Monday, November 30, 2009 - The Progress & Freedom Foundation Blog

The Self-Parody of Moral Panics and the Copyright Wars: "Figurative Language at its Best" Does NOT "Declare War" on Copyright-Enforcing "Terror[ists]" by Objectifying Women.

In life, few outcomes are predictable--except those of attempts to defend the indefensible. Consequently, as I predicted, Mr. William Patry was enraged by the latest negative review
of his book Moral Panics and the Copyright Wars ("Copyright Wars"). (Some other negative reviews can be found here, here, here, here, here, here, here, and here.)

As discussed here, Nate Anderson of the not-exactly-pro-copyright website Ars Technica recently posted a fairly restrained, but devastating, review of Moral Panics and the Copyright Wars. His review even echoed some concerns expressed by reviewers whom Mr. Patry had just denounced as "haters":

There are, of course, the haters who pen diatribes that are not in any meaning of the word a "review." Two people in particular have write multiple such "reviews," apparently unable to ever purge themselves of the bile that poisons their lives as they attempt to poison others' lives. To them, I quote Max Reger's letter to a music reviewer of one of his compositions: "I am sitting in the smallest room in my house. I have your review before me. Soon, it will be behind me."

In grade school, that was probably a devastating reply. But the Ars betrayal forced Mr. Potty to leave the safety of the smallest room in his house and write Chastity Belts and Copyright, which repeated the sort of tactics that led Ars and others to criticize Copyright Wars.

First, Mr. Patry explained that he was not going to criticize Nate Anderson or Ars Technica: "My purpose... is not to criticize Nate or Ars Technica...." Then, Mr. Patry criticized Nate Anderson and Ars Technica for their "USA Today-type superficial nuggets approach"; for their "below the belt shots"; for their "false characterization of [his] book"; for their disregard for the "heart of the book" and its "central thesis"; for not reading the book; for their attempt to "acknowledge... and deny... in the same breath" the book's disclaimer; for their failure to "discuss[] the issues;" and for their "easy review" and "lamentable lack of anything beyond bullet point reviewing." He then snarled:

So [Copyright Wars] is a series of bomb-throwing, and even worse it's a book about how bad bomb-throwing is. I must indeed be a hypocrite. There is apparently nothing more to the book, so it can be easily be dismissed as a screed... that falls prey to the very disease it is trying to extirpate. Another failed, lousy book, next story.

Sadly, those bitter words understate the defects in Copyright Wars. It is a "failed, lousy book" that should be "dismissed as a screed." But Copyright Wars became a parody of itself too often to be the work of a calculating "hypocrite." Mr. Patry heaped the harshest condemnations upon those who use analogies to murder and war while discussing copyrights--in a book about copyright discourse filled with analogies to murder, war, terrorism, and lawless slaughter. Copyright Wars thus looks more like the work of a "hater" of creators and creative industries unhinged by sanctimonious, childish rage. The rabid rhetoric and ugly metaphors of Copyright Wars can only be recanted: They cannot be defended.

The Murder/War Rhetoric of Copyright Wars Is "the Very Disease It Is Trying to Extirpate"--or Spread.

In Chastity Belts and Copyrights, Mr. Patry angrily rejected the Ars claim that "a certain irony" lurked in his attempt to denounce the use of harsh rhetoric while using very harsh rhetoric. Mr. Patry thus denied that Copyright Wars "falls prey to the very disease it is trying to extirpate...."

Sadly, that is the kind interpretation of this backfiring book. Copyright Wars relentlessly denounced those who would corrupt debate about copyrights by using harsh analogies to characterize their opponents.

