David Kaye’s Fancy stationery.

David Kaye is a professor of law at University of California Irvine. He is also some sort of low grade UN Human rights official. He has fancy stationery with an address in Switzerland that says so. Isn’t that precious.

This UN title and fancy stationery apparently allows him to treat our closest ally and neighbor to north like they have some kind of hick country bumpkin government. You see, he sent a letter (on behalf of the UN?) which accuses Canada (of all countries) violating human rights by simply considering an anti-piracy law!  Of course our fearless low grade UN official has probably sent many many sternly worded letters to real authoritarians as well. I just can’t seem to find them.
The law in question is a rather non-controversial law. The proposed statute is very similar to those that have  been successfully applied in at least half a dozen vibrant European democracies.  Did Kaye send Germany or UK similar letters? No. I wonder why that is? MaybeBecause those countries copyright authorities aren’t gonna put up with nonsense like this from freelancing low grade UN official that is 4 years into a 3 year term?  Looks like Kaye just thought he could get away with it with Canada.  Get away with it?  Yes.  All dishonesty explicitly intended. Essentially the letter by David Kaye is just a phishing scam that relies on the Canadian Government mistaking a bootleg UN lookalike website for the real thing. Because Kaye thinks Canada is stupid? Because Kaye’s buddy, Micheal Geist, Canada’s great petty copyright “expert” put him up to it?  It should be noted that Geist has demonstrated a penchant for ghost writing. But I digress.

Follow along closely. This story will blow your mind.

The letter starts out nice.

He notes that he will apply an analysis based on international, national and regional law.  As well as jurisprudence (judicial opinions). Sounds great! Can’t wait!

Mr Kaye then references UN article 19 which concerns freedom of expression. This is the covenant with which Canada must comply. But I’m not familiar with this second part. Hmm.  Oh! I see,  if you follow the  footnote that second part is simply another paper by Mr Kayes.  So that would be his opinion. It’s not actually in article 19. But that’s maybe okay. Maybe Canada should comply because Mr Kaye does have UN stationery! Even though at the outset he declared his analysis was gonna stick to law and jurisprudence.  Seems interesting, let’s give him the benefit of the doubt.  So please Professor Kaye, tell us more!

Mr Kaye returns to quoting from the actual UN document (article 19) since this is the rationale for his intervention into Canadian copyright policy.  But  three paragraphs later he wanders away from article 19 again.

Manila Principles?  Oh, so this must be a related international treaty to which Canada is a signatory.  Hmm can’t find Canada listed as a signatory.  And It doesn’t seem to have anything to do with the UN. As far as I can tell the Philippines isn’t even a signatory?  NO COUNTRY IS A SIGNATORY! This is just a document written by the Google funded astroturf group EFF.  A significant portion of the mostly obscure signatories have ties to Open Society, Google, are just fake or no longer in existence (see screenshot below).

“Cosby Sweater EU Bahn Mi.” The Heliopolis Institute is one of the signatories to the Manila Principles. This is their “about” page. And yes that is a stock photo!

But again I digress. Where were we…

The point is, this analysis  is no longer based on international, national, or regional law.  Nor is it based on actual jurisprudence.  So what is this?

Okay, phew! Now we are back to Article 19. Look at the footnote! Yay!  For a minute there I thought David Kaye was committing an academic sleight of hand.  This is the real UN document.

Wow.  So it really looks like Canada’s proposed law violates Article 19, specifically The Right to Share Principle 9.  And what does principle 9 of Article 19, The Right To Share say:

Website blocking on grounds of copyright protection should be considered a disproportionate restriction on freedom of expression because of associated risks of over-blocking and the general lack of effectiveness of this measure.

Wow Canada really screwed up here. They can’t enact these restriction on piracy websites or they violate the UN covenant.

JUST KIDDING!

David Kaye must think all Canadians are idiots. That last reference (Article 19 The Right to Share) is to a website that from start-to -finish is designed to make you think it has something to do with the UN article 19, but is completely unrelated. In this sense it is a fraud.  A UN article 19 lookalike. Look at the document.  You could be forgiven if you thought this was a real subsection of the UN article 19.  But fortunately the “Right to Share” nor it’s principles are endorsed by the UN.   Because basically we artists would have no copyright protections, and that would actually for real violate UN Human Rights covenants.

So how did we get here?  This doesn’t seem to be an accident.  Someone went to a lot of trouble to create the fake Manila Principles treaty and the Right to Share document on the Article 19 dot org website.

It is ridiculous to think a UN Human Rights Rapporteur and an esteemed UC Professor doesn’t realize that this website and document is likely to be confused with a real UN document.  And why shouldn’t they be confused? He is a UN official (however low grade) citing a document that has an URL, title and design that would make it seem like it is a UN document. Of course your average person is likely to be confused by this.

This kind of deception has  got to be illegal. If not in the US. Then in Canada where the document is filed. For he tells an untruth when he says he’s sticking to international, national and regional law. I would argue he has attempted to “phish” the Canadian government with misleading documents.  If this were anything else it would be wire/mail fraud. I suggest at the very least the Canadian government make a complaint to the UN Human Rights Council, his academic institution (UC Irvine and throw in the California State Bar as well (ethics).

Or better yet, just call him to testify in Canada. Ask him about the misleading little footnote to the fake article 19. Also FOIA his UCI communications with Geist. See if there is anything there. That would be interesting.

Michael Geist being awarded The Order of Ontario for “Most Petty Copyright Expert” after he petulantly had his university library cancel subscription to a publication with which he took offense. 
Photo via Official twitter account of the Ontario Ministry of Citizenship & Immigration focused on Citizenship.

Closer to home/Ottawa.  Canada’s “Most Petty Copyright Expert” Michael Geist appears to be in on the whole racket.  He appears to be co-author of the fake Article 19 The Right to Share which is the at the heart of the fraud.  And he seems to be lending the disgraceful David Kaye support on this issue (twitter and elsewhere).

Nice to see US and Canada working together again, even if the main result is negative for both country’s artists and creators.  Whatever is good for Google and Silicon Valley must be good for the rest of us. Right?

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(Editor note: standard footnote formatting rules give away the fact that someone somewhere wanted the public to be confused by the title. Someone choose to list  Article 19 the organization, as the Author and didn’t italicize. This is permissible.  But this ends up giving it the same formatting it would have if it were law or treaty and The Right To Share a article or subsection of the treaty.)