Tuesday, October 13, 2009 - The Progress & Freedom Foundation Blog

The "Moral Panic" of "Copyright Wars": Part One of a Reply.

In a recent blog post, I began to explain why I found Mr. William Patry's new book Moral Panics and the Copyright Wars ("Copyright Wars") to be absurdly biased and so angry that its attacks on content creators often backfired upon content distributors. Labeling world-leading creators of a vast range of works "inherently non-innovative" is absurd. Sniping about Sony and file-sharing without confronting Grokster is inexcusable, especially from an author weeping crocodile tears over the genuine tragedy that so many content distributors advocated--copyright enforcement against consumers.

But no author likes criticism of his bouncing baby book. So the rhetoric in Mr. Patry's response, Why I made Tom Sydnor's enemies list, ("Enemies List"), did not exactly refute my "too angry" critique. In fact, it merely confirmed another a fundamental problem suggested in my first post. Copyright Wars is a self-parody: It warns that debates about copyrights and the Internet are being disrupted by demagogues who concoct "moral panics" to demonize their opponents as existential threats to society. And then it demonizes copyrights and content industries as existential threats to society.

I will thus divide my reply into two parts; this post will focus on the major component of Mr. Patry's response, its rhetoric. The next will focus on its substance.

Enemies List equated a blog post to "President Nixon's enemies list made up by Charles Colson who later pled guilty to obstruction of justice and served prison time"--a list intended to let Howard Dean "use the available federal machinery to screw our political enemies." Mr. Patry then posed himself as President Obama, Copyright Wars as the President's Joint Address to Congress on healthcare reform, recalled the deplorable "You lie" outburst, and decreed, "Mr. Sydnor too thinks it perfectly acceptable to lie about me and my book."

But as Copyright Wars notes, (p. 43-44): "[T]he use of metaphors in the Copyright Wars is almost entirely negative, the result of calculated political strategies to psychologically demonize opponents to make them appear to be 'bad' people"--like felons. And then Mr. Patry's fusillade resumed:

In Mr. Sydnor's world there are only two types of people: (1) those who believe in property rights--defined as our current level of copyright or hopefully even stronger, and (2) copyright haters - defined as people like me and the late great British scholar and jurist Sir Hugh Laddie, since both of us have expressed a desire that copyright be effective for its purpose and since both of us have annoyingly insisted upon an evidence-based approach to law.
Were my world so bipolar, I would be among the "copyright haters" because I favor orphan-works legislation. Nor did my post criticize the memory of the "late great" Sir Hugh Laddie. Being dead, he did not write Copyrights Wars or any of its particularly flawed passages that "annoyingly insisted" upon an evidence-defying approach to law and reality. For example:
Sir Hugh did not say that the world's most successful creators and exporters of expressive works are "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."
Sir Hugh did not write a book about the "copyright wars" that discussed Sony and file-sharing at length, but failed even to whisper the G-word ("Grokster").
Sir Hugh did not say, "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."
Consequently, Mr. Patry should stop defaming the departed, ("scholars like Sir Hugh and I are to Mr. Sydnor 'profligate' scholars"), and defend his own claims from Copyright Wars. So too for the long list of luminaries and works that Enemies List invoked. I did not criticize Sir Hugh Laddie, Justice O'Connor, Judge Posner, Ben Sheffner, former Patry clients, Lord Anyone, the Copyright Office, the House Judiciary Committee, or even Patry on Copyrights--which does discuss Grokster. Copyright Wars is neither validated by its jacket-blurb from Professor Volokh--nor invalidated by its jacket blurb from Mike Masnick, a most vacuous and venomous copyhater. See, e.g., here, here, and here. Copyright Wars must stand or fall on its own merits--and insistence on "an evidence-based approach to law" is not one of them.

Indeed, in Enemies List, Mr. Patry admires himself for ignoring reality: "[Sydnor] doesn't even mention that I do not cite anywhere in the book copyright owners' favorite bogeyman Larry Lessig or any copyright left folks." For three reasons, that confirms my claim that systemic bias makes Copyright Wars worthless those trying to understand debates about copyrights on the Internet.

First, Professor Lessig and his acolytes have played a significant--and often harmful--role in these debates. The author who publicly affects the pretence of not citing them will thus fail to sustain it. Among other "copyright left folks," Copyright Wars thus cited and quoted Professor Charles Nesson--Lessig mentor, hypocritical sophist, and architect of "radical transparency" so bizarre that it finally forced a self-centered young man, (rather like the boy in Old Yeller), to put his own beloved defense out of its misery.

