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Tag archive: Barry Sookman (3)


Leading Canadian copyright lawyer says “support for Canada’s content creators is imperative” in Globe and Mail op-ed

Barry Sookman, one of Canada’s leading copyright lawyers, wrote an op-ed published in The Globe and Mail on January 18, addressing two of the major challenges facing the cultural industries in Canada: pirate streaming and the Value Gap. The piece was later posted in its full, unedited length on Sookman’s personal website.

Sookman says that “our outdated legal frameworks” are a significant contributing cause of these challenges. He references Music Canada’s 2017 report The Value Gap: Its Origins, Impacts and a Made-In-Canada Approach, which shows that “the market value of music in Canada is still a fraction of what it once was, and equitable remuneration for access to music remains elusive.”

The report defines the Value Gap as the “significant disparity between the value of creative content that is accessed and enjoyed by consumers, and the revenues that are returned to the people and businesses who create it.”

As Sookman points out, the Value Gap is not only a problem for music creators. He says that most of Canada’s leading cultural industries are also affected, including journalism, television and film.

A coalition of author and publisher groups have documented the harm caused by the Value Gap to their sector, and in 2017 launched the I Value Canadian Stories campaign to urge Canadian lawmakers to “restore balance between the need to compensate our creators for educational copying and the need to promote access to quality content.” The campaign website notes that royalties to creators and publishers for copying of their works have declined by 80% since 2013.

Sookman concludes that, given the magnitude of this problem and the threat to Canada’s cultural industries, the issue, as well as practical solutions, “deserve the attention and support of Canadians.”


The Rambler by Graham Henderson: “If the Facts Won’t do…”

Graham_headphones3Blog ThumbnailThe Rambler is a column by Graham Henderson, President of Music Canada. Graham writes from time to time about developments in the music industry, new trends or just about music! Let’s face it, Graham has been around for a long time and has a lot to ramble on about.

The debate about the effect of piracy on creators can become exceedingly tedious at times. A veritable cottage industry has grown up around it, enriching a few academics who made a killing producing studies that purport to show that piracy has had no adverse effect on the music industry. A good example of this took place right here in Canada.

A few years back bureaucrats in the Department of Industry took it upon themselves to pay for a study that purported to analyze the effect of theft on the market for music. Incorrectly claiming that no studies on this subject were available in Canada (in fact two had been produced), and incorrectly claiming that no suitable, unbiased Canadian researchers were available, the bureaucrats contracted with a little known Danish academic named Birgitte Andersen, who was then employed as a Reader at Birkbeck College in London, England. Why her? Well, the bureaucrats alleged that she was the only unbiased candidate they could find. However a simple Google-based literature review readily revealed a history of anti-corporate, anti-copyright rhetoric.

For example, in a 2005 article titled “The Social and Economic Effects of Copyrights in the Music Industry”, Ms. Andersen characterized copyright as a “weapon” used by “multinationals” to attack creativity:

“Critical law and economics suggest the copyright system can act as a vehicle for the crude expression of commercial power relations and, in the specific case of music, a weapon by multinationals against the creative independence of small countries and producers. (p.132)”

Sigh. Now THAT is hardly what I would call unbiased.

All of which leads me to believe that the bureaucrats at Industry had to know both with whom they were dealing and what they were buying.

In any event, she was paid $24,999 for this study. An amount which conveniently skirted Treasury Board rules requiring a public request for proposals for any contracts for services exceeding $25,. This is a rule designed to protect the Canadian taxpayers from the misuse of their hard earned tax dollars. Additional sums were apparently paid to polling firms and for subsequent analysis.

As was extensively documented by Professor George Barker, Ms. Andersen first produced a study which incredibly concluded that theft of music increased the sales of music. Then, after an avalanche of criticism here, here, and here, she back-slid and revised and rewrote her study, saying there was no effect positive or negative. (Although Industry Canada continues to this day to post the original, abandoned study.) Finally the data she used to reach these dubious and contradictory conclusions was rigorously analyzed by Professor Barker, who showed that it had been either misunderstood or misrepresented in both of the previous studies. Professor Barker found that a full analysis of all the data – including that inappropriately ignored by Andersen — clearly demonstrated that piracy hurts the sale of music.

