What would copyright law look like if economists held the pen?

So yet another study finds that there is a small, positive correlation between illegal downloading and music sales (h/t Geist, Knopf, Torrent Freak and others). In basic English: Illegal downloads don’t harm music sales. Let’s put it even more simply: At the very least, piracy does no harm to music sales, and may even help them.

In a world of rational policymaking, these findings would land like a bombshell. Studies like this undercut the entire rationale for the past decade-and-a-half of global copyright reforms. The very existence of copyright is based on the assumption that stronger protection = more creation. And yet studies like the one linked to above suggest that this relationship doesn’t hold.

In their book Against Intellectual Monopoly, economists Michele Boldrin and David K. Levine compare intellectual property to the mercantilist approach to trade that was undercut by David Ricardo’s revolutionary notion of comparative advantage in the 1800s. Like the situation today with intellectual property, mercantilism was defended by interest groups that benefited from the dominant regime even as economists like Ricardo and Adam Smith demolished mercantilism’s flimsy intellectual foundations (as it then existed).

Eventually, Smith and Ricardo won the argument. Will the same thing happen with intellectual property? I have no idea. It would be a nice start if we, as copyright scholars, at the very least, began all discussions of copyright reform not from the starting point of the law as it currently stands, but from empirical considerations about the actual effects of copyright law on the market for creative works. Maybe it’s time we all started thinking like economists.

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SOPA and online social movements: Thinking transnationally, acting locally

Just noticed that Susan Sell, a big influence on my own studies – her Private Power, Public Law (online for free at the link!) was one of the starting points for my dissertation – has cited me in an article on the SOPA protests (h/t Sara Bannerman). This has spurred me to finally put said cited paper online. It’s something I presented at last year’s Canadian Communication Association meeting on the lessons of the 2007-08 Fair Copyright for Canada Facebook protests. In many ways the FCFC was a precursor to future social media-based protests, including SOPA, ACTA and even the Arab Spring. It was also one of the first of its kind in the world, and definitely the first in Canada.

It’s currently morphing into a journal article that uses the FCFC movement to think about how digital technologies have changed (or haven’t) the logic underlying social movements. In the meantime, if you’re interested in learning a bit more about the factors influencing the success (albeit not total) of the FCFC movement, feel free to check it out. I even plan to put it on SSRN one day, once I figure out how the registration system works.

As for Sell’s, if you can get past the paywall (a sad irony given the subject), hers is a very interesting article placing the SOPA takedown within a transnational, social-movement perspective, focusing on the ability of transnational networks to move rapidly from the domestic to the global.

It may be because I just got back from Mexico, where I was interviewing local Internet activists who convinced the Senate to vote unanimously against ACTA in 2011 (long before the SOPA and European ACTA protests), but it’s interesting that the transnational networks Sell highlights feature exclusively European and American actors. More than one person I talked with in Mexico has noted that the Mexican victory against ACTA is almost wholly absent from the ongoing copyright/IP/net neutrality discourse.

Beyond what this means for the structure of these networks (maybe they’re not so much transnational as Euro-American), the lack of attention to this case is a huge oversight, given the stakes for developing countries when it comes to intellectual property and building civil society.

I mean, I guess it’s nice to have the field to yourself, but anyone who’s studying developing countries and civil society, online activism, and engagement with international treaties (to name only a few subjects) should be all over this story.

I still wonder whether it makes more sense to think of the SOPA and ACTA protests as transnational protests with domestic aspects, or as national protests with transnational aspects. Theoretically, I keep coming back to Randall Germain and Michael Kenny’s (also paywalled) question about whether you can have a “global civil society” without having a “global state.” To get all jargony for a second, this is tied up Gramsican notions of hegemony, a key concept for Sell, who offers SOPA as a “hard case” of transnationalism as a “‘potential hegemonic force against vast material resources and state power’.”

I haven’t written up my results yet so these are just some unformed thoughts. In both cases, there’s no denying that there was some sort of transnationalism in play. How important is it? I have no good answer yet.

Anyway, the whole thing is definitely worth mulling over, and Sell’s article is a really helpful contribution to the debate.

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ACTA comes to Canada: Will protests follow?

On Friday the Conservative government introduced legislation that would implement the Anti-Counterfeiting Trade Agreement (h/t Geist). Four quick comments:

  • The government’s being a bit sneaky with its briefing materials. C-56 primarily amends the Copyright Act and the Trade-marks Act, but you’ll have to look long and hard to find any reference to copyright in the government’s briefing materials. It’s all trademarks, all the time.