But Copyright Wars just as relentlessly demonized copyright owners as a Soviet Politburo of megalomaniacal, psychotic, bipolar, lying, Maoist, Fascist, Stalinist, Terror-wielding, debased, backwards, wealth-hating, doomsday-concocting, fear-mongering, anti-competitive, anti-innovative, anti-consumer, suicidal, self-destructive, catty, constantly whining, childish, myopic, xenophobic, jingoistic, hypocritical, unethical, immoral, bureaucratic, self-righteous, indignant, crude, Japan-bashing, prejudiced, quixotic, bigoted, gluttonous, stupid, blind, indecent, greedy, undeserving, leaderless, present-fighting, future-banning, bestial, crude, parasitic, perverted, violent, consumer-assaulting, starving, congenitally diseased, barbaric, inherently non-innovative, corporate-welfare-receiving, fanatically zealous dwarves whose Chicken-Little hysteria and sinful, grotesque, cancerous, draconian, impoverishing, barricade-creating, bloated, crippling, unnatural, corrupt, speech-and-creativity-suppressing, fatal-strength copyrights-on-steroids are now existential threats to the Internet, innovation, consumer choice, culture, technology, social progress, entrepreneurs, creativity, capitalism, America--and, of course, Mr. Patry's angelically innovative content distributors who "create[] the demand for copyright owners' works" but are then "castrat[ed]," and have "a chastity belt put on [their] wife" as they are "shake[n] down" by inherently non-innovative Mafiosos like the hypocrite Noah Webster and the demonizer Mark Twain. (pp. xviii-xxiv 6-8, 14-16, 19, 21, 22, 25, 26, 28-30, 64, 74, 75, 86, 91, 94, 101, 121, 138, 146, 149, 152, 156, 157, 162-164, 167-169, 174, 175, 178, 181, 198, 205, 240, 241).

Oh. I almost forgot: Copyright Wars also condemned "name calling" (p. xviii).

All this "without a hint of irony" (p. 168). And in a book warning that some people get so biased and angry that they can only perceive their opponents through an "enemy image" (p.xxiii): "'An enemy image is a negative stereotype through which the opposing group is viewed as evil, in contrast to one's own side, which is seen as good.... The negative actions of one's opponent are thought to reflect their fundamental evil nature, traits, or motives.'"

Those two sentences capture the self-parody of Copyright Wars: Mr. Patry denounced those who would create an "enemy image" of their opponents. And then he created an "enemy image" of creators and creative industries so hatefully absurd that even a "friendly forum" like Ars Technica cringed as Mr. Patry denounced the world's most successful creators of expressive works as "inherently non-innovative" "Master[s] of Moral Panics," whose fundamentally evil nature and motives are reflected in their deliberate attempts to demonize innocent and innovative content-distributors (like StreamCast Networks), as existential threats in order to "kill off" innovation and America by unleashing the combined deprivations of Robespierre's Terror, Mao's Red Guards, Mussolini's Blackshirts, and the central planners of Stalin's Terror-Famine (pp. 6, 10-12, 16, 164).

Nevertheless, Mr. Patry denounced Ars Technica for claiming, "the tone [in Copyright Wars] gets so one-sided at points that all but the most hardened copyfighter will probably set the book down at some passages, scratch the chin, and ask 'Really?'" Mr. Patry snarled that "No examples of this are given," though Ars gave many. And were those inadequate, scores more samples from a larger population were just cited above.

In short, the rabid rhetoric in Copyright Wars is too prevalent--and the topic of rhetoric is too central to the book--for concerns about it to be dismissed as "bullet point reviewing." Consequently, if we take Copyright Wars seriously, then--as I showed here--Mr. Patry himself is the most prolific and demonic "Master of Moral Panics" ever known: Copyright Wars contains scores of non-extemporaneous rhetorical overreaches involving war, genocide, murder, communism, fascism, sex, disease, insanity, sin, bigotry, etc. Therefore, Copyright Wars is either a self-parody infected by hate, "the very disease it is trying to extirpate....," or it is a deliberately hateful attempt to cause "the very disease it is [pretending] to extirpate...." Take your pick.

The merciful interpretation is that childish anger caused Copyright Wars to become a self-parody: As a result, a book meant to protest harsh metaphors thus degenerated into, as Mr. Patry put it, "page after relentless page of metaphoric attacks on copyright owners." Indeed, Copyright Wars is page after relentless page of rage after relentless rage. Consequently, it repeatedly degenerated into self-parody even when denouncing potentially genuine rhetorical overreaches by some copyright owners.

For example, history now reveals that during the debates about VCRs in the early 1980s, movie studios were too quick--but not really wrong--to worry that home copying equipment could undermine copyrights so badly that they might have to be enforced against consumers. But even so, then-MPAA-President Jack Valenti did overreach when he extemporaneously analogized VCRs to the "Boston Strangler" (pp. 52, 142, 145, 148-49, 152).

The price of that overreach has long been paid: the studios narrowly lost the debate in question in the Supreme Court's 1984 5-4 Sony decision, and they and Mr. Valenti have since been relentlessly criticized for the "Boston Strangler" analogy: A LEXIS search reveals at about 67 law-review articles that do so, and so do at least eight books.

