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Moral Panics and the Copyright Wars

Moral Panics and the Copyright Wars, by copyright lawyer William Patry (see his related blog), is forthcoming next month. Currently Senior Copyright Counsel at Google, Inc., Patry had a well-known copyright law blog, which he terminated last year, because he found the current state of copyright law too depressing to blog abou (as I posted about previously). So one might hope for a decent take on the copyright issue, especially given this comment on Amazon by the heroic IP foe Mike Masnick of TechDirt:
Patry's insight into copyright law itself has long been established, but with this book he takes us deep into how the debate surrounding copyright law has been twisted and distorted. This is a must-read for anyone looking to understand the real issues in the copyright debate, both from the business-model and policy perspectives.
Alas, from the summary alone one can tell it will be a disappointment:
A centrist and believer in appropriately balanced copyright laws, Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct. Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected.
Terrible. Sure, he's right that, as the Amazon description indicates, "copyright is a utilitarian government program--not a property or moral right." But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, "In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal"; see criticism here. Just another legal positivist. So he of course would think that, "As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose." Whatever.

Update: I got the book (the book's publisher, Oxford, is also mine and so sent me a copy gratis). It looks like a carefully done and well written work. It looks like it provides lots of ammo for our side--pointing out problems, excesses, abuses, fallacious pro-copyright arguments, and showing how it does not accomplish the goals set.

But it is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state's encouraging innovation by such tricks. On the other hand, it at least argues that the test should be whether it does create the extra wealth it claims to, and that the burden is on those who advocate copyright; so in a way it leaves the door open to total abolition (I think; haven't read the whole thing).

[SK cross-post]

Update: see my comment on Mises Blog here:

William Patry:

Stephan, I had tried to post on your previous review of the book on the other blog you post on, but you rejected it; so much for intelligent and civil comments I guess. I hope you will post this.

Bill, as discussed privately with you, I didn't block you (and indeed don't have such authority on the Against Monopoly blog which had the post you refer to. I do not think David Levine, proprietor of that site, would block your comment either. There must be a technical problem; my apologies for the impression this apparently made on you regarding my posture toward you and your book.

Let me make some preliminary comments before replying to some of your particular points. First, as I noted, your book looks to be a "carefully done and well written work. It looks like it provides lots of ammo for our side--pointing out problems, excesses, abuses, fallacious pro-copyright arguments, and showing how it does not accomplish the goals set."

For this I am grateful and hopeful, and this is the reason it is on my reading shelf right now. I hope to extract useful arguments from it.

(By the way, I can understand your having no use for my own IP work which is based on libertarian principles you probably don't share, but I am a bit surprised you did not so much as cite any of Levine and Boldrin's work which is the seminal work in this field on utilitarian and practical aspects of IP; the online version was online as of Jan. 2008 and preliminary versions years before that.)

Second, I was clear that I had not read your book yet, and indeed was initially hopeful based on the endorsement of Mike Masnick who is himself heroic and very principled, clear-headed, and even radical on the IP issue. But, as I noted, it appeared from quotes from the book that your case is weaker than it could be due to acceptance of too many flawed mainstream assumptions. Again, I have not completed your book and hope to be proven wrong.

The main problem with copyright is a principled one. Copyright violates property rights. It is really that simple. Further, it is nothing but a grant of privilege from a criminal state--the handing out of favors by the mafia in charge to preferred recipients at the expense of others. Third, the utilitarian, wealth-maximizing case made for copyright is flawed ethically and economically; it is impossible to justify copyright on utilitarian grounds, no matter what the evidence. Finally, as a decidedly secondary or maybe even tertiary mark against copyright, one can note that--even if we turn a blind eye to the violation of property rights, the criminality of the state and all state legislation, to the moral and other problems with the wealth-maximization basis for copyright--the advocates of copyright have not shown that the benefit outweights the cost.

Now, I am all in favor of incrementalism. I don't mind even focusing on a tertiary issue like this (I do this in my There's No Such Thing as a Free Patent). I wouldn't even mind simply using this focus to argue that at the very least the copyright term should be reduced, as I do in a forthcoming article on how to improve the IP system. But in doing so one does not need to grant the validity of their utilitarian case; and one does not need to admit that some copyright term, some copyright law, is obviously needed--even if it's radically reduced from what we have now. It concedes too much. In fact, if you concede that any copyright law or term at all is legitimate and "needed," you have lost your case, in my view: because it throws the principled approach out the window; and it grants the validity of the wealth-maximization approach. Once you do this, all bets are off, because there really are methodological problems with utilitarianism. (See Rothbard's Toward a Reconstruction of Utility and Welfare Economics.) Only a clear, principled approach with awareness of the ethical issues involved and the key fallacies used repeatedly by those pushing IP propaganda can avoid their traps. The only solution is to make it clear that the burden of proof is on them. Now the truth is they can never satisfy it--they can never show that there is some net benefit to society. All methods of estimating this are systematically flawed (value is not cardinal, it is ordinal; and it cannot be interpersonally compared much less measured and summed up in cardinal terms). (And even if they could somehow "show" this, it's still irrelevant, as it's still immoral.) But as long as the burden of proof is on them, it doesn't matter if they can't prove their case because all the studies happen to be against them, or because any study has inherent flaws.

