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Friday, October 2, 2009

Moral Panics and the Copyright Wars: A Worthless Book
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William Patry's new book Moral Panics and the Copyright Wars ("Copyright Wars") ranks among the worst books yet written about copyrights and the Internet--a stunning achievement, given the competition. I began it hoping for a slanted-yet-thoughtful analysis of how to reconcile the potential of both copyrights and the Internet. I got the same shopworn Scary Stories, sophomoric and droning lectures on cognition and economics, no solutions, and the self-anointed "most prolific scholar of copyright in history" venting venom like this:

[C]opyright is not an engine of free expression, but a yoke around innovation put on to retard progress by preserving existing and failed business models. (p. 157).

In other areas where a government monopoly, created to serve the public interest, is blatantly abused over a long period of time, it is taken away. (p.199).

It is the innovation of [consumer electronics manufacturers and Silicon Valley] that creates the demand for copyright owners' works. (p. 21).

The Copyright Wars must be understood as archetypical responses of businesses that are inherently non-innovative.... 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. (p.198).

Only the most profligate "scholar of copyright in history" would make such claims. The "scholar of copyright" who "cannot think" of "a single significant innovation" in the works of, say, Walt Disney just cannot think--unlike Forbes, which just ranked Walt Disney Studios among America's 10 Most Innovative Companies.

Indeed, how could any "scholar of copyright" be unable to "think" of even one significant innovation implemented by any video-game developer or publisher? Similarly, while Copyright Wars praises the band U2, it was not Mr. Patry who discerned (and funded) U2's talent when they were unknown and losing money--it was a record label. Shouldn't consumer products as successful as CDs and DVDs count as "significant innovations"? And if copyright industries are "inherently non-innovative," then what were those generations of "technical Oscars" rewarding?

A serious point underlies this ridicule of the ridiculous: Not even the most gung-ho "copyright warrior" can rationally deny that American creators and creative industries have become very successful producers--and exporters--of expression. Not so long ago, even America's admirers agreed that we were abject failures as producers of expression. In 1840, Alexis de Tocqueville thus titled an entire chapter of Democracy in America as follows: The Example of the Americas does not Prove that a Democratic People can have no Aptitude and no Taste for Science, Literature or Art.

But the pain of that dart is soothed by history. In less than 160 years-in the blink of an eye, culturally-America became a world-leading creator and net exporter of an array of works that would astound de Tocqueville: books, magazines, music, movies, TV shows, video games and application software, to name a few.

As I noted here, copyrights were not the only significant factor in this transformation. Nevertheless, these diverse successes usually resulted from the imagination, innovation, and hard work of creators empowered by the guidance and the risky, long-term investments made by copyright-driven American creative industries. Their successes expose the absurdity of Mr. Patry's claims--our creators and creative industries could not be so successful unless they were highly innovative, progressive and productive. The scholar of copyright who "cannot think" of innovations in film-making achieved by George Lucas and Industrial Light and Magic, can thus cure his ignorance by searching the Internet.

Consequently, even a "scholar of copyright" will become the bonfire of his vanities if he tries to throttle Yoda, kick Old Yeller, re-incinerate Rosebud, and shoot Private Ryan--while decreeing that no "significant innovation in... the creation of works of authorship" was ever achieved by Walt Disney or his studio. Recently, Disney animators were working to make every leaf in an animated forest move individually in gusts of animated wind--a small detail, perhaps--but one of many that affirms a towering truth: A battle over creativity in which William Patry meets Walt Disney ends like Bambi Meets Godzilla.

This blog post can only begin to catalog the defects of Copyright Wars. For example, its account of the critical economic insights of Joseph Schumpeter is inane, and its account of (your) major cognitive defects quotes a "dream analyst" (p. 51). Nevertheless, two more of its major failings can be easily summarized.

Copyright Wars Averts Its Eyes from Inconvenient Truths.
Copyright Wars is laughably biased. In 2009, anyone who writes another copyhate-filled book about the "copyright wars," had better have either the intellectual integrity or the knack for self-preservation required to scribe the word "Grokster." The author of Copyright Wars had neither.

Granted, Copyright Wars began, (p. xxiv), by noting how destructive bias can be: "The first step in copyright recovery is honesty about where we are and how we got [here]." What followed was basically a paste-smeared shoebox diorama full of cardboard-cutout devils (content industries) plunging pitchforks into cardboard-cutout angels (technologists, online service providers, and consumers)--with a voice-over pronouncing anathema against the "large and growing" "sin of copyright" (p. xx).

