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Wednesday, December 30, 2009

William Patry's "Moral Panic" about MPAA, Dan Glickman and ACTA
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Recently, some routine events occurred. Stars shone at night. Snow fell in winter. And, in a new blog post, Dan Glickman's Moral Panic, Mr. William Patry warned that another vicious "moral panic" has been launched by another representative of the copyright owners whom Mr. Patry has denounced as Maoist, Stalinist, Fascist, Terrorist, murderous, war-mongering religious-zealot stranglers who will stoop not only to "castration" but even to "name calling."

But Mr. Patry's latest attempt to smear a creative industry backfires as badly the "siege-engine"/"screed"/worthless book that he called Moral Panics and the Copyright Wars ("Copyright Wars"). Consequently, Mr. Patry has again proven only that he is either the most incompetently diabolical "Master of Moral Panics" ever known or that he has become so unhinged by rage that he can no longer rationally comprehend or reply to even simple arguments made by copyright owners.

This latest installment of The Boy Who Cried "Moral Panic" began after the United States and other developed nations began working to see whether they could agree on a set of enhanced protections for intellectual-property rights that might be incorporated into a proposed agreement or treaty tentatively known as the Anti-Counterfeiting Trade Agreement (ACTA).

As always, preliminary ACTA negotiations have been largely confidential because the democracies involved do not know whether they can actually reach some agreement, and none want to be accused of making promises that they failed to deliver or of potentially agreeing to things that just have been temporary bargaining chips to secure agreement on some other matter. For example, during the nearly two years that I advised USTR on the copyright-related provisions of a proposed U.S.-Korea Free Trade Agreement (FTA), I had to have a security clearance to ensure that I would be on the hook legally were I to violate the strict confidentiality obligations attached to drafts of the potential agreement. Nevertheless, working on the FTA was a great experience that left me with great respect for the Office of the United States Trade Representative, the Republic of Korea, and most forms of kimchi.

As a result, I have not followed the ACTA negotiations. I know some of the people involved. I know that negotiations may not produce any agreement, and I know that those negotiating a potential ACTA will not agree to any provisions that would not survive the intense public scrutiny and legislative processes that would follow were ACTA to require any change to existing U.S. law. I will thus wait and see whether any multi-national agreement on ACTA is possible. If so, there will be plenty of opportunities for public comment and input.

Nevertheless, fans of internet piracy have been up in arms because they have heard that the developed nations negotiating ACTA might actually discuss measures to preserve the vitality of copyrights--the private civil rights of creators of expressive works--even on the Internet. Such rumors produced an outpouring of raw, irrational panic. For example, Mr. Patry's jacket-blurb-buddy, Mike Masnick of Techdirt, was soon raving that ACTA would prohibit the U.S. safe-harbors for Internet-access-or-service providers--an outcome less plausible than global warming causing Hell to freeze over.

To reply to such histrionics, Mr. Dan Glickman, President of the Motion Picture Association of America (MPAA) sent a letter to the Chairman Leahy of the Senate Committee on the Judiciary. Predictably, in Dan Glickman's Moral Panic, Mr. Patry then denounced this letter petitioning the government for the redress of grievances as another evil "moral panic" intended to demonize opponents of ACTA and corrupt democracy. Mr. Patry tried to smear MPAA by quoting and then attacking the claims made in the following paragraph of Mr. Glickman's letter:

Opponents of ACTA are either indifferent to [worldwide piracy] or actively hostile toward efforts to improve copyright enforcement worldwide. Many of them decried the WTO TRIPS agreement when it came into force in the 1990's and they now insist that any effort to build upon the TRIPS minimum standards for enforcement is "anti-consumer" and "anti-innovation."
Mr. Patry "replied" to this paragraph as follows: "None of those statements are true, and there is an unfortunate, careless eliding of a number of points to misstate positions." A number of "clarifying" statements from Mr. Patry followed. But these statements were often untrue, and they often reflected "an unfortunate careless eliding of a number of points to misstate [Mr. Glickman's] positions."
In short, once again, Mr. Patry falsely accused copyright owners of the sort of rhetorical overreach so blatant and self-destructive that it can usually be found mostly in the works of William Patry.

