This interview was originally posted on October 24, 2009.
This interview concerns Patry’s recent book, Moral Panics and the Copyright Wars, as well as questions concerning copyright and its recent developments. Patry was previously copyright counsel to the U.S. House of Representatives, Committee on the Judiciary, and a Policy Planning Advisor to the Register of Copyrights; a full-time professor at the Cardozo School of Law; and a practicing copyright lawyer. Patry is now Senior Copyright counsel at Google Inc. He is also the author of an eight-volume, 6500-page treatise, Patry on Copyright, a separate treatise on fair use and many law review articles. This interview took place between September 14, 2009 and October 7, 2009, via e-mail exchanges between Clancco’s Sergio Muñoz Sarmiento and William Patry.
SMS: Bill, thank you so much for agreeing to this interview with Clancco.com. We’re very excited about this opportunity and ongoing dialogue with you. For the benefit of our readers, can you tell us a bit about your background and how you became interested–and involved–in copyright law.
WP: Thanks so much Sergio for giving me the chance to talk to you and your readers. It is a great honor. I first became interested in copyright law in law school. At the university, my graduate and undergraduate degrees were in music. Music is still my true love aside from my 8 year old twins Yonah and Margalit, who are my greatest joy in life. I still play clarinet. In law school there were lots of classes on different subjects: torts, property law, labor law, constitutional law, but none of them spoke to my passions like copyright law did since copyright law touches so directly on what creative people, including musicians, do.
SMS: Given the fair amount of information available on copyright and copyright law (including the internet), can you tell us anything that is usually misinterpreted about these two doctrines?
WP: I think it is not so always a question of misinterpretation or misunderstanding, but a difference of opinion about the purposes of copyright. At the individual level, these are differences people feel passionately about. My only regret, and this is what much of my book is about, is that in the case of corporations, what are business issues are misdescribed as moral issues, when in fact they are economic issues. I think we will reach better economic results if we discuss economic issues honestly.
SMS: How has the internet affected copyright and fair use, particularly in the visual arts arena? Can you give us one example?
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.
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.
SMS: I agree with your assessment and description of copyright as utilitarian and relational, in both common law and civil law countries. My point was more fundamental and philosophical, and thus questioning the moral aspect of the “copyright as social good” model (where morality is seen as a system of obligation and a system detailing right and wrong). I’m wondering why we accept copyright law as utilitarian and relational, thus social, without questioning the foundation(s) on which the legal doctrine of copyright law is founded upon. It would be just as easy to legislate (and judge) copyright primarily a private and individual right, no? Perhaps this is why copyright, as interpreted by creators, users, lawmakers and judges run counter to your proposal that “copyright law … be true to its origins,” no?
Perhaps here you can tell us a bit about why you don’t see copyright as an intellectual property right, and thus a property right (“The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification.” p. 103). You discuss the utilitarian model, the incentive model, and the labor origin model in your book. How do we frame copyright rights under the Patry model?
WP: I don’t regard copyright as a property right, but rather as a government program, a social program. I think all rights though, whatever the label, are social since it is society that creates them and society that enforces them. When we call copyright a private right that’s simply wrong: no author can create a right for him or her self; only the government can do that and the right can only be enforced through government officials. The questions I ask are why do we have these publicly created rights and are we happy with them?
In answering these questions we can’t simply assume the right exists, therefore it is good. Would we say the same thing about a tax? Might we want to rethink whether the tax is still effective? Yes, we would do these things; so why is there such reluctance to go back to first principles with copyright?
SMS: Thanks Bill. I’d like to focus on part of your last comment, “When we call copyright a private right that’s simply wrong: no author can create a right for him or her self; only the government can do that…” I have to admit, this is a bit perplexing, if not troubling. I can see how this would apply to real and personal property, certainly if we start with an agricultural and industrial model, but with copyright aren’t we really talking about an “intellectual” product or asset, which does not have the same limits and characteristics that agriculture or industry has (bananas and oil respectively). This reminds me of the Toffler’s and their description of rival vs. non-rival economies, as well as knowledge based economies, which is where I would situate copyright. I can certainly see why government would push traditional property rights for the social good, but not copyright. There’s nothing keeping me, excluding me, or restraining me from creating the next Bart Simpson, the next Happy Birthday tune, or the next Nike logo. Can you please explain?
