William Patry’s Moral Panics and the Copyright Wars is not a particularly new book — it was published in September 2009 — but I was intrigued to read it when I saw him speak eloquently at the Copyright Clearance Center’s recent OnCopyright conference. At this event, the prolific and widely-experienced copyright expert represented himself as espousing a “balanced” approach to copyright.
Unfortunately, Moral Panics is about as balanced as the US federal budget. It is very well written, deeply researched, engaging, and erudite; but it is ultimately a copyleft screed that will not be particularly illuminating to those who have read other works in this genre. Patry’s basic theme is that notions such as “copyright war” and “piracy” are metaphors cooked up by Big Media in an attempt to blow the importance of copyright way out of proportion to its actual purpose and value in society, and to demonize those who stand in their way.
This is an interesting and well-argued line of reasoning, but if you follow it through to Patry’s rhetorical (though not very practical) conclusion, you get the distinct impression that copyright is a virtually worthless construct. There is no “balance” here, just an exegesis of copyright excess perpetrated by the likes of Jack Valenti and the RIAA.
This book contains nary a sentence defending the value and necessity of copyright. At best, Patry merely cites the usual quotes from Jefferson about the value of intellectual property as if they were hoary old relics, giving them a treatment similar to that which a liberal judge might give parts of the Constitution when arguing with someone like Supreme Court Justice Antonin Scalia.
Beneath all of Patry’s talk about the insidious power of metaphors and “folk devils” to influence the public dialog lies a fairly standard set of copyleft truisms, such as: confusing the Big Media industry with actual content creators; pointing to some fringe youth content creation activity as “the wave of the future” (Japanese cell-phone fiction writers in Patry’s case, though I don’t get their relevance to his arguments); and generally ignoring content creators’ needs to make livings.
Much of the copyleft doctrine on copyright in the digital age rests on the following logic: Big Media represents the interests of copyright; many of the actions of Big Media are objectionable (e.g., Big Media sometimes treats content creators unfairly); therefore copyright itself is objectionable. This is just plain flawed logic, yet Patry follows it slavishly in this book.
The use of such logic is perhaps understandable, given that most of the people who write about this stuff have very little contact with actual content creators. Either they are academics, and thus sheltered under what Lawrence Lessig has aptly called the academic patronage system, or they are Washington beltway types who exist to spar with their counterparts at the Big Media lobbying organizations. It’s more fun to talk about appropriation artists or cell-phone novelists, but all that is irrelevant to the mainstream musical artist, writer, or photographer who just wants to get paid.
Patry’s insight that Big Media resorts to metaphors and folk devils may be accurate as far as it goes, but it’s hardly novel. In fact, it has been no more than business as usual for politicians and lobbyists of all stripes throughout history, from Jim Crow in the 1830s to Joseph McCarthy’s “red menace” in the 1950s to the Willie Horton TV ads that George H.W. Bush used to win the presidency in 1988.
Far more interesting than the accusation of Big Media of acting like typical politicians is an examination of the results of such actions on society and culture over the years. In this respect, Moral Panics falls short of Jessica Litman’s Digital Copyright, which provides such an analysis and stands with Lessig’s first book Code and other Laws of Cyberspace as the most worthwhile copyleft treatises to date.
Litman explains in her book how the U.S. copyright law has evolved as a series of accomodations between special business interests that have been made over at least a century. In that light, the actions that Patry complains of in Moral Panics are merely more of the same (notwithstanding Patry’s repeated “Masterpiece Theatre”-ish references to Lord Macaulay and his ilk).
And Patry does little more than complain: he stops his book cold by calling for “reform” without the slightest hint of how to go about it. After reading Moral Panics, one gets the feeling that William Patry’s idea of reform is to do away with the entire copyright system. (Patry has since decided to follow this book up with a sequel on how to fix the system; his posted comment on Amazon.com tells us to expect this next year.)
By the way: the introduction to Patry’s book implores readers and reviewers to ignore the fact that he is the chief copyright counsel at Google and to treat the opinions in his book as entirely his own. I have two things to say about this. First, the only piece of rights technology about which Patry has anything positive to say in this book is Google’s video fingerprinting system for YouTube. (He at least agrees with my own axiom that “the answer to the machine is in the machine,” a sentiment that actually puts him at odds with many of his technophobic copyleft brethren.) Second, Google ultimately hired William Patry for a reason.