Moral Panics and the Copyright Wars [Hardcover]

Thanks for the comments. The last (second) review noted that I don't offer a prescription out of the current situation. That was deliberate: I wanted this book to be about how we talk about copyright and the influence that plays in our thinking. Had I wrote a prescriptive book, that's all people would have focused on, I feared. But, since in the book I frequently advocate giving consumers what they want rather than what businesses want to give to them, I am heeding my own advice. I am writing a sequel, which is entirely prescriptive, called "How to Fix Copyright." It will be published by Oxford University Press too and will come out I imagine at the beginning of 2011. so please read and judge Moral Panics for what it set out to do.
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.

I've read other policy explorations by copyright experts -- Copyrights and Copy Wrongs, Copyright's Paradox, Copyright's Highway,The Future of Ideas, and Digital Copyright -- and Patry's book is distinguishable on a few levels. Most importantly, it's better written. Patry's use of language and metaphors (he discusses the distinction between metaphor and simile) is a few steps ahead of his colleagues and makes his thesis more palatable and an enjoyable read. As for Patry's brain, that also may be a few steps ahead of his colleagues. Not only is he able to accurately report on the shipwreck of copyright law (and to prescribe a reasonable approach for towing and repairing it) but he presents this approach in a simple, persuasive style. Finally, Patry's 'big picture' overview -- as painful as it may be for many of us copyright owners -- is the perspective of someone with practical, and not merely academic experience. I'm not sure if the appeal of this book extends beyond copyright nerds, but it should.

Full disclosure: I work, and have for years, for content creators. I therefore believe that content creators should have the right, among other things, to place conditions upon the uses made of their creations. I believe this because this is their bargain: I will make things if you will let me choose how they will be used. Because I believe this, I'm good at my job of protecting content creators, and I have a commercial interest in preserving the law as it stands. I'll try to review objectively, but you should know that before I start because it's going to be a bias.

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.

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