Consequently, the problem is not that Copyright Wars may be the 76th work to criticize the Boston-Strangler analogy. Rather, the problem is that its author tried to top his 75 uncited predecessors by shrieking that even one extemporaneous murder metaphor--if coupled with a few other overreaches over 38 years--proves that someone is a "Master of Moral Panics," (p. 139), whose lifelong, calculated intent was to deceive, demonize, dehumanize, and destroy. But then, the same author--in the same non-extemporaneous, "scholarly" book--six times accused his content-industry foes of trying to "kill," "kill off" or "strangle," innovation, the Internet, or rental markets (p. 36, 41, 156, 164, 175, 189). Kind of like the, um, Boston Strangler....

More self-parody resulted when Copyright Wars criticized the late Jack Valenti for extemporaneously analogizing Internet piracy to "our own terrorist war." Again, that analogy does overreach: Even if copyright owners can view deliberate piracy as an enemy against whom they can justly wage "war," the "our-own-terrorist" modifier went too far. (But I would note that neither Mr. Valenti nor anyone else could have led a major trade association for 38 years unless such overreaches were rare exceptions to an otherwise clear pattern of effective advocacy.)

So--again--the problem is not that Mr. Patry belatedly criticized this eight-year-old war metaphor. Rather, the problem is that Mr. Patry drew particularly vicious conclusions from this one old war metaphor--while writing a book riddled with war metaphors (p. xxii):

As a bomber pilot, Mr. Valenti knew the difference between killing large groups of people by flying planes into buildings or dropping armaments on them has he had done, and the unauthorized copying of motion pictures. But it is precisely because he did know, firsthand, real war and the patriotic feelings that it arouses that he chose to employ the metaphor of war.... Through the metaphor of war, he hoped such a trivial issue would become a priority of the government, which would then, on behalf of his wealthy corporate clients, exercise the powers of the State and rally the population....

This hate-filled speculation backfires: Mr. Patry somehow forgot that Copyright Wars has a war metaphor in its title, and thus, on every other page. The text of Copyright Wars also fires barrages of war metaphors at its readers. (e.g., pp. xix, xxi, 5, 10, 23, 29, 30, 48, 117, 148, 189, 197-198). For example, Copyright Wars warned other countries not to "declare war on [technology and youth] as is the case in the United States" (pp. 197-198). And if we paraphrase Copyright Wars, it explains that Mr. Patry used that "declare war" metaphor because he intended to help his corporate masters profit by deceiving, demonizing, killing truth, and corrupting democracy (p. xxii):

Through the metaphor of war, [Mr. Patry] hoped such a trivial issue would become a priority of the government, which would then, on behalf of his wealthy corporate clients, exercise the powers of the State and rally the population....

Worse yet--and this problem will soon recur--Mr. Patry was not wholly oblivious to this particular self-parody. He knew that his own war metaphors were even worse than the anti-piracy war metaphor that he had so venomously denounced. But he used them anyway. For example, Mr. Patry admitted, (p. 1), that his titular phrase "Copyright Wars" had "originated with those who regard enforcement actions by corporate copyright owners as an assault on consumers." But it is absurd to analogize the use of legal process in a rule-of-law democratic republic to "war," and any lawyer who thinks otherwise should turn in his license and do something less destructive with his life. Moreover, too often "those" who now weep crocodiles tears over copyright enforcement against consumers either advocated it, or they lacked the intellectual integrity that led Justice Breyer to admit (if euphemistically) that copyright enforcement against consumers was an inevitable consequence of his--and Mr. Patry's--preferred policy choices. See MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 963 (2005) (Breyer, J., concurring) (advocating a broad Sony defense for corporations that distribute home-copying devices because copyrights could be enforced against consumers and citing the RIAA lawsuits that Copyright Wars claimed "badly abused the legal system to intimidate and financially crush poor and middle class families").

And then, having topped the war metaphor that he had denounced, Mr. Patry unleashed terrorism metaphors. Copyright owners and others are now trying to avoid the need for lawsuits against consumers, (Mr. Patry's "Copyright Wars"), by devising innovative enforcement methods like graduated response--a long series of warning that, if repeatedly ignored, could eventually impose some material inconvenience upon those who keep violating the civil rights that empower others to speak. Mr. Patry analogized graduated response to barbarism, the"digital guillotine" and the use of Robespierre's "terror" against civilians (p. 14). Those who use "terror" against civilians are generally called "terrorists."

