When Even The New Yorker Is Doing Long Features On The Ridiculous State Of Copyright Law...

from the time-to-fix-things dept

This article has been out for a few weeks now, but I've finally had a chance to read through the whole thing. Louis Menard, over at the New Yorker, has a long piece on just how messed up copyright laws are today, going over many of the same grounds we have (for nearly two decades). The piece itself is a sort of book review of Peter Baldwin's new The Copyright Wars: Three Centuries of Trans-Atlantic Battle, but basically repeats the main point: copyright law as it is today really doesn't make much sense. The first half of the article is a great look at the problems of copyright law, but unfortunately, the second half of the article goes off the rails by leaping on familiar and misleading tropes about why people feel the way they do about copyright. Still, the first half covers a number of copyright's problems quite well.

Among other things, it takes on the massive orphan works problem:

As it is, few creations outlive their creators. Of the 187,280 books published between 1927 and 1946, only 2.3 per cent were still in print in 2002. But, since there is no “use it or lose it” provision in copyright law, they are all still under copyright today. Patry, in his recent book, “How to Fix Copyright,” notes that ninety-five per cent of Motown recordings are no longer available. Nevertheless, you can’t cover or imitate or even sample them without paying a licensing fee—despite the fact that your work is not competing in the marketplace with the original, since the original is no longer for sale....

In the case of Motown, at least you know whom to call. In the case of many books and photographs, the rights holders are unknown; in other cases, it’s expensive to track down the heirs or the legatees or the firms, possibly no longer in existence, to whom the copyright belongs. And so, for fear of being sued and having their work pulped or otherwise erased from the universe, people avoid the risk. Patry says that the BBC has a million hours of broadcasts in its archives that cannot be used, because no one knows who holds the rights.

But much of the article talks about how, even if many of these debates have gone on for decades, the internet has really brought the problems into stark contrast:

Before the Internet, the social cost of this obstacle was minimal. Only a few people had the time and the inclination to travel to where they could see or listen to archived broadcasts. But today, when everything can be made available to the entire world at minimal expense, it seems absurd to hold enormous amounts of content hostage to the threat of legal action from the odd descendant. “That a vast existing cultural patrimony, already paid for and amortized, sits locked behind legal walls, hostage to outmoded notions of property, when at the flick of a switch it could belong to all humanity—that is little short of grotesque, ” Baldwin concludes. Yet the odd descendant has the law on her side. She has the power to pulp.

The article makes some really great points, but also dips into some unfortunate claims. It's particularly disappointing that Menard trots out the whole "Hollywood v. Silicon Valley" trope in simplified caricatures:

Let’s call the first type of business Hollywood and the second type Silicon Valley. Hollywood, along with the music industry and the publishing industry, which are the other major analog-era corporate interests, makes money by producing and distributing content. Silicon Valley makes money by aggregating other people’s content. Hollywood fears pirates; Silicon Valley fears paywalls. Silicon Valley accuses Hollywood of “monopoly” and “artificial scarcity,” and talks about the democracy of the Internet. Hollywood accuses Silicon Valley of “free riding” and “contributory infringement, ” and talks about protecting the dignity of the artist. But each side is only trying to defend its business model.

But that's not even close to accurate. Because, as we've discussed at length, "Silicon Valley" has also built all sorts of new innovations and tools that have helped "Hollywood" make a hell of a lot more money -- often in ways that have little to do with copyright protection.

From there, Menard pulls in a few more misleading (to sometimes wrong) tropes about the copyright fights -- including that only academics care about the length of copyright terms, and that they really don't like copyright just because it makes it harder for them to access other academic research. It also suggests (falsely) that the DMCA's "notice and takedown" process means "you can post almost anything as long as you take it down when the rights holder complains." It doesn't. At all.

Menard almost entirely ignores the free speech implications of copyright law and completely skips over how copyright can be, and often is, used as a veto on innovation. The article also ends in an odd way, suggesting that freelancers should assign their copyrights to big companies "who have the muscle to protect" them. Huh? It's a disappointing end to an article that had plenty of promise in its first half. It almost feels like Menard rushed the second half, just repeating silly old stories about "the copyright wars" in trying to find a way to end the article. That's unfortunate. Given the first half, it seems like a more interesting road to have traveled would have been to explore ideas and concepts for copyright reform, and how to bring the law into the modern era, making it more current and reasonable.

Filed Under: copyright, copyright wars, culture, free speech, internet, out of date, peter baldwin

Interview With William Patry: Understanding How The Copyright Debate Got Twisted

from the such-is-life dept

As you know, William Patry, who's devoted most of his professional life to copyright issues, is coming out with a book, Moral Panics and the Copyright Wars. I'll have a full review of the book in early September (though, the short version is "it's great"), but if you want a signed copy of the book (along with signed copies of four other books related to these issues) order soon, since the Techdirt Book Club is almost sold out.

