”Tom Bishop: Just trying to find out where she got that dress.
Nathan Muir: What if she were an asset? You told her four lies that now have to be true.”
Spy Game, Copyright 2001, Universal Pictures, Screenplay by Michael Frost Beckner and David Arata
In light of yesterday’s story in the National Post about him, I reread the Michael Geist section of Winning the Web, the anti-copyright movement’s organizing manual. MTP readers will recall that Winning the Web used Geist’s efforts for case studies, particularly his efforts against copyright reform in Canada and against ACTA. Examples held up to others from which they could learn.
The National Post story is about Geist’s role in the Canadian Bar Association submission on the very copyright reform legislation that was the subject of the Winning the Web case study, and the ensuing public relations—and some might say ethical—debacle that has ensued.
In a nutshell, the National Post tells the story of a submission to the Canadian Parliament under the imprimatur of the Canadian Bar Association that was critical of the copyright legislation that is currently before the Parliament. (Technically, the CBA submission addressed Bill C-32, the bill introduced in the last parliament before the recent Canadian elections, and that has been reintroduced after the elections in the new parliament as Bill C-11. The two are essentially identical, so the CBA’s submission is attributed to Bill C-11, i.e., the current bill.)
The reason there is what some have called a “scandal” about this issue has less to do with the CBA and everything to do with Mr. Geist’s own public statements about the submission independent of CBA. But when you consider that Mr. Geist is obviously as important a player as Lawrence Lessig in the international anti-copyright crusade (if Geist’s prominent role in Winning the Web is any guide), the CBA “scandal” may have much greater import. Because if Mr. Geist would have the brass to do that, what else has he done? And quite separately, who was he doing it for? Maybe nothing and maybe no one, but who ever thought he would get caught doing what he did with the CBA?
Here’s the twist: Huge swaths of Geist’s blog posts appeared in the submission by the CBA. That is a given, CBA acknowledges it to their great credit. Mr. Geist is not recognized as an author of the submission, but then neither was anyone else due to a concern about “lobbyist pressures.” That may have been a misplaced concern, but is at least something of a fig leaf for failing to credit Geist as an author. What is unusual is that Geist not only is uncredited as an author, but the use of his work is not attributed in the submission, i.e., not identified as a quotation from the work of someone else.
Someone reading the report who was not in the drafting group would have no way of knowing that Geist was an author or that any of the writing came from Mr. Geist. Normally, one might say that using someone’s work as your own without crediting the original author sounds a lot like plagiarism.
One way that using a work without attribution is not plagiarism is if you are not really using the work without permission—that is, if the use of the work without attribution is with the permission of the original author who declines credit (so many academics decline credit for their ideas), or if the original author is in fact the author, or one author, of the original work and agreed not to be credited. An agreement that evidently was not disclosed at the time.
I think this is a fair summary of the CBA’s position, however convoluted it may sound. (It’s frankly about the only one that could explain what happened internally.) You should read their letter yourself to see if you think that’s fair (quoted in the National Post article).
However—the plot thickens right here. The problem does not appear to be with the CBA. Their process might have been handled differently, and I would bet that will be in the future. Who would want to go through this again. The problem appears to be with the public statements of Canada Research Chair Geist about the CBA submission and his role in it.
After the publication of the CBA submission last year, Mr. Geist noted that:
“The Canadian Bar Association, which represents 37,000 lawyers, law professors, and students from across the country, has released an important submission on Bill C-32. The submission, which was approved as a public statement by both the National Intellectual Property and the Privacy and Access Law Sections of the CBA, does a nice job setting out the debate over Bill C-32 (I was once a member of the CBA’s Copyright Policy section but was not involved in the drafting of the Bill C-32 document).” (emphasis mine).
According to the National Post,
“In her March 1 letter, Ms. Ernst [the current CBA President] acknowledges those similarities, but denies they are the result of unauthorized use or ‘passing off.’ Instead, she explains that Mr. Geist had worked with the earlier version of the committee and provided direct input on earlier drafts. Mr. Geist confirmed that version of events on Tuesday.” (emphasis mine)
So, you have to ask yourself how all these things can be true, and at the same time marvel at the sheer brass it takes to have distanced yourself from a submission to create a sense of objectivity about it (at least that you weren’t connected to it), while at the same time knowing you wrote a good chunk of it. Then refer back to that same submission as doing a “nice job setting out the debate over [the legislation]” at issue and simultaneously deny that you were “involved in the drafting of the [submission]”–while knowing the truth. Then repeatedly quote the submission—which was like quoting your own unattributed work—as supporting views you advocated or at least agreed with. All without ever acknowledging to your readers or to the press that you were quoting yourself with favour. Then when the scandal broke you were pretty much forced to acknowledge that you drafted the thing you had contemporaneously denied as your own.
And all of this being done to influence your country’s legislature. While at the same time complaining of “policy recycling”.
This is such risky behavior you have to ask yourself why would anyone do such a thing? Because it was very unlikely that anyone could have made all those inflection points of questionable provenance turn out to be true. So what would make that a risk worth taking? Presumably it would be if the risk taker thought they would get away with it, maybe because they have gotten away with it so many times before.
Recall that Winning the Web tells us that:
“[t]he success of [Mr. Geist’s] Fair Copyright for Canada campaign [against copyright reform] relied to some extent on inside information Geist was able to get from his stakeholder contacts. Geist identifies government relations officers for major corporations as good sources of information.” (emphasis mine)
You can bet that those “government relations officers for major corporations” (a/k/a “lobbyists”) did not come from the creator community and were probably not other Canada Research Chairs, either.
Does this mean that there are more attribution issues? What else has he done, and why?
And how would anyone ever know.
Music Technology Policy 