ANNOUNCER: Today’s program is brought to you by Traverse Legal. A law firm specializing in copyright law, Internet law, domain disputes and technology company representation. That’s Traverse Legal. www.traverselegal.com. Welcome to Traverse Legal Radio. Now here’s your host Enrico Schaefer.
Enrico Schaefer: Welcome to Traverse Legal Radio. Today we are speaking with Bill Patry, the author of Moral Panics and the Copyright Wars. This is the second interview of Bill concerning the book, and today we’re going to be talking a little bit about some of the controversy concerning Moral Panics. How are you doing today, Bill?
Bill Patry: I’m doing well. How are you?
Enrico Schaefer: Good, good. I want to continue the discussion that we’ve been having about Morals Panic and the Copyright Wars, your latest book, and today I want to talk a little about some of the controversy that has surrounded the book. You certainly have received your share of feedback after publishing the book and putting it out there.
Bill Patry: There have been reviews of it. There has been a blog that I prep about the book, and the purpose of the blog, which has the same name as the book “Moral Panics and the Copyright War”, is to have a dialog with people to make the discussions about these issues interactive rather than one way. One way being I publish a book, and then those people who review it say what they want to, and that’s the end of it. By having this blog, I wanted to provide a platform for people to discuss it and for me to discuss things that come up, and one of the things I did at the beginning that I found to be really very rewarding was that I had a series of posts, co-posts with Ben Sheffner who is a entertainment lawyer in Los Angeles who represented Senator John McCain in the presidential campaign, and he takes a very different view of things than I do. And so the purpose of this dialog was to present my view and Ben’s view coming at some very different angle, but have a very high level civilized discussion. And that worked out really well. We went for about a month, I think, in which I would have a post, Ben would respond, people would comment on both of our posts, and then we would keep going until we got tired. We did that for a month, and I found that to be immensely rewarding, immensely satisfying; because it was civilized. It was high level. That showed that people who have very different views of things can have intelligent informed discussions in which they both disagree with things but come to a better understanding about where each side is. I think it shows that it can be done, and I wish it was done more often. In the blogosphere, as you know very well, there are people who apparently have nothing better to do than to go troll around and to flame other people out. So, there have been a few of those, and that’s not too surprising but you sort of either have to have a thick enough skin to recognize that if you’re going to do this, that’s going to occur or you don’t do it at all, and that’s certainly true for writing a book that calls into question a lot things that people have taken as an article of faith. So the book was an effort to strip the debates of the ideology of the rhetoric that I think has caused it and so shouldn’t be surprising that those people who are ideologs get upset about that.
Enrico Schaefer: Right. One of the points of your book, of Moral Panics, is that we do have to start having a healthy debate. A robust debate, but a healthy civilized debate about the purpose of copyright laws, about how these laws are not there to allow people to own things, they’re there for policy reasons, that these are economic issues. I found it very interesting that your point in the book that sometimes the debate gets turbocharged by rhetoric actually played itself out in the blogosphere after your book came out.
Bill Patry: Yes, as if to make the point. It’s so true. But the blog that Ben Sheffner and I did, I think, shows it needn’t be that way. It is too often, but it shows that it doesn’t have to be that way. There was both the predictable lamentable part of it, and there was also an example that we can have hope. We actually can, if we put our minds to it, discuss things in a more adult way. But you’re right. In the end, what I’m asking for and what I think people should want of the government, of the laws, is that they actual work. So, if you were to take it outside of copyright, let’s say that the initiative you’re interested in was providing better lower income housing, and so to do that you would go to experts. You would look at how people have done it in the past. You’d try to figure out a system that actually works, and then you would craft laws, you would allocate money, perhaps, to do these things. And then after awhile, you would step back and you would say is it working? How many units of lower income housing have we actually produced, and is that lower income housing providing the type of an environment that we wanted? In many areas, that’s what we do. We have a policy, and then we try to effectuate that policy in effective ways, and part of being effective is actually judging whether the policy has worked in practice. The issue with copyright is that we don’t do that. For some reason, there is a reliance merely on rhetoric and ideology that we need stronger copyright laws, or that copyright is property, or that copyright is a natural right. And that’s a very unhelpful way to put in to practice actual policies that you want, right? Ideology is never going to build a single building. Ideology is never going to lead to the creation of any particular work, at all. So what the book calls for is an effort to actually apply the same things we apply in other areas, and in our general lives, the copyright. For those of us who have children, every day is an effort to figure out what is the right incentive for a particular behavior we want, and then we see if it works. If it works, that’s fantastic. Then we keep doing it. If it doesn’t work, we try to find something else.