To which I think the disinterested observer would heave a huge sigh and say…”Well, D’uh!!”

As recently as this week researchers at Carnegie Mellon University published a literature survey calling into question the dubious and counter-intuitive conclusions researched by researchers such as Andersen, writing,

“Our review finds that, when viewed as a whole, the academic literature strongly suggests that piracy harms media sales: the vast majority of academic papers — particularly those published in peer-reviewed academic journals — find evidence of harm from piracy. This conclusion is consistent with reviews of the academic literature by Stan Liebowitz in 2006 and by Felix Oberholzer-Gee and Koleman Strumpf in 2009, but includes more recent studies — and we believe these recent papers make the case of harm from piracy even stronger than what the literature suggested just a few years ago.”

However, as Barry Sookman showed, in the meantime anti-creator activists avidly utilized the study to attempt to stave off much needed copyright reform. Despite a clear statement on the Department of Industry’s website that this was NOT an Industry Canada study, professors such as Michael Geist repeatedly referred to it as an Industry Canada study – I assume to give it heft and gravitas. How disappointing.

Meanwhile, reality bites. In an interview with the BBC, Omniphone’s CEO attributed his company’s recent swing to profitability to crackdowns on piracy sites:

“Mr. Hughes told the BBC that his company had invested about $60m (£37.5m) in its platform over the past half decade to get to this point.

He added that recent high profile efforts to crack down on file-sharing sites – including internet service providers (ISPs) blocking access to The Pirate Bay, and the closure of the Demonoid BitTorrent tracker – had helped drive up earnings as users had been encouraged to opt for legal streaming alternatives.

“A corner has been turned – there is no doubt,” he said.

“I don’t think the growth that we’re seeing now, or that’s projected in the future, could happen if we didn’t turn the corner. The music industry was bought to its knees by piracy almost simply because the files were small so they were the first [type of media] to go.

“Therefore the music industry adapted first, it tried to fix itself first, and I think it has made big strides.”

In addition to the erroneous studies feeding the idea that piracy was at worst benign, the anti-creator lobby became extremely adept in crafting straw men which they deployed like a veritable legion of doom. Here is a terrific recent example: the now ubiquitous Tim Berners-Lee opining yet again on the merits of an unregulated internet:

“There’s been this assumption that the web is only there for stealing music and that the most important industry is the media industry. But I think it’s reasonable that I should pay for music.”

The reporter noted that this was said with a mocking tone. Who EVER said that the most important industry was the media industry? Who EVER said that the web was only there for stealing music? Are these rhetorical exaggerations designed to make a point? I doubt it. This is a straw man built to be conveniently dispatched with a supercilious and knowing sneer.. . At least he concedes that it is “reasonable” that he should pay for the fruit of the musician’s labour. Thanks for the magnanimity, Tim.

The creation of false information paired with argumentative techniques that would not pass muster in a high school philosophy class have been a blemish on the debate about what is right and wrong in the digital environment for years. But as Omniphone so eloquently demonstrates, while the situation remains dire, “a corner has been turned”. And it has been turned not only because brilliant and innovative new services have been introduced, but also because the market place has been afforded a degree of protection from parasites like The Pirate Bay and Demonoid and now more than ever, thanks to recent legal changes in Canada enacted by our Conservative Government, IsoHunt.

As my good friend Neil Turkewitz wrote to me the other day:

“With the expansion of services like Spotify, there has been a lot of talk about how innovative business models can make inroads into piracy. That’s a good and partially true narrative, but it overlooks that it is a two way street, and that enforcement against unauthorized services is itself a foundational component of allowing services like Spotify to take hold, and that enhancing responsibility in the internet environment is a critical factor in nourishing new services, and allowing them to gain a foothold in the marketplace. And gaining a foothold in the legitimate marketplace is only the starting point. Piracy has driven the perceived value of recorded music to zero, or near zero, and advertiser-supporter services can hardly sustain the vitality of the music community. Enhancing the transition to paid services is going to require much more success in marginalizing unauthorized services.”

And unless and until intermediaries like Google continue to do more than simply paying lip service to the problem (see, for example, the recent decision to omit The Pirate Bay from autocomplete), we will wallow in the slough of despond.

