Friday, December 18, 2009 - The Progress & Freedom Foundation Blog

Moral Panics and the Copyright Wars: Losing a Fight with a Hand-Picked Strawman Is Not an "Extensive Examination" of "Economic Evidence."

In prior posts on William Patry's book Moral Panics and the Copyright Wars, ("Copyright Wars"), I have analyzed its deranged rhetoric. Copyright Wars denounces the use of harsh rhetoric and metaphors--while serving as, (to quote EFF), the "siege engine" from which Mr. Patry ceaselessly hurls at copyrights and copyright owners the rhetoric of communism, fascism, insanity, stagnation, disease, castration, murder, war and terrorism. Though more are discussed here, a few examples follow:

In short, the rhetoric of Copyright Wars is an abject disaster of oblivious self-parody. Copyright Wars poses as a denunciation of harsh rhetoric and analogies. But were harsh rhetoric and metaphors machine-gun bullets, then Copyright Wars would be a say-hello-to-my-little-friend "remix" of the last 4 minutes of the film Scarface--with William Patry starring as Tony Montana.

But no book can consist entirely of shrieked epithets, juvenile tantrums, and obliviously ironic name-calling. This raises a question: Are the substantive arguments in Copyright Wars less disastrous than the rabid rhetoric that surrounds and drives them? The answer to that question is "No: The substantive arguments in Copyright Wars are often as bad as its rhetoric."

To avoid the risk of selection bias while proving this, I will focus on a set of substantive arguments that Mr. Patry himself has claimed that critics of his rhetoric fear to confront. For example, the concededly "friendly venue" Ars Technica recently criticized the raving rhetoric of Copyright Wars. Mr. Patry then denounced the Ars review of Copyright Wars for its "superficial... approach," and "below the belt shots," claiming, "There is not a single mention of [Copyright Wars'] extensive examination of the economic evidence presented by copyright owners...."

I will correct that oversight: Copyright Wars' "extensive examination" of this "economic evidence" was as farsical as Monty Python and the Holy Grail. An author who merely tries--and fails--to beat up the weakest piracy-data straw man that he can find has not conducted an "extensive examination of the economic evidence presented by copyright owners...."

By "economic evidence," Mr. Patry means evidence about the economic effects of copyright piracy (pp. 30-36). To conduct a competent--much less "extensive"--"examination" of economic evidence on the effects of copyright piracy, an author would have to admit the existence of--and then actually examine--the state-of-the-art "economic evidence" that copyright owners themselves were citing and presenting. When Copyright Wars was being written and edited, a one could compile a long list of such evidence relating specifically to the economic effects of copyright piracy. That list would surely have included at least the following analyses:

How did Copyright Wars deal with these three pieces of "economic evidence"? It didn't. Like Brave Sir Robin, Mr. Patry just ran away from the three-headed giant. In Copyright Wars, none of these analyses are cited; none are quoted; none of their factual predicates or analytical methods are analyzed; indeed, like Grokster, none are admitted to exist. Hence, none received any "examination"--extensive or cursory. This is intellectually cowardice at its most pathetic.

Consequently, Copyright Wars' "extensive examination of the economic evidence presented by copyright owners" consisted mostly of Mr. Patry's attempt to "stand up" to his very own Vicious Chicken of Bristol--in other words, his attempt to beat up the weakest piracy-data strawmen he could find. But--like Brave Sir Robin--he underestimated his opponent.

Mr. Patry began with a fallacy-of-distraction critique of efforts to estimate the combined costs of counterfeiting (trademark infringement) and piracy (copyright infringement) across the entire economy. Mr. Patry then smeared copyright owners by engaging in precisely the conduct that he was sanctimoniously denouncing. Just before he demonized copyright owners for concocting "phony data," (p.35) Mr. Patry concocted this claim (p.34):

So it is that an unsourced [Forbes] article from 1993 for global counterfeiting (itself not defined) became the source for figures allegedly representing unauthorized infringement of copyrighted works in 2008.
But Mr. Patry cited no copyright owner or association that had made such a claim, nor does it make sense that one would. For example, had Mr. Patry even read then-state-of-the-art estimates of the economic impact of copyright piracy, he never would have made such a reckless accusation. The True Cost of Copyright Piracy to the U.S. Economy had estimated that as a result of copyright piracy, the "U.S. economy loses $58.0 billion in total output annually.... [including] revenue and related measures of gross economic performance."

