years -- but it's going to have a number of flops.  And the flops that make you nothing still take the same sweat, and tears, and toil, and time, and psychic grit to get through as the lauded successes.  Courtney Love is just as batshit crazy when she puts out her good CD's as her bad ones.  Clint Eastwood's lovely, meticulous filmmaking might give you Million Dollar Baby, or something lesser like Gran Torino, or hell, Space Cowboys. That's just the way it goes.

A TV writer has a shelf life, as well.  There's some cruel math at work.  You start out a young turk, have a few years to rise up.  Maybe you get lucky and do something that hits, or maybe you don't and are a journeyman. But if you get 15 years in before you get aged out that's pretty lucky indeed.  You have to make your bones how you can, fast as you can -- from as many different ways as you can.

The point is, the model is not, and never has been the same as a builder who builds a house and sells it to you.  It is much more like an owner of a house on the beach that's very desirable and lovely that rents it out to people because it's desirable and lovely.

There is a lot that's shitty about copyright now that many artists don't agree with.  I think that the copyright terms, which are now more than 75 years after death (what they call the Disney exemption, because that prevented Steamboat Willie from falling into the public domain) are ridiculous.  I think there's got to be a way to allow mashups & stuff to happen.

(And keep in mind that there are mechanisms that do work here. Onceuponatime the argument was all about how hip hop was going to be killed by the man because of having to clear samples.  Most samples were illegal. Now most samples are legally cleared.  And there's no hip hop anywhere on the shelves, or on the Itunes charts, right?  Please.)

I think that when it comes to something like "fair dealing" it's a finer slice. I think works should be able to be used for comment, parody, satire -- and limited educational use. But you know, agreements were reached on things like copying for school use in textbooks and things - and I see absolutely no reason to think that "it's too hard to police" is a valid argument why wide-open educational use of copyrighted materials should be expected.  I also think it's a bit odious that Educational representatives, most of whom have pensions & tenure -- ie: job security, are arguing against a fair compensation regime for people who are essentially self-employed freelancers with none of those economic cushions.

I'm a consumer too.  And I certainly think that current law does not work for the consumer and how our relationship to media has changed in the last few decades.  And I sure as hell don't think a draconian, DMCA-style U.S. law will make things better.  And the law should be forward-thinking, to encompass and provide a roadmap of how to do things in NEW media not conceived yet.

(At the very least, I would like the next law to deal with the fact that for years I've been able to lend a friend a book -- but now I can't do the same thing for an e-book. That, to me, is a restriction of my rights.  And maybe if they want to go that way then an e-book really shouldn't be priced anywhere near a trade paperback.  I'm not paying Amazon $14 for something I can't lend.  $9, we'll talk.)

What I do know, is that in the copyright consultations last year, the thing that depressed me most was the disconnect between the people doing the creating, and the so called "copyright activists" demanding their "gimme."

It seems to me that if you're an "expert on copyright law," with legions of followers with whom you exhibit great influence, then part of your responsibility comes with truly engaging on the creator side of the equation, and figuring out a stand that you can articulate to your followers that doesn't involve content creators assuming all of the risk in the brave new world going forward.  It's not enough to demand.  You have to engage on a creator-friendly, not just consumer-friendly solution to the problem.

Because, quite frankly, you may be educating your followers on things like "fair dealing" and "digital locks," but a quick scan of your comments section shows a paucity of understanding of creator issues, and a powerful desire to roll people like me up in there with the big bad "them."

I don't think of myself or my friends as "them."  But by allowing that linkage to go unchallenged,  you hurt the very cause you claim to espouse, and wind up looking like someone fronting  another self-interest group who may be agitating for a pyrrhic victory:  widespread use of copyrighted materials isn't going to get you too far once nobody can afford to make any.

Except, I guess, Sony.

All Michael Bay, all the time.  Enjoy that world.  Brr.

UPDATE:  Not often, but sometimes you get a comment that you read and think, "well that's a way better ending to the post than mine was."  So it's promotion time!  I'll give commenter John the last word on this post.  Please feel free to continue discussing in the comments below. I'm going to bow out for a while because I'm still really quite ill, and I think it's time for a little hard napping.

John writes:

Nice work -- your posting is making the digital rounds.

I agree with you on almost everything you've written, and most of my disagreements would be minor quibbles on language. For instance, I despise much of the vocabularly of the larger copy-debate. Words like "draconian," "corporatist" and "DMCA-style" start my eyes a-rolling.

Unfortuanetly, that's exactly the vocabulary that gets the mob excited, which I guess is why it's so often used. What's the point of having an accurate, meaningful, well-informed discussion on the way to new legislation, when you can shout DMCA in a crowded theatre and start a stampede.

The leaders of the copyfight were all invited very early on to genuinely engage with professional creators, and it seems clear they all consciously chose a different constituency -- "lowest price is the law" consumers. It's a shame for everyone.


Amen to that.

Moving Forward on Copyright: The Creators' Voice

MY PESSIMISM was at a high ebb yesterday, egged on no doubt by the nasty intenstinal flu I've been battling for the last three days.   But today I was reminded that though the tea leaves don't look great for the Government's upcoming views on copyright, no one has yet seen the actual legislation.

Through the consultations last year, one of the things that I found most disturbing is how little actual truck anyone seemed to be giving to the needs and wishes of those who create copyrightable works.  It's one thing to argue about the loss to academia & the public with restricted fair dealing; but it seemed to me that too many of those who argued for consumer-focused and friendlier copyright laws seemed to little consider or integrate thought of creators' rights; what they should expect from a future law.  I was quite supportive of flexibility for consumers; it's just that the love from the other side seemed... shall we say, wan at best.