Graham Henderson is the President of Music Canada. He also writes on an eclectic range of topics on his personal blog at


The Rambler by Graham Henderson: Searching for Results in Google’s Announcement

Graham_headphones3Blog ThumbnailThe Rambler is a column by Graham Henderson, President of Music Canada. Graham writes from time to time about developments in the music industry, new trends or just about music! Let’s face it, Graham has been around for a long time and has a lot to ramble on about.

The music world has been buzzing recently about the unexpected announcement from Google that in determining the priority for ranking search results, it will begin to take into account the number of valid copyright removal notices received on any given site. This means that sites that have been subject to a large number of removal notices (to Google) may appear lower in Google’s search results, with legitimate sites likely appearing higher in the results.

Music industry stakeholders have issued cautious statements praising the move. Mark Mulligan has weighed in on both the effectiveness of the move and Google’s motivation. Canadian IP Lawyer Barry Sookman has had something to say, as has Christian Castle. Castle, with his usual perspicacity and humour, has raised a doubt or two (see Mullets, Platform Shoes, Mack Daddies and Public Knowledge).

David Lowery, famed front man for Cracker and Camper van Beethoven, has also raised some interesting questions here, among other things wondering why Google doesn’t simply “delist the site completely”. He also raises the contentious issue of advertising. Pointing to a famously illegal site, he asks, “more importantly if Google knows that this site is full of infringing links why is DoubleClick (3 days later) still serving ads onto this site? Doesn’t this go against your stated advertising policies?” Finally David posed a question for Google, suggesting, “my data seems to indicate that this change took place a while ago, and you are only just now announcing it?” If this is true and the policy is already in place, it makes what I discovered in my search for Carly Rae Jepsen’s “Call Me Maybe” all the more egregious (see below).

So I guess you can put me with these folks in what I would describe as the “I will believe it when I see it” camp.

Google has been so slow to come to the table on the issue of piracy that one would be foolish not to entertain a scintilla or two of doubt about what their promises actually mean. If they actually follow through with this, it will mean that it will be much easier for music fans to find legitimate sources for music. And this is important because as the Atlantic recently pointed out, iTunes at the end of the day is how artists who are something more than hobbyists, make their money.

But it is also important to understand what this does NOT do. It does not banish the pirate sites from the search results. It merely pushes them down the rankings. So the motivated ‘freetard’ as Andrew Orlowski calls them, will be click or two away from free and illegal. Hey – The Pirate Bay says they’re not worried.  And who are we talking about here? Well, yesterday I decided to have a stroll down thievery lane. I initiated a search for Carly Rae Jepsen’s smash hit, “Call Me Maybe” with the criteria, “Call Me Maybe download”. The top hit for me, as a would-be music buyer, was I don’t think you have to be a music industry insider to know that this is not likely to be a legitimate site. From there I was prompted to visit sites such as mp3raid, Hulkshare, mp3raid, isohunt, thepiratebay, beemp3,; as well as at least a dozen sites that had already been removed as a result of DMCA complaints.


The iTunes link to her 4-song Remix album appeared on Page 2 – but this was not what I was looking for, the remix does not contain the version most of us know and which my son loves. I had to click through another five pages until I found the hit version on page SEVEN.

What other product can you think of (apart from films and games I suppose) requires you to click through 7 pages of illegal pirated sources to get to a legitimate product? Well, try it. I tried Black and Decker Toaster Ovens and the top hit was B&D’s home page and the rest of the page was filled with legitimate retail sources.


I think we all have to agree that this is utter fracking nonsense. But it was only this month that Google appears to have joined the rest of us in the realization that this is the case. So, good for them. For now I will give them credit for this ‘better late than never’ effort but I will also keep my eye on its impact.

Here’s what I will do. I am going to keep tabs on this. Each month I will select a smash hit song and look to see just how far down the rankings iTunes is. I will report on my results here in this space. Here’s hoping my skepticism is overplayed.

Graham Henderson is the President of Music Canada. He also writes on an eclectic range of topics on his personal blog at

Editor’s note: if one types in the search box only the name of the song, Call Me Maybe, it is true that one turns up a link to iTunes on the first page; therefore one’s access to legitimate sources will clearly vary from search to search.


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