Copyright Wars would thus denounce Mr. Patry for his "fake" and "phony" claim (p.35): Mr. Patry seems to have been so "debased" and devoid of "integrity" (p.241) that he accused copyright owners of doing what only he had done--relying on a 1993 Forbes article on the costs of counterfeiting, as "the source for figures allegedly representing unauthorized infringement of copyrighted works in 2008." Again, this proves that Moral Panics and the Copyright Wars can be taken seriously only by those who admit that it was written by the most malign, vicious, and prolific "Master of Moral Panics" yet uncovered: William Patry.

With his usual round of self-parody completed, Brave Sir William then boldly assaulted the very weakest piece of anti-piracy data that he could find, (p.34):

In 2005, the MPAA launched an aggressive campaign against colleges and universities, aided by threats from prominent members of Congress (made at MPAA's request) that their federal funding was in jeopardy unless they cleaned up their act. Members of Congress relied on a study commissioned by MPAA that claimed a breathtaking 44% of the industry's domestic losses were attributable to on-campus "piracy" by college and university students. Two years later, MPAA admitted the study was deeply flawed. The correct figure, the MPAA then claimed was 15 percent, although it refused to disclose the actual studies or the basis for the 15% figure. There is no reason to believe that the 15 percent figure bears any resemblance to reality. Indeed, if any of the copyright owners' studies bore such a relationship, it would be a first.
To be sure, this significant, (but voluntarily disclosed), error was damaging. This incident certainly proves that MPAA, like any organization composed of fallible human beings, sometimes makes mistakes. But even Mr. Patry, "the most prolific scholar of copyright in history," makes mistakes--like falsely accusing the late Jack Valenti of creating a false or exaggerated "moral panic" about file-sharing pedophiles, (p.137), who were really just as dangerous and prevalent as Mr. Valenti had claimed. Nevertheless--from this one significant error--Mr. Patry manages to conclude that no studies of the economic effects of piracy have ever born any relationship to reality. A more blatant resort to the fallacy of hasty generalization may seem inconceivable--but Copyright Wars soon provided one.

Here, again, we thus see Copyright Wars overreaching so badly and irrationally that even one of its few arguments that could have been sensible and valid backfires affirmatively. From MPAA's voluntarily corrected error, Mr. Patry boldly concluded that campus piracy is "a concocted crisis that does not exist":

The point in the Copyright Wars is not to point to real data--quite the opposite, the data is fake--the point is to create a sense of siege, of urgency, of a clear and present danger that must be eliminated.... To prove this point, even after MPAA's mea culpa over its phony data, Congress, at MPAA's request went on to pass legislation imposing new obligations on colleges and universities to assist MPAA in stopping a concocted crisis that does not exist.
Widespread copyright piracy on campus is "a concocted crisis that does not exist"? I have never heard any "scholar of copyright" make such a ridiculous claim. Moreover, any scholar of copyright who has somehow remained unaware of the reality of campus piracy, can read Racketeering Enterprises on Campus, which is based upon the reports of the campus newspaper of the University of Maryland.

So, yes, Virginia, there is a real piracy problem on most campuses. And Congress is right to conclude that federal tax dollars cannot justly empower college students to violate the federal civil rights of many of the very federal taxpayers who are underwriting the costs of their college educations.

Consequently, self-destruction was assured when Mr. Patry went over the top and began claiming that one mistake was conclusive proof that entirely "fake" and "phony" data was being deliberately proffered to conceal the fact that campus piracy is "a concocted crisis that does not exist." That all but ensured that the real MPAA would behave far more reasonably than the demonic entity imagined in Mr. Patry's socio-babble about "phony data," and "moral panics."

For example, MPAA--like (almost) everyone else vaguely familiar with copyrights--knows that pervasive campus piracy is a sad reality; it is not some fabricated "moral panic" or "concocted crisis that does not exist." Consequently, its "mea culpa" notwithstanding, MPAA should want "real data" on campus piracy because that data should confirm the serious problem long and strongly suggested by innumerable anecdotes and scientific studies about heavy campus use of file-sharing programs and protocols that are ill-suited for most of their non-infringing purposes.

Unfortunately, MPAA and its member studios are not well-situated to measure campus piracy directly. By contrast, the colleges and universities that exist only to seek veritas (truth) are ideally situated to collect first-hand, blinded data showing how their students actually used file-sharing programs and networks on campus. But--for some reason--those institutions had persistently failed to do so.

Malign copyright owners eager to use "fake" or "phony" data to create fabricated "moral panics" against campus piracy should have loved the see-no-evil approach of colleges and universities and worked to perpetuate it. By contrast, rational copyright owners seeking to provide further confirmation of a problem already well-documented should have been encouraging colleges and universities to open their eyes and report what they saw.