Enrico Schaefer: Bill, what are the metrics in copyright? Because I know you believe these things can be empirically measured at least to a point, so what should we be measuring and how should we be measuring it?
Bill Patry: Term of copyright is the easiest one to do that way. You would say how long of a term of protection do we need to encourage works to either be created at all or to continue to be created for a particular industry. You know the film industry is one. The question that you would ask is, first of all, do you need copyright at all? We don’t need copyright for emails, for example, even though they are protected. We don’t need copyright for most business documents. We don’t need copyright for a lot of commercially created things, but yet, we have it. And so we have a tendency to give copyright to things that don’t need it, and we certainly give copyright for a far longer period of time than we need. In the Aldred case, which went to the Supreme Court, there’s a brief submitted by a number of Nobel Prize winning economists, who applied economic rigor to this very question, and I certainly encourage all of your listeners to look at that brief so that you can have a concrete example of what I am talking about. To take the debate in that case, which is we have an existing term of copyright of life of the author plus 50 years. We then went to life of the author plus seventy years. We added on an extra twenty years of copyright. So one of the questions should have been...the main question should have been, if we’re giving this extra 20 years of copyright, is that going to lead to the creation of new works? Phrased differently, is there any author on the face of the earth who would have said life of the author, life of my life plus 50 years after I die is not adequate; I’m just not going to create a work. Unless it is my life plus 70 years, I’m not creating that work. Now, I say there is no author on the face of the earth who would have done that. There’s nobody who would have said life plus 50 years after I die is not a long enough term of copyright, it’s gotta be life plus 70.
Enrico Schaefer: Right.
Bill Patry: Since that’s the case, we never should have passed that because it didn’t lead to the creation of any new works and certainly impeded people’s ability to use works that should have been in the public domain. Now, how would you deal with it empirically? Is there any empirical evidence about how long a copyright needs to exist? Under the 1909 Act, there was. Under the 1909 Act, we had an original term of copyright of 28 years to the date of publication or registration followed by a possible second renewal term of another 28 years, if you did one thing. And that is in the twenty eighth year, you had to give the government $10 and fill out a simple government form. That was it. Most people, when faced with the possibility of getting 28 years of a government monopoly for $10 and filling out a certain piece of paper, would do it. That’s a really good deal. So you would think if copyright is so important, if it’s so important to have a long term of protection, that industries like the book publishing industry, for example, which had people who could do this for a living - they would have copyright registration sections - would have renewed automatically. But it’s not true. Only seven percent of books were renewed. Overall, about ten percent of works were renewed. So that tells you that 28 years of protections was actually quite long enough for 90% of the works that were created. It was quite long enough for 93% of the books that were created. Motion Pictures, on the other hand, had about a 74% renewal rate, which tells you that it was important for those industries.
Enrico Schaefer: Right.
Bill Patry: We have actual data that shows that copyright owners, when they had the choice to get 28 years of copyright protection for $10, 90% of them didn’t do it. And to me, that’s pretty good empirical evidence that 28 years was quite sufficient for 90% of the works.
Enrico Schaefer: So what’s happening is that the focus on ownership and the property right of copyright as discussed, it presumes, of course, all the stuff that should be debated before hand, which is what are we trying to accomplish here? It’s not an ownership paradigm, it’s not a property paradigm, it’s a policy paradigm, and it’s an economic paradigm. And you believe that those are the discussions that have fallen through the crack.
Bill Patry: I believe that the copyright industries should have those rights that they need in order to protect their investment. If you’re spending $200,000,000 on creating or marketing a movie, you don’t want, and we as a public shouldn’t want, that investment to be destroyed by people who either get copies of it before it’s released or by counterfeited in DVDs. I want, and we all should want, the copyright industries to succeed. And we should want them to succeed because they create really great things, most of the time, and that’s valuable. It’s valuable to us; it’s valuable to society. That’s why I say I have centrist view. I very much believe the copyright can fulfill an important role in society, but only if it’s tailored to be effective, and effective sometimes means a grant of rights that is necessary to protect investment, and sometimes it means you don’t need that. You don’t need that because it’s not going to help you or it’s going to hurt others, and the way you figure out the difference is empirically. And that’s what’s been missing, is a purely empirical quantitative one, and what’s happened with language and rhetoric and metaphors is that those are designed deliberately to avoid the sort of quantitative approaches that you need. It’s like in selling advertising. If you are somebody who wants to sell a product to advertisers, maybe you don’t want them to know how well it works or how well it doesn’t work. If people actually knew the number of click-throughs or the number of people who are buying things, you could sell it for less. So when you see people complain that online advertising is devaluing things, I think it’s quite the opposite. I think that the ability to track how people consume advertising is quantitative, is empirical, and so it’s not surprising that those people who don’t want an empirical, quantitative approach are going to complain. And it’s the same thing with the copyright industry.
