Friday, December 18, 2009

IP Watch Video Interview

When I was in Geneva two weeks ago, I gave a 16 minute video interview to Intellectual Property Watch, a Geneva-based publication. Here is the link. Other than the very beginning, where it looks like I am posing for a death mask, the interview is, I think, a good summary of what I was trying to accomplish in writing the book, and it contains analysis of how one metaphor ("a rising tide lifts all boats") works.

Wednesday, December 16, 2009

Dan Glickman's Moral Panic

When I worked for the U.S. House of Representatives, one of my favorite Congressmen was Dan Glickman, of Kansas. (Another was Howard Berman). Mr. Glickman, along with 34 other Democrats, was defeated in the Republican 1994 electoral rout, and the following year he became President Clinton's Secretary of Agriculture, where he served with great distinction. In 2004, he succeeded Jack Valenti as head of the Motion Picture Association of America -- a hard act for anyone to follow. He recently announced he would retire at the end of his contract next year. Mr. Glickman has always been a sensible person, not given to extreme statements, and more interested in working through problems than in creating them. High-flying rhetoric is out of character.

For this reason, I was surprised by a story in Wired back in late November about a letter he sent to the Senate Judiciary Committee on ACTA. It didn't surprise me that MPAA strongly supports ACTA, but what did surprise me was the letter's effort to create a moral panic about those who oppose ACTA. In the letter, he says :

Opponents of ACTA are either indifferent to [worldwide piracy]
or actively hostile toward efforts to improve copyright enforcement
worldwide. Many of them decried the WTO TRIPS agreement when it
came into force in the 1990's and they now insist that any effort to
build upon the TRIPS minimum standards for enforcement is
"anti-consumer" and "anti-innovation."

None of those statements are true, and there is an unfortunate, careless eliding of a number of points to misstate positions. The parts of ACTA that are controversial are not the parts that deal with customs and counterfeiting enforcement. Aside from some early wild conjectures about the scope of ACTA's customs proposals caused by the secrecy of the text, no one, as far as I know, has been critical of the very provisions that concern actual enforcement of rights against counterfeiters: MPAA is right to want to stamp out such conduct, and if improvements in global standards are required, we should improve them.There is no indifference or hostility on this issue.

The next part of the statement about opposition to TRIPS is also false. I worked on the TRIPS implementing legislation on the House. Mr. Glickman did not, presumably, he was rightly focused on the agricultural provisions. I am not aware of anyone (much less "many") who at the time decried the TRIPS provisions on enforcement. No one called them anti-consumer or anti-innovation, or was hostile or indifferent to counterfeiting.

Let's debate the merits of proposals, and skip the false rhetoric.

Monday, December 14, 2009

Bravo United States

Today, at the WIPO Standing Committee on Copyright and Related Rights in Geneva, various statements were introduced by governments on a proposed treaty for the visually impaired. In the interest of full disclosure, my employer recently submitted to the U.S. Copyright Office a statement in support of the treaty (See here). A number of developing countries' positions were disappointing in their lack of meaningful support of the proposed treaty. Certainly if those making statements in actual opposition had available to them the minuscule amount the visually impaired have, their views would be quite different. Theirs is a failure both of compassion and a failure to recognize the positive role of copyright in furthering access. Some apparently are willing to sacrifice the neediest in order to hold on to more than they already deserve. It is easy to find reasons not to do something; the mark of a generous and compassionate soul is finding reasons to do something.

In this context, I applaud and we all should applaud the statement submitted by United States (available here). The statement is the most genuinely balanced and forward-looking U.S. government document on copyright I have read since the days of the great Registers of Copyrights, Abraham Kaminstein and Barbara Ringer. Kudos to Justin Hughes, head of the U.S. delegation. I quote only the final paragraph, but one should read it all:

We recognize that some in the international copyright community believe that any international consensus on substantive limitations and exceptions to copyright law would weaken international copyright law. The United States does not share that point of view. The United States is committed to both better exceptions in copyright law and better enforcement of copyright law. Indeed, as we work with countries to establish consensus on proper, basic exceptions within copyright law, we will ask countries to work with us to improve the enforcement of copyright. This is part and parcel of a balanced international system of intellectual property.

Sunday, November 08, 2009

Chastity Belts and Copyright

In my last posting I discussed reviews of the Moral Panics book, and my disappointment with a too-common failure to do much more than a USA Today- type superficial nuggets approach. I thought it might help to give an example. I have chosen the most recent review, by Nate Anderson at Ars Technica since neither Nate nor Ars Technica can be considered to opposed to the book’s project, and since I am a big fan of the blog, which has consistently done excellent work.  My purpose therefore is not to criticize Nate or Ars Technica but rather to show how even friendly venues can fall short.

