I have a growing shelf of books on
copyright or other technology law or economic policy issues. William
Patry's latest book, titled
Moral Panics and the Copyright
Wars (
blog,
Chapters,
Amazon
Canada ) makes a great addition if you are like me, as well
as a great book to introduce people to the topic. You don't need the
existing shelf to understand Mr. Patry's ideas, but if you find the
topic interesting his 50 pages of notes and references added to the
other almost 200 pages will give you great suggestions of where to go
next. William will
be
speaking in Ottawa (October 13'th) and Toronto (October
14'th) for those who would like to hear him talk and ask questions.
William Patry is a US lawyer who was
admitted to the bar in Texas in 1981, and has specialized on
copyright law. He has worked as copyright council to the US House of
Representatives, as well as a policy planning advisor to the US
register of copyright. For the past few years he has worked at
Senior Copyright Counsel at Google Inc. While the book and his blogs
contain a disclaimer stating they are his words and not those of
Google, it is pretty clear from reading why a forward looking
innovative company like Google would hire Mr. Patry.
Innovation is a key theme of the book. Patry clarifies quickly that the Copyright Wars are about business
models, and not about some mythical moral decay that needs to be
solved by radical changes to the law to make more activities illegal. It is appropriate that Clayton M Christensen's book The
Innovator's Dilemma is referenced given this book
was how I came to understand innovation, disruptive technological
change, and why once great companies can fail doing exactly the
things which made them great in the past. It is also how I
understand many of the copyright industries unwillingness to move
forward with new business models to meet customer needs, and have
thus far been aggressively fighting their way to the bottom.
Another major theme of the book is
language, and how language can be used and abused to convey
understanding or to manipulate. Chapter 2 focused on a few key
phrases, such as the use of terms such as "thief",
"trespasser" or "pirate" to describe alleged
copyright infringement or copyright infringers. These terms are used
to suggest a level of severity of the activity, as well as the
character of the alleged perpetrator, that doesn't bare any relation
to the nature of the activity itself.
I found the history of the word
"pirate" to be interesting, given this was largely a state
sponsored activity in the past and that pirates had been
romanticized.
Mr Patry focuses on the abuse of
language to convince policy makers to grant a subset of copyright
holders greater and greater control not only over their own
copyrighted works but increasingly over the entire process from
authorship to the technologies used to author, produce, distribute
and access creative works.
One thing he didn't discuss in the book
is the divisive nature of the language, and how people who might
otherwise agree are unable when this language is put into play. I
have felt this at copyright conferences. When someone comes to the
microphone and says that copyright infringement is theft, I have a
hard time taking them any more seriously than if they had started
barking like a dog or clucking like a chicken.
I entirely
reject the suggestion that copyright infringement should be
considered analogous to theft or that alleged infringers should be
called thieves or "pirates". Copyright infringement is, at
worst, an unlawful reduction of the value of the copyright. I
recognize the difference between the concept of ownership and things
which can be owned. Just because you can own a house doesn't make
houses into a form of property, and just because you can own a
copyright doesn't make copyright a form of property. Holding these
beliefs, I have had political opponents attack my character and
suggest that I must be a "pirate" or "thief".
A number of concepts stuck out for me
when it comes to how language can frame how we look at a given issue. On page 76 Mr. Patry suggested that the term "willfully
abandoned" would evoke very different reactions than "orphan
works". This is in the context where copyright
holders of works can not be located in order to license works, a
situation that is far more similar to abandonment by the copyright
holder given they gave up interest in the copyright rather than a
situation similar to the copyrighted work being an "orphan". A modern registration system would solve this problem, but it is
copyright holders and not someone else that have thus far been
opposing this simple system that would provide basic documentation of
the ties between creative works and copyright holders.
This discussion was included after
discussing a few copyright metaphors, including authors as the
parents of their works. I suspect this analogy wouldn't be
acceptable if extended with the property analogy that some copyright
holders promote, given how our society thinks of the idea of treating
children as "property" and those who might sell or rent
them.
This is an irony given, "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" (page 29). In the discussion of moral panics in
chapter seven (starting page 133) it was discussed how youth have
often been a target for moral panics (over many generations).
Canadians reading this may notice that
the book is focused on US copyright law, with a few mentions of other
countries. Political references are made to President Obama on the
flap text as well as within the book a few times.
This is as it should be, given the
nature of the current round of copyright wars. While the United
States only joined the international copyright regime when it
ratified the Berne Convention (what later became WIPO
treaty #1) in 1989, it has acted as a "Berne Again"
religious fanatic. When domestic policy makers did not accept the
Clinton-era National
Information Infrastructure Copyright Protection Act of 1995,
the proponents policy laundered these ideas through WIPO which
returned two treaties in 1996 that expanded the scope of copyright
far beyond what had ever existed in the past. Much of the ugliness
Canadians saw in bill
C-60 and bill
C-61 came from these laundered treaties. It is under
Obama's watch, not his predecessor, that the United States Trade
Representative elevated Canada to it's priority watch list in their
(not
so) special 301 report.
Since it is the United States, and most
strongly Democrats, that have been the source of some of the worst
policy it would make sense to focus on these audiences even if it had
been written by someone not a citizen of the USA. As I read this
book I kept thinking of the positive impact it would have on global
technology policy if Obama and others in his administration read and
understood the suggestions. Obama has understood the importance of
Network Neutrality, with control over the technology at the endpoints
of the communication being far more critical. Thus far the
neutrality of the endpoints are most threated by anti-circumvention
or technology mandates demanded by "copyright" industries.
There is considerable Canadian content
beyond references to Canadian copyright law including: a study
on Canadian P2P filesharing commissioned by Industry Canada
(page 35), our CCH Canadian Ltd. vs. Law Society of Uppers Canada Supreme
Court case (page 127), quotes from Canadian criminologist Laureen
Snider (page 145), the acquisition of an innovative Canadian company
as a way for an incumbent to embrace a transformative technology
(page 175), and a note by Ottawa lawyer Howard Knopf (with a link to
his blog)
on the book cover.
While
this book is a quick read, it is best understood as an entry into an
ongoing discussion. Mr Patry has continued this discussion on the blog
he started for the book in August. This has included a
series of back-and-forth letters between Mr. Patry and Ben
Sheffner. It is best to have read Mr. Patry's book first
as the articles expand on concepts in the book, and often make
references to specific page numbers. I haven't put the book on my
bookshelf yet as it sits on my desk as I digest blog postings.
---
Russell McOrmond is a self employed consultant,
policy coordinator for CLUE:
Canada's Association for Free/Libre and Open Source Software,
co-coordinator for Getting Open Source Logic INto Governments (GOSLING),
and host for Digital
Copyright Canada.
