Book Review: Moral Panics and the Copyright Wars

I have a growing shelf of books oncopyright or other technology law or economic policy issues. WilliamPatry's latest book, titled Moral Panics and the CopyrightWars (blog,Chapters,AmazonCanada ) makes a great addition if you are like me, as wellas a great book to introduce people to the topic. You don't need theexisting shelf to understand Mr. Patry's ideas, but if you find thetopic interesting his 50 pages of notes and references added to theother almost 200 pages will give you great suggestions of where to gonext. William will bespeaking in Ottawa (October 13'th) and Toronto (October14'th) for those who would like to hear him talk and ask questions.

William Patry is a US lawyer who wasadmitted to the bar in Texas in 1981, and has specialized oncopyright law. He has worked as copyright council to the US House ofRepresentatives, as well as a policy planning advisor to the USregister of copyright. For the past few years he has worked atSenior Copyright Counsel at Google Inc. While the book and his blogscontain a disclaimer stating they are his words and not those ofGoogle, it is pretty clear from reading why a forward lookinginnovative company like Google would hire Mr. Patry.

Innovation is a key theme of the book. Patry clarifies quickly that the Copyright Wars are about businessmodels, and not about some mythical moral decay that needs to besolved by radical changes to the law to make more activities illegal. It is appropriate that Clayton M Christensen's book TheInnovator's Dilemma is referenced given this bookwas how I came to understand innovation, disruptive technologicalchange, and why once great companies can fail doing exactly thethings which made them great in the past. It is also how Iunderstand many of the copyright industries unwillingness to moveforward with new business models to meet customer needs, and havethus far been aggressively fighting their way to the bottom.

Another major theme of the book islanguage, and how language can be used and abused to conveyunderstanding or to manipulate. Chapter 2 focused on a few keyphrases, such as the use of terms such as “thief”,”trespasser” or “pirate” to describe allegedcopyright infringement or copyright infringers. These terms are usedto suggest a level of severity of the activity, as well as thecharacter of the alleged perpetrator, that doesn't bare any relationto the nature of the activity itself.

I found the history of the word”pirate” to be interesting, given this was largely a statesponsored activity in the past and that pirates had beenromanticized.

Mr Patry focuses on the abuse oflanguage to convince policy makers to grant a subset of copyrightholders greater and greater control not only over their owncopyrighted works but increasingly over the entire process fromauthorship to the technologies used to author, produce, distributeand access creative works.

One thing he didn't discuss in the bookis the divisive nature of the language, and how people who mightotherwise agree are unable when this language is put into play. Ihave felt this at copyright conferences. When someone comes to themicrophone and says that copyright infringement is theft, I have ahard time taking them any more seriously than if they had startedbarking like a dog or clucking like a chicken.

I entirelyreject the suggestion that copyright infringement should beconsidered analogous to theft or that alleged infringers should becalled thieves or “pirates”. Copyright infringement is, atworst, an unlawful reduction of the value of the copyright. Irecognize the difference between the concept of ownership and thingswhich can be owned. Just because you can own a house doesn't makehouses into a form of property, and just because you can own acopyright doesn't make copyright a form of property. Holding thesebeliefs, I have had political opponents attack my character andsuggest that I must be a “pirate” or “thief”.

A number of concepts stuck out for mewhen it comes to how language can frame how we look at a given issue. On page 76 Mr. Patry suggested that the term “willfullyabandoned” would evoke very different reactions than “orphanworks”. This is in the context where copyrightholders of works can not be located in order to license works, asituation that is far more similar to abandonment by the copyrightholder given they gave up interest in the copyright rather than asituation similar to the copyrighted work being an “orphan”. A modern registration system would solve this problem, but it iscopyright holders and not someone else that have thus far beenopposing this simple system that would provide basic documentation ofthe ties between creative works and copyright holders.

This discussion was included afterdiscussing a few copyright metaphors, including authors as theparents of their works. I suspect this analogy wouldn't beacceptable if extended with the property analogy that some copyrightholders promote, given how our society thinks of the idea of treatingchildren as “property” and those who might sell or rentthem.

This is an irony given, “TheCopyright Wars are a fight against our own children, and it is afight that says everything about the adults and very little about thechildren” (page 29). In the discussion of moral panics inchapter seven (starting page 133) it was discussed how youth haveoften been a target for moral panics (over many generations).

Canadians reading this may notice thatthe book is focused on US copyright law, with a few mentions of othercountries. Political references are made to President Obama on theflap text as well as within the book a few times.

This is as it should be, given thenature of the current round of copyright wars. While the UnitedStates only joined the international copyright regime when itratified the Berne Convention (what later became WIPOtreaty #1) in 1989, it has acted as a “Berne Again”religious fanatic. When domestic policy makers did not accept theClinton-era NationalInformation Infrastructure Copyright Protection Act of 1995,the proponents policy laundered these ideas through WIPO whichreturned two treaties in 1996 that expanded the scope of copyrightfar beyond what had ever existed in the past. Much of the uglinessCanadians saw in billC-60 and billC-61 came from these laundered treaties. It is underObama's watch, not his predecessor, that the United States TradeRepresentative elevated Canada to it's priority watch list in their(notso) special 301 report.

Since it is the United States, and moststrongly Democrats, that have been the source of some of the worstpolicy it would make sense to focus on these audiences even if it hadbeen written by someone not a citizen of the USA. As I read thisbook I kept thinking of the positive impact it would have on globaltechnology policy if Obama and others in his administration read andunderstood the suggestions. Obama has understood the importance ofNetwork Neutrality, with control over the technology at the endpointsof the communication being far more critical. Thus far theneutrality of the endpoints are most threated by anti-circumventionor technology mandates demanded by “copyright” industries.

There is considerable Canadian contentbeyond references to Canadian copyright law including: a studyon Canadian P2P filesharing commissioned by Industry Canada(page 35), our CCH Canadian Ltd. vs. Law Society of Uppers Canada SupremeCourt case (page 127), quotes from Canadian criminologist LaureenSnider (page 145), the acquisition of an innovative Canadian companyas a way for an incumbent to embrace a transformative technology(page 175), and a note by Ottawa lawyer Howard Knopf (with a link tohis blog)on the book cover.

Whilethis book is a quick read, it is best understood as an entry into anongoing discussion. Mr Patry has continued this discussion on the bloghe started for the book in August. This has included aseries of back-and-forth letters between Mr. Patry and BenSheffner. It is best to have read Mr. Patry's book firstas the articles expand on concepts in the book, and often makereferences to specific page numbers. I haven't put the book on mybookshelf 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 DigitalCopyright Canada.

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