In the meantime, I got a chance to ask Patry some questions about why he wrote the book, and his views on the state of copyright these days. Patry is a world-renowned expert on copyright law, and has written what's recognized as a definitive text on copyright law, Patry on Copyright (read a shot review of that work). Here's our interview. Enjoy:

What drove you to write Moral Panics & The Copyright Wars?

I wrote the book out of frustration; frustration over the way the language of demonization has been successfully used to frame copyright debates in order to achieve results that are anti-consumer and anti-innovation. The importance of framing is well known in political circles. John Kerry was brilliantly framed by Karl Rove in 2004. Barack Obama brilliantly avoided similar efforts in 2008.

Innovative companies have similarly been subjected to the Karl Rove treatment by content owners. We can laugh at some of the metaphoric language used by copyright owners, and think, rightly, that it reveals how out of touch some of them are with the way technology has changed consumer demand. But laughing at such language ignores that such characterizations are coldly strategic; they are not uttered off-the-cuff in the heat of an emotional moment. The strategy is to retain existing business models in the face of disruptive, new business models that respond better to consumer demand. Rather than engage in self-evaluation, rather than examine whether they should change in the face of changed circumstances, too often copyright owners attack change itself, by conjuring up what sociologists call moral panics, hence the title of the book.

You've spent many years in "the copyright business" in a variety of different roles in both the public and private sector. You've discussed in the past why you're a supporter of copyright -- and yet, you are greatly concerned with what copyright has become. Can you explain when you first started to become concerned about the way copyright was being used/portrayed -- and what brought you to that realization? Was there a moment when it occurred, or was it a gradual thing? Or do you feel that your position has remained unchanged?

I certainly began my career as what we would call today a copyright maximalist, based on a view of copyright as inherently good, so why should more of a good thing not be even better? I began to change when I went to work for the U.S. House of Representatives, Committee on the Judiciary in the very early 1990s. Taking seriously the job of trying to craft the best possible for the larger public interest, I began to think about what that meant in practice, and this was regarded by some in the copyright industries as heresy. Others were, however, understanding, and I remain friends with many in the industries, which are, after all, populated with a large number of very talented people. 1998 was a watershed year for me, with term extension and the anti-circumvention parts of the DMCA, which, in tandem represent the Rubicon for me, the point at which copyright became unmoored from its fundamental purposes. I doubt it will ever find its way again.

Based on that, in your mind, is there any way we bring copyright back to the purpose of "promoting the progress" rather than being used to prop up business models and prevent innovation? Is it even possible?

I think it will be extremely hard to make significant changes in fundamental areas due to the international commitments we have made not to change fundamentals. The globalization of high levels of copyright has, in my opinion, been quite injurious because it takes away the freedom of countries to admit they made mistakes and to then fix them. The best hope, I think, is that copyright will become irrelevant by virtue of copyright industries responding to consumer demand.

What, then, makes you most optimistic about creativity? Pessimistic?

I am very optimistic about creativity. I think we are in a highly creative period fueled by the democratic means of creating and distributing works to the public made possible by the Internet.

In an ideal world, what would copyright law look like to you?

The 1909 Act. It had a much shorter term, formalities that separated the wheat from the chaff, and fair use wasn't mentioned in the statute because it was regarded as a robust common law doctrine.

Why is it better to have fair use not in the statute, but in common law doctrine?

I think it is better not to have it in the statute (or to say simply "the fair use of a copyrighted work is not infringement") because courts have treated the doctrine as if it is codified in 17 USC 107 and therefore as if their role is to merely interpret it. This is not the case; Congress intended that courts continue to have the freedom to develop the doctrine as they wish, but the statute has scared them off. Judge Pierre Leval of the Second Circuit, one of our greatest scholars on fair use, has written persuasively about this, and from first hand experience.

You and I both feel that the copyright "debate" is really a debate over business models, but is there any way to separate the two things? That is, will copyright debates always be about business models?

Copyright is an economic right, not a moral right so I would hope the debates will be about economics, about the best way to encourage innovation, both in the creation of works and in their distribution.

You say that copyright is an economic right, rather than a moral one, and while that's true in the law, there are many who believe it should also be a moral right (as it is in some other countries). How do you respond to those who say that pointing out that it's really an economic, rather than a moral right, are really just avoiding the issue, since they feel it *should be* a moral right?

I talk in the book about the attachment and endowment effects, which explain part of it, but as my mother used to say "don't confuse me with the facts" remains a strong instinct.

