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: Moral Panics and the Copyright Wars

Why I made Tom Sydnor?s enemies list

By William Patry, Esq

Yesterday, Tom Sydnor posted on the Progress and Freedom Foundation?s blog a ?review? of my book. I use review in quotes because the piece is not a review of the book at all, but merely the latest in a series of ad hominem attacks by him on me and anyone else who calls for effective, evidence-based copyright laws. In Mr. Sydnor?s world there are only two types of people: (1) those who believe in property rights? defined as our current level of copyright or hopefully even stronger, and (2) copyright haters ? defined as people like me and the late great British scholar and jurist Sir Hugh Laddie, since both of us have expressed a desire that copyright be effective for its purpose and since both of us have annoyingly insisted on an evidence-based approach to law. Scholars like Sir Hugh and I are to Mr. Sydnor ?profligate? scholars, a way of denigrating the fact that unlike the inside-the-DC beltway political world in which Mr. Sydnor has lived, both Sir Hugh and I spent our entire professional careers actually practicing in a field we love, although we became convinced it has strayed from its roots.

It is ironic that Mr. Sydnor attacks a book dedicated to ending the hurtful division of the Copyright Wars into property lovers and copyright haters, and by describing me as a copyright hater. He apparently has not read a word of my 6,000 page treatise which has never been accused of having any bias and which has a foreword by former Justice Sandra Day O?Connor. He is unaware of my 7 seven years work at the Copyright Office and for the House Judiciary Committee where again no one ever accused me of having an anti-copyright bias. He hasn?t read any of the briefs I wrote while an academic such as the successful brief I submitted to the Second Circuit on behalf of the TV networks in NFL v. Primetime 24, or the briefs or arguments I made in private practice such as the last case I had in private practice where I argued in the Second Circuit against fair use (Bill Graham Enterprises v. Dorling Kindersley). Nor has he read the article I wrote with Judge Posner (hardly a copyright hater), or the numerous, very fruitful exchanges on this very blog with Ben Sheffner, a long-time LA entertainment lawyer and lawyer for Senator John McCain in the last election. Nor does he mention that Professor Eugene Volokh has endorsed the Moral panics book, or that Publishers Weekly, hardly an anti-copyright publication, gave the book a glowing review. I am simply an enemy, and that?s enough. I am to be hated and my work described as worthless. That of course is what moral panics are all about, and Mr. Sydnor has given us a vivid illustration of another one.

Older readers or students of history will remember President Nixon?s enemies list, made up by Charles Colson, who later pled guilty to obstruction of justice and served prison time, where he found (an evangelical) god. There were 20 people on the original list, including media people and members of Congress, such as then CBS reporter Daniel Schorr and the current chairman of the House Judiciary Committee, John Conyers. John Dean explained the purpose of the memo:

This memorandum addresses the matter of how we can maximize the fact of our incumbency in dealing with persons known to be active in their opposition to our Administration; stated a bit more bluntly?how we can use the available federal machinery to screw our political enemies.

With the Obama Administration, Mr. Sydnor is now out in the political wilderness, a strange place populated with those who think it perfectly acceptable to shout out at the President ?You Lie? during a Joint Address to Congress. President Obama was of course correct in his statement and the only lie was the accuser?s. Mr. Sydnor too thinks it perfectly acceptable to lie about me and my book. But I take that as a compliment, just like Daniel Schorr did being on Nixon?s enemies list, although I am disappointed that the Progress and Freedom Foundation finds it acceptable for such a post to be made on its blog.

To give you a feel for his post (entitled ?Moral Panics and the Copyright Wars: A Worthless Book?), here is the beginning:

William Patry's new book Moral Panics and the Copyright Wars ("Copyright Wars") ranks among the worst books yet written about copyrights and the Internet--a stunning achievement, given the competition. I began it hoping for a slanted-yet-thoughtful analysis of how to reconcile the potential of both copyrights and the Internet. I got the same shopworn Scary Stories, sophomoric and droning lectures on cognition and economics, no solutions, and the self-anointed "most prolific scholar of copyright in history" venting venom ?.

If the word venom in the above quote sounds familiar, that?s because it?s the same word Mr. Sydnor?s mentor Patrick Ross used in a comment yesterday on my last blog post about the Copyright Alliance?s silly letter.

The PFF describes itself as a ?market-oriented think tank.? Its stated philosophy is said to combine

an appreciation for the positive impacts of technology with a classically conservative view of the proper role of government. We believe that the technological change embodied in the digital revolution has created tremendous opportunities for enhanced individual liberty, as well as wealth creation and higher living standards. Those opportunities can only be realized if governments resist the temptation to regulate, tax, and control. Government has important roles to play in society, including protecting property rights and individual liberties, but its tendency is to reach beyond its legitimate functions in ways that harm consumers, burden citizens, and slow progress.