And so, Moral Panics and the Copyright Wars became the oblivious self-parody in which "the most prolific scholar of copyright in history" sanctimoniously denounced the late Jack Valenti as a deliberate demonizer because he had once analogized Internet piracy to the movie industry's "own terrorist war"--and then repeatedly analogized copyright enforcement to war and terrorism....

In Copyright Wars, similar self-parodies abound. For example, Mr. Patry proclaimed (p. 91): "Metaphors such as pirate are used for the very grown up purpose of branding one side in a debate as evil, and the other good." But that sanctimonious sentence was scribed by an author simultaneously branding the other "side" with Maoism, Fascism, Stalinism, and Terrorism. The result is either self-parody or self-indictment.

Again: Take your pick. For reasons discussed here, I pick "self parody": Not even Mr. Patry's relentless rages suggest that he really is the sort of incarnate fiend that he ceaselessly conjured in Copyright Wars. The book's unwitting venomous attacks on its own author's character are thus as implausible as its deliberately venomous attacks on the character of the late Jack Valenti.

Consequently, Copyright Wars really is page after endless page of rage after endless rage. That seems to be the only way to explain why it repeatedly became an exemplar of all-too obvious--yet too-often oblivious--self-parody that just seems too self-destructive to be the work of a calculating "hypocrite."

Attacking Copyrights by Analogizing Women and Female Sexuality to the Personal Property of Men Is NOT "Figurative Language at Its Finest."

In addition to disputing the Ars claim about his rhetoric, Mr. Patry also denied that Copyright Wars itself had misused metaphors:

Finally, what about the book's own use of metaphors? Is it indicative that I unwittingly fell prey to the very tactic I supposedly condemn? I don't know how to respond to such a ridiculous question. It assumes that in writing a book that focuses on language I was unaware of the very language I was using and how it would be perceived by others, and that reviewers--who have neither done their own research nor written their own books--somehow managed to burrow into the book and come up with a gotcha: in your dreams.

But no one need "burrow into" Copyright Wars to "come up with" a metaphorical "gotcha." In Copyright Wars, "gotchas" outnumber even lectures like this: "We must pay constant attention to how metaphors are used to ensure that the associations made are apt and helpful," (p. 58). For example, consider the metaphor that Mr. Patry chose in order to prove that his own "constant attention" had ensured that he was "never unaware of the very language I was using and how it would be perceived by others":

Let's take the metaphor I use that some regard as the most vivid.... The metaphor is: "The DMCA is the 21st-century equivalent of letting copyright owners put a chastity belt on someone else's wife."

That metaphor would disgrace any book. But in Copyright Wars, it became a pyre of self-immolation. For example, Mr. Patry correctly reported that "present sensibilities" would be offended because a male author writing in the early 1700s had dragged control of female sexuality into a simile that analogized a wife to her husband's personal property, (his book). But then--while writing a book condemning harsh metaphors in the early 21st century--Mr. Patry himself dragged control of female sexuality into a metaphor that equated a wife to her husband's personal property, (his DVD player).

Now, Mr. Patry's own "appetite for self-destruction," (e.g., p. 8), has led him to defend his own use of metaphors by focusing on his chastity-belt-on-someone-else's-wife metaphor and declaring it "vivid," "apt and helpful" and "figurative language at its best." For two reasons, that is wrong.

First, as analogies go, this chastity-belt-on-someone-else's-wife metaphor is vacuous, not "vivid." Putting aside its sexism--for a paragraph--why would anyone "put a chastity belt on someone else's wife"? That makes no sense. And why is a DVD player analogous to a "wife"? The inanity of this metaphor thus confirms the self-parody of Copyright Wars. The book warned us, (p. 69), that villains corrupt debates about copyrights by using "as weapons" inapt metaphors that "tap[] into fundamental cultural beliefs or fears..." And then--"without a hint of irony"--it accused movie studios of putting "a chastity belt" on your DVD-player/"wife" and "castrat[ing]" content distributors (pp. 156, 162).