Second, ignoring Lessig and the academes precludes honest analysis of who has been debasing debate about copyrights and the Internet with "moral panics" that demonize perceived enemies as existential threats to society. Lessig routinely shrieks about existential threats to the Internet and society, and routinely demonizes perceived enemies--far less "metaphorically" than most. But Copyright Wars pretends not to see Lessig--while reiterating many of his arguments. While reading Copyright Wars, I often thought, "Lessig already made this argument...." For example, both Free Culture and Copyright Wars launch long and similar personal attacks upon the same "bogeyman": the late Mr. Jack Valenti. Both works condemn the prevailing international standard for copyrights--formality-free, three-generation copyright protection--but neither honestly explains how that standard arose; where, when, why and by whom it was popularized; and why the U.S. eventually adopted it, (Hint: Europe did it, not Mickey).

Third, anyone averting their eyes from Lessig, "the copyright left folks," and Grokster will inevitably repeat old errors. For example, Copyright Wars argues that letting content distributors infringe the exclusive rights of content creators will promote the innovation and "creative destruction" that economist Joseph Schumpeter correctly identified as the critical driver of economic growth in a market economy. In Enemies List, Mr. Patry smirks and head-bobs as he imagines the effects of this "insight": "No doubt it greatly galled Mr. Sydnor that I rely on Schumpeter...."

Not really. Unbeknownst to his readers, Mr. Patry's infringement-is-creative-destruction argument is shopworn nonsense. It seems to have been developed over seven years ago by an undistinguished professor who would also abolish copyrights even if that achieved the effects of a book burning: "[I]f only one book in three would be written [without copyrights], we might readily find the trade-off acceptable." His sophistry was then mistaken for insight by the criminal-investigation-fearing Grokster Respondents and their under-informed amici--who thus marched on the Supreme Court crying, "Schumpeter!" and "Creative Destruction!" My next post will explain why the Supreme Court unanimously deemed these infringement-is-creative-destruction arguments unworthy of even an unhallowed burial in a footnote.

In a final rhetorical flourish, Enemies List asserts, "It is ironic that Mr. Sydnor attacks a book dedicated to ending the hurtful division of the Copyright Wars into property lovers and copyright haters...."

But the only irony is in the attempt to pose Copyright Wars and its blog as dedicated "to ending the hurt...." They have now hurled at creators and creative industries--or those who think that creators are innovative and that Grokster did happen--the rhetoric of mass murder (Cultural Revolution, the Terror, "digital guillotine," Soviets); the rhetoric of mutilation (wounded, economic castration of video-rental store operators like billionaire Wayne Huizenga); the rhetoric of communism (Soviet Five-Year Plans, stagnation); the rhetoric of disease and disability (megalomania, blindness, dwarfism); the rhetoric of sexism, (the blog dismissed female artists as "vestal virgins" and "copyright sweethearts" whose concerns should be "thrown into the trash"), the rhetoric of racism, (pp. 147-48, accusing Democrat Jack Valenti of "xenophobia" and "Japan-bashing"); assorted name-calling (vulgar, crude, stupid, anti-consumer, anti-competitive, anti-innovative, parasites, beasts, starving welfare-recipients), and now, the rhetoric of Watergate (Nixon, Dean, Colson, enemies lists, and obstruction of justice).

These are not terms of endearment, reconciliation or understanding. Copyright Wars snarls that American creators and creative industries are metaphorical mass murderers and inherently non-innovative "copyright sweethearts" and "copyright dwarves" blinded by "their own megalomania" and driven by "their religious zeal to claim every jot and tiddle of culture" (p. 75). Such rabid rhetoric cannot heal.

Indeed, Copyright Wars itself would warn that such rhetoric reveals something worse than a remarkably incompetent effort at healing. Copyright Wars would conclude that Mr. Patry must intend to create what he pretends to condemn--a "moral panic" that demonizes his perceived enemies as existential threats to consumers, innovation, the Internet, and America itself.

Was Copyright Wars Meant to Cause a "Moral Panic" against Copyrights and Content Industries?
In Enemies List, Mr. Patry argues that my blog-post critique of Copyright Wars shows that he is "simply an enemy, and that's enough. I am to be hated and my work described as worthless. That of course is what moral panics are all about, and Mr. Sydnor has given us a vivid illustration of another one."

