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

The answer to your second question follows from the answer to the first: if we want to prohibit certain conduct, even by youth, then we should, but calling it immoral doesn’t help in making that decision. Too often, it is new business models that are being attacked, and not conduct. I want copyright owners to succeed monetarily, but by satisfying paying consumers, not by thwarting them.

SMS: Thanks Bill. I’m curious, in your previous answer you stated, “what conduct do we want to conduct and what conduct do we want to prohibit?” Did you mean to say, what conduct to we want to “allow”?

I agree that property has been, is, and will be regulated, but could you please expand a bit more on your definition of property as a set of social constructs? In your book you argue that copyright owners have attempted to avoid regulation by describing copyright as an intellectual property (p. 103), and continue by quoting (and supporting) John Brewer and Susan Staves’ argument that copyright is “relational,” and thus born out of the Social Contract. At the risk of sounding too naive or simplistic, if Blackstone’s definition of property arising out of occupancy and labor is a fiction, and we agree that law in and of itself is a fiction, does this structure of fiction not also apply to your argument of property as relational and for a public benefit, thus making it highly susceptible to critique, weakening its foundation and positing it just as mysterious as Blackstone’s?

I understand your argument that morality and language are mobilized to scare the masses and the courts into granting copyright owners wide and overbroad legal protection, but I’m having difficulty seeing how morality is not simultaneously being used to define copyright as relational, as a set of social constructs, to be employed for the public good in complete denial of any private property rights. Shepard Fairey’s use of the Associated Press’ and Mannie Garcia’s photograph comes to mind.

The public anger over the AP’s lawsuit against Mr. Fairey is strongly buttressed by the content of the photograph. It seems that the public outcry is not about copyright or fair use, but rather about the desire of certain political circles to do what they please with someone else’s property because they have decided, a fortiori, that the use of someone else’s property in this manner is good for the public and in the public interest. I don’t believe the public outcry would be as strong if the image used had been that of Sarah Palin.

WP: Hi Sergio, yes, I meant “what conduct do we want to allow …. ”

On to your question:

I don’t see how describing copyright as a set of social relations is fictional or makes social relations the same thing as Blackstonian property rights. First, in common law countries, the purpose of copyright is utilitarian, to promote the progress of learning, a clearly social goal.. But even in civil law countries, copyright concerns how one person (the author) can act in relation to other persons with respect to a work of cultural and social import. Is that not a social question too?

At the same time. I don’t see how it is accurate to say that “morality is … simultaneously being used to define copyright as relational, as a set of social constructs, to be employed for the public good in complete denial of any private property rights.” First, it is not accurate to say that taking the larger public good into account results in the complete denial of property rights (noting too the loaded use of the term property rights). There is a huge misconception, for example, about fair use in the United States. Fair use certainly takes into account the public interest, but not all and maybe not even most claims of fair use succeed. What I find implicit in the quotation is the view that property rights should always prevail because they are property rights. Where is the morality in that? Regarding copyright as a set of social relations doesn’t imply a moral approach nor does it imply any particular result in any particular case. Instead, it asserts that as a social construct copyright law has to be true to its origins.

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