Tom, it's a shame you had to write this, because it's a shame Oxford University Press published this book. It's no longer a secret that publishers today lack the resources to edit, let alone fact-check or peer review, books. They trusted Patry on his (significant) reputation in copyright law, and unfortunately published a hate-filled, factually flawed diatribe that reflects poorly on all other Oxford University Press authors.

You highlight here a major legal analysis failing of the book (the absence of Grokster) but the real failing is what you also note, its hypocritical approach of framing a book around what it calls clever wordplay, inaccuracies and fallacies, and then producing 266 pages of clever wordplay, inaccuracies and fallacies.

Thank you for noting his attack on the 8,000 and counting honest artists and creators who feel disrespected by people like Patry and have made that known by signing a recent petition to the President and Vice President.

At 1 pm ET Thursday, I posted a comment to Patry's moderated blog in response to his bile-filled post. I will post that comment below, because as of 4:30 pm ET Friday Patry has still not accepted the comment. By the way, the book I quote in this comment is Patry's Moral Panics and the Copyright Wars, for which I paid full price upon publication:

Feel free to dislike an organization because of some of its members, even if it is no different than someone disliking what you say because of who your employer is. I would politely ask, however, that you not transfer your venom to the more than 8,000 individual artists and creators who, on their own volition, have signed the letter in the last few days. They felt the language you cite reflected their perspective.

You may feel these artists are uninformed, ignorant, or fail to view their self-interest as clearly as you view it, but when you say the language of the letter they felt spoke their mind is "ugliness," such a characterization is not constructive.

I'll quote the introduction of a book I purchased awhile back: "The words we choose in debates may accurately describe the issues, or they may not. When language confuses rather than enlightens, our understanding is impeded. In extreme cases, the language employed is so inapt that it harms our ability to come to a constructive conclusion."

This post is strong evidence of that thesis.

Thanks so much for writing this. I think many of us lost all respect for Patry after reading this one-sided, thoughtless book. Glad to finally see someone say publicly what so many of us have been saying more quietly.

Tom, thanks so much for your review. I couldn't get better publicity; it's like being on Nixon's enemies list! Anyone who has read your always fanatical screeds (and this ranks right up there with the most fanatical of all) will want to rush out and buy the book. I can't wait to spend my royalties. Keep up the fanaticism!

What was Disney's best innovation? Probably borrowing the character from Steamboat Willy and turning him into Mickey Mouse, and then lobbying to keep him from going into the public domain, along with ALL other works of any type ever published in the US and growing out into the rest of the world. How about re-making all sort of other stories that had fallen into the public domain and then trying to claim copyright on some of them. These are just some of egregious crime against culture of the corporate copyright minimalist elite.

It is interesting that you sight Joseph Schumpeter, who would probably look at this situation and suggest the destruction of all superfluous, legacy middle-people with three and four letter acronyms due to their inefficiency on the free market.

It is incumbent on you, as the exploiter of works, to capture the value you create in a business model that does not rely on enforcement and prosecution of civil laws. Others have learned how and so must you. When something is copped you still have the original. Deal with it. It was for reasons like this that the Founding Fathers revolted against Britain: the powerful imposing their will on the unrepresented powerless. Only now, we do not have geography separating us.

For those interested in my actual views, here is a link to a post in which I reply to the above mischaracterizations of them:

http://moralpanicsandthecopyrightwars.blogspot.com/2009/10/why-i-made-tom-syndors-enemies-list.html

Sydnor writes "Shouldn't consumer products as successful as CDs and DVDs count as "significant innovations"?"

They would, if they were developed by entertainment companies--which they weren't. Phillips Consumer Electronics created the CD (collaborating with Sony electronics) and the DVD is mostly based on Toshiba's work.

You forgot to mention this book's biggest howler: Patry's claim that, "Grand Theft Auto IV sold more than twice that amount, 95 million copies in its first year." Not even close!

