Tuesday, December 27, 2011

Copyright is Not in the Machine: Book Review - William Patry’s How To Fix Copyright

How to Fix Copyright by William Patry
Oxford University Press 2011
262 pp.  $21.95 

Is copyright too long?  Too thick?  Too wide?  Bill Patry thinks so, and that should matter to you if you care about our economy, our democracy, and our future.  He also thinks that digital locks are not the answer to promoting creativity or to making copyright profitable to authors.   For those concerned with anticompetitive governmental regulation, this book is an eye-opener.  Patry argues that the author who supports strong copyright in the hopes of getting paid is shooting herself in the foot.  According to Patry, current copyright laws are not getting artists and authors paid and indeed, because they are too strong, are having a harmful effect on authors, artists and creativity itself, shifting monopolistic power to a few strong corporations.

                Like Columbia law professor-turned regulator Tim Wu, Patry fears what Wu calls (in his book of the same name reviewed here) the Master Switch, that is, a lockdown of cultural exchange on the internet that will transform  consumers into passive purchasers of pre-made culture funneling massive profits to a few media monoliths at society’s expense.   Like Prof. Lawrence Lessig (Copyright Law Does Not Make Sense here),  Patry is concerned and makes a case that copyright terms that are too strong and that interpretations of fair use that are too restrictive have had a chilling effect on the very creativity and innovations that have created practically the only new jobs in the 21st Century economy.   And like his last book, Moral Panics and the Copyright Wars reviewed here, How to Fix Copyright spends a good deal of time criticizing those who resist technological change and disruptive technologies.

                But How To Fix Copyright distinguishes itself from its predecessors by offering a blueprint for change.   Patry falls short of offering an actual legislative proposal (perhaps his proposal will be his next book), which is probably a wise thing.  He’s smart enough politically to know that if he spells out certain details, his proposals would be taken out of context by his ideological enemies.  So HowTo Fix Copyright focuses first on making the case that copyright is broken and that not only society at large is bearing the cost, but that the creative community, copyright’s intended beneficiaries, are suffering the most.  Patry’s focus on the economics makes a powerful case that should catch the ear of big business, since the cost of using copyrights is a tax-like burden on large and small businesses alike.  Patry makes a compelling case that where too much monopoly power is granted, the rest of the economy and society suffers.    Patry’s argument should appeal to the Occupy Wall Street movement (Wall Street is not far from Midtown) as much as it should to the tax-averse members of the U.S. Chamber of Commerce.

Patry calls for an open legislative process in which the economics of copyright can be studied.  Artists and authors are not making a living, and Patry’s view is that giving more legislative gifts to middlemen who have refused to compete and adapt to the reality of business competition will have a toxic and destructive effect on the economy and our culture.   Patry wants Congress to open hearings at and dig out the truth in a serious overhaul of copyright law.   The last real overhaul of the U.S. copyright law was in 1976 and that was based on proposals from the 1950’s.   Patry makes the argument that not only are our laws based on nineteenth century industries, but that we’ve lost a lot of the legislative and economic wisdom built into earlier laws.   Rather than dictating quick fixes, How to Fix Copyright emphasizes the importance of transparent legislative  process in getting “buy-in” to the process of repairing copyright.  During that process, Patry suggests that a “one size fits all” approach to such questions as copyright terms cannot be sustained and that Congress engage in a consultative legislative process to determine what length of copyright works best, and for which works.

HowTo Fix Copyright doesn’t duck tough questions.   Patry recommends that authors of copyrights are going to have to trade the concept of “control” for the concept of “getting paid”.   Patry takes collecting societies to task on this issue, particularly in Europe.  Throughout the book, Patry moves effortlessly from U.S. to European examples giving the book a valuable depth and understanding of the international copyright marketplace.   One of Patry’s conclusions is that the Berne Convention must be reworked to permit formalities, that is the requirement of registration for copyrighted works as a condition of protection.  With U.S. adoption of Berne in 1989, a lot of materials that no one intended to be covered by copyright have fallen under the copyright laws.

