Moral Panics and the Copyright Wars Hardcover – Aug 29 2009
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"A thought-provoking and highly readable book by one of America's top copyright scholars. Anyone interested in modern copyright debates needs to read it."
-Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
"Patry's insight into copyright law itself has long been established, but with this book he takes us deep into how the debate surrounding copyright law has been twisted and distorted. This is a must-read for anyone looking to understand the real issues in the copyright debate, both from the business-model and policy perspectives."
--Mike Masnick, Founder and CEO, Floor64
"Patry makes real policy prescriptions and emphasizes hard economic data, combined with his characteristic morality, innovation, and learning. This is an important book."
-Carl Malamud, Founder, Public.Resource.Org
"Patry's argument for reforming copyright law to promote modern day innovation is both engaging and meticulously supported by history and facts--an essential read for copyright practitioners and policymakers alike."
--R. David Donoghue, Partner, Holland & Knight
"A bold and brilliant analysis of key cultural, business, economic, philosophical, and legal issues. Do we need 'creative destruction'? A must for the copyright community and its onlookers."
--Howard Knopf, Counsel, Macera & Jarzyna, LLP
"Few people are as qualified to write a book about the copyright wars as William Patry, and Patry has written a very fine book indeed. Reading Moral Panics is like watching a master brick layer gracefully and effortlessly build a solid wall: no wasted motion, no sweat, no missteps. Patry knows this subject better than anyone and can really explain it. This is the part of the debate that usually has me frothing at the chops, but Patry remains admirably calm as he carries this off, explaining in terms that anyone can understand the terrible violence that this kind of monopoly control does to our discourse, the arts, and competition and innovation."
"the short version is "it's great"
- Mike Masnic-TechDirt's
The tone is, as Patry hoped, civil and the two copyright lawyers' thoughts are well worth reading for anyone with an interest in the state of copyright law.
-Robert J. Ambrogi Legal Blog Watch
"William Patry has recently written a fascinating book entitled Moral Panics and the Copyright Wars which should be illuminating reading for every photographer interested in copyright in the digital age. In summary, Moral Panics and the Copyright Wars gives a good introduction to understanding the background and context of energetic discussions of copyright in this age. We all as photographers, along with all participants in the digital copyright wars would do well to heed the advice of the author, tone down the rhetoric, and work towards innovative solutions."
-David Sanger's Blog
"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."
"Moral Panics and the Copyright Wars is an informative interdisciplinary excursion into the issues that draws on legal, economic, and sociological theories to examine a debate that affects us and our students on a daily basis."
"When the first reference in a book on copyright law is to the work of the philosopher Hans-Georg Gadamer the reader should be prepared for a metaphorical fastening of his or her safety-belt: it is a safe bet that the road ahead is likely to be bumpy. This is certainly the case with Moral Panics and the Copyright Wars, the book can be recommended as one of the liveliest and most thought-provoking works on the law of copyright to be published in recent years."
--David Lewisohn, Solicitor, Senior Visiting Fellow, The London School of Economics
Entertainment Law Review
About the Author
William Patry is Senior Copyright Counsel at Google Inc. He previously served as copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, a Policy Planning Advisor to the Register of Copyrights, a law professor, and in the private practice of law. He is the most prolific scholar of copyright in history, including being the author of an eight-volume treatise and a separate treatise on the fair use doctrine.
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P.S. I had to rate the book to post these remarks, and was not being presumptuous. I obviously would have preferred to post without rating myself.
Patry works on the other side: for a company that has made its money by taking and aggregating content made by other people. It is also a company that has found a way to protect its IP through a monopoly: the monopoly in this case just happens to be a patent and not a copyright. Patry would have you believe that, although this is his background, it doesn't affect his conclusions. If that were true, he shouldn't have his job, because he would be a hypocrite in his daily life. I don't think he's a hypocrite: I think he really believes what he's saying and reasonable minds can certainly believe this too. You just need to keep in mind as you read that he has a commercial interest in having the law end up the way he advocates in this book.
Patry's analysis of the law and how it has developed is excellent. He has obviously done his homework and knows the historical development of copyright. These sections will provide you with an outstanding overview of the literature and the history, and will save you literally thousands of pages of reading to get you to the same place. His analysis of US law is bang-on, and he does make a compelling case for the idea that corporate copyright ownership and the way that copyright law protects corporate owners (who are really assignees from the original creators of the art) might be overbroad. I disagree, but his points are very strong and they require to be addressed.