Mr. Patry, thank you for your reply. I did not expect gratitude, but I did hope for some substance.

But before I say more, let me re-frame my critique of your book as constructively as I can: The defects in your book echo those in Mark Helprin’s book Digital Barbarism. Granted, Mr. Helprin’s victory will likely be that of Beowulf—books like A Soldier of the Great War should ensure that his name is remembered long after yours and mine are forgotten.

But Mr. Helprin’s timeless works will not include Digital Barbarism. It is too angry: It was supposed to be a defense of copyrights, but it too often became an attack on the Internet. Indeed, it often became so angry that it directed toward the Internet arguments that would backfire upon the copyright system. Mr. Helprin savages the Internet for empowering people whom he deems barbarians. The same could be said—has often been said—of copyrights.

Copyright Wars suffers from a more extreme inverse version of the same fatal defect—vindictive venom. And you cannot fairly defend your book by trying to equate attacks upon its merits with claims that everything that you have ever done in your professional career must be bad. I made no such claims—but I do, and will, claim that this particular book is hopelessly one-sided and irrationally angry—though even it does contain some valid complaints, as I noted.

You say, “It is ironic that Mr. Syndor [sic] attacks a book dedicated to ending the hurtful division of the copyright wars into property lovers and copyright haters.…” The only irony is that you seem to genuinely believe that your blog and book are “dedicated to ending the hurtful division of the copyright wars.…”

Oh-so-many snarling passages confound your belief. “Cultural Revolution?” “Digital Guillotine?” “Copyright dwarves”? “Megalomania”? Vestal virgins?” “Copyright sweethearts?” One must be very angry indeed to imagine those as terms of endearment, reconciliation and healing. And they are but a few of many examples—stay tuned for more.

And now, you have added the “Nixon” and “enemies list” zingers to the list of contributions to reasoned debate about copyrights and the Internet from a “scholar of copyright” like yourself. But now, having hurled the stilettos of the Cultural Revolution, the Terror and Watergate, about all you have left are the Soviets and the Nazis. Oh, wait—nevermind, (p.6). You are down to the Nazis—though perhaps we can all manage to leave that rhetorical abyss unplumbed.

And to be clear, I have no fear of empiricism—or you. Indeed, no one could fear an author who could discuss Sony in detail, avert his eyes from the “G-word,” and then sneer that someone noting this absurdity must “fear… empiricism.”

Real empiricists do not hide from reality. The distributors of programs like Grokster, Morpheus, and KaZaA intended to—and briefly did—deliberately create the largest and most prolific global for-profit copyright-piracy rings that the world had ever seen—while a vast array of clueless tech-savant blowhards wailed that innovation would just die if they were held accountable for the intended consequences of their own acts. Such acts raise a question: How do we want copyright owners to clean up the resulting mess, given that the “solution” of paying off every technologist capable of forking the LimeWire code-base is not a viable option? Your book neither acknowledges that this question exists, nor proposes any answer to it. It is thus worthless.

Indeed, I must also note that you have failed to reply to even one of the substantive critiques that I raised.

If you wish to pose as the Voice of Reason, Mr. Patry, then you must respond—on the merits—when you are challenged on the merits.
Is it true that you still “cannot think” of “a single significant innovation in… the creation… of works of authorship that owes its origins to the copyright industries? How can a book called Copyright Wars promise “honesty about where we are and how we got here,” and then fail to address Grokster? Did the Google/CNET/Netcoalition brief (and many others) from Grokster advocate what you analogized to a Cultural Revolution? And before you started denouncing graduated response as the guillotine, the Terror, and the “hallmark of barbarism,” shouldn’t you have reviewed the sworn testimony of Mark Gorton, CEO of the LimeGroup and founder of LimeWire?

http://oversight.house.gov/documents/20070724104155.pdf

These are fair questions, Mr. Patry—not ad hominem attacks. No one attacks your character by noting that your arguments fail or backfire.