For many of us who are concerned about what copyright law has become, what do you think is the most effective way to change things? Historically, changes to copyright law have been driven by industry, not everyone else. The entertainment industry has spent plenty of time trying to block us out of the public debate by claiming that we "just want stuff for free" or are "defending pirates." What do you believe is the best way to get beyond that, and actually effect change?

I would talk to Michael Geist in Canada. He is, to me, the single most effective advocate for the public voice in copyright debates. He is also respected by many Canadian government officials. We do not have anyone remotely like him. It's not enough to rail about things you don't like, or have a following of people who idolize you. And that, unfortunately, is the rut we are in here.

Those in the "copyright maximalist" camp will often suggest that much of what they're doing is really about "education." For example, the RIAA has repeatedly said that its lawsuit efforts were really an education campaign. But, what your book argues is that the education campaign is part of that moral panic, rather than a true education. So what is the best way to actually educate people on these issues. I agree that Michael Geist has been very effective in Canada, but his efforts have been focused on legislative issues. I'm wondering how (if it's possible) to have people educated on copyright in general. Is it just through books like yours? Is it through education campaigns in schools? Or is it just an education that today's kids are getting on their own online?

In the book, I equate the RIAA's education campaign to the Maoist Great Proletarian Cultural Revolution, especially the December 1968, "Down to the Countryside Movement," in which intellectuals living in cities were ordered to go to the countryside, where their bourgeoisie thinking would be worked out of them and they would be reeducated by the masses. That said, I do think that education about copyright is important, but like health care reform, I fear that the sides are so polarized that there is little chance that all could agree on the content. This is what happened in Canada. I think parents have an important role to play in this, and I certainly would not tolerate my twins engaged in unauthorized file sharing. I buy them only authorized works and try to set an example. The industry also has a responsibility to provide people the means to buy legitimate product, in formats and at prices that make sense.

I would think that many in the industry would cry foul at that final statement (about the industry having a responsibility to provide people the means to buy legitimate product), saying that copyright gives them exclusive rights, including how to distribute and sell their own product, and they would then argue that, to many consumers, the "price that makes sense" is "free" and that they cannot build a sustainable business that way. It is a common refrain, "you cannot compete with free." So what do you think is the proper response to such claims?

I think that is no more valid a response than those who offered by filesharers who argue that its OK for them to do what they are doing because the labels screw the artists. Not only does iTunes refute the idea that people just want free stuff, but look at what happened in January of this year when Monty Python started a YouTube channel and gave away free streams of their stuff: their DVD sales on Amazon.com went up 23,000% (not a typo). Here's another example. My wife owns a cafe. She makes espresso there and the guy who makes it used to work at Starbucks. I obviously can get espresso for free there. But I don't, I drive two miles away to a Starbucks store and pay $2.01 for it because I like the way it tastes.

Like you, I'm most optimistic that the real solution to all of this is the innovative new business models that are coming along, that may make the old limitations functionally obsolete, even if legally still in place, but it's very difficult for those who are so immersed in the old way of doing things to see the possibilities there. It's a classic "innovator's dilemma" type problem. So separate from how best to educate "the public" -- do you have ideas on how best to educate "the industry"? Is it just showing success story after success story? Or is there something more effective?

I fear that only the market will educate the industry, but that education won't be even; for example, look at the different approaches taken in the Redbox controversy by Sony and Lion's Gate on on hand, and by Universal and Fox on the other.

This isn't directly related to the book, but an interesting issue that I've been exploring lately are the different ideas on how to reconcile copyright law with the First Amendment. The traditional explanation has been that the idea/expression dichotomy, combined with fair use, allow these two rules to co-exist. What are your feelings on the issue?

I think the two can co-exist only if fair use is robustly and generously applied. The AP v. Shepherd Fairey case is one, therefore, that I view with great alarm.

There are many in our readership who question the need for copyright at all, noting that there are plenty of other mechanisms for incentives to create and business models to support creators. You obviously disagree. How do you respond to those people -- and what makes you confident that 1909-style copyright policy wouldn't eventually lead to the same issues found in copyright today?

I think that there are works that have no need for copyright, such as private letters, works of architecture, and many business documents, to say nothing of emails. I also think the term of protection is way too long for all works. Unfortunately, we have never tried to fit the length of protection to particular types of works. There are works though, especially those involving large investment, like motion pictures that do need the ability to secure financing through the asset of copyright and to go into court to stop massive unauthorized copying. This is also true for commercial label music. I think ideology or displeasure with business practices has interfered with recognition of these legitimate needs.

I want to thank William Patry for taking the time to do this interview. I was tempted to dig deeper on that last question, but already taken way more of Patry's time than was warranted -- and I appreciate him giving such thoughtful answers. As mentioned, I'll do a more thorough review of the book later, but it really is a must read, no matter where you stand on copyright issues.

Filed Under: copyright wars, fair use, moral panics, willaim patry