Academics and the public have a case for expanded rights. So do consumers, in terms of demanding flexibility for lawful uses and the right to be able to consume media as they wish.  But at the same time, the ones with the most to immediately lose are creatives themselves. And what seemed to be on offer for us is a whole lot of unproven faierie dust about "alternative revenue" and "becoming more entrepeneurial" -- stuff that sounds great and romantic to a 21 year old with a guitar, but is probably less helpful for a screenwriter who needs $15 million in loan guarantees upfront to get a film made.

So there were other signals to be heard yesterday, too, apparently, from a government that insists it's not going to turn its back on content creators. So we'll see. In the meantime, the Creators Copyright Coalition, an umbrella group consisting of many different creators' groups, including songwriters, Screenwriters, Directors, book authors & performers, released their position on a forward-looking copyright law:

The Creators Copyright Coalition (CCC) is an alliance of 15 professional associations of individual creators and performers and copyright collective societies active in the theatre, the visual arts, the applied arts, literature, music, recording and audiovisual (radio, television, film and commercials).  Together these 15 associations and collectives represent more than 100,000 creators (authors and performers) who are copyright owners.

CREATORS PUSH FOR COPYRIGHT REFORM

Toronto – Canadian creators are urging the government to adopt copyright laws that support arts and culture in Canada.

“There are key steps the government could take today to reform Canadian copyright laws that would balance the interests of both Canadian creators and consumers,” said Bill Freeman, Chair of the Creators Copyright Coalition (CCC).

On behalf of Canadian creators from across the country, the CCC is looking for the new copyright bill to:

• Ratify the WIPO Internet Treaties
• Update the private copying regime
• Designate writers and directors as joint authors of AV works
• Facilitate consumer access to content while ensuring creators are fairly compensated
• No expansion of fair dealing
• Institute strong penalties against content piracy

“Our coalition brings together organizations with diverse interests.  We all agree that these points must be reflected in the new copyright bill if the government is serious about taking a balanced approach that respects content creators,” said Freeman.  “We also look forward to bringing our perspective to the upcoming digital economy consultations.  For example, we’ll urge the government to consider the potential for collective licensing to facilitate consumer access to our works while ensuring Canadian creators are compensated.”

Media Inquiries: Bill Freeman, CCC Chair, 416 203-2956, billfreeman@rogers.com

You can read more by clicking here to download the release,  or just read more after the jump.

Consultation, Schmonsultation

THIS IS JUST relentlessly depressing on every single level.  I am filled with disgust.

From Michael Geist:

PMO Issues The Order: Canadian DMCA Bill Within Six Weeks

The bill is not expected until June, but it will have dramatic repercussions once introduced.  First, the bill represents a stunning reversal from the government's seeming shift away from C-61 and its commitment to a bill based on the national copyright consultation.  Instead, the consultation appears to have been little more than theatre, with the PMO and Moore choosing to dismiss public opinion. Second, after adopting distinctly pro-consumer positions on other issues, Moore has abandoned that approach with support for what may become the most anti-consumer copyright bill in Canadian history.

This is the part where people usually write in and say, 'wow, what can we do about this!'

And my answer, this time is, not a Goddamn thing.  You're Canadian.  You're just going to sit back and eat it. And they know it.

The fuck with the funny coloured money & the own the podium shit.  We really want to save money, let's just make it official: outsource governance to Washington. 

We'd still get screwed on copyright, but hey, they have a health care bill now at least.

Allies & Opposers

THANKS TO SEVERAL people who sent me emails on my appearance on CIUT's "Take5" program this morning (er, even the guy who misspelled every third word and seems to think I'm a fascist-socialist-communist* [*U.S. health care debate version -- where these words are interchangeable]).

To expand on my point to the "fair" copyright crowd -- be careful who your allies are. Inasmuch as artists and copyright holders with concerns about business models and monetization aren't you're enemy -- or the record companies...

...know that besides all the self-proclaimed pirates who want it cuz they can get it for free, you've also got all those wonderful Fanfic fabulists to deal with.

Oh, we've had our run-ins with the Fanfic types here before. But they're not as fun and ultimately hilarious as (Tv scribe and (legit) tie-in-novelist) Lee Goldberg's expert tracking of the delusions of a crowd for whom "fair copyright" means...uh...well....go read it for yourselves.

Radio Copyright

FOR THOSE OF you in the Toronto broadcast/listening area, I will be on Take5, the morning show of CIUT Toronto 89.5 FM, talking about the Canadian Copyright Consultations.

The interview should happen shortly after 8:30 A.M. today. (Tuesday)

A Reader Writes: The Copyright Conundrum

TODAY, I'VE PROMOTED a comment exchange that happened down in yesterday's post because my comments got so big (first draft people, first draft) that they had to be submitted across four comments.

The chain was started by a letter by a reader named MR, who's an IT guy. I feel it exposes a lot of the fault lines around the whole "Balanced Copyright" argument. I want to get into my office and onto other things today, so I hope that MR will forgive me and not read some of my response as categorizing what he might believe personally. Any use of the word "you" or talking about sides is meant to convey a general impression of those making certain arguments, and not MR himself.

More importantly, I feel dialogues exactly like this is what has been missing so far from the whole "Fair Copyright" debate. I applaud MR for writing in with his thoughts, and I again strongly encourage my fellow film and TV writers to make yours known, both by submitting to the Copyright Econsultation, and maybe even by wading in over at Michael Geist or Fair Copyright sites.

MR writes:

I've spent the last 25+ years in the IT sector constantly absorbing (i.e. surviving) one disruptive innovation after another. Reading your blog has given me insight and a greater appreciation of the challenges your profession faces (your posts regarding work product/processes, copyright, the CRTC, etc). It's very much appreciated.

Having said this though, I wonder where this sense of entitlement comes from? Your digital works have access to a worldwide audience numbering over a billion potential patrons (internet pop and climbing); who are primed to be gratified instantly; at a near zero cost of distribution (via the evil internet); and you can't think of way to make a living? Fine, our kids will. I don't know what else to say.