Here is another example. You say, “Mr. Syndor [sic] accuses me of ‘denying that there can be a “free market” for any differentiated—and thus innovative—product, service, or work. He cites no passage for this characterization, which is completely false.” But only your second sentence is “completely false.” I cited and quoted the supporting “passage” that I relied upon and here it is again:

“In the case of copyright, there can never be a free market where price is set at what a willing buyer and willing seller would agree on because the very existence of the copyright monopoly permits copyright owners to restrict supply and to prohibit competition.” (p.128.

So here are my questions: If that sentence proves that there can be no “free market” for copyrighted works, then would a “free market” appear were the word “copyright” replaced with “iPod,” and the phrase “copyright owners” with “Apple”? Is there no “free market” for corporate uses of Google Apps and other competing forms of application software? I may be missing something. Or your claim may be, in retrospect, overbroad. Let me know what you think and whether I could—privately—suggest a potential route of retreat.

Nor do I see why you admire yourself for failing to “cite anywhere in [Copyright Wars] copyright owners’ favorite boogeyman Larry Lessig or any copyright left folks.” The “nor any” part is wrong: Among others, you cited and quoted the wackiest of these “folks”: Professor Charles Nesson—Lessig mentor and architect of “radical transparency” so self-destructive that a stubbornly immature young man, rather like the boy in Old Yeller, finally had to step up and put his own defense out of its misery.

Moreover, ignoring the existence—or the influence—of Professor Lessig and his merry crew of academes is as contrived as ignoring Grokster. Professor Lessig exists, and you may underestimate his influence. While reading Copyright Wars, I found myself thinking, time and again, “Free Culture already made this argument….”

You also claim that other people—like Ben Sheffner—respect your book. I may well have missed it, so please direct me to the post in which Mr. Sheffner stated that he generally agreed with or respected the arguments made in your book. And more importantly, why don’t you defend your book yourself?

Doing so will force you to confront fundamental problems. Your accounts of economics and Schumpeterian innovation are incoherent, and if you fail to see why, then I will help you. Your accounts of metaphors and cognition are laughable—democratic republics would have swiftly collapsed were most people, (or officials), as gullible as you propose. And you ignored realities like Grokster and Aimster in order to present a one-sided account of the two-sided reality of the interaction of copyrights and the Internet. You can keep on reporting on “copyright wars” in which Sony occurred, but Grokster did not. But I can fairly criticize that affectation.

You can also keep refusing to confront substance. You can also keep making analogies—even scary metaphors—between me and Nixon, (we both graduated from Duke Law School, you know…). You can shriek about enemies lists composed by criminals, Cultural Revolutions, the Soviets, the Terror, and guillotines. You can repeat the luminous vacuity of defending Moral Panics and the Copyright Wars by citing Justice O’Connor’s Introduction to Patry on Copyrights—which can reveal a resort to the fallacy of appeal to prestige, but nothing about the merits of a book that bears, not an Introduction by a Supreme Court Justice, but a jacket blurb from the website that Lessig once called “fragging TechDirt.”

Resort to such rhetoric may speak more eloquently than I ever will.

Better luck in the future. --Tom

Mr. Patry,

Thank you for your second comment. But you seem to have forgotten what “innovation” means, (p. 176): “Innovation is thus not the same as invention. The Brookings Institute has properly defined innovation as ‘putting new ideas into commercial practice.’ Without a successful commercial application, an invention cannot realize its potential.”

So don’t play with words, Mr. Patry. As you define the term, content industries are due credit for the “innovations” of CDs and DVDs—recorded music and movies were the “commercial applications” that enabled these inventions to realize their potential. You must rewrite your own book before you can sneer that content industries did not “invent” CDs and DVDs. Did I ever suggest that they did?

Indeed, if the problem is that you tripped over your own definitions and said “innovation” when you meant “invention,” then no problem: Tell me what you meant to say and we can go from there.