Second, Mr. Patry still cannot grasp that even male reviewers keep quoting his chastity-belt-on-your-DVD-player/wife metaphor because it is as painfully sexist as his blog post that denigrated female recording artists as "copyright sweethearts." A "wife" is a sentient female human being, but Copyright Wars made her a DVD player--a thing to be bought, used, and then discarded.

In a world that long treated women as the property of men, Mr. Patry's chastity-belt/wife metaphor is particularly appalling because it also hurls control of female sexuality into a wife-as-property analogy. His ugly metaphor implies that--oh, sure--it's fine for a man to lock a chastity belt onto his own wife/property. (Hence Mr. Patry denounced legal protection for encrypted DVDs, but not legal protection for encrypted satellite television signals: a content distributor can decide to lock a "chastity belt" onto his own "wife.") But to do that to some other man's DVD-player/wife, well, now that is just wrong....

Consequently, objectifying wives as DVD players in order to analogize DRM to a particularly "nasty" form of lock--the chastity belt--was inexcusable. Worse still, Mr. Patry could hear the grating rasp of analogies that mix wives, property, and sex--but only when he was denouncing dead creators.

For example, Mr. Patry correctly noted that in the early 1700s, Robinson Crusoe author Daniel Defoe had used a simile that would offend "present sensibilities": Defoe had argued that unauthorized copying of male authors' books was "as unjust as lying with their Wives..." (p. 225). And that simile should offend "present sensibilities": Defoe analogized wives (female human beings) to things (books) in a way that also dragged male control of female sexuality into the analogy. Until very recently, such analogies probably seemed reasonable--and in too much of the world, they may still. But that is why such analogies should offend the "present sensibilities" of all thoughtful women--and men.

The sanctimonious Patry perceived this when a dead man with whom he disagreed made such an analogy in the early 1700s. Nevertheless, in 2009, the same Mr. Patry who had so sanctimoniously denounced the ugliness of a wife/sex/thing simile from the 1700s topped it with a wife/sex/thing metaphor that makes a wife a DVD player--a thing held in even less esteem than (most) books. Yet--somehow--Mr. Patry still feels that his Defoe-besting, wife/sex/thing metaphor is "figurative language at its best":

[R]eviewers... simply quote the chastity belt sentence as if that is all there is, as if all I was interested in doing was being nasty, as if I had not even thought about why I used the metaphor and whether it was apt or helpful. I think the metaphor is apt and helpful. Like figurative language at its best, it is intended to encapsulate the substantive point being made....

Actually, this metaphor was just deliberately "nasty." And Copyright Wars' denunciation of a very similar analogy from the early 1700s proves that no one thought coherently about such analogies were "apt," "helpful," or even non-self-immolating. Mr. Patry's metaphor made the everyday act of using a "lock" to protect exclusive rights sound "nasty," and that was all that mattered.

Innovation in Copyright Enforcement Is Not Really a Maoist-Fascist-Stalinist-Terrorist Chastity Belt.

Mr. Patry's metaphor about putting "a chastity belt on someone else's wife" has the further self-destructive effect of highlighting the most unhinged and juvenile tantrum thrown in Copyright Wars: its shrieking tirade against the Digital Millennium Copyright Act, (the "DMCA"), which provided legal protections to internet service providers, (like Google), and to the technological protection measures used in DRM systems, like those in Google Music Search or Android smartphones.

Here, Mr. Patry pulled all rhetorical stops: Copyright Wars shrieked that the DMCA is worse than Stalinism, Fascism and sexual deprivation combined: The DMCA is worse than the Soviet central planning "of the early twentieth century" (to which copyright industries had already been more generally equated, p.6); the DMCA revives the "Corporatism" of "Mussolini's Fascist Italy;" and the DMCA is also the sexist-but-inane "chastity belt on someone else's wife" (p. 162, 164). Mr. Patry thus denounced a statute that granted unprecedented protections to his own employer as a Stalinist-Fascist chastity belt "on someone else's wife."

Patry's snapping jaws then savaged two wonderfully innovative American companies, Apple and (p.163). Why? Because they produce very popular, DRM-using devices like the iPod, the Kindle, and the iPhone that Google's DRM-using Android smartphone may challenge. Here is a sample of these competitor-damning tirades (p. 163): "'s Kindle ebook reader has more digital locks than CIA headquarters, designed to ensure that Amazon's customers will have to use the Kindle even if a superior, cheaper alternative is developed."