It is your industry that broke the deal. Copyright is intended to foster the arts, innovation, reward the creators so that our culture is enriched. Tell me, what great Canadian works have fallen into the public domain since you were born? It isn't our fault that your business is predicated on the continued suppression of the public domain. Oh, please my fellow Canadians - I am deserving of a MONOPOLY on imagination. I really, really need a 50 year monopoly entitlement. Otherwise, I may have to get a second job to make ends meet. Is this what your saying?

The status quo isn't working. A law which has already criminalized 99% of otherwise law abiding tax payers isn't the answer. If the 21st century is all about the "digital economy" - we as a society must ensure that copyright is structured to regulate COMMERCIAL INTERESTS solely. That's it. Don't get me wrong; I'll be the first one to take up your cause if another was exploiting your work for commercial gain. But I'm not interested in criminalizing teenagers, students, or grandmothers. Suffer the free riders and focus instead on the upper percentile who will PAY.

YES. PEOPLE will pay, and have always paid, to be entertained. We'll also continue to pay for entertainment. You should not need a fifty year monopoly in this age of instant dissemination to a global audience. A more reasonable approach to length would be five years, renewable in five-year increments to a maximum of 20 years. Funding for the arts could be secured by diverting 10% of the proceeds of copyright to a fund to help creators. Each subsequent renewal would further increase this contribution by 20% so that a 20 year copyright entitlement would see 70% of the proceeds go to a new arts fund. These numbers are simply thrown out to foster further discussion. I know little of the monies involved... The principle is to: 1) encourage shorter copyright length; and 2) have established creators fund more directly less established ones.

We may need to allow disruptive influences in your industry. We also need a healthy public domain. It's time the pendulum was allowed to swing the other way. Otherwise, your industry will join our telecom industry as digital backwaters - too much control in to few hands. Stagnate.

Anyhow, I don't mean to sound like a dick. Your blog has made me realise that I don't have an easy solution to this problem. For this I thank you as it's made me revise my position on this issue.

Unfortunately, I'm not sufficiently familiar with your industry's costing to be able to address your 50 million dollar challenge. In my industry an ROI needs to be no more than 5 years but with a potential of a billion customers at zero cost for manufacture and distribution as outlined above - the funding would be there. On a 50 year ROI, I have no idea who would take that chance.

My response:

The thing that strikes me most about this debate is that the rhetoric has advanced so very far while the arguments haven't. "Your kids will", and admitting that "I'm not sufficiently familiar with your industry's costing to be able to address your 50 million dollar challenge," but not connecting that back to the central point is the problem here: To me, to people like me, you simply CANNOT put all the stuff you want to put on the table and ask us to take on faith that "it will work out."

"People will always pay for entertainment." What are you talking about? What has the whole downloading culture taught us, then? There is an entire generation for whom that is not true about music. For all the nose stretchers and truth-distortions the music industry has put out since Napster, they're not wrong about that. The value proposition in music is gone. Destroyed. Otherwise great, moral, decent kids -- children of friends, have looked at me mystified when I told them I paid for songs I downloaded from Itunes.

Mystified.

You talk about my sense of entitlement? Well, when I hear about the pendulum swinging back and lets take copyright to five years, all I can wonder is, "are we going to do the same with all inherited wealth?" Really. If I made money trading securities, or building a woodworking business, and I'm quite rich and I die, I'm allowed to pass that onto my family, am I not? Oh sure, it's taxed. But I can still transfer my mill, or the chain of restaurants, or the computer company I started in my garage to my heirs, correct? I can't just start making a digital music player and call it Ipod because it's five years since it was introduced, right? Is Google going to turn over all its propietary code five years from now?

Of course not.

Now - step away from the rhetoric and don't ask me why I feel so entitled, but you explain to ME why the fruits of an artist's intellectual property are different.

Or as another commenter put it on the post yesterday: "Does the guy who makes your pizza have a sense of entitlement for wanting you to pay him? I mean, really, we all have to eat. Isn't the right to food greater than the privilage of charging for it? You are dealing in grandiose abstractions."

There are a whole lot of things that would be better if they weren't allowed to be corporately exploited for as long as they are. It would be better for Canada if the media wasn't so concentrated. But it is. Are we going to change all law? Get rid of inherited entitlements and wealth? Really? Or are you just talking about screwing over the artists, now? What about athletes? He's a great pitcher, but Halladay is making a whole lot of ridiculous money. Oh, and those Real Madrid footballers who blew through Toronto last month -- those guys make way too much, too. Why is that right?

There's a particular strain of muddleheaded evangelism that attaches to the internet industries like a wad of gum on the bottom of a shoe. I covered the early days of the .com internet for a show called MediaTelevision. For about four years I spoke to all the visionaries and freethinkers, and would be geniuses and entrepeneurs. And I'm telling you, the language I heard was very, very similar to what I hear today from a lot of those arguing for "balanced copyright."

That says to me two things: 1) that though fifteen years have passed, the arguments haven't advanced, and 2) the last time we took a flyer on the promises and the hype of that crowd, we had the dot com bust -- and billions of venture capital evaporated overnight.

All these boring questions I'm asking now -- "If we do what you're asking, how does the model work?" are very similar to the simple, "hey what's your business model" questions we all asked 15 years ago. We were called negative then, and told we "didn't get it," and all sorts of other dodges. And ninety percent of those geniuses and visionaries with stock options up the yoni were cast out in the wilderness a while later. They were smug, they burned through money like it was water, and they slunk away, conveniently forgetting that, uh, you know, the people who raised those doubts about how it was all going to work out? They were not "old school" or "tired" or "not in the know" or "locked into old paradigms," they were, in fact, RIGHT.

So forgive me if our trust quotient is low. When someone asks you a question you can't answer, or tells you that the answer to the question you've just asked about your ENTIRE LIVELIHOOD isn't relevant, or worse, isn't even their problem -- the desire to listen to what comes next is, shall we say, low.