Earthly conflicts among three-dimensional humans tend to be more complex. And few earthly conflicts tend to be more complex than those among producers of complementary goods-like content creators and content distributors. But Copyright Wars concealed complexity by omitting conflicts, outcomes, events, and Terms of Service that might suggest that debates among producers of complementary goods could be anything but a remix of the clash between the looms and the Luddites.

And so, in 2009, Copyright Wars pretended that the last significant Supreme-Court intervention in the "copyright wars" occurred in 1984. Both my reading of Copyright Wars and its index confirm that its text fails to mention--much less explain--ugly words, phrases, and realities like "Grokster," "Sharmin Networks," "KaZaA," "StreamCast Networks," "Morpheus," "get all the music," "no product costs to acquire music," "In re Aimster," "technological features to induce users to share," and, of course, "MGM Studios, Inc. v. Grokster, Ltd." And as Judge Posner noted in In re Aimster, blindness this willful is evidence of intent.

Copyright Wars' affected blindness to Grokster is most telling because Grokster refutes two of Copyright Wars' central themes. This book argues ceaselessly that copyrights and content industries are inimical to the Internet and "innovation." But Grokster proved that many Internet savants cannot distinguish productive "innovation" from commercial copyright-piracy schemes--even after their perpetrators, "citing a concern about the possibility of a criminal investigation," (p.3 n.1), refuse to let their still-eager defenders learn what potential crimes they were defending. In Grokster, far too many technologists mindlessly defended blatant--and blatantly inefficient--piracy schemes.

Copyright Wars also argues that when content industries win policy debates, they do so--not because copyrights and markets protect free speech by promoting the private production of expression in a democratic republic--but because content industries concoct and repeat nonsense until it brainwashes star-struck government officials. (And if you think that was not a fair one-sentence summary, do read Copyright Wars.)

Grokster thus raises questions: Is brainwashing of the gullible really how Mr. Patry explains the content industries' 9-0 Supreme-Court victory in MGM Studios, Inc. v. Grokster, Ltd.? Were all nine Justices just star-struck, (in Grokster, note 13), when they eliminated a once-fatal causation problem and transformed the moribund inducement doctrine into a deadly serious theory of secondary liability?

Similarly, Copyright Wars (p. 178) praises the nuanced understanding of "monopoly" displayed by "Nobel Prize winner in Economics Kenneth Arrow." But does Mr. Patry really think that tricky metaphors duped Professor Arrow into becoming the lead author of the most aggressively pro-copyright and anti-Sony amicus brief filed in Grokster?

Copyright Wars cannot answer such questions--because it ignored realities as basic as the KaZaA litigation and MGM Studios, Inc. v. Grokster, Ltd. It is thus useless to anyone who wants to understand or resolve debates about copyrights and the Internet.

These debates are rarely one-sided. Sometimes, technologists are right and copyright owners are wrong. For example, I agree that Copyright Wars, (pp. 182-186), correctly dismisses The Associated Press's claims that Google and other online news aggregators are infringers: AP and newspapers confront problems that have little to do with infringement or copyrights--their problems that would remain even were copyrights absolute and perfectly enforceable.

But sometimes, copyright owners are right and technologists are wrong. Too many technologists have used the Internet to profit from deliberate, destructive piracy. Sometimes, they even pursued commercial piracy through means so malign that they achieved a result once unimaginable-they turned piracy of popular movies and music into a documented threat to national, military, commercial, and private data security. No one could have expected that "free music" could become so costly.

Those who avert their eyes from these ugly facts do not change them--they just spare themselves the burden of confronting the critical question facing policymakers: How do we want copyright owners to enforce their rights when deliberate, commercial copyright-piracy schemes encourage--or dupe--ordinary consumers into performing directly infringing acts? Copyright Wars cannot answer that question because it affects the pretense that no such question exists.

The Angry Arguments in Copyright Wars Often Backfire upon Technologists.
Copyright Wars is not just a perhaps-ironic plea for "honesty," it also seethes with such hatred for creative industries, (particularly those that create music and movies), that the snapping jaws of its rabid rhetoric often tear into technology companies like Google, a corporation that even the author of Copyright Wars seems to respect (p. xiii, 2-3, 25, 38-39, 40, 169, 179, 185, 187).

