The Schoolyard Bully
Peter Knight spent his school years in Barkfield, Manitoba. It was a small place in 1937, but its nonexistent now. The original schoolhouse in Barkfield is currently a museum exhibit at the Mennonite Heritage Village in Steinbach, Manitoba. Peter was quite a good student, on one occasion he even challenged the next year’s exam and was advanced a grade. He would do what was asked of him in school but his heart was always back home in the shop, working with his father. In those days, the schoolday ended with a prayer, and as soon as the “amen” was heard, Peter would rush to the back of the building, grab his jacket and lunchbucket and run to the shop at home. Other boys were more keen on fighting. Peter wasn’t much of a fighter so, to some people, he didn’t really rank. It was cultural there, one’s standing in the social order of youth was at least partly determined by how intimidating one could be to one’s peers. In some schools we’ve still got these problems.
Fresh from their pre-print intimidation efforts of the year before, the CSA organization made their first noise about copyright of the Code. A new tactic for a new year. Now their position was that they owned the Canadian Electrical Code itself. Nevermind that they hadn’t registered a copyright on “their” Code and wouldn’t do so until 2012, they claimed ownership on the basis that they had generated part of the Code from their membership and blended that with the legitimate work of provincial inspectors to produce a recommendation to provincial governments that ultimately was enacted into law. Or, put more simply, they successfully lobbied government for change; therefore they own the laws that include that change. Its quite a novel argument.
CSA was also expanding its influence over the trade and the various inspection agencies. Individual inspectors were now listed as “authors” of CSA’s Code books, and not only of the Code itself, the same contributors to the Code were also recruited as “authors” on CSA’s version of Electrical Code Simplified (“ECS”). The line dividing regulatory activity and commercial interest was getting thinner.
The reason why regulatory entities aren’t allowed to engage in commercial activity is that the interests of commercial activity are usually different than the interests of regulatory activity. Mixing the one with the other necessarily introduces a conflict of interests. In contracting for instance, there is an inherent conflict of interest when an inspector who, through CSA, is closely associated with CSA’s electrical publication inspects the work of a contractor who is known to favour a competing publication. We find that our contractor customers are hesitant to have ECS visible at their jobsites for fear of offending their local inspector (5) and thereby incurring inspection delays and increased inspection costs. Lets be clear: Electrical inspectors are good and decent people, they do their jobs honourably, but the introduction of commercial interests in conflict with their regulatory responsibilities is an intrinsically corrupting influence, necessarily placing unhealthy stresses upon their objectivity.
CSA’s commercial interests were being advanced on the strength of their regulatory position and ECS was being constricted as a result. By 2006, the ECS Commercial & Industrial book had lost most of its academic market to CSA’s Handbook. The sales decline was all the more remarkable when one considers that the CSA version of ECS was more expensive at retail and offered fewer volume discounts to institutions. But instruction book requirements for electrical courses are chosen province-wide by people very senior in the trade and, usually, very well connected at CSA if not “authors” of CSA publications. Normally, such a clear conflict of interest, as selecting course materials by persons involved in authoring course materials, wouldn’t be tolerated. By 2006 however, the commercial activities of CSA had expanded to the point that the vast majority of electrical instructors, inspectors, and the leadership of electrical contracting entities were by necessity affiliated within the CSA system. The electrical trade itself was being dominated.
It’s worth noting that the purpose of CSA is to function as a sort of secretary to the electrical and engineering industries. It appears that CSA had lost sight of this purpose and began to see itself as in charge of the sector that it was supposed to be answerable to.
In 2010, P.S. Knight Co. launched the digital version of the Commercial & Industrial book as well as a new Self Test application on iTunes. Both of these were more successful than anticipated. Inspectors and contractors could now use ECS anonymously (5). Given CSA influence in the trade, this anonymity proved a popular feature.
Every year or so lawyers for CSA sent a threatening note to P.S. Knight Co. It was usually the same sort of bilge; that P.S. Knight Co. was in breach of copyright, implying that ECS was illegal, and that unlike all the other threatening letters they’d sent, this time they really meant it. One of CSA’s threatening letters advised that they were willing to allow our business to continue to exist but they would not allow us to sell our business, nor to continue business operations upon the retirement of Peter Knight. It was much tempting to reply that P.S. Knight Co. would likewise permit CSA to exist but only until their CEO resigned, then they’d have to close shop.
A new Code edition was released in 2009. While many other entities received a pre-print Code, P.S. Knight Co. was specifically denied this access. This was the first time since starting business in 1967 that P.S. Knight Co. was wholly excluded from Code information. As a result, ECS books were released several months behind CSA’s version of them. And as one might expect, that sales gap was quite a drain on P.S. Knight Co.’s financial position.
The decade closed with CSA firmly opposed to the existence of P.S. Knight Co. Their strategy had also clarified; they were on the attrition path, bleeding us financially and constricting our commercial markets through use of their regulatory position.
A new Code edition was released in 2012. This edition, like the one before it in 2009, would see a new ECS published without the same access to information afforded other entities and under the constant threat of harassing lawsuits by CSA. As in years before, in early 2011 CSA advised (6) that we did not have their permission to exist and that we were instructed to cease business operations immediately.
Specifically, the 2011 CSA letter advised (6) that they had “always taken the position that your company’s publication is a violation of CSA’s intellectual property rights.” Rubbish. CSA specifically authorized (7) ECS publications as early as 1969, granting a license that had been in place for over forty years by 2011, and they had been consistently contributing to ECS publications for a quarter century by then. Moreover, the electrical Code is adopted into law in every jurisdiction in Canada. While we understand that CSA is claiming ownership of provincial legal statutes, and they’ve got the right to claim whatever they wish, we reject in absolute terms the notion that they—or any private company—may actually own the rule of law. “We do not and will not (6) authorize the actions of your company.” True, but -hopefully without sounding too flippant- we haven’t authorized the actions of CSA either, and that doesn’t seem to bother them much. “We hereby demand (6) that you immediately cease and desist from all further use, reproduction, distribution and other exploitation of CSA materials…” Again, the rule of law is public; no private company can own public law. Moreover, their desired restriction on us would put P.S. Knight Co. out of business immediately and grant CSA a monopoly in Canadian electrical publications. In other words, a massive violation of the Competition Act. “Further, be advised that any permission (6) extended in the past …is in fact hereby expressly revoked.” To recap, they simultaneously claim that no permission was ever granted and that the permission that they didn’t grant is now revoked. And again to summarize, P.S. Knight Co. does not need permission to reference legal statutes because public law cannot be the private property of CSA.
Back in the 1930’s, one of the boys in the Barkfield School decided to pick on Peter Knight. As the school day ended, as usual Peter wanted to go home. But on this day, the bully stood in the doorway, leaning against the side of it, refusing to let him pass, and the teacher was nowhere near to witness it. All the other kids saw it though, and watched to see if the bully really had power. That’s the reality of bullying, if it works, and if everyone sees it work, then the bully gets stronger and eventually starts bullying all the other kids in class. Peter walked up to the bully and hit him as hard as he could, which might not have been that hard in hindsight, but he staggered him, made him drop back. That’s how to handle bullies; don’t look for conflict, but don’t back down when it comes, and try to restore the rule of law to the classroom.
(5) Typical internal staff instructions for inspection offices.
(6) CSA 2011 Letter. The style and tone is similar to the other CSA threat letters sent between 2005 and 2011.
(7) Original authorization from CSA to quote from the Canadian Electrical Code (“CEC”).