Dotan Oliar

Bill Patry’s “Moral Panics and the Copyright Wars” is the latest word on the way in which copyright law has responded to technological change. In eclectic and humorous prose, drawing on history, linguistics, philosophy, behavioral economics and the Bible, among other sources, Patry provides harsh criticism of the ways in which Congress and the copyright system have responded to disruptive technologies such as the VCR and file-sharing networks – and by “responded”, Party means did whatever the content industries demanded.

The book sets out the well-formed perspective of an important figure within the copyright cognoscenti. For almost three decades now, Patry has engaged with the copyright system in various roles, including a practitioner in private practice, full-time academic, author of a multi-volume copyright law treatise, copyright law blogger, copyright advisor to the House of Representatives and policy advisor to the Copyright Office. His intimate familiarity with the copyright system makes the pessimistic tone of his book especially notable.

Patry sees a pattern: technology companies generate innovation, and in response copyright industries generate litigation. According to Patry, “This cycle of copyright owners shaking down innovators is a central trope in the business of the Copyright Wars and has been repeated over and over again with almost every new innovation.” Importantly, “Copyright has become the mechanism to eliminate consumer choice, innovation, and the creation of culture. Copyright is now a serious impediment to technological and social progress.”

Patry’s book focuses on the role rhetoric and metaphor have played in legislative and public debates relating to copyright lawmaking, and how they were instrumental in the continuous expansion of copyrights in both duration and scope. In particular, Patry explores the function metaphors like “property” and “piracy” have played in the lawmaking process. Because abstract concepts such as copyright law are difficult to grasp, people tend to rely upon and fall prey to imperfect metaphors, especially when they are used repeatedly by industry lobbyists.

Patry is no fan of a common stock of well-worn copyright metaphors, and he attacks one after another: expressive works as bearing a personal relation to their author (the “copyright as giving birth” and “orphan works” metaphors), ownership of copyrighted works as an absolute, unlimited title (the “property” metaphor), copyrighted works as the singular product of genius (the “creation on a clean slate” metaphor), and the money to be earned from copyrighted works as the rightful reaping of what an author has sown (the “agrarian” metaphor).

In Patry’s view, these inapt metaphors serve only to distract us from the real issue, which is how to structure copyright law – a form of economic regulation – to best promote authorship, learning, innovation and progress. And while Patry documents various rhetorical tricks played on Congress’s floor, he also laments what has been missing from the debate: “in my 27 years of practicing copyright law, I have never seen a study presented to Congress that even makes a stab at demonstrating that if the proposed legislation is passed, X number of works that would not have been created will be.”

Central to Patry’s argument is the structural role that “moral panics” have played in this process, namely the furtherance of a public state of hysteria respecting illusory threats emanating from “folk devils”. Such panics often concern youth behavior and new technologies, both of which are not well understood and portrayed as a danger to core social values. Such panics are manufactured in order to capitalize on public (over)reaction to such (imaginary) threats in order to advance economic and social regulation that entrenches incumbent interests. Moral panics contain the following elements: the suggestion that a dire state of emergency is being brought about by a new threat to social order; the suggestion that swift action must be taken in order to prevent imminent social harm; the presentation of false and misleading data to lawmakers regarding the magnitude of that harm; and the suggestion that preemptive action – in this case action protecting copyright industries – serves the national interest. As one would suspect, Jack Valenti makes guest appearances throughout the book.

Those familiar with Patry’s writing and public speaking have probably noted his penchant for linguistic playfulness, and the book further speaks to his fascination with the potency of language. It is thus probably a testament to Patry’s engagement with and immersion in the subject matter of his research that the reader is at times left wondering whether his interest in rhetorical hype is merely deconstructive. Strung throughout the book are such statements as: “Corporatism was previously thought to have reached its zenith during Mussolini’s Fascist Italy, but [now] it is enjoying a healthy resurgence.”  Or, “Amazon.com’s Kindle ebook reader has more digital locks than CIA headquarters”.  Or, topping it all perhaps, that “The DMCA is the twenty-first century equivalent of letting copyright owners put a chastity belt on someone else’s wife.”

These ornamental bits aside — and perhaps partly because of them — “Moral Panics and the Copyright Wars” is not only a worthy and substantive read, but also a fluent and enjoyable one. The at-times amusing tone certainly serves, whether deliberately or not, as comic relief that softens Patry’s harsh and pessimistic underlying message. The book is likely to attract public notice and controversy not only for its content, but also because of who’s written it, and – most importantly – because its conclusion comes close to saying that the system is beyond repair, the last sentence hinting (although in a somewhat obscure way) that we might be better off abolishing it.