For example, responsible commentators carefully discuss China because of the challenges facing U.S. companies-and particularly Internet companies-doing business there. Personal experience leads me to conclude that these companies are "doing good"--that their presence will help produce a more open and lawful China. But in China today, American companies may have to disclose data that could help imprison people for criticizing their autocratic government. Responsible works thus avoid rhetoric that might imply that American companies support the Chinese government's historic and ongoing repression of its own people.

But not Copyright Wars. To better declare his war on copyrights, its author argued that in a law-abiding democratic republic, IF corporations intend to profit from piracy by designing file-sharing programs and networks so that copyright owners must, (under existing law), either to pay off the architects of piracy, sue the consumer-distributors who empower them, AND IF record labels facing such rotten choices sue consumer-distributors in courts of law to deter intended infringements of their federal civil rights, THEN those record labels have launched a terror-campaign analogous to China's horrifying Cultural Revolution:

[The President of RIAA's] words evoked the Maoist Great Proletarian Cultural Revolution, especially the December 1968, "Down to the Countryside Movement," in which intellectuals living in cities were ordered to go to the countryside, where their bourgeoisie thinking would be worked out of them and they would be reeducated by the masses.
Assume, arguendo, that using federal courts to deter violations of federal civil rights in a law-abiding democratic republic could be analogous to the Cultural Revolution that a paranoid communist dictator unleashed upon people who saw their parents, children, or neighbors clubbed to death by book-burning Red Guards. Even so, the analogy backfires. If suing the consumer-distributors who empowered deliberate commercial piracy really was analogous to the Cultural Revolution, then Google, CNET, and their trade association NetCoalition advocated this Cultural-Revolution--analog--this "fight against our children"-as the solution to file-sharing piracy:
Copyright owners] claim that the District Court's decision [in Grokster] leaves them powerless to combat infringement over P2P networks. Two recent developments prove the opposite. First, the Recording Industry Association of America (RIAA) has begun to sue individual file traders engaged in large scale infringement.... [T]his strategy appears to have caused a decrease in file trading.... The combination of vigorous enforcement against hard core infringers and attractive business models for legal downloads should solve appellants' problems with P2P networks without crippling the IT industry.
Oops. Naturally, the Grokster amicus brief just quoted does not really reveal that Google, CNET or NetCoalition supported a "fight against our children," (p. 29), analogous to China's Cultural Revolution. Rather, it reveals mostly the reckless vacuity of the rhetoric in Copyright Wars.

Indeed, in Grokster, many other Internet luminaries advocated copyright-infringement lawsuits against Internet-using students and children. Such arguments were also made by certain ISPs, the ACLU, university librarians, law-school librarians, the Internet Archive, Project Gutenberg, four Harvard Law School professors--and, (of course)--by the corporations distributing the file-sharing programs Morpheus, Grokster, and LimeWire. "Just sue my customers!" was thus the Internet-piracy "solution" advocated by many Internet luminaries who chose to defend potentially criminal piracy intended to let corporations "get all the music" without any "product costs to acquire music." Indeed, Copyright Wars itself would blame consumers if they buy and use copying devices for their intended purpose (p.49)).

Perhaps this ugly spectacle from Grokster suggests that these "copyright wars" involve conflicts more important and more balanced than a rerun of the looms and the Luddites. Perhaps it also suggests that after more than 200 years, American copyright owners finally had to sue consumers to stop EFF, and Public Knowledge, and online service providers from arguing that suing consumers--their customers or constituents--was a great way to enforce copyrights on the Internet. And perhaps that suggests why Copyright Wars pretended that Grokster never happened....

Not even Lawrence Lessig's Free Culture stooped quite so low as to analogize copyright enforcement to China's Cultural Revolution-or the guillotine and the Terror in France (pp. 11-14). But as Copyright Wars notes, (p. xviii, 46, 30), debate about copyrights and the Internet can "degenerate into name-calling" because vacuous demagogues "routinely rely on... hateful messages to demonize the other side," and "attack the character of their perceived opponents." How sadly true. See, e.g., Copyright Wars at 75 (anger and megalomania lead the "most prolific scholar of copyright in history" to exploit a tragic genetic condition while arguing that "copyright dwarves can see no farther than their own megalomania"); id. at 207, n.65 (a lawyer conducts an amateur psychiatric diagnosis of the psychoses of the CEO of a record label that does business with his employer); id. at 21 (in-house counsel for a content distributor argues that content distributors created the demand for Finding Nemo and Schindler's List: "It is the innovation of [consumer electronics manufacturers and Silicon Valley] that creates the demand for copyright owners' works").