Enrico Schaefer: Right. Now, some of the people for whatever reason, Bill, and here we’ve had this discussion over the last thirty minutes over two programs about copyright law and policy, etc. and it’s been a very dispassioned, intelligent conversation and yet when others have read your book, for instance, Nate Anderson, at Ars Technica, you know, for some reason, his ears, his eyes, saw what you were doing as lobbing hand grenades. Why do you think that your language, that your book, that your approach to this issue has been misinterpreted, has been tortured, if you will, by so many folks?
Bill Patry: Well, I don’t know that so many folks is true. There was a profile of me in Forbes, that came out yesterday that I think was pretty good in terms of focusing on what the book tries to do. I was very disappointed in Nate’s review. I like Ars Technica. I think Nate has done really good work, but I don’t think that was very good work at all. I think what it was was lazy and it was just simply a, what I call, a bullet point quote review. So it wasn’t a review of book. It was gathering up a bunch of quotes from it and saying, “Wow, look at these things that he says!” Was that any attempt to understand the context of the statements or beyond that what the actual thesis of the book is. Now it was, as you’ve said before, a perfect example of what the book is trying to tell people they shouldn’t do, which is simply to focus on language and to make this bomb throwing. I’m sure it was unintentional, but it was quite telling that, you know, he talked bomb throwing in a book about the copyright wars. And that’s, you know, easy journalism. People are going to read blogs that talk about bomb throwing and then, you know, “Oh! Is Patry anti-copyright? Look at these bombs he’s throwing! Look at the things that he has said!” So I was very disappointed that Nate did something that wasn’t a review at all but was really an effort to just go through and find juicy things that I said. I wrote blog post all about this – it’s a really very long post – in which I use that review as being emblematic of lazy journalism.
Enrico Schaefer: Right, and moralpanicsandthecopyrightwars.blogspot.com is your blog.
Bill Patry: Yes, and so there is a post there called Chastity Belts and Copyright in which I dissect Nate’s rather lamentable effort. And so, the word chastity belts comes from one of the quotes that people have focused on in which I talk about anti-circumvention rights that are granted in Chapter 12 of Title 17 as giving copyright owners the ability to put a chastity belt on somebody else’s wife. Now, why did I say that? Was I just trying to be clever or say, you copyright owners, look what you’re doing? No, not at all. In the book, I point out that you can avoid using metaphors, you can avoid using figurative language, that cognitive linguists say that this is a part of the way that we reason and what you have to figure out is whether the metaphors or figurative language employed is apt or helpful. There’s been some reviews that say, “Wow! Look at these metaphors that he uses. Why, he’s doing the same thing that he criticizes other people for doing.” That’s simply not true. In the book itself I anticipated that and I said, look, everybody uses metaphors and figurative language. It’s the way we understand things. The only question in using them is it helpful for our understanding things. So the question is, is saying that anti-circumvention rights, is giving copyright owners the ability to put a chastity belt on somebody else’s wife, is that apt or is it helpful. The context in which that occurs I quote in the blog, and it’s this. That until 1998, copyright had always been concerned with, and I believe properly only should be concerned with, the ability of copyright owners, in some cases but not all, to control the unauthorized reproduction of the work. In that context, copyright has generally been technology neutral. The issue is not whether it’s this or that technology, but it’s on the acts of the person who copy. If you copied in a way that the Copyright Act prohibits, it’s not a defense that your technology wasn’t in existence at the time. So, one of things about the 1976 Copyright Act is that Congress crafted it to be as technology neutral as it could and the reason for that is that Congress didn’t want to have to come back every year when a new technology came along. So Congress thought of a technology, but the way they thought about technology was not technology for technology’s sake, but rather the way in which copyrighted works are used. That’s the focus of copyright. That’s why it’s a copyright, not something else. Now, what happens with DMCA is that in the anti-circumvention parts of that Chapter 12, what Congress did was to give copyright owners control over the design of consumer electronics. This was a right over third parties. It was a right to create technological locks that would shape the design of the consumer electronics industry. And that was a break from the entire history of copyright. Tarleton Gillespie and his book Wired Shut, which I quote in the book, has a discussion of this. I have about four pages of discussion about how anti-circumvention is a break with the entire history of copyright and why, in my opinion, it’s not good. Why is the technological locks that the DMCA gives copyright owners the ability to impose are not good. That’s the context of the chastity belt one. The chastity belt, of course, is a form of a lock, and the point in saying that was that this is not, in fact, a helpful thing. This sort of a lock in which you control third parties, rather than control the person who’s using your work, is not desirable. What I would have liked to have seen was someone like Nate, who’s capable of doing good work, to examine that. Now, why don’t you examine one of the theses of the book, which is why the anti-circumvention access devices are good public policy, whether they empirically or quantitatively work out. That’s the debate we should be having. What we shouldn’t do, and what he did only, was to get a bunch of quotes and then never discuss the points that the quotes are connected with.