Copyright law is no longer an arcane field affecting few of us, in the last decade it has become more deeply embedded in our lives than many other areas of law.  Given the centrality of copyright law to our future, if you are going to read one business book this year, this should be it.  It is published by Oxford University Press right as Congress is trying to railroad through the Protect-IP Act and the Stop Online Piracy Act, both of which are frightening attempts to lock down American culture and to convert the internet to a Chinese-style authoritarian system where DNS masking will be used to censor websites and ISPs will be transformed into spying operations designed to extract more money from consumers at the behest of a few conglomerates.  How to Fix Copyright does not address these specific legislative proposals, but it will help you understand what the debate is and why it is so important.  Unfortunately, Silicon Valley does not know how to make its case in Congress.  Instead of sensible reforms that will protect copyright owners while ensuring enough breathing space for technological innovation, Congress keeps backing legislation destructive to most of the economy that will benefit only a few monopolists.

There will probably be something in How To Fix Copyright that offends just about everyone (Patry’s take on newspapers, for example, is pretty brutal and a little unfair).  But Patry’s pedigree warrants a hearing.  He’s worked in the Copyright Office and been on the front lines of copyright legislation.  More on Patry at Wikipedia here.  He’s argued copyright cases in federal court.  He’s taught copyright law and written treatises on copyright law.  His Patry Copyright Blog was an erudite, combative, passionate joy to read.  And although How To Fix Copyright takes great care to distance itself from Google, Patry is Senior Counsel to Google, an entity with a large stake in perhaps the most disruptive technology ever to confront copyright.  If Google is listening to this guy, you should at least know what he is telling them.
Free excerpts of How to Fix Copyright courtesy Bloomberg here.

Boing Boing's Cory Doctorow calls How to Fix Copyright "incandescent" here.

 Purchase Copyright Litigation Handbook 2011 by Raymond J. Dowd from West here  

1 comment:

Bill Patry said...

Hi Ray, thanks for reading the book and for taking the time to review it. I hope you don't think it churlish to disagree with one point in the review, your comment that the book is sure to offend just about everyone and that I was unfair to newspapers. I didn't mean to offend a single soul, and hope I haven't. My goal was to try to honestly look at the strengths -- and there are indeed strengths -- and weaknesses of our current system. These are, as you put it, the tough questions the book tries to confront. But it tries to confront them in a transparent, evidence-based manner. I am not interesting in tearing anyone down, but rather in building people and our laws up.

That includes newspapers, which I love. I subscribe to three daily hard copy newspapers: my local Hearst paper, The Stamford Advocate, which is a great, great paper, and which I wouldn't change a single thing about; the New York Times, and the Wall Street Journal. I read all three cover to cover everyday, enjoying the tactile pleasure of hard copy. So, I support newspapers where it counts: by paying for them and by reading all of them.

The section on How to Fix Copyright on newspapers is the most extensively researched and documented in the whole book. It occurs in Chapter 5, "Law is Not a Solution to Business Problems," and is on pages 145 to 157. This is not a drive-by discussion, but an in-depth look; it includes charts on newspaper circulation by household from 1950 the present (page 149), media usage and consumer spending for the last 6 years (page 151), as well as detailed discussions about how newspapers historically made money and what the challenges are now. I also offer solutions to their current problems. I point out that they have been losing eyeballs long before the Internet came along and how advertisers follow eyeballs. I point out that their principal source of income, classified advertising, was taken away by Craigslist and other online services, not by search engines or copying. That's not being unfair, it's the facts.

I do criticize some (emphasize some) newspaper organizations for trying to get new laws, because as the theme of the chapter details, law is not a solution to business problems, and newspapers' problems, while real, are business not legal problems. That's being honest; it's not being brutal and it's not unfair. I hope those who read the section will find it well documented, researched, and constructive. I love newspapers. I want them to succeed, but they have to succeed in today's environment, they can't succeed by thinking they can hold on to yesterday's environment through new laws; laws can't change economic realities. That's the point of the section.