Fake News Comes to Canada: Misleading Headlines and Distortion of the Facts Regarding the Fight Against Copyright Infringement

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The term “fake news” was rarely heard a couple of years ago, before Donald Trump’s rise to power, but it has unfortunately become ubiquitous. Whether it is the President accusing the media of “fake news” because it has reported something that he doesn’t like, or the creation of fake news by Trump himself by making statements and observations that are loosely or not at all tethered to the facts, fake news has come to dominate the headlines. One way to propagate fake news is to create a misleading but attention-grabbing headline and selectively assemble (or ignore) “facts” to support it. Regrettably some Canadians appear to be adopting the same tactics. I was reminded of this when I read Michael Geist’s bizarre recent blog which he titled “Movie Industry Denies Lawsuit Strategy Despite Proliferation of Lawsuits and Settlement Demands Against Thousands of Canadians”. While somewhat amusing for its leaps of logic, the title and the blog itself are a perfect example of the fake news phenomenon.

Geist used routine testimony given by a couple of film and TV industry executives[i] during Parliamentary Committee hearings on copyright review to mix apples and oranges, in the process creating fake news to grab attention. In Committee, in response to a tendentious question asked by Member of Parliament David Graham, who asked whether it was still the practice of the movie and music industries to go after Peer to Peer (P2P) downloaders by “suing the pants off these poor families”, Wendy Noss (appearing on behalf of the Motion Picture Association-Canada) responded that she was not sure where Graham was getting his information, but noted that such practices were not the position of her organization. To further clarify she stated, “we’re looking to address commercial-scale piracy by people who enable infringement in a way that hurts Canadian jobs, Canadian businesses, and the full scope of the creative process.”(emphasis added)

That seems pretty straightforward–but not to Michael Geist who writes, “Despite the denials, suing individuals or threatening lawsuits appears to be a foundational part of the industry’s strategy.” This is wrong, and it is fake news.

What are the facts? One particular film production company, L.A. based Voltage Pictures, which has a reputation for aggressive action to enforce its copyrights against infringement by individual users and has a history of bringing lawsuits against individuals in the US, Canada and even in Australia, has issued some threatening letters in Canada as part of the “notice and notice” regime that came into effect in 2015. The modus operandi of this particular company is to send letters threatening legal action against alleged illegal (and anonymous) downloaders of their content, giving them the “opportunity” to make the issue go away by making a relatively modest payment rather than going to court. This not only reveals the identity of the alleged infringer but is a tacit admission of guilt. It is known in the trade as “speculative invoicing”. You can agree or disagree with these tactics. I disagree, I take it that Professor Geist disagrees, and indeed the Motion Picture Association-Canada has made it clear that it disagrees. (Perhaps we all disagree for different reasons, but we disagree).

So how does one conclude that suing individual infringers is a “foundational part of the industry’s strategy”? “The industry” (which Geist appears to equate with the MPA-C since it is their “denials” that he has highlighted) has not advocated suing individual users nor has it been party to the actions launched by Voltage Pictures. The statement by Ms. Noss that her members (the six major Hollywood studios) prefer an educational approach to dissuade individual infringers while pursuing commercial-scale enablers of infringement is 100% factual. To say that suing individuals and threatening lawsuits is an integral part of “the industry’s” strategy is 100% misleading. Fake news.

Let’s move from “fake news” to “non-news”. Non-news means making a big deal out of something that is obvious and not newsworthy. For example, Michael Geist seems to think that MP Graham wrung some sort of confession (an “acknowledgement”) from Ms. Noss that MPA-C and the Motion Picture Association of America are part of the same organization. Graham made a point of asking about the relationship between the two organizations and then, in what I guess was supposed to be a “gotcha” moment, stated that “basically the MPAC and MPAA are the same organization”, to which Ms. Noss replied, logically, “yes”. After all, she had stated as much in her introductory remarks to the Committee;

“I’m Wendy Noss, with the Motion Picture Association-Canada. We are the voice of the major producers and distributors of movies, home entertainment, and television who are members of the MPAA. The studios we represent, including Disney, Paramount, Sony, Fox, Universal, and Warner Bros., are significant investors in the Canadian economy, supporting creators, talent and technical artists, and businesses large and small across the country.”

The organization’s website says the same thing. No secrets here. Where’s the story?

The antidote to fake news and misleading, sensationalist headlines, is fact-based reporting and investigation. We need more of latter and less of the former. The Committee conducting the copyright review will hopefully stick to the facts and not be diverted by fake news headlines and distorting inaccuracies.

© Hugh Stephens, 2018. All Rights Reserved.

[i] Erin Finlay, Chief Legal Officer; and Stephen Stohn, President of SkyStone Media from the Canadian Media Producers Association (CMPA), which describes itself as “Canada’s trade association for independent producers. We represent hundreds of companies engaged in the development, production and distribution of English-language content for TV, feature film and digital media channels”, and Wendy Noss, President of the Motion Picture Association-Canada (MPA-C). MPA-C describes its role on its website as “the voice and advocate of the major international producers and distributors of movies, home entertainment and television programming in Canada and is an affiliate of the Motion Picture Association of America, Inc. (MPAA).”

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