Predictably, the policy "analysis" conducted during this primal-scream therapy was dishonest and derivative. Stripped of its apocalyptic Blackshirt/Stalinist/chastity-belt rhetoric, Copyright Wars said little that is true--and nothing that has not been said before--repeatedly, and more rationally.

Much of its "analysis" is wrong as a matter of fact, law, or chronology. For example, Mr. Patry prophesied, (p. 163), "The DMCA is the reason in the very near future you may be permitted to only rent but never to buy particular works." That is wrong, and the inanity of such doom-mongering is evident in the Terms of Service for Google Apps and the YouTube Embeddable Player. The fearsome future that Mr. Patry denounced is here; the DMCA had nothing to do with it; and, frankly, it just does not look that bad. Similarly, Mr. Patry claimed, (p. 121), that the DMCA gave "copyright owners control over... digital forms of distribution." That is inane: Every U.S. copyright act enacted since 1790 has given copyright owners reproduction and publication/distribution rights intended to grant them control over the creation and distribution of copies of their works. The 1998 DMCA did not enact Section 106(3) of the Copyright Act of 1976.

Mr. Patry also berated Ars Technica for failing to praise his "analysis" of the long-term implications of the DMCA, which merely quoted the Marxist struggle/commodification rhetoric in Tarleton Gillespie's widely ignored book Wired Shut (2007):

"DRM is also an intervention in a very old struggle: the relentless commodification of culture by its powerful commercial providers.... The concern, broadly, is that we are moving inexorably toward a 'pay-per-use' society in which every instance in which we interact with culture will be commodified."

Mr. Patry seems unaware that this shopworn "pay-per-use" speculation about the evolution of DRM was articulated in law review articles way back in 1999 and in a 2001 book. See, e.g., Jessica Litman, Digital Copyrights, 13, 27, 136 (2001). By now, even most of Mr. Patry's "copyleft folks" have abandoned it: after ten baseless years, this once-scary story now sounds more like conspiracy-theorist ranting. For example, in 2005, the spiritual grandfather of Copyright Wars, Professor Lawrence Lessig, agreed that DRM would evolve toward ubiquitously available personal-area-networking "with very liberal fair use"--not toward a "permission culture." Lessig thus hastily reorganized his complaints around the idea of "remix" culture. Copyright Wars is a decade late to a party abandoned long ago by both the thoughtful and the trendy.

Consequently, Mr. Patry's shrieking rage against the DMCA reveals only that the hurricane of Copyright Wars swirls around an "eye" of juvenile cowardice. In copyright as in any other area of law, deciding what the law should be requires (1) analyzing the various (imperfect) options, (2) assessing the likely consequences of each one, (3) weighing the consequences of each choice against those of other choices, and then (4) taking responsibility for the probable consequences and side effects of the choice selected. Copyright Wars consistently avoided these most basic of adult responsibilities.

For example, ignore, for now, the anachronism of Mr. Patry's claim that the DMCA "crippled" DVD players designed years before the DMCA was enacted or effective. Be that as it may, Mr. Patry's rabid rage about Blackshirt Fascism, Stalinist central planning, and chastity belts derived from his belief that--but for the DMCA--his DVD-player/wife would not have been "crippled" by a "chastity belt" affixed by the wrong man because she would have had a "Record" button. Assume, arguendo, that this would actually have been true.

DVD players with "Record" buttons would have had consequences, and that raises the critical question: Did the author of Copyright Wars behave like a "grown-up", (p. 91), by assessing those consequences, comparing them against those of alternatives, and taking responsibility for the foreseeable consequences of a DVD-player "Record" button? That complex question can be answered in one word: "No."

For example, if DVD players had "Record" buttons, then DVD rentals would have had to have been prohibited, as was the case with music. If so, then Copyright Wars would have been shrieking about the "economic murder" of video-rental stores, rather than the mere "economic castration" that produced such a screaming fit that Mr. Patry began forcing his imaginary content-industry strawmen to spout gibberish so incoherent that it echoed Mr. Patry's own arguments. Compare id. at 156 (an imaginary movie-studio strawman argues that a movie-rental store's success "is caused solely by the value provided by the copyright owner"), with id. (a sentence later, the same imaginary strawman demands only a "share of [the store's] profits"), and id. at 21 ("It is the innovation of [consumer electronics manufacturers and Silicon Valley] that creates the demand for copyright owners' works.").