But back to incrementalism: if someone just avoided the whole issue and said, "look, let's approach the state's law on its own terms: even assuming its goals are valid, does it achieve them?", etc., this is fine. I do the same in my writing. But I never admit their assumptions are correct. I'm just saying even if you accept their utilitarian rationale, where's the proof? And note that this means that even accepting the wealth-maximization rationale for copyright, the default presumption is no copyright, zero years--unless and until the advocates of copyright can show decisively that a given proposed system would clearly produce a signficant "net gain". Until they have done so, the default position even for the incrementalist has to be no copyright. If, instead, you say, "well, let's have a more reasonable system--say, 10 years--one that works; of course we need some copyright system"--if you grant this, even when there is no evidence even for this truncated copyright system, then you have lost because you are admitting that "copyright system X" is justifiable based on intuitions, hunches, and feelings of "reasonableness." And if you grant this, you have no ground to challenge their view that a 100 year term is "reasonable."

Further, given that I'm a libertarian--and I'm a libertarian for a reason--of course I cannot help but see any approach to this issue as helpless confused or unprincipled if it is not based on libertarian principles... unless it is very narrow and does not concede ground to the enemy.

So, when you say:

I reject your conclusion that the book "is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state's encouraging innovation by such tricks."

What you really mean is that I don't have the same view of copyright as you do. My views are clear and coherent, you just don't like them.

Well, true--I don't like them because they are based on the wrong principles (in my view). Despite your protestations I do not see that your thesis is grounded in fundamental principles--and by this of course I mean normative principles, since you are in fact making a normative criticism, not merely engaging in positive law discourse.

You write,

My view is that copyright in common law countries is entirely positive law and was created in order to further socially useful goals. My view is in fact correct, as a matter of law. There is zero doubt about this.

Actually I disagree with you. It was not created to further "socially useful goals." In fact, no state law is. Now sure, there is a stated purpose of copyright law. That does not mean it is its real purpose. Likewise, the stated purpose of the "Protect America Act" is, well, to protect America. But of course that is not its real purpose. We must be careful not to conflate the window-dressing the state puts on its laws to obtain the silent acquiescence of the sheeple with the truth. That said, I agree that we can use the stated objectives of legislation rhetorically against the state to try to hold them to the lip service they give to the law.

You don't like that the law is as it is.

This is correct; and neither do you, apparently--and good for you. You appear to be better than 99% of our IP attorney colleagues. I am very glad you are arguing from an informed position to radically reduce copyright term.

I am perfectly fine with that; dissent and loyal opposition are noble callings, and I am a dissenter and opposition on a number of issues. But you have to be honest and accept that your view is contrary to what the law is.

Of course. I have always accepted the idea that positive law and justified or libertarian law are not the same thing.

Don't criticize me for accurately stating the current state of affairs.

I am not, in the slightest. My understanding is that you are in favor of having a copyright system. This is a normative position. It goes beyond merely recognizing that we have copyright law. As the blurb for your book states, "Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. ... Patry calls for a remaking of our copyright laws so that they may once again be respected."

Now, if this is inaccurate--fine. But if it's not, you oppose calls to weaken copyright law. Why? It is not justified, even on utilitarian grounds. No one has shown that even a 10 year copyright term generates net wealth. Do you disagree? If not, can you produce the proof or study? And if you can't, why wouldn't you agree that the default position is then that we should have no copyright law (and one way to get there is to make it weaker), at least until someone can show that a truncated or minimalist copyright system is justified? Why would you oppose weakening it?

Further, I disagree with your wanting copyright law to "be respected." Why would anyone want this unless he admitted the basic normative legitimacy of the criminal state and its edicts including copyright legislation? If copyright law in its current form is unjust, as you seem to think it is, one way to reduce this unjustness is to persuade the evil congresscritters who enacted it in the first place to "do the right thing" and adopt a good law--a pipe dream, of course. They are not interested in justice. Anyway, this is one approach--a futile one, in some ways, but I'm glad some of us are obstinate enough to keep fighting anyway. But a second approach would be to urge disrespect for the law and the state. The more people see that the emperor is naked, the less able is the state to trample our rights--yes, in the name of the abomination that is copyright law.

We share a view that copyright should be means tested, and only differ in my view that copyright can in some cases meet such a test.

