The Murder/War Rhetoric of
Copyright Wars Is "the Very Disease It Is Trying to
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,
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
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
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
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
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
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
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
Patry's snapping jaws then savaged
two wonderfully innovative American companies, Apple and Amazon.com
(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): "Amazon.com'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
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
"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'
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:
- Copyright owners could enforce
their rights by suing consumers who use copying devices or Internet
services for wholly foreseeable infringing uses--but Patry denounced
that as an "assault on consumers" inflicted by the thuggish Red
Guards of a Maoist "Cultural Revolution" that "intimidate and
financially crush poor and middle class families" and "fight against
our own children" (1, 10-11, 29).
- Copyright owners could enforce
their rights by suing content distributors--as they did during the
hundreds of years in which copyrights were never enforced against consumers--but
Patry denounced that because it would "kill off" or "strangle"
"innovation" (p. 36, 41, 156, 164, 175, 189).
- Copyright owners could also
enforce their rights through DRM and RMI, but Patry denounced that as
worse than the combined evils of Stalin's central planning, Mussolini's
Blackshirt Fascism, and chastity belts (pp. 162, 164).
- Sometimes, copyright owners
can also rely on an alternative enforcement mechanism, notice-and-takedown.
But Patry denounced that as "a formidable weapon" for "Suppression
of Free Speech and Creativity" and provided angry accounts of
the Lenz case so "sanctimonious"--and dishonest--as to
suggest that he has never read the YouTube Terms of Service or discerned
why a lawyer should not shriek that corporations "flout" their legal
obligations by hiring third-parties who specialize in executing those
legal obligations (p. 169-170).
- Copyright owners could also--when
they cannot suppress free speech and creativity--use graduated response,
an enforcement mechanism being developed by universities, nations, and
copyright owners that could avoid lawsuits against consumers.
But Patry denounced that as "the digital guillotine," "the Terror,"
and the disproportionate "hallmark of barbarians" that must be defeated
by "policy makers who genuinely pursue justice, rather than is too
often the case, pursue celebrities" (p. 14).
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"
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
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
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
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