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: Moral Panics and the Copyright Wars

The Progress of Science and Profit

By William Patry, Esq

Ben?s reply to my Adam Smith and the Invisible Hand post cries foul, asserting I had associated him and his colleagues with the global economic collapse. Not true: I wasn?t lumping anyone in with anyone. I was merely pointing out that Ben?s theory of ?what?s good for GM is good for the country? has been discredited by the global economic collapse and by Keynes right before the Great Depression. Nor was I discrediting the profit motive or self-interest, both of which are essential to economic growth. I was pointing out that given the obvious negative consequences of unregulated economic activity, that government regulation is essential for the public interest to be protected. That shouldn?t be controversial, especially for a right like copyright, which is wholly a creation of government. (Yes, I agree that all property rights are created by governments).

In this respect, I agree with Ben that it is the role of Congress (and as he notes to some extent the courts) to set the bounds of copyright, and no one should complain if private interests take full advantage of the rules set once set. If Congress and the courts fail, our complaint should be with them. But Eldred aside, the debates in the Copyright Wars have not principally been about boundaries already set (I regard individual liability for P2P file sharing as an already set boundary, aside from the differences about the alleged making available right), but efforts to set new ones, both through Congress and through the courts, as well as the justifications for the efforts to reset boundaries. The justifications offered are too often moral panics and false analogies to real property, and frequently constitute efforts to stop new technologies and innovation, not threats to creativity. As Keynes noted, such efforts aren?t even in the best interests of the industries. The copyright industries are lucky they lose some of these battles. Sumner Redstone ? hardly a copyright critic ? noted about home video, something the industry sought to strangle ? that home video was ?the bonanza that saved Hollywood from bankruptcy.?

Ben further argues that ?given the output of the US creative industries over the past century, I think the system has worked rather well.? I doubt that. In my view he assumes, wrongly, that copyright protection, especially our current copyright on steroids, is responsible for output. Historically copyright has been relatively unimportant for authors. Copyright in some form is highly important for some industries, motion pictures being an obvious example. It is of lesser importance for others, and irrelevant for many, given the scope of the types of works that are protected (e.g., private letters). And even when copyright is important, for how long is it important? The best way to figure that out, empirically, is by looking at renewal rates when we had mandatory renewal. In 1960, the Copyright Office did a study of renewals in 1958 through 1959, and found an average renewal rate of only 15 percent. Even more significant is the breakdown by subject group:

Copyright Renewal Rates 1958?1959
Type of Work Renewal Percentage
Books 7%
Periodicals 11%
Lectures, Sermons and other oral works 0.4%
Dramatic Works 11%
Music 35%
Maps 48%
Works of Art 4%
Technical Drawings 0.4%
Art Prints 4%
Movies 74%
(See pages 68-69 of the book).

Here are other data: Project Gutenberg, a nonprofit organization that makes public domain works available to the public for free (and which thus must be quite sure about the public domain status
of being sued), has estimated that 90 percent of works published between 1923 and 1963 were not renewed. These data refute the view that copyright has played a vital role in an increase in the output of the copyright industries. Term extension in 1998 severed any connection between necessary incentives and the length of the grant: no author or corporation wouldn?t have created a work but for the expanded term. I would like to know how many movies are green lighted based on a determination that they will recoup the investment and make a profit only after 28 years, the original term under the 1909 Act?

This leads me to Ben?s concluding quote from Justice Ginsburg? opinion in the Eldred opinion, which upheld a challenge to the 1998 term extension. Justice Ginsburg?s quotation is of course very supportive of Ben?s view, but I think Ben overstates its significance. The quote, which comes in a footnote, is part of the opinion?s (and for RBG uncharacteristic) nasty bickering with the dissenters, and as such can hardly be regarded as a holding of the Court, much less one that the other six Justices ascribe to. More to the point, Justice Ginsburg?s views on the role of the Progress of Science language in the Constitution and the profit motive have to be seen in the light of the worst part of her opinion, her conclusion that the Promoting the Progress of Science language is just a bunch of pretty words, a mere preamble, and not of any substantive value. As a bunch of pretty words, a mere preamble, who cares what she thinks about them? It is only if the Promoting the Progress of Science language is a substantive limitation on Congress?s power, as the Founders intended that one gets to the points that Ben wants Ginsburg?s comments to support. And if you do treat the language as a substantive limitation, then the copyright industries would be in a position in which incentives will have to be empirically, and not as now rhetorically, justified.

Full post as published by Moral Panics and the Copyright Wars on August 23, 2009 (boomark / email).