Could it be that the government doesn’t want to draw attention to the fact that it wants to get border guards to become copyright cops? Copyright law is so complicated that copyright lawyers have a hard time agreeing on what core concepts like “fair dealing” actually mean. Is this really something that we want our border guards (who should be concerned with dealing with actual threats to Canadian security) to be enforcing?

  • Despite ACTA’s unpopularity elsewhere, this bill shouldn’t have come as a surprise to anyone. This is still the same government that followed the U.S. lead on providing very strong protection to digital locks in their 2012 copyright reform bill despite a huge public outcry.
  • I would be very surprised if Canadians took to the streets to protest it. The normally astute Mike Masnick wonders: “It’s really amazing that they’re willing to open this can of worms, given just how strongly people fought back against ACTA elsewhere.” Things get a bit clearer, though, when we remember what these people were fighting against and then look at the actual bill. The protests in Europe and Mexico, as elsewhere, were almost exclusively focused on ACTA’s digital-copyright angle and its effects on online freedom and privacy.

This digital lightening rod is conspicuously absent from (at least) the copyright bits of C-56 (the protests also weren’t very focused with ACTA’s trademark angle). There might be a lot that’s wrong with the bill, but the lack of anything affecting online activity directly will probably mute any public outrage. People (like myself) who thought we’d been witnessing a sea change in the public’s view of copyright, as opposed to rising concern for digital rights, should pay very close attention to how the public reacts to this bill.

  • One brief reminder/clarification about Mexico and ACTA. A lot of the online ACTA commentary is treating the 2011 rejection of ACTA by the Mexican Senate as a fait accompli. I’m working on a paper on this, so I’ll have more later, but ACTA is far from dead in Mexico. Outgoing Mexican President Felipe Calderón signed it in July 2012, and the conditions that led the Senate to unanimously condemn the treaty (they never rejected it, since it’s never been formally sent to them) no longer hold, in part because of the election-related turnover in Senate membership. It could still end up in the Senate, and the people I talked with seemed to think that there’s a good possibility that it could pass, though that’s far from certain.

Never a dull moment…

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Mark Carney, Stephen Gordon and the Globe and Mail’s credibility problem

I’ve been following Stephen Gordon since he was the first to really publicize the Harper government’s unconscionable scrapping of the mandatory long-form census. His economic analyses in the Globe and Mail, Maclean’s and Worthwhile Canadian Initiative have been for the most part solid and level-headed.

So I was surprised to see him go into a full-on meltdown over the Globe and Mail’s weekend story about how some factions in the federal Liberal party spent their summer vacation courting Bank of Canada Governor Mark Carney for the Liberal leadership race.

In allowing himself to be courted, Gordon argues, Carney and the Liberals who dared to try to drag the formally non-partisan Governor into the muck of partisan politics have, at worst, destroyed the Bank’s hard-won credibility as a non-partisan arbiter of Canadian monetary policy.

That’s not good, I thought.

But then I read the actual Globe story, and it’s pretty clear that Gordon has way, way overreacted.

First off, I’m not a Liberal party supporter or apologist, as Gordon was labelling some of his critics on Twitter yesterday. I’m just someone who can read a newspaper article. And when you break the article down, what Daniel Leblanc, Steven Chase and Jane Taber have provided us with is a circumstantial, anonymously sourced argument that’s more innuendo than reportage. It’s bad data.

Much of the article focuses on Liberal feelings about Carney (“Liberals sensed that Mr. Carney was one of theirs, and that he could be sold to the party membership”) and speculation on hypotheticals (“One of the concerns among Liberals about Mr. Carney’s potential candidacy last summer was whether he could successfully jump into the world of politics from his non-partisan position at the Bank of Canada.”) In other words, idle gossip.

But let’s go through the more substantive (relatively speaking) parts of the Globe story, shall we?

  • The Globe alleges, relying on “dozens of” mostly anonymous sources, that a faction of the federal Liberals wanted to draft him as leader (perhaps because that worked out so well last time? But I digress.).
  • Carney, according to anonymous sources, “responded to inquiries by seeking clarification about the job, but also about what it would take to beat Mr. [Justin] Trudeau at the convention next April. ‘He asked questions,’ said a well-known party organizer who was tasked by Liberals with finding answers for Mr. Carney.”
  • Carney gave “a surprising speech to the Canadian Auto Workers and a human-interest interview with a Nova Scotia Web publication that focuses on political and business news.”
  • Carney “stayed for close to a week at Liberal finance critic Scott Brison’s Nova Scotia seaside home last summer, a visit that took place as members of the opposition party mounted the effort to recruit him.”