No--my post did not illustrate a "moral panic." Unfairly demonizing one's [perceived] enemies is one criterion for a moral panic, (pp. 43-44). And Mr. Patry obviously felt unfairly demonized as an enemy when I opined that Copyright Wars is worthless because it ignored Grokster and claimed that remarkable creators like Walt Disney and Walt Disney Studios "are inherently non-innovative and... rely on the innovation of others to succeed." I disagree that noting these omissions and absurdities was unfair. But such disagreements rarely yield to reasoned debate.

Fortunately, a true "moral panic" must also satisfy a second criterion, (p. 145): "It is the essence of moral panics that folk devils be demonized as a threat to society itself." Consequently, the scheming author of a true "moral panic" must satisfy two criteria: (1) he must unfairly demonize his perceived enemies, and (2) he must also "create the impression that [they are] an existential threat to society" (p. xv).

Copyright Wars fails this second criterion. It is NOT an existential "threat to society itself." I do think it an insulting and biased book unworthy of an honest reader's time, but those who read it will not become threats to society--merely bored, offended, or misinformed. Moreover, it will not misinform if reviewers identify its absurd errors, omissions and excesses. Once exposed, little harm should be done by a book about moral panics in the "copyright wars" that averts its eyes from Grokster.

But Moral Panics and the Copyright Wars could satisfy both criteria for a true "moral panic." If so, then the book and blog would be an execrable hypocrisy: they would pretend to denounce "moral panics" in order to create--against their author's perceived enemies--the sort of "moral panic" that they pretend to denounce. Copyright Wars would be an attempt to generate a "moral panic" if it satisfies the two criteria: (1) it must unfairly demonize copyrights or content industries, and 2) it must depict their venality as an existential threat to society.

Absent a finding of "fairness," Copyright Wars would satisfy the first criterion--"demonizing" one's [perceived] enemies. By now, Copyright Wars has hurled at content owners and their defenders the rhetorical daggers of castration, deception, hatred, mass murder, sin, zealotry, greed, disease, sexism, racism, communism, stagnation, progress-hatred, inherent non-innovation, and insanity. Nevertheless, none of this rhetoric is dispositive: an author would not be brewing a "moral panic" if he was fairly hurling this barrage of blades at his foes.

But Copyright Wars inarguably satisfies the second criterion of a moral panic--it portrays both copyrights and content industries as existential threats to society. Copyright Wars argues that copyrights and content industries threaten the very future of the Internet, innovation, consumer choice, culture, technology, social progress, entrepreneurs, America, creativity, and capitalism--indeed, unless stopped, copyrights will make America a third-world digital nation:

These are the sorts of apocalyptic claims that a true "moral panic" would peddle. Potential self-parody thus awaits the author who denounces "moral panics"--and then denounces megalomaniacal, blind, dwarfish, fear-mongering copyright zealots and ditzy "copyright sweethearts" who threaten the Internet, innovation, consumers, progress, America, etc. Indeed, Copyright Wars may be the only book that shrieks that copyright industries will "kill off" innovation. Oops, my mistake: That shriek merely echoed Lessig's book Free Culture (p .181).

This risk of self-parody increases given the complex equities of the disputes refereed by Copyright Wars. Content creators and content distributors are, in effect, producers of complementary goods. Producers of complementary goods are not direct competitors in the same market, but the value that they deliver to others results from their combined efforts. For example, if you buy a DVD of a popular film in a local store, some of the value delivered derives from the efforts of the filmmakers and some from the efforts of the local merchant.

Producers of complementary goods thus tend to have "colorful" Burton-and-Taylor relationships: They need each other, but often argue heatedly about who deserves what share of the rewards of their mutual efforts. Such disputes tend to be very difficult to referee both because they rarely have any obvious "right" answers, and because any answers they may have change constantly along with local circumstances and technology.

Consequently, we usually avoid refereeing disputes between creators as innovative as American recording artists and potential distributors as innovative as Apple or Amazon. Instead, we grant content creators exclusive rights in their content; we grant content distributors exclusive rights to their distribution devices and systems; and we grant potential content recipients exclusive rights in their money. We then let those parties decide whether, or on what terms, an exchange would leave them all better off.

But Copyright Wars argues that the "copyright wars" are the rare case in which this exclusive-rights-for-all approach is wrong because the equities of the disputes at issue weigh almost entirely in favor of the content distributors. In Copyright Wars, content distributors are inventive and always honest creators and deliverers of valuable innovation, but content creators are none of these things. That seems inherently improbable.

