Wednesday, August 12, 2009

William Patry's "Moral Panics and the Copyright Wars"

William Patry is Senior Copyright Counsel at Google Inc. He previously served as copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, a Policy Planning Advisor to the Register of Copyrights, a law professor, and in the private practice of law. He is a prolific scholar of copyright, including being the author of an eight-volume treatise and a separate treatise on the fair use doctrine.

He applied the “Page 99 Test” to his new book, Moral Panics and the Copyright Wars, and reported the following:
Page 99 of Moral Panics and the Copyright Wars sketches out one the central messages of the book: that copyright is a set of social relations, intended to serve the important social goals of furthering knowledge and creativity. Approaching copyright this way avoids the “them versus us” dichotomy we currently face where copyright owners claim copyright is a form of Blackstonian private property over which they can exercise absolute dominion, and conversely, where those attacking what they regard as excessive copyright protection regard copyright as an evil monopoly to be repealed.

Instead, the book explains why copyright should be regarded as a government program, intended to provide incentives for socially useful purposes. As a set of social relations, we must accept that copyright should be regulated in order to ensure it is serving its valuable public purpose. This means that calls for stronger copyright, just like calls for weaker copyright miss the point entirely; we have need only of effective copyright laws, with effective being measured by whether our copyright laws are serving their intended purpose.

In making this determination of effectiveness, we should use quantitative criteria, and where the data show the need for necessary adjustments, we should make them just as we do for other government programs: if there was a government program to increase low-income housing, and credits were given to developers for that purpose, we would want Congress, before the program was authorized to conduct a study to see if low-income housing would in fact been increased, and whether the amount of the credit provided was the right amount. Copyright should be treated the same way.

Unfortunately, debates over copyright have taken the form of rhetorical battles whose purpose is to shut off the only type of discussion worth having: an economic analysis of what is the right type of incentive. The book unmasks these rhetorical tactics in the hope of getting the debate back on solid footing.
Learn more about the book at the Oxford University Press website and at the Moral Panics and the Copyright Wars blog.

--Marshal Zeringue