Naturally, real movie studios were doing the latter. Through their joint R&D center, MovieLabs, they had been trying to pay colleges and universities to study and to report direct evidence about how their students were actually using file-sharing programs on their campus networks. Most of these institutions declined this generous offer. Then, market mechanisms worked their magic, and Illinois State University began its Digital Citizen program. I have discussed its results in more detail in this post, but here are a few relevant quotes from one of its most recent published studies:

In short, the study found lots of piracy--and no discernable "fair use." "Real data" collected by a university and analyzed by its faculty thus refute any claim that campus piracy is some "concocted crisis that does not exist." Moreover, it also refutes Mr. Patry's spiteful claim that copyright owners are afraid "to point to real data...." MPAA's member companies went out of their way to do precisely that.

So it is that, like Brave Sir Robin, Mr. Patry failed to "stand up" even to the frailest strawman that he could find--to his handpicked "Vicious Chicken of Bristol." Mr. Patry tried to (rhetorically) throttle the poor Chicken with biased accusations that it had deliberately falsified "fake data" in order to deceive. But the Chicken (rhetorically) pecked its assailant into submission by persistently seeking "real data"--even if that meant paying potentially biased third-parties because they were better situated to collect better data.

Therefore, I must generally agree with Mr. Patry when he noted, (p.211), "If [Copyright Wars] were a comedy routine, 'chicken' would be the punch line." More precisely, Copyright Wars is a farce, and "chicken" is but one of its many "punch lines."

Worse yet, from this utterly one-sided attempt to throttle the very weakest strawman that he thought he could find, Mr. Patry drew the most sweeping non-sequitur conclusions. If MPAA once misread internal data while trying to fund the collection of better data, then all data about the economic effects of piracy is utterly invalid--and piracy cannot be said to impose any costs upon copyright industries. This is what Mr. Patry celebrates as his "evidence-based approach to [copyright] law." Logicians have another name for it--argumentum ad ignoratiam, the fallacy of mistaking ignorance or uncertainty about the truth of a proposition for proof of its falsity. See, e.g., Ruggiero Aldisert, Logic for Lawyers 190-91 (NITA, 3d ed., 1997).

And then, Mr. Patry took this non sequitur even farther: He argued that if there are errors in piracy-related data, then no criminal organizations are involved in copyright piracy (p.241):

In March 2009, the Rand Corporation debased itself by issuing a report [on the involvement of organized crime in copyright piracy] funded by the British motion picture industry, a report that has all the integrity of the industry's "piracy" statistics.
That sentence epitomizes the "substantive" analysis in Copyright Wars: It is a conclusory ad hominen attack on the character of the author of a 182-page work that depends entirely upon the most absurd resort to the fallacy of hasty generalization--if MPAA once erred when presenting economic data about the costs or extent of film piracy on campus, then we should presume that RAND deliberately lied about organized crime being involved in film piracy--even though common sense dictates that rational criminals should gravitate toward film piracy because it is more profitable and less risky almost any other criminal activity.

Fortunately, readers now feeling shell-shocked by the raving rhetoric and painful illogic of Copyright Wars can relax by reading that "debased" 182-page RAND analysis. Funding is disclosed; a conservative approach is taken as a result; qualifications are relentlessly noted; rhetoric is restrained; and certainty levels are estimated during a calm, careful analysis of evidence that copyright piracy is funding organized crime in the United States, the U.K., Spain, Russia, Italy, China, Malaysia, South Asia, South America, Mexico, and Japan--including the human-and-drug trafficking of violent syndicates like the Italian Mafia, the Asian Triads, the Russian Mafia, and Japan's Yakuza.

In conclusion, Mr. Patry's allegedly "extensive examination of the economic evidence presented by copyright owners" is just one more "debased," dishonest and hateful "screed" in a book full of such screeds. But even now--still deaf to all irony--Mr. Patry has condemned a concededly friendly reviewer of his opus for his alleged "superficial... approach," and "below the belt shots...."
In reality, combining "superficial" analysis with "below the belt" shots is the rhetorical technique of Moral Panics and the Copyright Wars--not that of its many critics. And that is why Moral Panics and the Copyright Wars can only be recanted, not defended. Perhaps that is why Mr. Patry still refuses to cease his own "constant kvetching," (p.15), buck up, and defend his worthless book on its merits, such as they are.

posted by Thomas Sydnor @ 12:23 PM | Books & Book Reviews , Copyright , IP , Internet