Review of Moral Panics and the Copyright Wars by Nate Anderson

[Pranesh Prakash]

Dear all,
Here's a review of William Patry's new book *Moral Panics and the
Copyright Wars* (for which he runs a blog:
<http://moralpanicsandthecopyrightwars.blogspot.com/>) from Nate
Anderson of Ars Technica.  There has been quite a few reviews of the
book, both positive and negative.  Indeed, Patry's latest blog entry is
about reviews of his book, and what his book seeks and does doesn't seek
to do.

As a sidenote, on his blog Patry hosted a very long and interesting
dialogue with Ben Sheffner, an entertainment-IP lawyer:
http://moralpanicsandthecopyrightwars.blogspot.com/search/label/Ben%20Sheffner

http://arstechnica.com/tech-policy/news/2009/11/big-content-using-moral-panics-to-change-copyright-law.ars

Big Content: Using "moral panics" to change copyright law

One of the top copyright lawyers in the US takes Big Content to the
woodshed in his new book, saying that "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."

By Nate Anderson | Last updated November 3, 2009 11:31 PM CT

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*][1] can be yours for the low, low price of only $1,589). He
served as a key counsel to the House of Representatives and is currently
Senior Copyright Counsel at Internet behemoth Google—and if you ascribe
his personal views to his employer, Patry will visit your house in the
night and throw copies of *Patry on Copyright* through your largest
windows. Trust me.

 [1]:
http://west.thomson.com/productdetail/139343/40449295/productdetail.aspx

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."

Not that there's anything wrong with a good screed; in the right hands,
the screed can be a hugely enjoyable form. But there's a certain irony
about the method here. The quotes above rely on the most vivid of
metaphors—copyright battles as cancer, graduated response laws as
guillotines, the Digital Millennium Copyright Act as a chastity belt—in
order to discredit what they describe, yet this is exactly what Patry
spends much of the book accusing Big Content of doing.

### Powerful metaphors

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."

### Strengths, weaknesses, and <strike>tpyos</strike> typos

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").

And, as we noted at the beginning, the tone here gets so one-sided at
points that all but the most hardened copyfighter will probably set the
book down at some passages, scratch the chin, and ask, "Really?"

Then there are the typos—present in such richness and variety that one
is tempted to shed a tear for the proofreading department of mighty
Oxford University Press.

But 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."

--
Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: [phone]



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