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BOOK REVIEW

'Moral Panics and the Copyright Wars' by William Patry

The Google lawyer takes on established notions of copyright in what is ultimately a discordant and jumbled set of arguments.

October 23, 2009|Jonathan Handel | Handel is an entertainment and technology lawyer at TroyGould in Los Angeles. He blogs for the Huffington Post and is an adjunct professor at UCLA School of Law

Illegal file sharing is killing the entertainment industry -- at least, that's the received wisdom. Others disagree, favor legalization or even argue that the activity is legal already. Some just want free stuff, or, citing economist Joseph Schumpeter, say that "creative destruction" accompanies innovation. Many people simply consider the freebies payback for overpriced CDs and bad movies.

Whatever the reason, unauthorized copies of music and movies flood the Internet while CD and DVD revenues drop. Consumers reuse and remix content with abandon: To the industry, that's infringement; to the digerati, it's fair use, or should be. Industry-backed free sites such as Hulu add to the confusion: If some content is free, people reason, why not all of it? Meanwhile, copyright law has steadily become harsher over the last three decades, inhibiting the very things that technology enables. Litigation ensues.

Into this copyright war walks William Patry. Extraordinarily well-credentialed, Patry has been a copyright lawyer for 27 years as a professor, practitioner and government attorney. Currently, he's Google's senior copyright counsel. Though Patry says he's in favor of "effective" copyright protection, he writes that "bad business models, failed economic ideologies, and acceptance of inapposite metaphors have led to an unjustified expansion" of those laws.

Patry's stature makes "Moral Panics and the Copyright Wars" an "important" book. Unfortunately, what the book delivers is a choppy and directionless narrative, sometimes illuminating but too often scattershot, unoriginal and strident. Unsupported claims abound.

In the most interesting part of the work, Patry attacks notions about copyright itself, particularly the vexed concept that copyrights are property. He describes copyright instead as a "system of social relationships" intended to balance rights and obligations among creators, publishers (or distributors) and consumers. Copyright ostensibly gives monopoly power to creators -- the exclusive right to make and distribute copies, for example -- though professional creators usually sell or license those rights to a publisher or distributor. In return, creators get paid, and consumers get educated, informed and entertained.

The rhetoric makes a difference, because the term "property" is often intended to imply absolute control. Many people instinctively agree with this notion, but it wasn't true when posited 250 years ago, and it isn't now either. Just try running a butcher shop out of your house and you'll discover that property rights have limits.

And yet, copyrights are, indeed, property: You can buy, sell, register and even mortgage them. Of course, as Patry says, many people don't think about the fact that all property is regulated. Thus, the best view may be dualistic, but subtlety seldom survives the political process. And politics matters: Patry points out that the entertainment industry uses property rhetoric to bend Congress to its will, for example, obtaining century-long copyright protection, mocking the constitutional requirement that copyrights extend only for "limited Times."

This presentation is informative, but it's marred by Patry's habit of presenting arguments as though he were the first to devise them. An example is his claim that entertainment companies attack file sharing instead of innovating: Books by Lawrence Lessig, Tarleton Gillespie and others have made similar arguments more effectively. Patry discusses few of these works and adds little.

In fact, Patry has nothing good to say about copyright law. What do "effective" copyright laws look like? Read his book and you still won't know. The Constitution offers a hint: Copyright is intended to "promote the Progress of Science and useful Arts." Various scholars interpret that to mean a delicate balance of rights. Of course, the devil is in the details, but Patry offers none.

Patry also argues that another way the entertainment industry shapes the copyright debate is by using metaphorical terms such as "piracy," which he criticizes as having a misleadingly violent connotation. Maybe so, but John Logie already thoroughly explored this point in his 2006 book, "Peers, Pirates and Persuasion." In any case, Patry's objections turn out to be the pot calling the kettle black, because he himself demonizes his own opponents at every turn. Entertainment companies, he tells us, are "barbarians" and "copyright dwarves" who'd like to "put a chastity belt on someone else's wife."

On it goes, and even Maoists, Soviets and fascists make appearances. Patry also belittles the idea that an author's hard work should entitle her copyrights to protection, yet in a blog post (unmentioned in the book) he understandably cites exactly this rationale in refusing to make a multi-volume copyright treatise he wrote available for free.

The author all but celebrates illegal file sharing, but would he be so sanguine if his own company's intellectual property -- its computer source code -- were shared in this fashion? One might imagine that what's good for the goose is good for the Google, but it's more likely the company would sue. Indeed, the entire technology industry is built on copyrights, patents and trade secrets, backed up by tough contracts and tougher lawyers. (By the way, Patry advocated copyright reform years before joining Google and says the book should not be interpreted as reflecting the views of his current employer.)

Certainly it's untenable for entertainment companies and copyright law itself to remain at war with millions of citizens. For better and worse, technology has unleashed new norms, and some accommodation must be found. Unfortunately, this book sheds little light on how that should happen.

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