It's amazing to me that none of the "fair copyright" [that phrase is starting to read to me like "Ignorance is Strength"] seem to get that. For what it's worth, until you jump off a cliff with calling me entitled and calling for five year copyright, there are general principles that I find nothing to disagree with.

I think that there should be a way to enshrine an expansion of non-commercial uses, and that the main focus of copyright should be to protect commercial infringements. That being said, the academic view that fair use, or use in education = free is ridiculous. The fact that tenured Professors with job security are demanding free use from freelancers with none is a bit odious to me, frankly. Surely there is a middle ground between "so restrictive it's impossible to use in study" and "free."

Second, I am personally offended by the corporate machinations that have resulted in the extension of copyright beyond 50 years. After that time, with millions made and more to come, I'm not so interested in serving the interests of Mickey Mouse. The public domain is important. Corporate lobbying should not be able to effectively kill the public domain by ensuring nothing will ever pass into it again. Now those two positions alone -- plus the distaste I have for the punishment and annoyance that digital locks present -- are moves to the middle of a TRULY balanced policy. And if you talk to most artists who are engaged in these issues, you will find a similar, concerted movement to try and rationalize the consumer good with our needs to be able to earn a living.

But here's where you guys are fucking it up:

We float a solution -- maybe not a great one -- maybe not even the best one -- about moving toward collective licensing and a levy/pay system. It's a whole new vision of copyright and fair use. It would be a BEAR to work this out with media corporations, but we think it's worth pursuing. And what is the reaction to this concrete idea from the supposed "fair copyright" side? Instant rejection. "Ipod Tax!" "No!" "Not my hard drive!" "Unfair!" "No, no, no!" How's it played in the media? An Ipod tax. You know why? Because the association with the hated music industry is the best way to quash the idea before it can even gain traction and debate. One of your stated goals is that consumer behavior not be criminalized. Well, that takes care of that. But nope, you reject it out of hand -- and play right back into the hands of the corporate DMCA solution. Great job, guys, on the way to beating your drum, you're being played like a fiddle.

So fine, you stamp your feet, say "no, no, no!" "No levies!" "Not fair." Okay, fine.

What's your alternate proposal for us, then? Show us that you actually are thinking about copyright in a "balanced" way that tries to find a compromise that meets everyone's needs? Oh, um, vague promise, vague promise, and if you can't work it out, your kids will.

I see. In other words: Fuck You.

The myopia of the "fair" copyright side comes from the fact that you go in with goals that are so radical and different, so "let's blow everything up," that you sound like a lunatic fringe and you make it impossible for anyone who's actually an industry stakeholder to support you. Arguing against being able to extend copyright to 70, 75, 150 years? Yup, that's a solid argument that I can get behind but...what? Oh no, you want copyright to be 5 years? WTF? Looking at people who are scared about their livelihood, rejecting their solutions without discussing them, or trying to understand why they've come to that position, and then turning around and saying, "sell T shirts?" That's offensive. And in the face of that, the submissions from a lot of the big corporate media interests are going to seem reasonable by comparison.

There's an unholy coalition around "balanced copyright" that serves it very poorly. The first group are the Internet evangelists who've been talking bullshit for well nigh on 20 years now. And the second group is students for whom this is their "one issue." The latter know nothing of negotiation, business, the way the world works, economics or just about anything else, but by God they know they should be able to sample and remix that clip from Gossip Girl or Snoop Dogg anyway, anytime they want.

I had a kid on Twitter yesterday who started out berating ACTRA and the WGC for re-tweeting one of my posts. I asked him about six times if he understood what the artists' concerns were and in response not only did he have nothing, he consistently presented a straw man argument about logos I'd used in an earlier story which would only have been the slightest bit relevant if, somehow, I was against the extension of fair dealing to protect parody and satire. Which, of course, I'm not.

But nuance, or, in fact, anything other than the straight up and down, marching forward to the great utopian future of free copyright, doesn't play with this crowd. If you're not with them, you're Universal Music or Disney all the way.

The "Fair Copyright" side, unfortunately, is an echo chamber that in its own way is as closed, as self-serving, and as out of touch as the record labels they love to feel superior to. And that's what's really discouraging about this debate. I feel the really important -- and DOABLE things, are not going to get done because they're wrapped up in a whole lot of utopianist crazy.

Seriously...

RE: MY CHALLENGE below, and why I'm making it.

Anyone?

Bueller? Bueller? Bueller? Bueller?

Right, so, um, it's all about people using Protools in their basement? Not about, you know, shows that need fifty million in cap before they start selling -- maybe?

Mmm. Yes, you're right. That sounds like a much better system. Let's just enshrine that in law.

You know what guys? Enjoy your DMCA bill. You're playing right into it. You wonder why creative artists won't speak up and out -- en masse -- against restrictive protocols and Digital Locks and heavy-handed, draconian takedown schemes? Because you're asking them to drink Kool Aid that has a skull and crossbones floating on top.

For what it's worth, I did get a nice email from Michael Geist, who suggested that perhaps I was asking the wrong question about where the business model comes from for Film and TV. He thinks the current system works fine. Having seen the Music Industry say the same thing for a good five years before they realized just how fucked they were, I'm not inclined to agree. I concede that indie films will always get made. And that Transformers 25 will probably be able to find financing. What I'm worried about is everything I've ever worked on and everything I like to watch -- which is everything in between.

The people who are bloviating about how great it will be when copyright is eradicated still haven't explained to me -- or anyone else -- how anything in the great middle -- those movies that don't have a PR budget equal to their production costs, and most TV shows -- get made. Everything's about this artist and that artist and how much happier everybody is now that they can strap on a guitar and play freely. Well, if one of these kids writing that could put together a decent press kit, or figure out how to run the Genny on a film set, then maybe I'd have more than a shake of the head for them.

But till then, I just repeat: Bueller? Bueller? Bueller?