Are you shocked? I’m shocked. Let’s go!

On the first point, which forms the bulk of the article, I really find it hard to muster much outrage. We’re talking about the same party that thought it would be a swell idea to draft as leader a Harvard professor who had been out of touch with Canadian politics for three decades. So to the extent that trying to draft a sitting governor of the Bank of Canada might be a bad idea, I’m hardly surprised that they tried: their leadership track record isn’t exactly stellar. (And, it bears noting, that this was only a faction within the party.)

What matters, though – and this brings us to the second point – is that Carney obviously at some point said, “No thanks.” Essentially, Gordon’s argument against Carney is that he didn’t say no fast enough. Why he didn’t I don’t pretend to know (and the Globe writers shed no light on this issue), but isn’t the important thing that he did?

If “He asked questions” is the most damning thing they could find (again, from an anonymous source), then I’m not sure what the fuss is about.

I would’ve hoped Gordon had a more nuanced and realistic view of what it means to be a non-partisan civil servant. This might just be me, but I take it as a given that everybody has political leanings. I spent six years (as an economist!) with the non-partisan Library of Parliament (several of them on the House Finance Committee, giving me a bit of familiarity with both monetary policy and the politics of monetary policy. Anyway.) The Library provides research services to committees and parliamentarians from every party, and I can tell you that to a person we a) had political opinions, and yet b) managed to put these aside and provide the best possible service to everyone, be they socialist, conservative or separatist. It’s not the Bank of Canada, and I was about as far from having the power of a Bank Governor as you can be and still be part of the same political system, but the principle is the same. Given that we all have political (and often partisan) leanings, who wouldn’t ask questions if they were being bombarded by requests to lead a (3rd-place) federal party?

Would Gordon argue that we should re-examine former Bank Governor David Dodge’s tenure because he addressed a Liberal party conference in March 2010? Dodge wasn’t governor at the time, but it’s not like most people change their political inclinations depending on whether they’re in office or not.

On to the third point, in which the Globe writers attempt to show that aggressive Liberal courting influenced Carney’s actions. What’s amazing about their evidence is how little there is. This is the Globe’s best effort at putting this story together. And yet think about what’s not in here, even though they talked to “dozens” of people and the only person on the record in this article in any substantive way is John McCallum.

Dozens of anonymous sources and there’s nothing touching even remotely on Bank policy. There’s no hint of impropriety, that a Bank Governor appointed by the Liberals Conservatives [edited because I goofed on who appointed him] has done anything less than his best while working under (or alongside) a Conservative government. (Shouldn’t that undercut their argument just a bit?)

The best these three journalists can come up with after working on this story for weeks is that he gave a speech to the Canadian Auto Workers, talked about his running habits to a provincial-news website and expressed concern about income inequality.

One example in particular shows how weak their argument is. Leblanc, Chase and Taber write:

As governor, Mr. Carney startled more than a few central bank watchers in 2011 by sympathizing with the frustrations of the Occupy Wall Street movement.

The implication being that such opinions mark him as being either sympathetic to the Liberals or that he was expressing such opinions because he wanted to make himself politically palatable should he decide to seek the Liberal leadership.

How preposterous are these assertions? Try Googling “Occupy Wall Street” and “Ben Bernanke,” head of the U.S. Federal Reserve. The first hit (out of 7.5 million) is from New York magazine: “Ben Bernanke on Occupy Wall Street: ‘I Can’t Blame Them’.” To the extent that Canadian “central bank watchers” were “startled” by Carney’s OWS opinions (again, no evidence is given) suggests not that Carney is a Liberal plant, but that Canada needs a brighter breed of central bank watchers.

It’s all pretty thin gruel.

As for the other fact in the Globe story, that Carney and his family spent almost a week in Brison’s cottage, while he was being courted by the Liberals: We know that Brison and Carney have been friends for about a decade. Would Gordon have been suspicious of the two families spending time together if he’d heard about it, say, two years ago? Maybe, but I think most people would’ve probably let it slide.

The optics problem, such that it is, results from Carney staying with Brison while he was being courted by a faction of the Liberal party. And yet even from this article it seems that this courtship was almost completely one-sided. And Carney said no.