Nate’s review diminishes the book to a series of juicy metaphors which he  quotes in bullet points; having done so, he then characterizes the book as a screed. I am described as someone who when, “once freed from the shackles of legal writing, … can lob hand grenades with the best of them.” The reference to bomb throwing of course is itself perfect figurative language for talking about a book about Copyright Wars, an irony perhaps Nate appreciates, or not.  I chose the word “irony” here purposefully because after reducing the book to a series of metaphors, Nate comments:

Not that there's anything wrong with a good screed; in the right hands, the screed can be a hugely enjoyable form. But there's a certain irony about the method here. The quotes above rely on the most vivid of metaphor … in order to discredit what they describe, yet this is exactly what Patry spends much of the book accusing Big Content of doing.

So the book is a series of bomb-throwing, and even worse it’s a book about how bad bomb-throwing is. I must indeed be a hypocrite. There is apparently nothing more to the book, so it can easily be dismissed as a screed, good or not, that falls prey to the very disease it is trying to extirpate. Another failed, lousy book, next story.   

Since the book is 200 pages of text (not counting footnotes), there must be an awful lot of  bomb-throwing, indeed this appears to be all Nate read since he states, “the tone here gets so one-sided at points that all but the most hardened copyfighter will probably set the book down at some passages, scratch the chin, and ask, "’Really?’" No examples of this are given, but we get the point from the bullet-point list of choice metaphors: the book is page after relentless page of metaphoric attacks on copyright owners.  No doubt this makes for an easy review, but it is a false characterization of the book. So let’s discuss what is actually in the book. Here is the table of contents: 

Chapter 1

How the Copyright Wars Are Being Fought and Why 1

The Copyright Wars and Business Models 2

The Internet and Push versus Pull Marketing 5

Appetite for Self-Destruction: The Record Industry’s Failure

    to Offer an Alternative to Napster 8

The Copyright Wars and the Great Cultural Revolution 10

The Digital Guillotine 11

The Copyright Wars and Framing 14

The Copyright Wars and Piracy 15

The Copyright Wars and Marketing Myopia 23

 Control as the Business Model 26

Chicken Little and False Figures 30

Copyright, Innovation, and Joseph Schumpeter’s “Creative

Destruction” 36

The Copyright Wars as a Rearguard Effort to Stave Off 

  Innovation 39


Chapter 2 The Role of Metaphors in Understanding 43

Figurative Metaphors 44

I.A. Richards and the Beginning of Conceptual

  Metaphors 45

Max Black’s Theory of Associated Commonplaces 46

The Role of Repetition in Metaphors 47

 Conceptual Metaphors 49

Metaphors and Emotion 52

Emotions and Cognitive Misers 54


Chapter 3 Metaphors and the Law 57

Ideas as Metaphors 58


Chapter 4  The Mythical Origins of Copyright and Three Favorite

Copyright Metaphors 61

The Mythical Origins of Copyright 61

The Utilitarian/Consequentialist Origin Story 62

Competition and IP Rights 63

The Labor Origin Story 65

Natural Rights and Geniuses 65

Copyright Has Historically Been Unimportant to

 Authors 67

Three Favorite Copyright Metaphors 69

Authors as the Parents of their Works: The Birth

 Metaphor 69

No Author Is an Island 71

Copyright Is an Economic Commodity 75

Orphan Works 76

The Agrarian Metaphor: Reaping What

 You Haven’t Sown 78

Origins of the Metaphor 79

Rejection of the Metaphor in the United States 83

Forms of the Metaphor 84

Thieves and Trespassers, Pirates and Parasites 86


Chapter 5 Property as Social Relationships 97

The Myths of Economic Freedom and Market

 Fundamentalism 98

Social Relationships 102

Use of Metaphors in Establishing Claims to Property

 Rights 104

Blackstone and the Nature of Property 105


Chapter 6  Why Classifying Copyright as Property Is Important

 in the Copyright Wars 109

Copyright as Social Relations, Not as a Property Right 109

The Ahistorical Claim that Copyright Is a

 Natural Property Right 112

Authors and Trickle Down Economics 114

Copyright Now as Then: Plus ça Change,

 Plus C’est la Même Chose 119

Copyright as a Statutory Tort 121

Property Rights Involve Burdens, Not Just Benefits 122

Why Do Copyright Owners Continue to Refer to

Copyright as a Property Right? 124

Property Rights as a Burden-Shifting Tool 124

The Endowment and Attachment Effects 129

The Endowment Effect 130

The Attachment Effect 131


Chapter 7  Moral Panics, Folk Devils, and Fear as

 a Tactical Weapon 133

Moral Panics 133

Folk Devils 138


Chapter 8 Copyright Owners and Moral Panics 139

Jack Valenti: Master of Moral Panics 139

Moral Panics, Home Video, and the Boston Strangler:

 The Real Story 142

The Home Video Market and Thomas Edison 142

Cartrivision and the First Home Rental Market 144

The Betamax Case and the Fight for the

Home Video Market 144

The Redbox Suit 158

The Digital Millennium Copyright Act 161

Access Controls 161

Take-Down Notices Under the DMCA: Suppression of

Free Speech and Creativity 169


Chapter 9  How Innovation Occurs: Creative Destruction

and Disruptive Technologies 171

The Design of the Internet and the World Wide Web 178

The Barbarian as the Gatekeeper 181

The Associated Press 182

ACAP 186

South Korea and Japan: The Future Is Here 190

South Korea 190

Japan 195

Conclusion 198

The first chapter, like most first chapters of books, sets out what the problems are. This is as far as most reviewers go, and they don’t even go very far into the first chapter. In identifying what the problems are, the purpose is not as Nate’s review suggests and too many others believe, to attack copyright. Instead, the why of the Copyright Wars is described as being economic. On page 36, I state:

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, 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. Given the inevitability of such counter-innovative instincts by existing business, in order to ensure the continued vitality of innovation and capitalism itself, we must encourage innovation rather than try to kill it off as the copyright industries do.

I follow this up in chapter 9 with a much more detailed discussion of Schumpeter and the economics of the Copyright Wars. On page 102, I place copyright owners within this context, stating:

This is not to suggest that the copyright industries are venal; quite the contrary, it is to argue that they are all too normal. Distorted incentives lead to distorted conduct; because our current copyright laws provide rights and remedies that are far beyond what is necessary for copyright owners to recoup their investments and make respectable profits, and instead give copyright owners powerful weapons to quash competition and control consumers, we should not be surprised that the copyright industries utilize those weapons (and then some). In this respect, the copyright industries are no different than Wall Street or any other company placed in a similar situation. 

In Nate’s review, there is not a single mention of book’s economic analysis even though it is the heart of the book. There is not a single mention of the book’s extensive examination of the economic evidence presented by copyright owners, and this is indeed ironic given that I quote from Ars Technica’s own leading work on this. See pages 31-36 of the book.  Nor is there any discussion of the book’s emphasis on the different nature of marketing in the content industries and in other, consumer-first industries. I discuss the work of Harvard Business School professor Theodore Levitt. I say on page 23 (is it too much to read 23 pages???): “Although usually written about as battles over technology or principles, the Copyright Wars are instead centrally rooted, what Harvard Business School professor Theodore Levitt called ‘marketing myopia.’” I then discuss these theories, including Levitt’s own take on Hollywood. But rather than simply say that some content owners are bad, bad, bad, I try to understand the source of the problem. Here is what I say on page 26:

The myopia stems from corporate copyright owners’ adoption of control as their principal business model—closed systems, in which copyright owners tightly control everything connected to their works: which play back devices will be offered to the public; what types of access controls will be interposed before consumers can ever see, hear, or in the case of books or other literary works, even read a snippet of the work; the time period during which consumers will have access to the work; how many times can consumers see, hear, or read the work; in what format will consumers be able to access the work; what will they be able to do with the work once they finally access it: Can they copy reasonable portions for criticism and comment, can they make personal use copies or copies for use on other devices, can they use parts of the work to make other new works, including mash-ups?

I then tie this in turn into the mantra that content is king, and instead assert that the consumer is king simply because copyright cannot be used to get a single consumer to buy anything. It is only consumer demand for products or services that gets copyright owners money. I have said over and over again that I want copyright owners to succeed, and that we all should want copyright owners to succeed, but by satisfying consumer demand, not by thwarting it. Nate’s review has no discussion of this part of the book at all, even though it is a central thesis of the book.

Instead, we have below-the-belt shots like the end of the review:

The views may not be Google's, but it's not hard to see why Patry has landed at an aggregator and indexer of content rather than a creator of it. Which, in a way, is too bad—making him the top lawyer at the MPAA or RIAA would be fascinating to watch, though we're doubtful that those atop the big content industries share his easy confidence that innovation quickly produces greater profits, or that ‘less copyright law" can be "better copyright law."

