OpenMedia: Flying Blind in Pursuit of an Open Society

By Neil Turkewitz

Early last week, as reported by the Globe & Mail and various other publications, “a broad coalition, including Canada’s biggest communications and media companies, a swath of creative and production organizations and unions, movie theatres and the CBC, is calling on the federal telecom regulator to create a website-blocking system to address online piracy.

Everyone concerned about the economic and cultural health of society in the digital age — presumably a group that leaves nearly no one out, should carefully review the report in its entirety. I do, however, draw your attention to the following observations underlying the report:

  • Piracy is a large and growing problem that threatens the massive employment, economic, and cultural contributions of Canada’s film, television, and music industries.
  • To combat the piracy problem, the CRTC should create an independent agency to identify websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy. Following due process and subject to judicial oversight, ISPs would ultimately be required to disable access to the identified piracy sites and services.
  • The coalition supports net neutrality and the free flow of legal content on the Internet. The system we propose does not raise net neutrality issues. ISPs remain neutral and simply implement decisions of the CRTC that restrict the distribution of content that is unlawful. Net neutrality does not prevent the legal and regulatory systems from taking steps to constrain the dissemination of unlawful content online.
  • This system would have extensive checks and balances, including notice requirements; rights for the website, ISPs, and interested parties to give evidence and participate in a hearing; review and oversight of all decisions by the CRTC; and additional oversight by the courts through potential appeals and judicial review in the Federal Court of Appeal.

Website blocking of pirate sites is operational in a wide number of jurisdictions, including most EU states, Australia, Norway and South Korea. As Barry Sookman has noted in his excellent post: “As open democracies around the world have confronted toxic material on the internet, it has become evident that blacklisting clearly illegal content fosters, rather than hinders, an open internet that is safe for all participants. Website blocking is a legitimate tool used by democratic countries that support an open Internet to block websites that disseminate illegal content such as child pornography, malware, investment fraud, terrorism, personal information, counterfeiting, and copyright infringement. Courts that have reviewed site blocking have consistently found it compatible with fundamental freedom of expression values.”

Notwithstanding the procedural safeguards being proposed by this broad swath of Canadian businesses dependent upon cultural production, and the fact that the adoption of clear guidelines for preventing access to infringing materials would align Canada with the existing practices of many of her most important trading partners, a number of the usual suspects have taken issue with the proposal, and have sought to reignite the SOPA wars. You know, breaking the internet and all. See for example Michael Geist’s article in the Globe and Mail in which he posits that US rejection of SOPA six years ago is “a useful lesson for the CRTC and the federal government, who would be well advised to swiftly dismiss the ill-advised and dangerous Canadian site blocking proposal.”

However, unlike the situation in the United States when SOPA was under consideration, we now actually have significant proof of concept. Countries around the world have been employing site blocking for the past five years, and the internet doesn’t appear to be “broken,” at least not in the way that Professor Geist and OpenMedia mean when they say it. Truth is, site blocking of pirate sites undertaken in a careful and deliberative manner doesn’t undermine freedom, it expands it. Unless one champions a version of “freedom” that includes freedom to steal. And of course, Geist’s overwrought protests ignore key aspects of this proposal to the CRTC that distinguish it from the SOPA legislation considered by Congress, including the establishment of a government body to identify relevant pirate sites and other safeguards against the abuse he and other copyright critics have suggested are necessarily entailed by any attempt to bring greater order and respect for property rights to the internet.

OpenMedia’s statement deserves particularly careful scrutiny. They declare: “the proposal would essentially create an official Internet censorship committee within the federal government, and open the door for overreaching censorship in Canada. The proposal, has seen widespread concern from citizens and digital rights advocates who recognize the negative and overreaching impact this will have on our Internet.”

OpenMedia is clearly hoping that cries of censorship will trigger a sufficiently intense Pavlovian response so that people will pay no attention to the proposal itself. For the sake of humanity, I hope that they are wrong. The procedure, if adopted, would address websites and services that are blatantly, overwhelmingly, or structurally engaged in piracy. That is censorship only if one views any application of law to the internet as a form of censorship. But such a view misunderstands both the meaning of censorship and freedom. This is not freedom — it is chaos monetized by many of the companies that fund OpenMedia. See platinum level supporters here. It is also worth noting the deceptive passive voice employed by OpenMedia when they observe that “The proposal, has seen widespread concern from citizens and digital rights advocates who recognize the negative and overreaching impact this will have on our Internet.” So after they have been proclaiming that the world is going to end because a mars-sized meteor is directly headed towards earth, they note that there appears to be growing awareness of, and concern about, meteorological events? This is rich.

OpenMedia continues the deceit underlying its opposition: “Everybody agrees that content creators deserved to be paid for their work. But the proposal from this censorship coalition goes too far…The most effective buttress against piracy has been affordable, user-friendly services that give people access to the content they want, when and where they want it. That’s why platforms like Netflix and Spotify are such a success. Until content owners learn to innovate and deliver content to people where and when they want it, this proposed scheme will harm consumers, censor legitimate content, and ultimately be used to protect outdated services like cable TV packages.

Feigning support for creators when you deny them the opportunity to sustain themselves from their craft is the worst kind of hypocrisy. Exactly how does OpenMedia’s agreement that creators should be paid for their work manifest itself? We know they don’t like website blocking, so what tools would they support to ensure that creators get they pay they deserve? Oh wait, OpenMedia itself answers that question for us — it is not about enforcement, it is about business models. Just look at how well Spotify is doing they say. Wow, these are some old and tired talking points that ignore every part of our experience over the past decade or so. Surely OpenMedia is aware that while Spotify might be working out pretty well for its owners, that the people who create the product that Spotify is selling are not quite so happy. I have plenty of links if anyone at OpenMedia needs assistance in understanding the impact of this environment on working artists. And the experience of Spotify itself doesn’t support OpenMedia’s contention here that the answer is solely about business models. Spotify recognizes that operating a company in a market distorted by unfair competition (via over-broad safe harbors) undermines a fragile ecosystem, and supports efforts by the EU to address the value gap through the clarification of safe harbors. Their own profitability and growth are dependent upon a legal system that creates a level playing field built upon rules.

OpenMedia is telling a story based on deception and obfuscation. They say stuff like this: “If Big Telecom providers control the Internet, they’ll slow down your favorite web services, raise prices, and even censor content or entire platforms. This is not fiction. They’re actively lobbying for legislation that will give them these powers,” without a trace of recognition that there are a handful of companies that already control the Internet. But they happen to pay OpenMedia for their advocacy. And that’s fine — everyone has the right to advocate for positions they believe, and I don’t mean to doubt that people at OpenMedia actually believe in what they are selling. But you, dear reader, should not be buying. At least not with your eyes closed.