Copyright is though entirely governmental regulation; copyright is created by government and enforced by government officials. What does it mean to be market-oriented with respect to a government program? That?s what my book is about. Here?s what I think it means, found on pages 101-102 of the book, passages Mr. Sydnor does not refer to because it is inconvenient with his false portrayal of me as a copyright hater:

Regulation in the public interest is ? a precondition to the copyright system functioning properly; regulation for the public interest should thus not be viewed as an exception, but as the norm. This is not to suggest that the copyright industries are venal; quite the contrary, it is to argue that they are all too normal.

What does it mean to be normal in this context? Normal is the conduct that famed economist Joseph Schumpeter noted in the middle of the last century. Here is what I say on page 236:

The economic conflict at the heart of the Copyright Wars lies in what economist Joseph Schumpeter termed ?creative destruction?: the introduction of innovative products and business models that displace old ones. Far from being a threat to capitalism, Schumpeter?s great insight was that creative destruction ?incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creative a new one. This process of creative destruction is the essential fact about capitalism. It is what capitalism consists in and what every capitalist concern has got to live in. Capitalism is, as Schumpeter described, ?by nature a . . . method of economic change and not only never is but can never be stationary.? Stabilized capitalism is a contradiction in terms.? As an inherent fact, ?every company [must] prepare the way for its own disruption.? Innovation?the root cause of creative destruction?is thus the way capitalism survives its own inherent tendency toward monopolization and stagnation, even as innovation is regarded as an existential threat to those who benefit from the status quo. In Schumpeter?s words, ?a new firm?s intrusion into an existing industry always entails ?warring? with an ?old sphere,? which tries to prohibit, discredit, or otherwise restrict every advantage afforded to the new form by its innovation.?

My approach is to place copyright owners within the normal reaction of incumbent industries reacting to creative destruction. This is not demonizing, but explaining. Others have taken a different approach. Professor Jane Ginsburg, widely regarded as very pro-copyright owner academic, wrote an article in 2003 called ?How Copyright Got a Bad Name for Itself.? In it she refers to what she calls copyright owners? Pavlovian reaction against new technologies and accuses them of greed. My approach is quite different: to explain copyright owners? behavior in classical economic terms using a very conservative economist?s theories.

No doubt it greatly galled Mr. Sydnor that I rely on Schumpeter ? after all my doing so completely contradicts his view of me as a liberal copyright hater -- and he doesn?t even mention that I do not cite anywhere in the book copyright owners? favorite bogeyman Larry Lessig or any copyright left folks. While acknowledging my reliance in Schumpeter, Mr. Sydnor accuses me of ?den[ying] that there can be a ?free market? for any differentiated--and thus innovative--product, service or work.? He cites no passage for this characterization, which is completely false. Nor does he attempt to give his own version of how creative destruction operates with the issues covered in the book. If you can?t impeach the sources or the theories I guess all you can do is lie about the facts.

When I said in the book that copyright owners? behavior was normal business behavior, I included that normal also means giving businesses time to figure things out when creative destruction occurs. I do not call copyright owners Luddites and I criticize those who do. Here for example is a passage on page 2 of the book, at the very beginning of the book which again Mr. Sydnor doesn?t cite because it is also inconsistent with his portrayal of me as a copyright hater:

Copyright owners? concerns over cannibalizing existing businesses are not inherently irrational: Many businesses understandably worry about shifting from a declining volume but still profitable product to a newer product that may or may not become capable of generating substantial revenues. Many new products fail, and it would be irresponsible for business executives to throw overboard existing products simply because a new (and unproven) product comes along. The commercial promise of truly innovative products may also not be apparent at the time.

The point of the book is to move us away from Mr. Sydnor?s moral panics approach and toward an evidence-based approach to policy-making. I state this very clearly on page 37 which of course Mr. Sydnor doesn?t refer to:

For policy makers and the public, copyright is not a winner-takes-all proposition. Copyright is a system to advance public interests; those interests can be furthered by a copyright regime tailored to provide sufficient incentives to create new works. But at the same time, we must recognize that the public interest is genuinely harmed by overprotection. Calls for ?strong protection? or ?for stronger protection? are absurdly off the mark: just like there is no inherent benefit from steeper taxes, there is no inherent benefit from granting copyright owners more extensive monopoly rights. As Lord Macaulay observed in 1841, in a quote reproduced in the introduction: ?it is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.? The point at which the evil subsumes the good should be determined empirically by evaluating whether any incentive is needed for creation of a work?many works need no incentive, such as private letters, speeches, and business documents?and if an incentive is needed, we must empirically evaluate the actual market conditions for the works in question. Distorted incentives produce distorted conduct, and it is conduct that we should be concerned with: what conduct do we want to encourage and what conduct do we want to discourage? If the theory behind laws is that through proper incentives they will lead to proper conduct it is essential that our copyright laws contain neither too few nor too many incentives.

What Mr. Sydnor fears deeply is empiricism, an evidence-based approach to finding the right incentives. Accusing others of hatred is merely a way to focus policy-makers? attention away from the evidence, a classical moral panic. I will be sure to include his post in any future edition.

Full post as published by Moral Panics and the Copyright Wars on October 03, 2009 (boomark / email).