I understand Gordon’s concerns. If there were evidence that Carney had been acting as a partisan that would not be good news for what is supposed to be a non-partisan institution. But Gordon errs in not considering the source and quality of the report in question. To repeat myself, the Globe report is an anonymously sourced article that fails to provide anything beyond innuendo and circumstantial evidence. Just because it’s in Canada’s paper of record doesn’t mean that it’s above suspicion. Remember the Globe’s kid-gloves treatment of serial plagiarist Margaret Wente.

In his battle against the cancellation of the mandatory long-form census, Gordon demonstrated that he understands the importance of high-quality data, and how our understanding of the world is damaged when we are forced to rely on poor information.

Maybe Mark Carney allowed himself to be swayed by a Liberal faction looking for (yet another) saviour. But before reaching that conclusion I’d want better information than what Leblanc, Chase and Taber have served up, and so should Gordon.

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What a century-old political science theory can tell us about the future of online activism (spoiler: a heck of a lot)

One of my old Carleton professors, Glen Williams, always used to make time in his first-year political science intro course to teach about Robert Michel’s Iron Law of Oligarchy, which Michels came up with almost a century ago, in 1911. I hope I’m not misremembering this, but he told me that it was probably the smartest thing ever written in the discipline. And I don’t think he’s wrong.

Wikipedia give a summary above, but the key line (from his book Political Parties, p. 241) is:

“Who says organization, says oligarchy.”

In other words, any organized effort will always result in hierarchy and leaders.

It’s a fantastic insight that people who study Internet activism, and particularly those who believe that the decentralized nature of the Internet allow for a new, leaderless, way of organizing social movements and improving democracy, should keep in mind. Sorry, says Michels, that’s not the way the world works. If you’re going to organize (i.e., work together) and you want to be successful, you’re going to need leaders.

(An aside: this is why Occupy Wall Street’s consciously leaderless approach has condemned it to the margins of political effectiveness.)

Two recent articles and a recent book indirectly make this point. Ayelet Oz, a Harvard Law student, analyzes the decision-making process behind Wikipedia’s decision to black itself out on January 18, 2012, to protest the Stop Online Piracy Act (SOPA) (h/t Michael Geist). She highlights the role that Wikipedia founder Jimmy Wales played in initiating the protest, even as the process of consultation and decision-making was rooted in the consultative norms of the Wikipedia community. But you still needed that leader for the protest to happen, and Wales’ status in the community was doubtless central to how the protest unfolded:

It was rather a delicate play between authoritative agenda setting and holding authority back, between charismatic leadership and broad community consensus. The center of this play lay at the paramount importance the community gives to legitimacy, and the different requirements it places for the decision–making process. The back–and–forth between narrowing and broadening the discussion went hand–in–hand with different understandings and alternate means of legitimation.

Meanwhile, in a critique of Manuel Castell’s new book Networks of Outrage and Hope: Social Movements in the Internet Age, Christian Fuchs quotes Paolo Gerbaudo from Gerbaudo’s new book Tweets and the Streets: Social Media and Contemporary Activism challenging “on theoretical and empirical grounds the assumption of Castells’ and others that the Internet brings about leaderless movements” (citations removed):

although contemporary social movements claim that they are leaderless networks, there are soft leaders that make use of social media for choreographing protests and “constructing a choreography of assembly” : “a handful of people control most of the communication flow.” The choreography of assembly means “the use of social media in directing people towards specific protest events, in providing participants with suggestions and instructions about how to act, and in the construction of an emotional narration to sustain their coming together in public space.” The movements’ spontaneity would be organised “precisely because it is a highly mediated one.” The ethical problem would not be this movement choreography, but the denial that there are leaders because this would result in unaccountability.

(h/t Dwayne Winseck)

Last bit of evidence that leaders still matter in Internet activism comes from Parmy Olson’s We Are Anonymous, a journalistic account of Anonymous and LulzSec. A recurring theme in that book was how discussions about large-scale ops were invariably conducted behind the scenes in small groups of recurring players (i.e., leaders) and then presented to the wider Anon community.

So, yeah, leadership takes somewhat different forms if you’re engaging in online activism, but it’s still there, and it’s still important.

Bottom line: If you want to know how the Internet affects social movements and democracy, read your Michels and don’t forget about the Iron Law of Oligarchy. As Prof. Williams would argue, it’s the rare political science theory that will never go out of style.

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