For example, on pages 154-157, while Copyright Wars discusses movie studios and video-rental stores, Mr. Patry does something rare among employees of application-software distributors: He drapes himself in the sacred "first-sale doctrine," celebrates its "ancient abhorrence of restrictions on trade," and then piously denounces the "greed" of copyright owners who "attempt to alter the first sale doctrine so that they could control the rental market." He also snipes that record labels--but only they--obtained a 1984 exemption to the first-sale doctrine that let them preclude commercial rental of their works.

Mr. Patry then imagines how a 1980s movie studio selling videocassettes of its films to consumers without such an exception would have viewed a video-rental store that started buying cassettes priced for consumers and renting them commercially: "Resenting the success of the innovator, copyright owners then claim that the innovator's success is caused solely by the value provided by the copyright owner. The innovator is described metaphorically as a parasite, fattening itself off of copyright owners" (p.156).

Frankly, I doubt that any real movie studio could have thought that a video-rental store's success could be "caused solely by the value provided by the copyright owner." After all, retailers of videocassettes and DVDs have always captured a large percentage of the revenue generated by retail sales of videocassettes and DVDs. Common sense suggests that video rental stores raised legitimate concerns about reduced sales, but they were not complete "parasites." But the same common sense should also make honest readers cringe when Copyright Wars makes claims like these:

[T]he copyright industries fail to innovate but are saved by.... consumer electronics manufacturers and Silicon Valley.... It is the innovation of these others that creates the demand for copyright owners' works.... Working themselves up into righteous indignation, copyright owners then insist that the innovator disgorge a healthy share of its profits to them, even though if the copyright industries were left to their own devices, they would have starved to death decades ago.
So the content creators are, um, parasites, aren't they? Mr. Patry imagined the "I-created-all-the-value-you-parasite" epithet being hurled by a straw man because it was absurd. But he perceived no absurdity when this "parasite" epithet was hurled on behalf of content distributors by a non-imaginary "scholar of copyright."

The preceding observations should suggest a brutally concise conclusion: None but the most thoughtful and scrupulously honest author could fairly denounce "moral panics" that unfairly demonize opponents as existential threats to society--while fairly demonizing his perceived opponents as existential threats to society. Rare circumstances might let a very thoughtful, honest author thread this needle. But woe betides the dissembling author who tries to do so while ignoring inconvenient facts and recklessly hurling rhetorical stilettos. If an author does that, then all of the dead Sirs and Lords in Europe cannot not save his book from becoming self-parody--the worst sort of worthless hypocrisy.

Ordinarily, I would dismiss any such book as a useless, but likely well-meant, work by an author who just got too interested and angry, overreached, and made himself look ridiculous. But Copyright Wars warned (p.136): "Moral panics are not irrational acts by those who construct them, but rather are the result of deliberate political opportunism." "Moral panics in copyright involve the construction of a political strategy for obtaining political benefits" (pp.139-40).

So be it. Consequently, my next post on Moral Panics and the Copyright Wars will focus on the following fourt substantive questions raised by my initial post and Mr. Patry's response to it. It will also try to explain why these are critical questions that expose the vacuity of the main arguments in Copyright Wars:

(1) Would a thoughtful, honest analyst of recent debates between content creators and distributors be unable to think of "a single significant innovation in either the creation or distribution of works of authorship that owes its origins to the copyright industries"?

(2) Would a thoughtful, honest analyst of recent debates between content creators and distributors discuss Sony and file-sharing at length while failing to acknowledge that Grokster existed and that "copyright left folks" and content-distributors bear much of the blame for the tragedy of copyright enforcement against consumers?

(3) Would a thoughtful, honest analyst of recent debates between content creators and distributors concede that the imperfect competition among producers of differentiated Hollywood movies or Nashville recordings is at least as robust as the imperfect competition that patents, trademarks, trade secrets, and non-proprietary entry barriers (like the cost of a fab) empower among wonderfully innovative producers of content-distribution systems and devices?

(4) Would a thoughtful, honest analyst of recent debates between content creators and distributors attempt an unattributed revival of the piracy-is-creative-destruction argument unanimously repudiated in Grokster?

Answers to these--and other--questions about the claims in Copyright Wars will be forthcoming in future posts.

Having thus replied to the rhetoric of Enemies List, I will next reply to its substance. If an author poses himself as President Obama and his critic as a Nixonian felon who thinks it "perfectly acceptable to lie about me and my book," then that author had better be able to back up his snapping, lunging rhetoric. I hope to show that Mr. Patry did not and cannot.

posted by Thomas Sydnor @ 7:20 AM | Books & Book Reviews , Copyright , E-commerce , Googlephobia , IP , Innovation , Internet , Regulation , What We're Reading