Enrico Schaefer: Perhaps it’s just all too easy when you write a book that tries to help people understand the importance of language in a debate, you do put yourself out there for criticism because it’s so easy for people to then focus on your language. All of that can miss the point, which is to have the debate, to go back and test the premise, and to try and rediscover what copyright law should be, where copyright law should be going, these types of issues.
Bill Patry: Right. Yes, and certainly when you use language like the anti-circumvention parts are like giving copyright owners the ability to put a chastity belt on someone else’s wife, I was certainly aware that that was a vivid metaphor, and the idea that I wasn’t aware that it was a vivid metaphor or that I wasn’t aware that in a book that discusses metaphors, that I myself was using one is, of course, ridiculous. The point is whether in using that metaphor it focuses attention on the point being made. Is it an apt use of the issues that are under discussion? What I’ve found is that rather than figure out whether it is an apt use of the issues being discussed, there’s no discussion of the issue. It’s only a list of particular points. I would say the unconscious part was Nate just simply doing a review that wasn’t a review but that was merely a listing of particular vivid metaphors and not the least bit appreciating that metaphors are there to transmit discussion of issue. I found that to be singularly disappointing.
Enrico Schaefer: Sure, when you read his review, you don’t come away with the sense that the underlying issues that are raised in the book about the purpose of copyright law, etc. There’s really no review of that issue, and of course, you do not like the use of the word piracy and some of these other highly charged terms, but I get the sense that it’s not so much the fact that people use those terms, use the word piracy, as much as they fail to question the premise of the term “piracy”, the premise of the ownership principle. That seems to be the biggest problem.
Bill Patry: Right, why are things being used? How is our understanding and discussion of things being advanced by particular language? Figurative language can be wonderful, and certainly in the arts, those are the things that we remember the most. That’s a lamentable part, and I would say not just about blogs, but our general discourse in the country is that people just don’t take the time to sit down and understand things. Slash and burn or bullet point discussions are lamentively where we happen, and that’s why there are some great publications that we like, at least that I like, like the New Yorker, which has wonderfully long, interesting, thoughtful articles regardless of whether you agree with the premise of them or the New York Review of Books. Now we’ve lost that ability to engage in extended lengthy discussions of issues. If you have a book that is two hundred pages long and that has a fair amount research in it, reducing it to bullet points in a blog is not doing justice to anybody.
Enrico Schaefer: It’s kind of ironic, Bill, that here it is we live in the information age and there’s never been more information available to people in order to formulate opinions, and yet it does seem like there is a dumbing down, there’s a superficial nature to a lot of the discussions going on, especially in the blogosphere.
Bill Patry: Right. I have a section that talks about the cognitive miser theory, which is that when you have a lot of information, there’s a very strong tendency of people to only utilize that amount of information that they need for their own purposes. What I regret about blogs like Nate’s is that sometimes they’re able to engage in information processing that’s thoughtful and that’s substantive. The danger of blogs is that you don’t have that. You have people who will have one or two paragraphs or one or two sentences and try to reduce things to bullet points. People who are reading it, being cognitive misers, say, “That’s all I need to know about this book. Well, this guy writes a book about how bad bomb throwing is, and he’s doing bomb throwing. What a hypocrite. What a shallow book. I don’t need to read that.” It’s based upon, of course, a complete misreading of the book and laziness. It’s fine to read the book and say, “I don’t agree with the premise of this at all. I don’t think you proved your case.” Whatever it is. That’s fine. The purpose of writing the book is not to say this is how things are, but these are issues we need to think about. As is everything in our life, it’s a process by which I think about things and by which I want other people to think about things. It’s the thinking that matters. It’s the process of trying to work through problems that matter. You can’t do that if all you do is just list bullet points and do sort of gotcha stuff about using metaphors. That’s the disappointing part to me, and I think it cheats readers out of what readers need to do which is to think. The purpose for reading books is to think. If you don’t read them, you’re not thinking. If you write a review that’s just a collection of things, the reviewer’s not thinking either.