He then moves to recommendations for how US law should expand to permit more types secondary uses without requiring the permission of the original creator. This is where we need to be aware of the biases I describe above. I find his analysis doesn't distinguish enough between original creators and corporate assignees. It's disingenuous to speak of a creative intent for a corporate assignee, but very easy to speak of one for an artist, and Patry conflates "owner of original work" with corporate assignees and "secondary users" with artists being held back by copyright law. But there are plenty of artists who create original works, and Patry's analysis doesn't seem to hold when you consider their position: if you draw a cartoon for your friend as a gift, should your friend be allowed to make t-shirts from it? If so, why? If not, why not? There are principled answers to each, but they're not as easy questions to address as whether a company should be allowed to block a small artist from creating derivative works.
The way these rights of original creators are protected outside the USA is by moral rights. Patry doesn't really talk about the doctrine of moral rights (which in the USA is limited to works of fine art but outside the USA is an inalienable right of all creators). I think that's because it cuts contrary to his point: if an original creator is able to limit downstream uses of their work that they believe are inconsistent with their original creative vision, then Patry's vision of unrestricted reuse doesn't work.
Long review, short conclusion: Patry's work is a detailed and excellent snapshot of a particular legal system (USA) and a particular time in its development. But this is a legal brief with a conclusion in mind. He argues it well. But he is not unbiased.
Potential readers should note that the book is often pedantic and repetitive, and may focus on issues of terminology and philosophy of argument that are likely of more interest to attorneys than other folks. It is nevertheless a very valuable read for anyone concerned about redressing the balance of copyright so as to further the progress of science and the useful arts, rather than criminalizing our children.
In fact, he bills himself (and no doubt his clients) as the "most prolific scholar of copyright in history." He also defines himself as a centrist on the topic of copyrights. In his book he is given to such citations as "the greatest speech ever given on copyrights". Which, of course, the most prolific scholar would be in a position to assess the greatest speech, wouldn't he? Well, talk about an opportunity to get in some serious lawyer-bashing. This guy is leaves himself wide open.
And since he is pro-copyright, he is necessarily to me an implacable enemy. I should make clear, as a content-creator, I am against all copyrights, patents, trademarks, etc. It is the only rational position for a creative person to take.
Now, having said that, the book is probably the best thing written on copyrights, ever. He is probably the most prolific scholar of copyright in history. The thing is a stunning tour de force. It's a mere 200 pages of content, and I am only through page 84, but I must pause and report.
Only at page 84 and he has destroyed all arguments for "intellectual" "property" "rights". And I mean he catalogs each one that is used today, traces the history of the argument, and destroys them. All of them.
He examines the pro-IPR data regarding the losses incurred by industry. This is a particularly delightful section, demonstrating the entire oeuvre is bogus, and forensically it could not rise to the level of social interest. There is nothing to support the claims of losses by anyone in any industry. Now, I have said the same thing many times, from a practical level, but Patry hits it from a forensics angle. All taxpayer money directed at enforcement of "intellectual" "property" "rights" is now clearly a waste.
Nonetheless, the full federal power of policing of "intellectual" "property" "rights" is brought down upon 12 year old girls. Edgar Bronfman, when not leveraging the holocaust to shake down Swiss bankers, and Jack Valenti are the villains in this piece. But the gallery of pro-IPR rogues is vast. I suppose if Diane Von Furstenberg had made her greedy demands before the book was printed she too would have been included.
And Patry is no idiot savant who solely mastered copyrights, he ranges outside his field with breathtaking perspicacity. Like a Chomsky-grade linguist, Patry takes on metaphors used in the copyright wars to defend "intellectual" "property" "rights". He asks us to pause and reflect on in what way is a 12 year old girl who downloads music like a pirate?
Pirates vs. downloader. Does this matter? Well, very much. As you see, a 12 year old girl who downloaded a song feels the weight of the law, like a pirate, if we call her one. If Federal Prosecutor can call Aaron Swartz a pirate, the Federal Prosecutor can hound Swartz literally to death. And did. China is so taken by the pirate argument its new laws in fact make provision for the death penalty of copyright violators.
So far Patry has destroyed any basis for "intellectual" "property" "rights" and destroyed any argument for damage done by violation thereof, and exposed the moral bankruptcy of anyone advocating "intellectual" "property" "rights." Not much left. Not bad for 84 pages. Not to mention if his book has any effect, he'll no doubt save lives.
Yet he has asserted a few times there is a warrant for copyrights, and I will read through to see what this warrant is. He is not anti-copyright, he is anti "intellectual" "property" "rights."