To my knowledge there is no study demonstrating this (see Yet Another Study Finds Patents Do Not Encourage Innovation). Maybe you do one in your book, but I haven't found it yet, if so. Maybe you cite one in your book that I'm unaware of. If so, maybe you can point it out here.

Let me reiterate that no disrespect is intended by my (admittedly blunt--but honest and sincere) comments. I do respect your work and your pushing in the right (as I see it) direction, even if I do disagree with you on some aspects of this issue and think your argument could be strengthened by taking into account some of the concerns such as I have pointed out above and in other writing. I look forward to seeing what you produce and what effects your book has, and welcome any further dialogue with you. In particular, I have tried as best I can to concisely set out the essence of the libertarian perspective on IP in The Case Against IP: A Concise Guide. If you are interested in what we think about his and how our very principled, pro-individualism, pro-freedom, pro-property rights, informed-by-sound-economics and informed-by-sober-assessment-of-politics bears on this issue, I urge you to take a look at this, and again, would welcome your feedback and discussion.

***

Addendum: In case you missed it, I had an extended comment about this on my blog, which I reproduce below:

Someone wrote me that my comments on Patry's book are premature, that the description is misleading and that I will like and agree with most of it. My edited comments:

***

You are right, I haven't read it. But I saw enough red flags for grave concern.

You say that I might not agree with all of Patry's book--I don't have a problem with not agreeing. It's that the approach most people take is bankrupt. Unless you have clear property rights principles--i.e. are basically a libertarian--there is no way to be very good on this. Only a few utilitarians are good--like Boldrin and Levine. Any honest, intelligent, informed utilitarian would be against copyright, not want to "improve" it.

I realize his book focuses on how copyright holders have twisted the law in their own interest. But look: I am an anarchist. I think the whole system is corrupt. I am not surprised that people "twist" it. That's part of the system. People who expect it not to be twisted are naive. In fact it's twisted by virtue of being state law. It's impossible not to be twisted; it's impossible for people to ignore incentives to twist it even further. As Mises wrote in Human Action, "No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power whether it is called humanity, society, nation, state, or government could act in a way of which he himself disapproves."

In my view talk about how the system has been "abused" only serves to reinforce the state propaganda that the state is basically legitimate, that the basic system is "good" but has been corrupted. This is all nonsense. It just serves to keep the state in power and to perpetuate the myth that the system is basically legitimate and fair. It's not. The state is quite literally just a mafia gang--the only difference being that it is largely perceived (falsely) as legitimate, partly because the people are so stupid and have been bamboozled by state propaganda--so the state cloaks its criminal actions with just enough of a veneer of legitimacy to keep up the pretense, to go on deluding the stupid populace that it's really "their agent" and there for "their good." It's all just a big scheme.

The problem is not that copyright holders have twisted the law. The basic system, even without "ridiculous" twisting, violates individual rights.

You claim that the description on Amazon is misleading, that the book is all about how copyright law is consistently and repeatedly abused. Well, I hope so. I agree that pointing out abuses and excesses of the system is worthwhile. And if he calls for a shorter copyright term (say), that is an improvement, though in doing so he undercuts the principled case against it.

But the blurb does say he's a centrist. That he is a "believer in appropriately balanced copyright laws". Unless this is flat out mistaken, I believe it's impossible for him to have a sound critique--given such a confused, unprincipled view (though yes, he could be good enough to point out bad consequences of the current system, as a reporter).

The blurb says: "Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely"

If this is true, he's against weak copyright law. This is terrible. The copyright law should be weaker. Even someone merely chronicling its abuses should see that this is an obvious response to that abuse.

"the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning"

This seems to buy into the false notion that utilitarian concerns are what should drive law. It buys into the Constitution as legitimate and sensible. It's neither.

"Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct."

If he is, as appears, just a mainstream statist (supporter of the state and our democratic-welfarist-socialist system), such critiques sound hollow. It's like Bush or Obama talking about saving a million dollars in a pork bill, in the midst of trillion dollar boondoggles. It avoids making a radical critique of the regime per se.

"Patry calls for a remaking of our copyright laws so that they may once again be respected"

I do not want our copyright laws to be respected. I want them to be ridiculed and seen as what they are: illegitimate, arbitrary decrees by a criminal gang, issued at the behest of special interest lobbying groups. I realize that the criminal state survives on the false perception of legitimacy: I want this illusion to be burst. I don't want the state or its laws to be respected. The only way civilization will advance is to throw off the shackles of its pathetic allegiance to the state--the entity that harms them most. We have a societal case of Stockholm syndrome.

Anyway--I'll read the book and gladly print a retraction in the happy event that I'm wrong.


Comments

It is disappointing!

It is a bit like reading anything Larry Lessig produces about copyright. He starts off making sense, but then ends up with a totally insane conclusion.

I stop listening a bit when anyone's solution to a problem is "more laws!"

