by Richard C. Owens
The battle on behalf of Big Tech against artists is becoming a rearguard action. The battle tactics practiced by Silicon Valley’s lobby groups have been reprehensible, and the strategy of squeezing artists shortsighted. Behind it all, of course, is a powerful force: Google, which aggressively deploys its vast wealth to make sure that creators get a raw deal, and Google gets a good one.
An application for costs before the Canadian Radio-television and Telecommunications Commission in respect of the “FairPlay Canada” initiative is a perfect case in point. FairPlay is an attempt by more than 25 Canadian media companies, including Telus, Rogers, Shaw and Bell, to get the CRTC to set up a process to block websites that exist for the purpose of pirating television shows and other video content. But the CRTC declined to help on jurisdictional grounds, determining that it lacked power under the Telecommunications Act, but that FairPlay could pursue other legal avenues.
Among the groups contributing to the fight for piracy and against FairPlay were Vancouver-based OpenMedia and the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa. Open Media and CIPPIC now seek to collect from FairPlay its costs for fighting FairPlay’s request to the CRTC — a grand total of $16,144.50. It’s not much, but consider the principle: Open Media says it should get the money for defending the public interest. By protecting pirates? By spreading misinformation about FairPlay? That’s rich.
CIPPIC meanwhile, portrays itself as a public interest law clinic. Both it and OM receive money from Google. Of course, organizations don’t necessarily toe the line of any particular sponsor. But it’s curious how often their positions tend to overlap.
Open Media is the same organization that was behind a dodgy email campaign that recently targeted Canada’s NAFTA negotiator, Foreign Minister Chrystia Freeland: Open Media created an online form letter that allowed a single person to spam the minister with a limitless number of emails. The ministry was hit with an avalanche of 22,000 emails from that web form, most of them likely bogus. Naturally they all claimed to be grassroots Canadians worried about losing “digital rights” — meaning rules that protect Big Tech corporations.
Open Media also played a huge role in delaying the recently passed European copyright directive, by using automated email forms and robocalls to deluge EU delegates with misinformation and create a false sense of grassroots opposition. All this to stop an EU directive that may finally help put artist’s rights back into the balance.
American musician David Lowery, who has been fighting for artists’ rights, has called out Open Media for underhanded tactics. Lowery, founder of alternative rock bands Camper Van Beethoven and Cracker, wrote: “this sort of spamming activity by the likes of Open Media seems designed to overwhelm the channels through which ordinary constituents communicate with government officials. It drowns out the voices of ordinary citizens, and replaces them with robotic corporate and special interest crafted messages.”
Similar tactics used by Open Media’s commercial affiliate, NewMode.net, played a role in the defeat of the Trans-Pacific Partnership IP provisions as well as the stalling of the EU copyright directive. (Shockingly, the Canadian government, through its office of the Privacy Commissioner, has actually provided funding to Open Media.)
If Google’s interests seem to benefit a lot from its financial support for Open Media, it doesn’t stop there. The scent of Google’s paid influence is finally being picked up in all kinds of important places. In a recent court case in the United States, a judge required intervenors claiming to represent the public interest to disclose whether they had been funded by Google. They had. And the Google Transparency Project, run by the non-profit Campaign for Accountability, and The Wall Street Journal have publicized the extravagant number of intellectual property law academics funded by Google in Europe and the Americas. According to the Journal’s reporting, for instance, Google has provided financing for hundreds of research papers defending it from regulatory incursion or other costs.
So this is the alarming situation we face now. Google’s power and money are being deployed to promote views and sometimes even misinformation that benefit Google through a wide network of academics, lawyers and advocacy groups. Yet Google is an organization that does nothing so much as broker information. Is it wise or proper to allow any company to purchase its own terms for the integrity with which it treats others’ information?
Google’s interests with regard to its “digital rights” efforts are most neatly viewed through the activities of its YouTube arm. YouTube is the largest online distributor of music and other content, legitimate and pirated, but notoriously pays a pittance to the artists from whose work it benefits. Meanwhile, YouTube remains open for stream-ripping software that can pirate music directly from the site.
Google and other social media companies have grown fat and powerful under shelter provided by unjustly favourable laws. It now uses its power to try to enlarge that shelter rather than meeting the needs of the artists and creators on whose efforts its platform depends. (The latest favour from policy-makers to Big Tech was a provision in the new NAFTA deal that granted internet companies immunity from legal action on user-posted content; how did that get in there?)
At least now the tide is beginning to turn. Open Media’s efforts were defeated in Europe and legislators there said that they were particularly influenced by disgust at the tactics of the technology industry.
The University of Ottawa’s Michael Geist has attacked me for my criticisms of Open Media. He claims, without any basis, that I am a lobbyist for somebody or other. In fact, I am independent and I truly am only interested in representing the public interest.
Meanwhile, other groups out there are taking Google’s money while also claiming to represent the public interest. More and more decision-makers and legislators are starting to realize that it just isn’t possible to do both.
Richard C. Owens is a Toronto lawyer and adjunct professor at the University of Toronto’s Faculty of Law
© Financial Post