But whatever you meant to say, please stop snapping at the heels of my arguments and explain what you meant when you made your truly indefensible claim: “I cannot think of a single significant innovation in… the creation of works of authorship that owes its origins to the copyright industries.”

I have no problem agreeing that specialization of labor may be the single greatest uncompensated positive externality in history. Were your claim that people who specialize in creating gizmos or networks to distribute movies made by others are better at creating such gizmos or networks that people who specialize in making movies, then I could hardly disagree with the obvious.

But that was not the claim that you made in Copyright Wars. To the contrary, you claimed that not “a single significant innovation/invention in… the creation of [movies] is attributable to people who specialize in creating movies.

Regardless of whether you meant “invention” or “innovation,” that is absurd. When caught on the horns of an absurdity, the only reasonable course is to concede error, apologize, and move on.

--Tom

Tom, you quoted Patry as writing this:
"I cannot think of a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries."

Then you proceeded to ridicule this quote by suggesting that the content industries had done many innovative things. The examples you give all relate to the creativity of their works themselves, rather than innovation in the methods of creation or distribution. Yes, Disney has developed many wonderful stories into movies. The same is true of George Lucas. And ILM makes lots of pretty things. I don't think Patry, or anyone else, is disputing that.

You do mention CDs and DVDs, but as Patry points out in the comments above, these technologies don't owe their origins to the content industries -- they were invented by someone else. I think this point is debatable -- it's worth noting that the CD was made popular because it was adopted by the major record labels. And although DVDs were not invented by content people, content industries had a strong hand in shaping what the technology looked like when it finally came to market. (E.g. the CSS standard that encrypts.)

It's disappointing that you're opting not to engage Patry on the merits of his arguments (or if you prefer, since you find so little merit in his book, the substance of his arguments). The venom that seems to spray from the screen as I read your review really doesn't help advance your point of view. I think there are many valid points of criticism, and certainly for debate, that you could focus on in Patry's book, and I think it would be very helpful to your readers, and to PFF's supporters, if you could shed some light ont hem, with perhaps a little less heat.

I must admit that I was (at first) impressed by your post. However, your command of the English language belies the ridiculous observations you make with it. Upon proceeding to read more slowly and carefully, I noticed that your characterizations of what Patry actually wrote bear very little resemblance to his actual words. Your review follows a strict pattern: take a few of them (stripped out of the context of his arguments) and ruminate on what you think they could mean from your perspective. As your resulting ramblings become longer, more confused and less coherent, they become even less relevant to anything actually said.

You will, of course, demand an example - and so I will provide one. Understand that I am talking only from my own perspective, having not read the book and no access to the surrounding paragraphs in it; I am waiting until I need to buy something else from Amazon so as to garner the free shipping promotion. Nonetheless, I emphasize quite strongly with such a characterization of the RIAA President. Too many "pro-copyright" ravings do indeed contain the presumption that no-one could rationally disagree with them except out of blatant ignorance or pure greed and self-interest, and I found his description quite appropriate. Rather than address this sad fact, you instead awkwardly pretend Patry is waging a war against "using federal courts to deter violations of federal civil rights in a law-abiding democratic republic", rather than the specific morally repugnant campaign he criticizes.

Tom--
You said:

So here are my questions: If that sentence proves that there can be no “free market” for copyrighted works, then would a “free market” appear were the word “copyright” replaced with “iPod,” and the phrase “copyright owners” with “Apple”? ... I may be missing something.

I think you are missing something. For purposes of using the work itself, copies of a work are all commodities. One copy of Hamlet might have nicer paper than another, but the play stays the same.

When the market for creative works is free, anyone who is willing and able can publish copies of that work. Competition amongst the publishers will force them to be efficient in ways that benefit the public. Some will be priced very cheaply, others might try to differentiate on quality, etc. See for example, the movie 'Charade.' You can download it for free, or buy it for cheap, but you can also get a nice DVD of it from Criterion.

Copyright gives a monopoly on a work which otherwise would be commoditized; thus, no free market in that particular work until the copyright runs out.