Nate is referring to the disclaimer in the book, which states the book represents my views, not Google’s. The above quote from his review is designed to both acknowledge that disclaimer and deny it in the same breath. There is nothing in the book that advocates for less copyright law, a sentiment I in fact criticize. Instead I argue for effective copyright laws. (Pages 37-38).  We all benefit from effective copyright laws and we all suffer from ineffective laws. What I dispute is that copyright is a zero sum game, but that argument, like advocating effective copyright laws, doesn’t make good press. Here is what I actually say:

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. (Page 37).

That’s a far cry from simply shilling for aggregators (a term I reject anyway) or calling for less copyright law. Nor is there any discussion in the review of chapters 5 and 6 of the book, which discuss the implications of  the debate about copyright as property, and in which I instead take the view that copyright is a set of social relationships. The purpose of viewing copyright that way is again not to take sides, but rather to call for debating the issues on the merits. Hence on page 109, I say: “The advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system … .”  Such an approach does not favor aggregators or content owners, but rather asks that we consider the effects of legislation on society as a whole, a whole that includes everyone as a “stakeholder,” to use a current buzzword. Does that view stem from being employed by Google, does it favor Google? Obviously not, but one would never know that is my view from the review.

Finally, what about the book’s own use of metaphors? Is it indicative that I unwittingly fell prey to the very tactic I supposedly condemn?  I don’t know how to respond to such a ridiculous question. It assumes that in writing a book that focuses on language I was unaware of the very language I was using and how it would be perceived by others, and that reviewers -- who have neither done their own research nor written their own books – somehow managed to burrow into the book and come up with a gotcha: in your dreams.  Here is what I say about this exact point (having anticipated it in the book itself, mind you):

The danger of conceptual metaphors in law is easy to identify. Inferences inherent in the source domain (say, sharks) are automatically mapped onto the target domain (say, lawyers) where they become an inherent part of how we reason about the target domain (lawyers are sharks). This process is not one of comparison, where we merely note similarities and differences between two preexisting categories (like chicken and pheasant); instead, the mapping of inferences from the source to the target domain creates meaning in the target domain that did not exist before. Such mapping, however, may not always be apt; it may in fact be horribly wrong. Lord Palmerston once quipped: “Half the wrong assumptions at which mankind arrive are reached by the abuse of metaphors, and by mistaking general resemblance or imaginary similarity for real identity.” In law, the consequence of inapt metaphors is likely to be significant.

The solution to this problem is not to abandon the use of metaphors. If cognitive linguists are correct that much thought is of necessity metaphoric, such a task is impossible. As George Lakoff wrote, “Metaphorical thought, in itself, is neither good or bad; it is simply commonplace and inescapable.” Arturo Rosenbluth and Norbert Wiener wisely observed, “The price of metaphor is eternal vigilance.” We must pay constant attention to how metaphors are used to ensure that the associations made are apt and helpful. Pages 57-58.

The book did not set out to condemn use of metaphors; such a task is, if you accept the premise of the book and that of cognitive linguistics, impossible. The question is whether the language used is apt or helpful. Thus,  the second paragraph in the book reads:

The words we choose in debates may accurately describe the issues, or they may not. When language confuses rather than enlightens, our understanding is impeded. In extreme cases, the language employed is so inapt that it harms our ability to come to a constructive conclusion. Copyright presents such an extreme case. The way we have come to talk about copyright is harmful to the way we think about copyright, harm that has led to bad business and bad policy decisions.

 My concern, therefore, is preventing bad business and bad policy decisions, not in being the language police. But let’s test my own use. Let’s take the metaphor I use that some regard as the most vivid. It is a metaphor that I discussed with my editors at Oxford, by the way, to answer directly whether I was aware of what I was doing. The metaphor is: "The DMCA is the 21st-century equivalent of letting copyright owners put a chastity belt on someone else's wife.” It appears on page 161, but it is never given in context. Here is the context, which is a discussion of the anti-circumvention rights granted over access to copyrighted works:

Prior to these provisions the copyright laws were technology neutral: They did not regulate technologies, but rather uses of copyrighted material, regardless of the  technology employed. Use of copyrighted works was the essence of copyright, not technology. With the access provisions of the DMCA, the entire history of copyright was thrown out the window. Now it is technology that is regulated—technology developed by third parties, and legitimate technologies at that. The DMCA is the twenty-first century equivalent of letting copyright owners put a chastity belt on someone else’s wife. The access provisions of the DMCA are not concerned with preventing copying of works, but instead with control over business models. Circumventing access controls placed on by the copyright industries, even for otherwise lawful purposes such as fair use criticism, comment, or educational purposes, is a violation of the DMCA—a violation that the copyright industries point out at every opportunity might also be a crime. Pages 161-162