Enrico Schaefer: Well, Bill, I’ve been practicing copyright law for almost 20 years, and obviously I’ve sent my share of threat letters myself in my practice, and for me, reading the book, perhaps because I’m in the industry, I got it. To me, from the very first pages I was being challenged to think about some of the things I don’t spend a lot of time thinking about, which is the premise of copyright law, the purpose, whether or not some of this behavior on copyright owners is self-defeating behavior, some of these things, on a very high intellectual level simply don’t get raised very often and certainly don’t get talked about very often. To me, that was the value of the book.
Bill Patry: And that’s what is to me. I don’t expect anybody to agree with everything I say, and I don’t agree with everything I said either. That was what I thought I was writing at the time, and for me writing is the process of learning. If I only myself bought books and read books that I agreed with 100%, I’d never buy anything. I’m reading a book right now by Ken Auletta on Google. It’s called Googled: the End of the World As We Know it. It’s a fair book. It’s not a great book. There’s stuff in there that I recognize. There’s stuff that I don’t agree with, but I learn from it. That’s why I’m reading it, and that’s why we should all read books, to learn from them and be challenged. That’s why this book is out there, and if it makes people uncomfortable, if they don’t like things, that’s fine too. If at the end of reading it you decide I don’t agree with anything that he said, that’s fine with me. What I hope to have happen is that other peoples’ views on things will have gone through some sort of a re-evaluation. Even if at the end of it you come out in a way that’s different from me, I hope that’s valuable to other people too.
Enrico Schaefer: Now Bill, you’re already talking about writing a follow-up to Moral Panics focused on what changes to copyright law should be being considered and debated. What kinds of things do you think you’re going to be talking about in that book.
Bill Patry: One of the other things that has happened with some reviews is that they say, “Well, you know, he doesn’t tell us concretely how laws should be changed.” Give me a bunch of amendments that you think should pass. The book is not a book of prescriptive announcements. The purpose of the book is not to say the term of protection should be “x” or we should have this, this and this. It’s a book about how we think about copyrights. It wasn’t a book about the substance of copyrights. I deliberately wrote it for a general audience who didn’t have to know anything about copyright law before reading it, although those people who do would get a richer understanding of it. It was deliberately written on a level that you didn’t have to know the substance of copyright law. Nevertheless, there are people who say, “Well, it’s fine that you point out some of the problems, but guess what, you didn’t tell us what the law should be.” To me, this is the point of the book as being a book about how we’re thinking and talking about copyright law and not the substance of it. In the book I say many, many times that you should give consumers what they want. I thought I should take my own advice. If enough people are saying, “Well, I like the book enough, or it was okay, but what was missing from it was a prescriptive analysis of what copyright law should be like,” that I should listen to what consumers say myself and write a book like that. I have a book called How to Fix Copyrights published by Oxford University Press, and that book will be only prescriptive, will only say, “Here, in my opinion, is the problem, and here’s how to solve it.” That’s the next one I’m going to do. It wasn’t a book I intended to write. It wasn’t a book that I think is as interesting as a book about how we think, but that’s what consumers say they want, so that’s what I’m going to do.
Enrico Schaefer: You’re going to do that even though you don’t have high hopes that copyright law is going to change anytime soon, I take it.
Bill Patry: That’s true, and there are structural reasons why I don’t see it changing, but hopefully, if we start to think about what we want, we can start pushing for how we get there, even if we don’t get all of it.
Enrico Schaefer: Thank you, Bill, for being on the program. I really enjoyed it, and wish you the best of luck with the book, Moral Panics and the Copyright Wars, and you can certainly buy it online at Amazon and I’m sure many other places. Of course, if you’re looking for a blow-by-blow account of the book and reviews of the book and explanations of concepts in the book, you can go to Bill’s blog, moralpanicsandthecopyrightwars.blogspot.com. Thanks for being with us, Bill.
Bill Patry: Thank you, Enrico. Take care.