Mr. Glickman's letter did not assert that the "controversial" parts of ACTA relate to customs and counterfeiting: Mr. Patry's "reply" began with an absurd attempt to claim that Mr. Glickman's letter accused opponents of ACTA of opposing its counterfeiting-and-customs-related provisions:

The parts of ACTA that are controversial are not the parts that deal with customs and counterfeiting enforcement. Aside from some early wild conjectures about the scope of ACTA's customs proposals caused by the secrecy of the text, no one, as far as I know, has been critical of the very provisions that concern actual enforcement of rights against counterfeiters: MPAA is right to want to stamp out such conduct, and if improvements in global standards are required, we should improve them. There is no indifference or hostility on this issue.
These "replies" prove only that Mr. Patry is incapable of objectivity. The kindest thing that could be said about them is that (almost) anyone can see that they are unresponsive and misleading. No rational reader of Mr. Glickman's letter could think that it had claimed that the controversial parts of ACTA "deal with customs and counterfeiting enforcement." If Mr. Patry so perceived it, then something--unhinged hatred, perhaps--must have been blinding him to the ordinary meaning of written English.

Indeed, the idea that the President of MPAA would write a letter about ACTA that focused on "counterfeiting" is inherently implausible. The term "counterfeiting" generally refers to trademark infringement--not copyright piracy. See, e.g., 18 U.S.C. 2320 (prohibiting "Trafficking in counterfeit goods or services"). TRIPS, for example, requires signatory nations to provide "criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright... piracy on a commercial scale." To be sure, entities engaged in copyright piracy may also infringe trademarks, but for obvious reasons, copyright piracy--not counterfeiting--has always been the primary enforcement focus of the MPAA and the MPA.

Predictably, Mr. Glickman's letter thus did not focus on "counterfeiting" or "customs." Rather, Mr. Glickman's letter focused on precisely the issue that one would naturally expect--Internet piracy. According to Mr. Glickman, the controversial parts of a potential ACTA relate to Internet piracy:

Internet piracy has emerged as the fastest growing threat to the filmed entertainment industry. Our highest priority is enhancing the protection and enforcement of intellectual property rights online. MPAA firmly believes that a strong ACTA should address this challenge, raising the level and effectiveness of copyright enforcement in the digital and online marketplaces. Unfortunately for the millions of Americans who work in and rely on the motion picture industry, this is precisely the arena in which the ACTA negotiation has come under strident attack.
Internet piracy--not "counterfeiting"--was the thus focus of Mr. Glickman's letter and his responses to ACTA opponents. As for how Mr. Patry could possibly have missed this obvious reality, one explanation suggests itself.

In his book, Copyright Wars, Mr. Patry filled 250 pages of paper with dishonest analyses and hateful rhetoric while ignoring the critical questions about copyrights and the Internet. Here is one: How, and against whom, do we want copyright owners to enforce their rights on the Internet? Here is another: How do we want copyright owners to respond, as they must, to Internet-piracy schemes so pernicious that their architects deliberately or knowingly used ordinary consumers and children as "human shields" to protect the profits of the largest global copyright-piracy rings ever recorded?

In Copyright Wars, Mr. Patry lacked the integrity required to admit that such questions exist, not to mention the courage required to answer them honestly. Instead, in Copyright Wars, the raging Patry just systematically demonized (as Maoist, Stalinist, Fascist, or Terrorist, or tyranny), every known or contemplated means of enforcing copyrights against Internet infringements.

In effect, Mr. Glickman's letter urged Chairman Leahy not to let ACTA opponents distract constructive debate with the sort of dishonest, juvenile tantrums thrown in Copyright Wars. Mr. Glickman wanted to encourage debate about questions that may be the most important raised in the history of copyright law, and are surely the most important to its future: How, and against whom, do we want copyright owners to enforce their rights on the Internet? How do we want copyright owners to respond to Internet-piracy schemes so pernicious that their architects deliberately or knowingly used ordinary consumers and children as "human shields" to protect the profits of the largest global copyright-piracy rings ever recorded?

