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The Politics of Copyright Law Explained
Tue, 10/06/2009 - 00:00
William Patry has written the kind of book on copyright law that we have sorely needed for a long time. Moral Panics and the Copyright Wars (Oxford University Press) is a trenchant yet highly readable political history of copyright and the deceptive language tricks that gives it so much power today.
Thankfully, the book is not another lawyerly disquisition on the labyrinthine complexities of copyright. Rather, it is a no-nonsense lesson on how copyright law has been used over the centuries to defend archaic business models, stymie technological innovation, screw over authors and in our time, to delay the emergence of the Internet-based sharing economy.
Patry is best-known as the Senior Copyright Councsel of Google and a popular blogger on copyright issues, but he cantankerously insists, "Google does not endorse this book, does not share the views expressed in this book, so please don’t preface any discussion of this book with "Google’s Senior Copyright Counsel said," or any other variant. It’s my book alone."
Got it, Bill.
It takes a copyright lawyer of the first order to blow the whistle on his own guild. That’s what Patry essentially does — because most copyright lawyers take the bland claims of copyright law at face value. This is no introduction to black-letter copyright law, however. It is an exploration of the foundational myths of copyright law and why those myths are politically important.
"Origin stories are an effort to influence the present and not to objectively unearth the past," Patry writes. "Like metaphors, origin stories in copyright serve to frame the debate; they are not descriptive of reality and do not rely on empiricism to make their case."
Patry proceeds to excavate the familiar narratives that are used to justify private ownership rights in creative works. One is the "utilitarian/consequentialist origin story," which holds that "only by providing copyright protection will there be sufficient incentives for authors to distribute their works to the public." The "labor origin story" holds that copyright is a just reward for the fruits of one’s mental labors. Then there is the claim that copyright is a fundamental human right that is needed to protect the works of inspired geniuses.
Patry is intimately familiar with the history of copyright since its inception in 1710, and so can can expose the many myths that are used to disguise self-serving business interests. It turns out that the myths used by 18th Century publishers are as just as useful to 21st Century film studios. In each case, the myths help companies justify “artificially high prices, tight control over what can be read, heard or seen, and a dramatic shrinking of the public domain and the ability to engage in unauthorized uses even in the create of new works of benefit to the public."
And what about the myth that copyright is vital to the interests of authors?
Patry notes that, quite the contrary, copyright law has historically been unimportant to most authors. It is publishers who gain the most; authors’ interests are purely secondary. The long terms of copyright protection are simply giveaways to publishers at the expense of the public. One study showed that of about 10,000 books sold in 1930, only 1.7 percent of them are still in print. So most of the authors of that time (or their estates) are making no money from their works, yet all 10,000 books remain under copyright, unavailable for public re-use, until 2025.
Patry does a deft job exposing the claims of the film, recording and publishing industries for what they are: contrived moral panics intended to defend their short-term business interests. “Moral panics reveal a lot about the workings of power," Patry writes, "especifically who has the capacity to define a social problem and prescribe appropriate action."
The late Jack Valenti — the motion picture industry‘s chief lobbyist — was a master at stirring up moral panics. He frequently compared "piracy" of copyrighted works to terrorism and moral depravity. In one of his most-quoted pronouncements, Valenti once told Congress that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone."
Near the end of his life, Valenti’s hyperbolic schtick was veering into farce. I remember sitting with an audience at an Aspen Institute gathering in 2004 where people rolled their eyes and quietly snickered as Valenti made similar tirades against "piracy." Perhaps it was his flamboyant, self-dramatizing manner, because similarly broad, straight-faced charges of "piracy" continue to be made by media companies even when the “pirates” are simply innovative technologies and entirely legal fair uses of works. “Piracy” is a catchall term of invective meant to criminalize behavior that the industry doesn‘t like.
By refusing to take the claims of Congress, copyright industries and copyright lawyers at face value, Patry is able to illuminate what is really going on through the "meta-language" about copyright law. For example, he spends much of a chapter discussing popular copyright metaphors used to justify strong copyright protection.
One of the most powerful and pernicious metaphors is that copyrighted works are a form of "property." By claiming that ownership in copyrighted works is a property right based on natural law (that is, something that preexists any legislature), publishers are attempting to assert their absolute dominion over the work — and to shirk any government limits on their rights.
"The purpose of advocating something as a property right is to take it outside of the need for any empirical social justification," notes Patry. "As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified."
As a matter of law, however, copyright "has always been a regulatory privilege granted by the grace of Congress -- as a very limited grant originally just for literary works, and conditioned on rigorous compliance with formalities," writes Patry. The growth of "property" rhetoric, mostly over the past generation, has been a blatant political maneuver.
With a commanding grasp of the legal literature and contemporary media, Patry cuts through the comfortable, unexamined bromides about copyright. Even if we regard copyright as a form of "property," we need to recognize that property is not an ahistorical, natural right of absolute dominion. It is something that is intimately bound up in social relationships.
Patry quotes law professor Joseph Singer, "Property represents a decision to use the power o the state to allocate the thing to the owner and to prevent others from using the thing without the owner’s consent…. Property rights cannot be fixed entitlements but are contingent, to some extent, on the social context in which they are exercised." Or as Patry puts it, "Property is a creature of society, created for the benefit of society."
Patry has a tart, direct way of writing, and it is refreshing even when (or because) he is a bit cranky. I have read my share of law treatises and books about copyright, but few combine erudition with such lucid, accessible writing. Few make such a cogent political case for reining in contemporary copyright law, while showing such a penetrating grasp of the law, politics and history.
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