I suspect you were thinking that Patry was talking about the competition that occurs between entirely different works.

You also said:

Among others, you cited and quoted the wackiest of these “folks”: Professor Charles Nesson—Lessig mentor and architect of “radical transparency” so self-destructive that a stubbornly immature young man, rather like the boy in Old Yeller, finally had to step up and put his own defense out of its misery.

While I am not a fan of Prof. Nesson's trial work, after watching him from the gallery, you are mischaracterizing what happened. Basically, Tenenbaum was asked whether or not he was liable. Nesson should have objected; the appropriate question was whether he engaged in the uploading and downloading of which he was accused. But Tenenbaum didn't appear to notice the very important difference (akin to 'murder' versus 'kill'), and Nesson didn't object, so that was that. Given that Tenenbaum lost some of his defense as a result of the admission, it's pretty clear that he did not deliberately mean to admit liability.

Likewise, I was shocked that when RIAA proposed jury instructions that would have statutory damages calculated per infringement -- the statue only allows them to be calculated per work infringed, regardless of the number of infringements -- Nesson didn't object. I predicted that this would result in an inflated award of damages, and sure enough, the award was $750 (the minimum) times 30 (the number of works) times 30 (which came out of nowhere).

The lesson is, Nesson needs to stay out of the courtroom.

I would be curious to learn whether William Patry's book has a copyright notice affixed to it. I suspect that it does. (When I borrowed Lawrence Lessig's "Remix" from the library, the first thing I looked at was the copyright notice. It was the most confrontational notice I've ever seen, with Lessig as the copyright claimant, not his publisher.)

If Patry's book is copyrighted, it would seem to be yet another example of, "Let's all share, but don't touch MY stuff!"

I hope this is not the case.

Gordon - I realize you must think that your insight is a great "gotcha," to both Patry and Lessig, but if you read their work (and I encourage you to do so), you'll find that neither opposes the very notion of copyright itself. (So placing a copyright notice on their books is hardly hypocrisy on their parts.) Their objections (which are not identical to one another's, BTW) are to various specific facets of the current copyright system, and more generally, to the trend toward continued expansion of authors' rights (at least without very good justification) - both have objected to the most recent US copyright term extension, for example. Professor Patry has been a vocal supporter of effective copyright for years, as anyone familiar with his resume can attest. And Larry Lessig was instrumental in creating the "Creative Commons project, which uses existing copyright laws to allow authors to choose to donate, release, or delegate some of the rights copyright law grants them, back to the public. You will note that many of Lessig's books have been published under a Creative Commons license, so you are free to download them and read them withotu paying him for the privilege.

Don’t assume that just because you agree with.

Gordon - It's not the case. In fact, it seems your own impression of what copyright is seems to be tainted by the very things that Patry, Lessig, and those who are routinely mischaracterized as "anti-copyright" actually protest, which is (among other things) the often-absurd reduction of copyright's philosophical and factual issues to Kindergarten-level platitudes about sharing and stealing; and the widely held (especially by those who rely on maximizing profit from the commoditization of creative works) but entirely unsupported belief that copyright law requires no licenses to copy, distribute, or produce derivative works ever be granted, except those which are explicitly asked for and which yield the greatest profit to the copyright owner for the greatest period of time (falsely implying copyright is only intended for such and that the advancement of creativity depends on it).

Rather, the existence of copyright, such as that declared in the front matter of these authors' books, makes it possible for owners to grant any licenses they wish, including ones that encourage a degree of noncommercial use & sharing. Such licensing doesn't involve any surrender of copyright, and need not preclude traditional commercial exploitation. It also benefits society in the same ways copyright term limits do, providing alternatives to the perpetual withholding of creative ideas, knowledge, and art from the public for all but the greatest ransoms the market will bear.

Further, you've committed a number of logical fallacies. I suggest reading up on ad hominem tu quoque, straw man, and red herring.