How predictable that Mr. Patry would chose to miss this point--again--and "reply" by shrieking that Mr. Glickman had falsely asserted that ACTA was controversial because of its "counterfeiting" and "customs" provisions. Mr. Glickman said no such thing.

The TRIPS enforcement provisions were controversial, and Mr. Glickman's letter said that attempts to "build upon them" were being called "anti-consumer" and "anti-innovation": Next, Mr. Patry quoted part of Mr. Glickman's letter that discussed the Agreement on Trade-Related-Aspects-of-Intellectual-Property Rights (TRIPS):

Many... decried the WTO TRIPS agreement when it came into force in the 1990's and [ACTA opponents] now insist that any effort to build upon the TRIPS minimum standards for enforcement is "anti-consumer" and "anti-innovation."
Mr. Patry replied that this sentence proves that Mr. Glickman is an ignorant bumpkin and dishonest:
The next part of the statement about opposition to TRIPS is also false. I worked on the TRIPS implementing legislation on the House. Mr. Glickman did not, presumably, he was rightly focused on the agricultural provisions. I am not aware of anyone (much less "many") who at the time decried the TRIPS provisions on enforcement. No one called them anti-consumer or anti-innovation, or was hostile or indifferent to counterfeiting.
In Mr. Patry's five-sentence reply, only the last two sentences make substantive claims. In the first three, Mr. Patry merely states a conclusion, admires his own expertise, and then digresses gratuitously to accuse Mr. Glickman of being an ignorant bumpkin by pompously presuming that even in 2009, the President of the MPAA could know nothing about the copyright-related provisions of TRIPS except what he might have learned during the mid 1990s, when he was a Representative from Kansas and the Secretary of Agriculture.

Nevertheless, in his last two sentences, Mr. Patry did address substance. The first substantive sentence reveals that Mr. Patry himself must have been the most ignorant bumpkin to have worked on implementing legislation for TRIPS. The second substantive sentence reveals that Mr. Patry himself is too dishonest to admit that the statement "X opposes efforts to build upon Y," differs from the statement "X opposes Y."

In the first of his two substantive sentences, Mr. Patry gored himself with the same ignorant-bumpkin stiletto that he gratuitously flung at Mr. Glickman. Mr. Patry must be the only Congressional staffer to work on TRIPS implementing legislation who managed to remain ignorant of "anyone (much less 'many') who at the time decried the TRIPS provisions on enforcement." After all, TRIPS was controversial--and it remained controversial, at least among those who refuse to admit that countries that protect copyrights effectively tend to be far more successful producers of expressive works than countries that do not. Nevertheless, TRIPS has long been controversial; many of those controversies relate to its focus on enforcement; and anyone familiar with TRIPS knows this--except Mr. Patry.

Indeed, controversies relating to TRIPS often involve its enforcement-related provisions because they were its major innovative components. For example, as to substanitive copyright law, TRIPS mostly just incorporated the European Berne-Convention norms for three-generation, formality-free copyright protection that reflected not only the then-de-facto international norms for copyright protection, but also the only then-viable set of international norms for copyright protection.

Nevertheless, TRIP was far more controversial than the Berne Convention because it also focused on enforcement. Unlike Berne, TRIPS specified particular civil, criminal, and administrative remedies that signatories had to provide in order to protect substantive rights that most nations already claimed to provide. Moreover, TRIPS also ensured that failures to provide required rights and remedies could be enforced in WTO dispute resolution proceedings. Enforcement was the essence of TRIPS--and a major reason why TRIPS was controversial.

