Friday, October 02, 2009

Patry: "Moral Panics and the Copyright Wars"

Moral Panics and the Copyright Wars (0)
Author: William Patry.
Title: "Moral Panics and the Copyright Wars".
Publication: London: Oxford University Press, 2009. ISBN 978-0-19-538564-9, hardbound, 266 pages.

Patry, a Senior Copyright Counsel at Google who says that this book expresses only his own views, has an interesting metaphor. Copyright is an adjunct to social order, or, that is, it has been set up that way over history. Intellectual property rights are not necessarily a “natural right” (like land ownership perhaps); but once enshrined in the law and business, they can be manipulated to protect business models already commensurate with a certain social order (read: the family, judging from previous reviews on this column, although Patry stops short of making that comparison explicit). Hence, he develops his notion of "moral panics" or breakdown of social order (eg, the family, the corporate state).

I got a self-taught novice course in copyright law when I wrote my first book in the mid 1990s. I learned what fair use means, and discovered that there were double standards in place throughout the i.p. world even then, just as the Internet was taking off. There were companies around that would, for a fee, get “permissions” for you; but with any care, you really didn’t need permission. The danger was that an amateur writer could tick someone off.

It’s not unreasonable, in my mind, to maintain that a book author should have, according to conditions of a reasonable marketplace, get some royalty when her work is distributed; or that a composer ( a couple of current friends (pun if you like) of mine are young classical composers) should get paid when his work is performed. I’ve always understood that. It was nice to get a few hundred dollars in book revenue during the latter part of 1997. But my main purpose was to make an argument and, frankly, enter the limelight.

What gets hairy, as Paltry explains, is how businesses over the centuries tried to control how media could be developed and distributed by others, going all the way back to the time of the Catholic Church faced by the threat of the printing press. In his introduction, Paltry asks if copyright was a “tax” on consumers for the benefit of content authors, but as the book develops, it seems like it’s a tax to preserve the corporate-familial state.

In that sense, as I have explained on my blogs before, my own model for distributing political arguments is a “threat” to established models of publishing, and of lobbying for political influence. Back in the late 1990s, fellow libertarians in Minnesota warned me that I would be perceived as a “threat”; it’s turned out that Napster was a threat (as was P2P file-sharing, which the RIAA and MPAA took on as an existential threat, to the point of telephone lawsuits against individual downloaders), but Google, Facebook, and Wikipedia, in the final analysis, were not, even though they all proposed revolutionary models. They were what consumers wanted.

That’s the rub, Patry says. He brings this out particularly in his discussion of the Digital Millennium Copyright Act (DMCA), which is remarkable in its reach in controlling content playback or distribution devices from third parties, even prohibiting what would be fair use. (I recall that back in the 1960s a friend and I would tape each other’s classical records for private use; and we would justify it morally by saying that we both bought lots of vinyl records anyway, usually at big sales; Patry brings up the notion that even the CD was at one time perceived as an existential threat to the vinyl record, before the Sony BetaMax case blew the whole old-fashioned “record sales” and old broadcast television models out of the water, because Sony also gave us non-infringing uses. Don’t forget here MGM v. Grokster, where downstream liability applies if a “new” business model is predicated primarily upon the expectation of user infringement.)

OK, on the DMCA, let me get back on subject. Patry’s point is that Congress was promised that the DMCA would actually promote legitimate consumer interests; in fact it did not, as we know. The notorious “safe harbor” provision of the DMCA, the take-down (or “disable”) provision, often credited (along with Section 230 of the 1996 CDA) of “saving the Internet” for free entry, is very much abused, Patry says, by third party companies who automate the process of generating bogus complaints, often intended to suppress free speech (rather like SLAPP). I digress here and recommend the link “Blogopshere Hails Tim Lee’s DMCA Paper” (“Circumventing Competition: The Perverse Consequences of the Digital Millennium Copyright Act), link here at the “Technology Liberation Front”. Patry goes into some other side cases, like Redbox and even Cartrivision, an awkward precursor to the VCR.

Patry’s last chapter, “How Innovation Occurs” gives a good distinction between innovation and invention, and makes the case that “creative destruction” really does support “Reagan-style” economic well being for people who do have initiative to act on their own – which fits well into individualism but not into a world predicated on social control. Indeed, think about the “we give you the words” model of sales culture, designed to propagate an existing business structure founded on social and familial structures, in which most people never really become content creators.

Patry’s writing style is interesting, and paradoxical: he has lots of very long quotes himself, developing his subject matter in academic dissertation-style.

I don’t think the book makes a “Michael Moore” film. But maybe an innovative documentary filmmaker could take on Copyright, for PBS for example.

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