I am weary even suggesting this. But if you ARE a Film and TV creator/writer -- know that most of the submissions that they're likely to get in the Copyright Consultation are hippy-dippy types talking about the abolition of copyright altogether, or the brave new exciting world of liberated chicks with guitars, or heavy handed record company types screaming about digital locks and protect the math of the "sorry your first three albums didn't make any money but at least I got to go to Hawaii for six months."

If you want your POV represented -- as workers in an industry where a massive outlay of upfront-cash is the only way to get anything made -- you should weigh in on the official government consultation site before Sept. 13. If you'd like to see the WGC's position, check that here.

And if all else fails, show up on campus and tell the brave copyfighters that their loans are up, the Vig's 3 % a week, and if they want to raise the money they should sell Tshirts.

My Open Copyright Challenge

THE MORE I read online coverage anywhere about the Copyright Consultations in Canada, the more I feel that the "Fair Copyright" side is doomed because of a fundamental misunderstanding:

I call it the Kumbaya factor.

I've been hearing, "Kumbaya" from advocates of the internet in my various jobs since 1992 or 1993. And the rhetoric -- which is every bit as self serving and myopic as anything you hear out of the record industry -- has not advanced.

I've read the submissions from places like TUCOWS who make the argument that copyright stifles creativity. I've read the silly assertions by people that it's all about giving away your primary product for free, and selling t-shirts or something like that.

Inasmuch as the Record companies try to make everything about recorded music, the lefty "copyfighters" (what a ridiculous term) just sound ridiculous any time they get talking about larger-scaled media.

In my case, as a TV screenwriter, sure, I can sit in my garret or office and bang out a script, and the outlay costs to me are very low, just as a composer or an indie artist can use new recording tools that make at home demos almost as polished as studio recordings. And yup, somebody can get a cheap prosumer like camera and Final Cut and make a low indie movie.

But so what?

What I'm asking is, simply, this: do any of you pie in the sky folk have a workable model by which a TV series, like the ones getting written about now that people watch -- HOUSE, Fringe, How I Met Your Mother, Battlestar Galactica, Two and a Half Men -- take your pick. How does one of these series get made -- with their $50 million or more annual budgets, under any of the hippie systems of "free" or "open" copyright you guys advocate?

Don't give me the same B.S. What is the model? How do you get that amount of money to lay out up front over your proposed utopian system?

It's hard and discouraging for an artist or a creative person working in film to try and come down on the side of a fairer copyright regime that deals with things that I think are really important for consumers: copyright terms that don't get extended past 50 years, enshrined parody and satire protections, some protection and redefinition of "derivative works," because most of the rest of the stuff that gets spouted is so airy-fairy, pie in the sky ridiculous that you just wind up shaking your head and thinking, "any self respecting government INDUSTRY minister is going to look at this and run screaming for DMCA and digital locks."

So I raise the challenge: what's the model for my business with no copyright?

And you can't cheat. You can't raise Joss Whedon -- who's famous and a brand because of the work he was able to do under an old style copyright regime.

"Fair Copyright" types hate digital locks, they hate copyright terms, they hate collective licensing and any kind of levy. They hate everything.

So how's it get done? How does the movie actually get made. Not ten years from now. Next year, when a copyright bill passes the House of Commons in this country.

How does it happen?

Cause I'd love to hear the argument.

I'm tellin ya. One more university kid types at me trying to explain Marshall McLuhan, and I spank him and send him to bed without any Wifi.

Get going. Convince me.

#Globe Fail, or "It's the Context, stupid."

TODAY'S GLOBE AND MAIL has an absolutely textbook definition of the way the media often distorts issues by leaving key bits of context and framing out.

Interestingly enough, I've experienced this in just about every news story I've ever been directly involved in. It's a little disheartening.

The article, by James Bradshaw and Karim Bardeesy is titled, very prejudicially, "Music Industry Seeks New Levies."

That's a great way to foment grumbling right there, of course. Because it's the music industry -- or as I pointed out yesterday, more accurately, the "record industry," who've been suing people, and who've thrown their weight behind digital locks that screw up people's computers, invade privacy and prevent some lawful uses of material the user has paid for. In reality, Thursday's calls for a levy extension to hard drives, Ipods, and other storage media was put forth by several creator groups & individuals at the Town Hall -- not just the music industry. I have nothing to do with the music industry -- which makes it doubly annoying that the authors of the Globe article chose to misquote me:

A town hall meeting in Toronto on Thursday evening – dominated by music industry executives andintellectual property lawyers, and attended by Industry Minister Tony Clement – sparked a lively debate about the iPod tax.

When digital music downloading caught on in the late 1990s, the Canadian government established a levy on blank recording media, compensating artists for the copying of their music. The fee is now 24 cents per audio cassette and 29 cents per CD.

“The levy works so well, we don't even realize we're paying it,” television writer Dennis McGrath said.

But the fee was already dated when it launched in 1999. The era of mass downloading – through sharing hard drives, flash memory, DVDs, music players, or online file-sharing networks – is here. Fewer people are buying blank CDs, and blank tapes are obsolete. So the money generated for artists fell to $32.5-million in 2007 from $39.4-million in 2004, a 17-per-cent decline.

A regular annual drop in music sales has spurred the industry to try again. With two million iPods and iPhones in Canada, according to the mobile advertising firm AdMetrics, the potential haul from Apple products alone could be substantial.

Now, besides the fact that they spelled my name wrong -- which happens all the time, but isn't a great sign -- if you check the webcast or read the transcript of the proceedings, you'll see exactly how they changed my quote.

What I actually said was, "The levy has worked so well, that we had a guy here tonight who doesn't even realize he's been paying it."

That's a very different quote -- a quote that demands context.

So here's the context: Sophie Millman, the jazz artist, stood up and spoke in favour of the levy as a way to recover some of the monies lost by artists to the pirating of their materials via peer to peer networks.