Ours is an envionment where evil is perceived to be rewarded while good is punished. As with everything the Gods have a reason for creating this perception:::: People who fall on the good side of the good/evil scale have more favor, and when they do something wrong the Gods punish them BECAUSE THEY WANT THEM TO LEARN. The Gods want them to receive this feedback in hope they make corrections and begin to behave appropriately. The Gods DON'T like evil and refuse to grant this feedback. EVERYBODY pays for what they do wrong, only evil people must wait until their next life before they will experience the wrath of the Gods, manifested in their reincarnation as a lower form of life into environments with increased/enhanced temptations. Sadly, this allows the Gods to position this perception of evil rewarded as temptation, one which they use as an EXTREMELY effective corruptor.

Both Africa and the Medittereanean are regions which have sexual issues. This is a sign of morbid disfavor once you understand that females are the God's favored gender. Muhammad's (Mohammed's) polygamy halfway through his life as a prophet was preditory. Now a huge percentage of Muslims believes in male superiority and that the abuse of women is God's will. Female genital mutilation is still practiced in Africa. Black misogyny is the most eggregious example in the recent past. The patriarchal cancer spread throughout Europe because of Christianity, of which the majority of policy makers were Italian men.

Militancy in Africa is consistant with the Iraqi example, as was slavery and the KKK here in America:::Fear enforces proper behavior. Without it we see what happens as a result of gross/morbid disfavor:::::AIDS, crack babies, dead young men in gangland retaliation killings. The same principle was true in Europe and throughout the world for centuries:::People whom lived under iron fists were conditioned to think the right way. As a result they experienced higher numbers of children accend into heaven because they were taught to think and behave appropriately. Our preditory envionment of "freedom" was the primary purpose the Gods had when implimenting this strategy that is the United States, one which they used to spred the cancer of democracy and westernization throughout the world. And the Gods use this tool that is America to prey on the disfavored both at home and abroad.

Even the Old Testiment is not to be taken literally, but the Gods do offer clues throughout to help the disfavored:::The apple is a tool of temptation used to corrupt Adam and Eve and cast them out of the Garden of Eden. There is another lesson to be learned from this passage, and it is quite similar to the vailing issue and the discourse over women's attire which ultimately died in the 70s:::Women are responsible for and control the fate of mankind. The masculinization of women experienced in the last few decades should cause despondancy and desperation:::It illustrates the deterioration of mankind's collective favor and is a clue the Gods are preparing for some event.

Think about what I say. Consider what I teach. Society is going to become disturbingly ugly as we approach the Apocalypse due to spiralling, runaway disfavor. I do not know when this will occurr, but it is the God's way to grant some time before they end on Planet Earth. Make the decision to always be good and never look back. Until you do this technology will employ tactics to test your resolve:::Ridicule, beligerance, doubt and refusal to abandon what people perceive to be their "investment". Pray daily. Think appropriately. Too many are confident, unaware of the God's awesome powers or their status as antients. Others may fall prey to their positioning. Be humbled, God-fearing and beware of the God's temptations, for everyone is tested to evaluate their worthiness.

Search for the remainder of this document. Blogster/spot only allows 4000 charecters.

William Patry's book will no doubt be erudite and interesting, but he has always been in the pro-copyright corner, ever since he "fell in love" with the subject, as he once put it. Don't forget that he has made a handsome living as a copyright lawyer and professor, and is currently Google's copyright counsel, so his caste interest will always put him on the anti-libertarian side. That said, I wish he would revive his blog, as it was a good source of fascinating information and reading references.
I remain mystified that he is still giving me the distinction and potential accolade of commenter non grata. My comments were good enough for his old blog until some peculiar point, but he seems to have decided that however similar my comments may be to those of other commenters critical of copyright, mine are not to be published as a matter of policy.

Here's a recent comment of mine that has not seen the light of day (perhaps unsurprising given I'm now querying why none of my previous comments were admitted for publication):

You will gradually notice more and more commenters converging toward the position I have been presenting to you. So, I remain intrigued at your decision to cease publishing my comments.

If you are looking for an answer, then doesn't it strike you as a possibility that if others are converging upon the answer I have been consistently giving you, that perhaps my answer is not only worthy of your consideration, but also of the consideration of your audience?

Or perhaps you feel your audience is best left to work things out for themselves, without my help?

Unimpeded communication of public knowledge is the answer - unimpeded exchange of ideas. The danger is not in the exchange of expression, but in its suppression.

It is also possible that those who argue for such 'freedom of expression', are not quite the crazies you might prefer to believe they are.

You have the conundrum of wondering why I'm expending effort to communicate with you (unilaterally). I have the puzzle of figuring out why you don't publish my comments. What may appear obvious to you doesn't to me, and vice versa.

What, pray tell, is the relevance of all that religious douche three comments up from mine?

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