Should anyone doubt this, they can search the LEXIS/NEXIS or WESTLAW databases. Select the broadest and most international law-review and legal-news databases, and search both of them for "Trade-Related-Aspects-of-Intellectual-Property" with a date restriction of 1/1/1990 to 1/1/1996. The results should reveal the scope of the ignorance that Mr. Patry claims to have attained and maintained while working on TRIPS implementing legislation. Less vigilant doubters could just read one sentence from the smallest, shortest, most basic book that I could find on the WTO generally: "Ten years since it was signed,... controversies and anger surrounding [TRIPS] have not abated." Amrita Narlikar, The World Trade Organization: A Very Short Introduction 80-81 (Oxford University Press 2005).

So TRIPS was far more controversial than Berne--because it focused on enforcement and enforceability. Mr. Patry's first substantive sentence thus backfires dramatically. Mr. Patry went out of his way to try to smear Mr. Glickman as an ignorant bumpkin. But Mr. Patry executed his smear by denying basic realities--and thus succeeded only in making himself look like an ignorant bumpkin. The self-immolation of Copyright Wars continues....

In the second of his two substantive sentences, Mr. Patry hurled a blatantly dishonest non sequitur. The relevant sentence of Mr. Glickman's letter shows that Mr. Patry's "replied" to an argument that Mr. Glickman never made. Mr. Glickman said, "[ACTA opponents] now insist that any effort to build upon the TRIPS minimum standards for enforcement is "anti-consumer" and "anti-innovation" (emphasis added). Mr. Patry replied, "No one called ['the TRIPS provisions on enforcement'] anti-consumer or anti-innovation, or was hostile or indifferent to counterfeiting." Even were it substantively accurate, Mr. Patry's "reply" would be an incoherent non sequitur. Mr. Patry then re-wrote Mr. Glickman's words (by ignoring those underlined) in order to create a straw man so frail that even he could batter it. Fortunately, such sophistry is too blatant to mislead the literate.

In conclusion, Mr. Patry's post, Dan Glickman's Moral Panic merely reconfirms what Moral Panics and the Copyright Wars has already proven repeatedly: Mr. Patry can no longer correctly perceive or honestly reply even to simple arguments made by representatives of those Maoist, Fascist, Stalinist, Terrorist, murderous, war-mongering, name-calling copyright owners whom Mr. Patry so obviously despises.

Indeed, how could the author of Moral Panics and the Copyright Wars fail to hate copyrights and creative industries? No one could fail to hate them--if they really could be fairly denounced as inherently non-innovative, Maoist, Fascist, Stalinist, Terrorist, murderous, war-mongering, cancerous, name-calling religious zealots who will castrate you and then--apparently just for spite--"put a chastity belt on [your] wife." William Patry, Moral Panics and the Copyright Wars 10-14, 29-30, 34, 41, 117, 156-57, 162-164, 175, 189, 197-98 (Oxford U. Press 2009).

Nevertheless, Mr. Patry still insisted in wrapping his post, Dan Glickman's Moral Panic, in familiar affected sanctimony. It began with Mr. Patry pious explaining how much he has long and truly admired Mr. Glickman. And then, after implying that Mr. Glickman is a hayseed bumpkin, after misrepresenting facts to make him look ignorant, and after misrepresenting what Mr. Glickman said to make him look dishonest, Mr. Patry concluded with a final flourish of fraudulent sanctimony:

"Let's debate the merits of proposals, and skip the false rhetoric."
That is fine advice. Indeed, it is so fine that, perhaps someday, Mr. Patry himself will choose to abide by it, to cease his own "false rhetoric" and to start fairly debating the merits of the various proposals for enforcing copyrights on the Internet.

But that cannot happen until Mr. Patry recants the debacle of Moral Panics and the Copyright Wars. After all, no one can fairly debate whether we should unleash upon America war, murder, a Maoist Cultural Revolution, Blackshirt Fascism, Stalinist central planning, or the Terror and the "digital guillotine" (pp. 10-14, 36, 48, 164, 189, 197-98).

posted by Thomas Sydnor @ 6:05 PM | Books & Book Reviews , Copyright , E-commerce , Googlephobia , IP , Innovation , Internet , What We're Reading

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