Later on a young gentleman, whose name I gather from Geist's site was Tariq, spoke against the levy, explaining that he's never paid it at the cash when he bought CD's.

Of course, that's the not the way the levy works. Like the levies that are placed on Gas at the pump, the blank media levy is included in the price of purchase before the consumer buys the product.

That's the point I was speaking to. But the messy reality doesn't necessarily support the Globe writers' thesis -- that the hated music industry, having failed to secure a greedy levy in the past, are now trying again in a different way. Cue the heavy handed music -- Dum Dum DUM!

The rest of my remarks on Thursday throw my support for an Ipod or DVR levy into proper context. It's absolutely an imperfect solution, for both sides -- under a levy system, artists will never receive as much money as they would if their works were paid for 100%. And some people who buy Ipods who don't ever download, or some people who buy hard drives for a purpose other than storing ripped DVD's or music, might have to pay a levy for an activity they don't participate in.

But that, my friends, is what's called a compromise on both sides. And the result -- the price -- of that compromise from my point of view is that we throw out the restrictive and backward thinking, DRM, DMCA style U.S. copyright -- where digital locks are thrown over content to incovenience users, and Industry Organizations spend a whole lot of time threatening people and filing lawsuits for having a downloaded Coldplay mp3 or episode of Friends on your home computer. It's a concept called, "Collective Licensing," and it recognizes the reality that digital networks, and peer-to-peer is here to stay.

If we move beyond the idea of the bricks-and-mortar content as a physical thing arguments, then just maybe we can focus on ways peer-t0-peer distribution could actually be monetized. The taint will be gone, and a great 21st century technology can lead to new market and opportunities.

$75 on top of the cost of an Ipod sounds like a lot to me, too. So maybe that's too much. Point is, the intellectual underpinning of the call for a levy is far more sophisticated, and forward thinking, than either the "information wants to be free" retards or the buttoned-down Globe writers want you to believe. The flaky artists are actually trying to come up with a workable solution here, that blends with the technological reality.

Screenwriters already have a Collection Society that distributes monies from foreign sales of the shows they wrote. I'm on the board -- it works well. It doesn't get them every dollar they're owed, but hell, it's actual real money -- not a theoretical payday that depends on being able to stamp out consumer behavior that's here to stay anyway.

Furthermore, if we get beyond the fight over digital locks and peer-to-peer, maybe we could actually tackle some of the big consumer issues around copyright that don't get a lot of air -- things like the abolition of crown copyright, the length of copyright terms, fair use in the area of parody and satire -- and any of a hundred other real, important issues.

But none of that fits within the Globe writers' narrow categorization of an us-and-them cash grab. They sneak in that the CD levy was obsolete when it was approved, because of the move to networks and storage on hard drives -- without discussing the other philosophical underpinning to the levy argument -- it's technology neutral. It doesn't tie us into talking about what we do with a physical storage device or product that might not be around in five or ten years. It will actually allow our copyright laws to function as technologies change, rather than be inadequate and hopelessly out of date, as the current law is, and as the law the Conservatives proposed just two years ago would be today.

Any and all of that could be said. But none of it would fit into the thesis of the article. So, you know, it's probably just easier to change my quote to give it the context you want.

Nice.

Two points to end off:

First, just so the black hat-white hat reductivism at work here is in even sharper relief: when the court struck down the extension of the levy to the Ipod by the Copyright Board, I was in favor of that ruling. Not because I didn't think the Ipod levy was a good idea, but because I recognized that it was overstepping the law as laid out in the (old) Copyright Act.

Second:

Ironically, after the Town Hall, Tariq who doesn't pay the CD levy sought me out -- and said to me that he knows he didn't pay the levy because he buys no-name spindles of CD-Rs that only cost 10 bucks on College Street. So that's why levies don't work.

Uh. Okay?

In that case, maybe that makes my crack at his expense during the town hall not as accurate as it might have been. He wasn't clear in his point, so inadvertently, I miscategorized what he was trying to say. (And to be fair, he did it first.)

But in any case, it's a distinction without a difference. If you're buying knockoff, grey market stuff, you're more in the piraters' column, anyway. We don't make law or set rates based on the people who steal cable or who buy knockoff sneakers, either.

Copyright is a contentious issue, no matter how you slice it. There is much that I feel needs to be done to protect consumers' rights -- but that discussion must absolutely go hand in hand with a workable, technology neutral solution to the problem of artists' not being compensated for their intellectual property.

Lumping our concerns together and spinning them as another grab by the music industry is dirty pool and not worthy of the Globe & Mail.

How Can It Be Copyright When It Feels So Copywrong?

SO LAST NIGHT, I attended a good old fashioned dog & pony.

The Copyright Consultation Town Hall took place in Toronto's Royal York Hotel. It was the second such event. There's also been a bunch of roundtables in places like Vancouver, and another one in Toronto yesterday where selected "industry representatives" make their case to the government about what needs to be done to bring Canada's copyright laws into the 21st century.

Copyright is an extraordinarily complex issue, made all the more complex by the rapidly changing nature of technology, and the issues that have sprung up around the use of that technology.

From the public side, from consumers -- there's a number of concerns that speak to individual rights -- many of which have been crystallized by the digitization of content and the ease of spreading that content around.

It's often framed as a showdown between the piraters who don't feel you should pay at all for TV shows and movies, and the industries that market, make and sell such content. But it's so much more than that. Digital locks or attempts to "copy proof" digital materials have led to embarrassing privacy-concerns, and concerns about tampering with users' systems. The Heavy Handed American Approach, where certain users were targeted and whacked with huge lawsuits to deter filesharing, have made martyrs of people who shouldn't be, and cast copyright holders as the bad guys, sometimes unfairly. There are all sorts of other legal, philosophical and creative issues swirling around, too. What is the public domain? Should big companies like Disney be allowed to pressure for extensions to copyright past the normal 50 year term? Should there be exemptions for things like parody, or satire? What about the use of copyrighted materials in classrooms? And what is a creator, anyway?

