0 Members and 1 Guest are viewing this topic.
William Patry might not look from the outside like a man with a fire in his belly. A copyright lawyer for 27 years, Patry has written one of two definitive accounts of US copyright law (all 5,500 pages of Patry on Copyright can be yours for the low, low price of only $1,589).In short, he's an established and highly successful lawyer whose bio hardly makes him sound like a bomb-thrower. But, when freed from the shackles of legal writing, Patry can lob hand grenades with the best of them.Consider these choice nuggets from his new book, Moral Panics and the Copyright Wars, which veers repeatedly into "screed" territory:"The Copyright Wars and the recent grotesque expansion of rights and remedies should be regarded as a legal equivalent of the subprime mortgage crisis: cancers on our system that were foreseeable and preventable but for greed, a failed ideology that the unregulated private pursuit of profit is also in the best interest of the public, and worldwide lack of political courage to admit to and take responsibility for the damage caused by copyright laws that harm rather than serve the public.""The term graduated response should be replaced with a more accurate term 'digital guillotine,' reflecting its killing of a critical way people connect with the world and in some cases, eliminating their ability to make a living. If proportionality is a hallmark of civilization, the digital guillotine is the hallmark of barbarians... The French Revolution shows that when we are in the throes of a moral panic, harsh, disproportionate measures can be made to appear essential.""Corporate copyright owners live in fear, especially fear of their own consumers. Those consumers are young, tech savvy, and have wrested control over corporations' physical product from them, an unthinkable act 10 years ago. The result is a classical moral panic against youth... The Copyright Wars are a fight against our own children and it is a fight that says everything about the adults and very little about the children.""The DMCA is the 21st-century equivalent of letting copyright owners put a chastity belt on someone else's wife.""I cannot think of a single significant innovation in neither the creation or distribution of works of authorship that owes its origins to the copyright industries."You have to love a book on copyright that quotes Gadamer, I.A. Richards, and George Lakoff in its first fifty pages, and one that spends a chapter on the theory of metaphor. Patry wants to show that copyright owners use metaphors—especially that of the "pirate" and the "thief"—in order to short-circuit critical thinking on copyright issues."It doesn't matter whether people know what pirates were actually like in the Golden Age of Piracy in the 17th and 18th centuries; rather, it is enough that the term evokes powerful negative associations which are then transferred to the desired folk devils, for example, the manufacturer of VCRs, file-sharers, or Internet service providers. In the transference, our attitudes are changed."Whenever copyright holders have felt threatened over the past century, they tend to stir up "moral panics" usually directed at the young. One of the best at this was Hollywood's top lobbyist in Washington for many years, Jack Valenti. Patry calls Valenti "the best lobbyist I ever knew," and says that he "always felt happy to be in his presence, even though he was lobbying on behalf of clients who did not always deserve what he sought."When Valenti got worked up, he could play on people's fears like no one else—even when the issue was a business dispute over copyright law, Valenti could turn it into a morality play. Most famous was his comment to Congress in the 1970s that the VCR was to Hollywood like "the Boston Strangler is to the woman home alone."But Valenti survived even into the peer-to-peer era, and he also testified to Congress in support of the DMCA. The goal was to stop rampant file-swapping of music and movies, of course, but Valenti described P2P networks instead as full of the "most throat-choking child porn" "on a scale so squalid it will shake the very core of your being."In 2003, he went on to tell Congress that copyright "pirates" and their goods accounted for "much of the money the international terror network depends on to feed its operations."To Patry, this is little more than fear-mongering, the creation of moral panics that are attached to "folk devils" like the "evil file-swapper" or the "dirty pirate" who are stealing American jobs. "Folk devils are a tool to accomplish social, political or commercial objectives, and there is no better way to gain society's acceptance of such control than through the manufacture of fear," he writes, "which explains the copyright industries' regular use of it."In Patry's view, the Copyright Wars have no morality to them at all; in reality, they are public relations campaigns waged with metaphors about issues that are essentially economic, and on which copyright owners are unwilling to face the future (or even the present). (Unlike most European copyright regimes, the American system is not based on the "moral rights" of an author.) "There is no reason to keep pretending that the Copyright Wars involve matters of morality or principle—they don't and never have. The Copyright Wars and their predecessors have always been about one thing and one thing only—a fruitless effort to resist, to the end, the very nature of capitalism, which is a dynamic, creative force by which new innovations and business models replace old ones."The best bits of the book come from Patry's deep well of legal knowledge, his historical understanding of copyright battles that have played out in Congress, and the theorizing on "moral panics" and the nature of metaphor. Moral Panics and the Copyright Wars is well-written, though it's not a "popular" book and casual readers may find themselves flipping pages, especially in the chapter on "the mythical origins of copyright" (representative subheading: "the utilitarian/consequentialist origin story").There is much here that is essential, including Patry's thoughts on the "more is always better" copyright sickness that appears to be endemic in Washington."Regrettably, policymakers (and even many copyright owners) have been taken in by the slogan that stronger rights are somehow not only inherently better but inherently necessary," he writes. "There is no empirical support for this view, and much evidence to the contrary. If stronger protection is always better, why not make the term of patent protection life of the inventor plus 70 years too? If stronger criminal laws are necessary to deter infringers, why not impose the death penalty, as China has done? The only type of laws we need are effective laws, laws that are effective for their purpose, in the case of copyright, to promote the progress of science, in the words of the US Constitution."Copyright owners' problems are market problems, and they can only be solved by responding to market demands: strong copyright protection cannot make consumers buy things they do not want to buy and, as RIAA's ill-conceived, ill-executed, and ill-fated campaign of suing individuals demonstrates, laws cannot stop individuals from filesharing. Laws can, though, stifle innovation, and in this respect the copyright industries have been successful, and tragically so, for the public and for authors. Innovation leads to greater consumer demand and therefore greater profits for copyright owners."The book's final line darkly warns that "in other areas where a government monopoly, created to serve the public interest, is blatantly abused over a long period of time, it is taken away."The views may not be Google's, but it's not hard to see why Patry has landed at an aggregator and indexer of content rather than a creator of it. Which, in a way, is too bad--making him the top lawyer at the MPAA or RIAA would be fascinating to watch, though we're doubtful that those atop the big content industries share his easy confidence that innovation quickly produces greater profits, or that "less copyright law" can be "better copyright law."
