Book Review: Moral Panics and the Copyright Wars

(First published on IT World Canada blog)

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, 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 asituation 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 (notso) 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 aseries of back-and-forth letters between Mr. Patry and Ben Sheffner. 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.

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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.