Interview with William Patry, Senior Copyright Counsel at Google Inc.

WP: On example is what search engines do, namely return thumbnail images of visual images in response to a citizen’s search query. Visual images are treated as another form of information, and in the search arena they are just that. This doesn’t mean they are of lesser importance; to the contrary, one of the amazing aspects of the Internet is that with universal search — where search results are returned to citizens according to what is the most relevant, whether text, a visual image, or a video — citizens are provided with information regardless of its form. I think this is fantastic, but it does require us to think in terms of the medium itself and not formalistic thinking such as ‘there can be no copying of an entire work” under fair use. Such thinking was always fatally formalistic even in the hard copy world, but it simply doesn’t hold water in the online environment. if we want the most relevant information, we should be agnostic about the form it takes. As the great English scholar Charles Clark said, “the answer to the machine is in the machine.” The wrong answer is to deny to the machine the wonderful things the machine can do.

SMS: Thank you Bill. Perhaps this is a good time to introduce your new book, Moral Panics and the Copyright Wars, by Oxford University Press, and begin discussing some of the topics. There are fantastic and new approaches to understanding copyright, among them the use of morality and language to shape the socio-political discourse on copyright.

You said earlier that “in the case of corporations, what are business issues are misdescribed as moral issues, when in fact they are economic issues.” Are you saying that morality is used by corporation to incite emotions and fears? Does this “fear factor” help or hurt business? Can you please expand on this?

WP: Yes, I am saying that corporations have used appeals to alleged moral crisis as a basis to achieve political objectives. In February 2003, Jack Valenti gave a speech at Duke University Law School precisely about a moral imperative in copyright. I am giving a rebuttal to that on October 22d at Duke. My book, Moral Panics and the Copyright Wars is a detailed analysis of this phenomenon, which is hardly unique to copyright: the Auto De Fe in Spain and Portugal in the 15th century, the Salem Witch Hunts in early U.S., the McCarthy communist witch hunts, the comic book scares, all involve the same thing: an effort to demonize a perceived enemy for your own gain I think in the end, the use of moral panics in the copyright copyright wars has been very detrimental to the public, and perhaps in the long run to content owners. Content owners aren’t known for long term thinking, though.

SMS: Let’s talk more about this “good” versus “evil” dichotomy and its effects on both corporations and consumers. Why can’t property owners dictate the use of their property if even against their own good or profit. You talk about “folk devils” in your book, but why is it wrong, immoral or, unjust, to label those taking an owner’s property as trespassers or thieves? You also mention that this is an attack on youth culture, but doesn’t today’s pop culture economy show that even if this is true, profits are still lucrative (aside of course from the music industry)?

WP: There are two parts to your question. The first is why can’t property owners do what they want, for good, bad, or no reason? The answer is that property is a social construct. Property is a set of social relationships. Sometimes, we do let those who claim rights to do what they want, sometimes we don’t. Take one’s own body, perhaps the most sacred property. We do let people smoke cigarettes, but require tobacco companies to warn them of the dangers. We don’t let people take heroin though. With copyright, we ordinarily do let the copyright owner decide to license his or her work, but not always: sometimes there are compulsory licenses, and there is fair use, the first sale doctrine, and lots of other uses that are not authorized, but which are legal. The question should be, “what conduct do we want to conduct and what conduct do we want to prohibit?” I don’t see how calling copyright property is at all helpful in answer that question.

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