The landscape has changed so fast that the bill the Conservative Gov't tried to table last time (which died with the last election) is already out of date. As it stands, Canada's copyright law references VHS tapes, and is so out of date, it's almost like those early 20th century statutes that demand that someone run ahead of an automobile, telling pedestrians to get out of the way. There is much to disagree about around the subject of copyright -- and the horses are spooked. By being slow to take up this subject, Canada has fallen behind most other jurisdictions in the first world in figuring out what the balance between consumer rights and creators and copyright holders should be in the 21st Century digital economy.

So then, to last night. The 300 or so participants in the Town Hall had registered a few weeks ago when the event opened. I was notified by the WGC and registered. When I arrived last night, I got a name tag and a number. Three streams of people got to participate in the two hour session -- people drawn by lottery, a few "industry representatives" drawn by a different lottery, and web commenters, whose submissions were read out in the room by one of the facilitators. When your number got picked, you went up to the mic and started speaking. You had three minutes. That's it.

No matter what happened next, at best this would have been an imperfect, agonizing evening. There are so many perspectives, so many issues, and plenty of complexity to go around.

Except none of that came out.

After a moving first presentation by a musician who talked about his fears for his future livelihood and his moving desire to just be able to continue to make a living, there was a steady stream of representatives from the major Record Labels. All told, we heard from three people who worked for Warner Music (I heard later that there was a fourth,) a couple from Sony and several from Universal.

Now, it's no surprise that Record Companies turned out in force. Starting with the birth of the original Napster and all that came after it, the Major Record Labels (as opposed to the faux synonymous "music industry") have been the Canary in the Coalmine for the challenges of the digitization of content. And, sad to say, this is an industry that has not comported itself very well. From resisting the shift to legal digital downloads, to supporting punitive and outsized lawsuits, to flirting with the cure-all of digital locks that punished the legitimate purchaser more than the average pirate, the leadership of this industry has dropped the ball at just about every step. They've clung to a bricks-and-mortar, 20th century business model that rivaled the Hollywood studios for strange accounting practices, chargebacks, and largesse in the promotion, monetization and exploitation (in many senses of that word) of music.

In many ways, it's the screaming of these large labels -- and their lobbying groups like the RIAA, that have held back discussion of possible new ways forward, by focusing on their needs and monopolizing the debate.

And so it went last night. Speaker after speaker from the labels poured out their view of the rights of artists they were protecting, and the horrible impact of the losses of jobs in their corner of the industry.

Which is indeed sad. And unfortunate. And ... here's the Band Aid getting ripped off fast ... inevitable.

I imagine that the makers of sheet music, and player pianos experienced a similar agita as the technology changed. And I'm going to guess that the makers of intricate handsome cabs didn't all succeed in the auto industry. And pager makers didn't all get to switch to cell phones, American TV manufacturers saw their business shift to Japan and then China, the mimeograph industry fell to the Fax Machine and then Email, and so on and so on.

The thing is, as sad as the losses of jobs are -- and they are indeed sad, and unfortunate -- the arguments that these reps make, when they bother to make them -- are not solutions at all. The Genie is out of the bottle. Like a lot of literate people, I find myself very worried about the steady decline of the newspaper business. But I'm enormously relieved by the fact that I don't really see any calls from that industry to somehow, oh, I don't know, figure out a way to force more people to buy newspapers -- or to sue a Grandmother in Calgary because she passed her copy of the Herald onto her neighbour.

But speaker after speaker from the Record Labels got up, and made the same points, over and over, despite the admonitions from the moderator to please cede your time if your view had already been expressed. Well, their views were expressed. Ad nauseum. And they're points that you've probably already heard through any one of a hundred of their well-funded anti-piracy campaigns.

My heart sank a little every time someone introduced themselves as being from one of the labels, because I knew that there was three more minutes gone, where we wouldn't hear another point of view, another concern, and another possible solution. And inevitably, it seemed to tip the evening into exactly the place it shouldn't have been -- another discussion about the problems of the illegal filesharing of music.

Yes. That's a problem. But it's a well discussed problem, and it's not the only problem, and between the CRIA and the RIAA, it's a problem that their industry representatives have reflected to the government time and time again.

Interestingly enough, there were some other voices from the music industry -- as opposed to the record industry -- who went their own way, and discussed other possible models and solutions. Sophie Millman, a quite wonderful jazz musician (who my compatriots assured me also had the best shoes of the night,) got up and spoke in concrete terms about her specific experiences, and for the first time brought up a solution that goes another way from the American model: the blank media levy.

Introduced when home taping was the issue, the blank media levy is a charge that's put on blank cassettes and discs. That charge is invisible to the consumer -- worked into the markup on the product when you buy a stack of CD-Rs. In Millman's case, her share of a levy one year came in at about $12 000 -- which she said was a significant factor in her label deciding whether she could tour.

Now that example is specific and concrete, and as an artist, she was asking for a specific remedy: she felt that Canadian law should be amended to extend the levy to PVR's, hard drives, Ipods and the like.

Lots of you out there just groaned. I know. It's an awful, imperfect solution. But this is what artists and copyright creators are down to, now. Unlike many of the people speaking for the Labels, we accept the proposition that a portion of the audience will always choose to pirate our material. We know that can't be stopped -- not through lawsuits or digital locks. Some combination of going after wholesale, large scale piracy and an alternate, compensatory revenue stream is the only -- imperfect -- solution to many of us. It won't be as much as we would get if every copy of our work was bought and paid for -- but it's something.

It is truly amazing that most of the people in the room, whatever side they were on, would very blithely and easily agree that artists should be compensated for their work. But then, in the ideology, the hows and how-does-that-works become fuzzy and indistinct.