Worse yet, this defect--the argument so angry and unhinged that it backfires even upon its author and technology companies--recurs throughout Copyright Wars. Those who want to regulate online advertising, (and especially contextual advertising "honed and targeted by information provided by consumers," (p.11)), will find in Copyright Wars a goldmine of other-people-are-so-stupid sophistry and big-business-is-bad orthodoxy (p. 48-49 and passim). Opponents of the Google BookSearch Settlement--or any successor--will love how Copyright Wars describes British book-publishing "congers" that used "closed auctions" to throttle competition (pp. 115-119). And circling Internet regulators who deem "Google's monopoly on Internet search... valuable and potentially dangerous" will smile as Copyright Wars warns that piracy has left the recording industry so dangerously concentrated that there are "only four major [competitors]..." (pp. 119-120). That could inspire regulators to attack--unless they think of larger markets with even fewer major competitors....

But here is my favorite example:

"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)

Were Mr. Patry's economically illiterate claim valid, then the same rhetorical dagger could be flung at every producer of any differentiated technology, microprocessors, iPods, Android, FIOS, YouTube, smartphones, Kindle, etc. Mr. Patry's attack on copyrights thus unwittingly became--not just an attack on almost all Silicon Valley and consumer electronics companies--but a frontal assault upon the imperfect, differentiated competition that Joseph Schumpeter correctly argued is the essence of real completion in actual market economies. Mr. Patry feigns affection for "Schumpeterian competition," but understands it so poorly that he denies that there can be a "free market" for any differentiated--and thus innovative--product, service or work.

There may be an account of the frailty of competition that would do a better job of alerting every would-be regulator on Earth to the big "KICK ME" signs that its author has just pinned upon the backsides of almost all of the most successful American employers. Forgive me if I don't try too hard to imagine what it might be.

And stay tuned for more dispatches from the self-destruction of Copyright Wars....

PS: By going here, you can also see Mr. Patry argue that if 8,000 artists petition for the redress of their grievances about copyrights on the Internet, then President Obama should throw their petitions "in the trash where they belong." Mr. Patry then roars into a disjointed sexual tirade--something about permitting "evil forces" to "have their way" with "copyright sweethearts" and "vestal virgins" like 68-year-old Helen Reddy, who helped to inspire millions of women to be more than just "sweethearts" in her song I Am Woman.

Predictably, the letters that prompted this tirade did not refer to rape, violation, vestal virgins, or sex; nor did they disparage female artists as mere "copyright sweethearts." To the contrary: such acts of "reasoned analysis" (p. xv), reflects only the erudite eloquence of the self-anointed "most prolific scholar of copyright in history."

posted by Thomas Sydnor @ 12:27 PM | China , Copyright , Cyber-Security , E-commerce , Economics , IP , Innovation , Internet , Regulation

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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.

Posted by: Patrick Ross at October 2, 2009 4:36 PM

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.

Posted by: Copyright Scholar at October 2, 2009 6:55 PM

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!

Posted by: William Patry at October 3, 2009 9:16 AM

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.

Posted by: Nick at October 3, 2009 5:30 PM

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


Posted by: William Patry at October 4, 2009 9:01 AM

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.

Posted by: anonymous at October 4, 2009 4:43 PM

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!

Posted by: Rob Levine at October 4, 2009 10:24 PM

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?


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

Posted by: Tom Sydnor at October 5, 2009 1:12 PM

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.


Posted by: Tom Sydnor at October 5, 2009 2:09 PM

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.

Posted by: Paul Product at October 5, 2009 4:23 PM

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.

Posted by: Steve Reader at October 6, 2009 1:31 PM

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.

Posted by: anonymous at October 6, 2009 8:54 PM

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.

Posted by: Gordon Kaswell at October 6, 2009 9:21 PM

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.

Posted by: Paul Product at October 7, 2009 10:39 AM

Don’t assume that just because you agree with.

Posted by: MacPress at October 9, 2009 10:16 AM

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.

Posted by: Michael Browne at October 9, 2009 4:19 PM

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