I then give examples of how these provisions have worked in practice.  So what has the discussion been in reviews of the book? Has it been about the business and policy implications of anti-circumvention access controls? No, not a single reference to that, no reference at all to my discussion of the issues. Instead, reviewers, Nate included, simply quote the chastity belt sentence as if that is all there is, as if all I was interested in doing was being nasty, as if I had not even thought about why I used the metaphor and whether it was apt or helpful.  I think the metaphor is apt and helpful. Like figurative language at its best, it is intended to encapsulate the substantive point being made: here that until the DMCA, copyright law concerned itself with technological uses of works, not regulating the technologies through locks (hence the chastity belt reference), and that the switch to giving control over access has been harmful. Others have made the same point, including Tarleton Gillespie in his excellent book “Wired Shut,” which I quote from two pages later.

 The unfortunate part is not the metaphor, but the lamentable lack of anything beyond bullet point reviewing.  There is nothing I can do to stop it, but I can point out that is what is occurring.

Monday, November 02, 2009

My next book

There is nothing worse than having to take your own advice. The advice in question is giving consumers what they want. There has been a wide variety in the reviews of Moral Panics and the Copyright Wars, usually but not always along the fault lines in the debates over copyright. There have been some reviews that honestly evaluate the book for what it tries to do, pointing out its strengths and its weaknesses. I appreciate those reviews a lot because they help me figure out what I need to do better. There are, of course, the haters who pen diatribes that are not in any meaning of the word a "review." Two people in particular have write multiple such "reviews," apparently unable to ever purge themselves of the bile that poisons their lives as they attempt to poison others' lives. To them, I quote Max Reger's letter to a music reviewer of one of his compositions: "I am sitting in the smallest room in my house. I have your review before me. Soon, it will be behind me."

Other reviews I have found to be unfair in the sense that they fault the book for not being what the reviewer wanted it to be: either about the Google book settlement (didn't they read the disclaimer page in bold?) or for not being prescriptive: that is, for not giving a laundry list of amendments to copyright statutes that would, in my view, make copyright effective, followed by a discussion of such proposals. I deliberately did not write prescriptively for the simple reason that had I done so, that is all people would have talked about: the merits or demerits of this or that proposal. Instead, I wanted to write a book about how and why we talk about copyright, and why in my view, those ways have been harmful to solving the difficult questions presented. It is true, as one reviewer pointed out, that in doing so I spoke mostly about the way the copyright industries have talked about copyright, but that was not out of any bias against the copyright industries. (I have said over and over that I want, and we all should want, the copyright industries to succeed). Rather, it is because the copyright industries have been successful in pushing their agenda, and those who oppose that agenda have not been successful in pushing a separate agenda, at least in the U.S. Their successes have come in blocking a few of the copyright industries' agenda items, which is of course a victory, but it's not an agenda. Accordingly, any discussion of how copyright discourse has led to what I regard as ineffective laws will, as a matter of necessity, focus on the copyright industry side of the equation. If metaphors or rhetoric lead to adoption of laws that ineffectively protect copyright industries (for example a law that limits recovery for infringement at a level below actual damages), I will criticize those efforts too.

At the same time, it is the case that I think reforms in current law are necessary in order for our copyright laws to be effective for their purpose. My complaint is not, therefore, with copyright as a system, but rather with how it currently works in practice, at least in a number of instances, some quite important. In Moral Panics and the Copyright Wars, I detailed some examples, such as explaining, in a discussion of the term of copyright, how renewal under the 1909 Act was a valuable formality. I was also quite critical of the anti-circumvention rights in 17 USC chapter 12. So it's not true there was no prescriptive element in the book; it is true it was deliberately not the focus of it.

All this leads me to the title of this post, "My Next Book." Regardless of how unfair I think it is to judge Moral Panics and the Copyright Wars for not being prescriptive, the fact remains that at least some people wanted a prescriptive book. In Moral Panics and the Copyright Wars I criticize some in the copyright industries for not responding to consumer demand. Having made that criticism, it would be hypocritical not to apply it to myself. As a result, I have decided to write a purely prescriptive book, tentatively called "How to Fix Copyright." It will be about 200 pages, and cover core issues internationally, that is, important common issues facing all countries. I will explain why I think there is a problem and then offer my view on how to solve each problem. I will finish the manuscript in 6 months and try to get it in print as soon as the publisher can, responsibly, after that. I hope too that people might now try to read Moral Panics and the Copyright Wars for what it tries to do; feel free to comment on how well or poorly it does so.