Similarly, if DVD players had "Record" buttons, Mr. Patry might have used those buttons only for arguably lawful purposes. But many other consumers would have used those buttons for their most tempting purpose--making infringing copies of popular movies. Moreover, experience with file-sharing programs has shown that unsophisticated users--the young and the poor for whom Mr. Patry weeps so often--would be disproportionately represented among those making such illegal uses. Movie studios seeking to defend their federal civil rights would then have had to sue mostly young-or-poor consumers--thus prompting Mr. Patry to denounce the "large and growing sin" of another Maoist Cultural-Revolution-style "assault on consumers" and "fight against our children" (pp. 1, 16, 29).

In short, the problem here is not a failure to be "prescriptive." Rather, Copyright Wars failed more fundamentally because it refused to confront realities as basic as these: 1) we need to make some decisions to make about how, and against whom, we want copyright owners to enforce their rights on the Internet; (2) every potential who-or-how decision will have benefits, costs, and side effects; and 3) anyone hoping to influence these decisions had better be able to acknowledge at least the more obvious consequences of the decisions that they advocate.

Worse yet, Copyright Wars' childish refusal to acknowledge costs, consequences and alternatives was not confined to its primal-scream "analysis" of the DMCA and DRM. It was systemic. Mr. Patry's flamethrower rhetoric torched every current or widely contemplated option for enforcing copyrights against Internet infringement:

No matter how "innovative," the "business models" of producers of socially valuable resources almost always turn upon the enforceability--and the enforcement--of their exclusive rights. That is as true for online content distributors and consumer-electronics companies as it is for creative industries that rely upon copyrights. But there is no existing or contemplated means of enforcing copyrights on the Internet that Mr. Patry can tolerate: every option sent him into another metaphoric tirade about war, terror, tyranny, or slaughter. Collectively, these howling tirades expose the shell-game of affected outrage played by the same author who warned: "Metaphors in the Copyright Wars are often a special form of emotion, outrage, intended to conjure up the presence of a clear and present danger that requires national mobilization against an existential enemy" (pp. 52-53).

Such conduct generated a final self-parody: The existence of the DMCA made Mr. Patry shriek. But he would really shriek if Congress replied as follows: "Fine, Mr. Patry, since you think that we were duped into unleashing upon America the combined evils of Mao's Cultural Revolution, Mussolini's Blackshirts, Stalin's Terror-Famine, Robespierre's Terror, and chastity belts, we have just enacted the Tantrum Prevention Act of 2009, which repealed the entire DMCA."

In other words, Mr. Patry "forgot" that the DMCA enacted both legal protections for technological-protection measures and unprecedented protections for providers of internet access, caching, hosting, and search services. On balance, it reflects a significant net decrease in the available means for enforcing copyrights efficiently. The DMCA, and cases like Sony and Grokster, are thus components of a larger, (and still ongoing), effort to reshape our traditional and very successful model for enforcing copyrights.

This larger effort is an attempt to innovate--we are trying to find ways to enforce copyrights that could give Mr. Patry's precious distributors more freedom than they once had--but without imposing undue burdens upon creators, copyright owners, or the consumers who love both the Internet and the expressive works that hateful sophists would denigrate as mere "entertainment."

In the past, consumers were never sued for copyright infringement because content distributors were subject to strict liability if they infringed any of the exclusive rights of copyright owners and very broad indirect liability if they empowered any direct infringers. The resulting system of distributor-focused copyright enforcement worked well and provided many critical benefits: for example, it enabled American creators to build world-leading creative industries that produce a vast array of inventive and innovative expressive works. It also enhanced efficiency by ensuring that everyone receiving those works, from toddlers to seniors, could generally make foreseeable uses of them without knowing anything about copyright law.

But this traditional system of distributor-focused enforcement also had consequences. It strongly favored what could be called "white-list" content distributors who carefully cleared all rights in any works distributed. (Parenthetically, many entities--including most content industries--must still abide by this white-list model.) Consequently, distributor-focused enforcement created a world in which services like YouTube or Flickr, if they could have existed at all, would have had to have been very expensive, slow-to-post, pay-per-use services.