WP: I agree that analogies of copyright to real or personal property are inapt, and in fact dangerous for the reason you give: with real property we can see where the property begins and ends and the effects of uses of it (within reason).. Whereas, the effects of expanding copyright are not as tangibly seen.
My point about copyright not being a private right is simply that copyright is created by governments. Unless the government says you have such a right you don’t and the normal free market competition prevails. This is as true, I believe in civil law countries as it is in common law countries. One certainly hears lots and lots of rhetoric about copyright being a natural right in civil law countries, a right that exists independent of any legislative enactment, but I am unaware of any actual copyright infringement suit brought in a civil law country that was not based on a legislative enactment. Copyright in all countries exists because governments enact the right. The reasons they enact the right may vary as does the strength of the rights, but the basic point is the same: copyright is a creation of governments not authors.
SMS: I see your point. Even accepting your proposal of copyright by government fiat, my point was that secondary users (or appropriationists) should have fewer rights with copyright than with real property precisely because their own minds would be able to produce or create their own intellectual property asset without having to “trespass” on the primary author’s copyright asset. I know I step on dangerous ground by using “trespass,” but I use it to make a point. My thinking is that by expanding fair use or diminishing copyright protection (by government or natural right), wouldn’t there be a disincentive to produce at all?
Let’s move on a bit. In your book you also make a poignant and highly critical equation between the Obama administration’s financial bailout of Wall Street and I believe automakers and copyright protection extended to original authors. Can you speak a little about this? It seems a bit odd that the same administration that pushes “relational” and socialist programs is also the one that “bails out” copyright giants. Isn’t Victoria Esquivel’s recent appointment as Copyright Czar just that, more government protection for copyright owners?
WP: I would rather not draw a sharp distinction between creators and users. One of the transformational attributes of the Internet is to make all of us potential creators. The same is true of fair use: fair use is of benefit to all creators, including large corporations.
On the bailout, that was the Bush Administration. My present concern is with a lessening of the recession in some parts of the economy, we are already seeing a reluctance to impose the type of regulation that is necessary to prevent economic chaos. Our memories seem to be not just short, but non-existent.
SMS: Yes, it was Bush of course, but I was also going on your mention (in your book) of the deep recession of 2008 and 2009. The Obama bailouts seem, overall, to mimic the Bush administration’s bailouts. Your point of non-existent memories is one I (and I presume quite many others) share with you, thus my indexing of Esquivel’s appointment and the mention of the Obama administration.
On the note of regulation, or alternative models of regulation, what are your thoughts on Creative Commons?
WP: Creative Commons is a true innovation, one that works to provide alternatives to either overstated rights or no rights. It gives authors the ability to control their rights rather than transfer them all or give them all up because it is too expensive to participate in conventional licensing.
SMS: Having written a book on copyright you obviously had the strong inclination to put your thoughts in writing. How do you see copyright law developing in the U.S., and also abroad, and perhaps more importantly, in which direction would you like to see copyright law develop? I know you have spoken on, and hinted at, this above, but I’m still curious what you would do if you were copyright czar. I trust your book will have a major impact in courts and legislation, but what else would you like to see happen in copyright?
WP: I would like to see copyright return to the U.S. Copyright Act, where we had a shorter term, and formalities, a copyright law that gave copyright owners enough incentives but not too much.
SMS: Are there any last thoughts you’d like to share with visual artists concerning copyright, or any other topic? And lastly, are you amenable to sharing copyright to this interview with Clancco.com?
WP: Hi Sergio, I love visual art, and I want visual artists to prosper. To the extent copyright law should help, it should. But the most help for visual artists would be greater respect for the beauty and truth they bring to the world. I am happy to disclaim all copyright in the interview. I appreciate very much the chance to talk to you and your readers.