Well, content creators -- we, the ultimate freelancers, cannot afford to trust, and have it be indistinct. Any more than you would feel great about going to a job where the boss told you, "keep working, you're doing a good job and you deserve to get paid and, uh, we'll figure out a way to do that. Somehow. Someday."

"But I buy hard drives and I don't copy music or movies on them...." the chorus says.

Sure. Okay. Maybe that's so. I don't have kids. And I paid a whole bunch of taxes last year on income I generated from my intellectual property that went to schools, and daycare credits, and child benefits, and the upkeep of playgrounds.

Anyway, that's a bit of a tangent.

Other points of view that were buried or downplayed in the march-to-sameness from the label reps: A guy got up and made an excellent point about how a Canadian author's work falling into public domain resulted in an explosion of new annotated editions, and repurposing of the work. His presentation was marred somewhat by kind of an elitist lead-off that dogged teenagers and had the whiff of preciousness, but it was a new point -- and it made me want to click my heels.

A very nice University student got up, and made an extremely earnest presentation about what copyright meant to him. He was nervous, and didn't get all of what he wanted to say out, but I would have heard three more like him rather than another Record industry rep.

Intriguingly, one very articulate guy -- I remember neither his name or face -- spoke about opportunity. He's a guy who actually quit the business to get into the business of tracking usage and copyright online -- to collect and distribute monies to content creators. That's another piece of the pie that got short shrift -- the opportunities new business models, and ways of thinking might bring.

I've written for most of this post now about the artist or copyright holders' points of view, but of course there's another side of that -- the consumer. And unfortunately, the consumer really did get a bit of short shrift last night. The point was made not to restrict with digital locks, and many of the Web commenters made excellent points about the public's rights.

There were a couple of presenters talking on behalf of researchers and university libraries about trying to extend "fair dealing," -- the ability for researchers to use works for academic purposes. And there were a couple of authors' and writers' reps that argued why that might not be a way to go. Finally! Two sides of an issue given an airing.

I was there with my colleagues from the Writers Guild of Canada. K.L. Ashton does yeoman's work at the Guild on Policy issues -- Maureen Parker is the hardworking Executive Director, and then there were three of us who were wearing two hats -- working screenwriters, and members of the WGC Council. Jill Golick is a working writer and new media creator (you may know her from her story2oh and writing blogs). Rebecca Schechter is the President.

We all had our numbers, and notes, and thoughts on what we would say. But in the end, only my number got called.

And oh My Lord, was I nervous. Which is weird, because I normally have no problem talking in front of large groups. But partly, it was looking down on those notes and trying not to repeat points that had been made before, part of it was the responsibility and the knowledge that one point of view was already being over-represented...

...but part of it was just a pure and simple struggle. You see, I don't just get up there and talk as a creator. I'm a consumer too. I've been enraged by digital locks that got in the way of my perfectly legal use of paid-for material. I have issues with corporations subverting the Public Domain. I feel strongly about some aspects of Fair Dealing, especially when it comes to enshrining and carving out a place for parody, satire and fair comment. I don't know how what I do will be paid for in the future -- I'm not even sure that the format of what I do will survive. But I know in my heart that there's a way forward that puts the power in the hands of the individuals, and doesn't favour huge conglomerates -- because in the end, isn't that the real point of the digital revolution?

So I did the best I could. I was breathless, I got off a few jokes, I underlined the levy option as one way forward and I spoke up for Parody and Satire. And that was that.

I noticed later that Michael Geist -- who I don't always agree with 100%, but who certainly has a comprehensive handle on all these issues that speaks from the consumer side -- tweeted that I had done well, and that made me feel a bit better.

But when it comes to public reaction to Geist's summation of the event -- I get a growing, bad, restless feeling.

It's the same restless feeling that I've had when dealing with many of those who fully evangelize for what's become known as "fair copyright." And that's the blitheness with which they choose to paint everybody with the same brush.

You see it in the sneering attitudes toward "industry representatives." Like we're all equal. You know, when I'm called a lobbyist by somebody in a situation like that -- as I was last night -- I want to do more than groan. I kind of want to punch the fucker out. A Lobbyist? Excuse me? You try pouring your heart out to create something, trying to cobble together a living and encourage fellow travelers and make something entertaining and then turn around to wonder if it's all going to be for nothing in three or five years. You try sitting in Council meetings to serve your fellow writers, for which you get a pittance -- and then get called a lobbyist, while some dude has the nerve to talk about him making his 6 terrabyte server of other people's work available to the world makes him more virtuous than you. Lobbyist. Hey buddy -- fuck you.

What I know to be true is, far from being endlessly consulted, the WGC often doesn't get a seat at these tables. We struggle to make writers' voices heard. Nobody's chomping cigars and flying business class and living the high life. Lobbyists. Sheesh.

The sneering rhetoric and the blithe, "yes, yes, artists should get paid, but they should also remember that consumers are the ones paying the bills," is a bunch of self-congratulatory, cooler than school, information wants to be free, aren't we edgy, 21st century bullshit.

I'm a consumer, same as you. I struggle to try to find a middle ground between individual rights, and securing a viable economic future for people who do what I do. It's damn hard.

And as much as it may be disappointing to see so many record label folks speak -- they organized. They came out. You can whine about the fix, you can pooh-pooh and turn everyone who doesn't think like you into "the man," but the fact of the matter is -- you don't help your cause when you venerate guys like the last man who rushed the mike and delivered an incoherent ramble that was the only time all night where the copyright forum sounded a bit like a U.S. health care Town Hall forum. That is not your standard bearer.

Geist is a great resource. And Fair copyright is important. And I will be right there with you complaining if a bill comes around that gives the short stick to the consumers' rights in the digital future. But the smugness and the self-satisfying tone, and the casual dismissiveness towards people who, after all, are only worried about their entire livelihoods -- is odious. It doesn't make you a crusader, cochise.

It kind of just makes you a dick.