Today, we hope that innovation in the "who" and the "how" of copyright enforcement will let us grant more freedom to content distributors. But human innovation is never a simple, short march toward perfection. That is why copyright owners now find their rights so badly undermined that Mr. Patry can squeal with glee (p. 6): "the Internet has largely thrown [the] control [that copyrights were intended to provide] out the window...." This is why he can praise the youths who have "wrested control over corporations' physical product" (p.28). And that is also why many consumers have--for the first time in over 200 years of American copyright law--been sued for copyright infringement because they used widely distributed programs for foreseeable, or even intended, purposes. Justice Breyer had the integrity to admit that. Mr. Patry did not: He was too busy shrieking about Fascism and accusing the RAND Corporation of being "debased" and devoid of "integrity" (p. 241).

Consequently, Copyright Wars really teaches us that that there is no innovative way forward. There is no known means to innovate that can satisfy Mr. Patry's delicate sensibilities. The "most prolific scholar of copyright in history" found every innovative enforcement option intolerable. Therefore, since there is no viable way forward, we had better fall back to the distributor-focused enforcement of the past.

In his post, Chastity Belts and Copyright, Mr. Patry makes this more explicit: "until the DMCA, copyright law concerned itself with technological uses of works, not regulating the technologies through locks... the switch to giving control over access has been harmful" (emphasis added). Hence, we should obviously switch back: Once again, we should enforce copyrights by requiring creators to sue any and all intermediaries that participate, directly or indirectly, in the copying or distribution of their works.

It seems unlikely that Mr. Patry's (unwitting) proposal will prove to be popular Northern California. Indeed, I suspect that most adults will conclude that a retreat to the old ways would be both unnecessary and harmful. For example, I believe that it would foreclose opportunities to innovate that should, in the long run, prove enormously beneficial to artists, creative industries, content distributors, and the "consumers" who perform the critical, interactive tasks of reading, listening, viewing and reflecting.

But I can hold those beliefs only because I dismiss Moral Panics and the Copyright Wars as angry, juvenile sophistry. By contrast, had it actually convinced me that the marching jackboots of Maoism, Stalinism, Fascism and Terrorism echo through every option for innovative copyright enforcement, then intellectual integrity would compel me to conclude that we should retreat to the distributor-focused copyright enforcement that prevailed during the first 186 years of U.S. copyright law.

Granted, there would be losses in such a retreat. But that 186-year-old enforcement system did empower enormous innovations in content distribution. And it did empower American artists to build a diverse array of world-leading creative industries. And it did not unleash upon Main Street, America, the combined horrors of Mao's Red Guards, Stalin's planned Terror-Famine, Mussolini's Blackshirts, and Robespierre's guillotines and Terror. It will be interesting to see whether Mr. Patry will have the integrity to go where the roaring rhetoric of Copyright Wars should lead him--or whether he reveal himself to be far more "debased" and devoid of "integrity" than he has accused others of being (p. 241).

In conclusion, I intend to do only a few more posts on Copyright Wars. Many of its fatal defects have now been adequately exposed. But Mr. Patry still denies that Copyright Wars displays "bias" against those Maoist, Stalinist, Fascist, Terrorist content industries. He has also demanded more detailed responses to his "extensive examination of the economic evidence [about the effects of piracy] presented by copyright owners" and his unattributed attempt to revive the Grokster Defendants' piracy-is-Schumpeterian-Creative-Destruction argument--even though it was deemed unworthy of a footnote by the Solicitor General, by every economist who filed a brief in Grokster, and by all nine Justices of the Supreme Court.

Replying to Mr. Patry's "no-bias" claim and his two demands for more detailed reviews should expose more fatal defects in Copyright Wars. I may also reply to Mr. Patry's idiotic explanation for why users of file-sharing programs sued for "sharing" many hundreds or thousands of infringing files often turned out to be minors--which consists of vapid socio-babble, rank dishonesty, and simple ignorance of how file-sharing programs actually work. Then, I hope to combine elements of these blog posts into a law-review-length book review of the juvenile self-parody entitled Moral Panics and the Copyright Wars.

NB: Readers of this post probably noted that it used many dog-related analogies (snarl, snap, lunge, rabid, ravage, howling, etc.). Copyright Wars seemed to admit, (pp. 46-47) that even (your) brain can process dog-related analogies and metaphors. Consequently, I have relied heavily upon such analogies to reduce the odds that I will again be decreed to be a demonic instigator of another "moral panic."

posted by Thomas Sydnor @ 10:40 AM | Books & Book Reviews , Copyright , IP , Innovation , Internet