If there was any question that copyright law in the digital age is reaching a critical point, a coalition of Web sites on January 18 offered a stark reminder.
In the largest online protest in Internet history, some 7,000 popular sites went dark or otherwise altered their sites, successfully protesting two controversial copyright proposals introduced in Congress—the Stop Online Piracy Act (SOPA) the PROTECT IP Act, also known as PIPA.
The bills are now shelved, but the effort to revise copyright law will continue. The question is, how do we move forward? PW caught up with William Patry, the famed copyright scholar (and senior copyright counsel at Google) and author of the new book How to Fix Copyright (Oxford Univ. Press), to talk about the role of copyright.
How does this book, How to Fix Copyright, relate to your last book, Moral Panics and the Copyright Wars?
Some of the reaction to Moral Panics was that all I was doing was criticizing and not offering ideas to make things better. So it occurred to me that if I was going to tell content owners that they have to listen to their consumers, as I was, and my consumers were telling me they wanted a more prescriptive book, then maybe I should do it.
How to Fix Copyright came about as a “how-to” approach. Moral Panics, on the other hand, was an attempt to understand the language of the copyright debates. As you know, I worked for the Copyright Office, for the House of Representatives, and I’d been put on a lot of hearings, and there were a lot of witnesses at those hearings, some of them good, some of them terrible, and some of them very colorful. One of those witnesses was [former MPAA chairman] Jack Valenti. He was the most colorful of them all. I liked Jack a lot. I thought he was a man of great integrity.
It’s fascinating to me that you were so fond of Jack Valenti, who was a master of the kind of language you call out in Moral Panics. Did Valenti really believe all those colorful arguments he made?
That’s the question, whether he was a great actor for Hollywood, or whether he drank the Kool-Aid, too. Presumably, you go to work for companies that align with your beliefs, so I think Jack probably did believe many of the things he said. But I know he didn’t believe all of them. He was an incredibly honorable guy, and he worked hard, and he was really, really good at what he did. And when someone is really, really good at something, and they do it at the very highest levels, nothing is accidental. So when Jack said, “The VCR is to the American film industry what the Boston Strangler is to the woman home alone,” he wasn’t just being colorful. It was deliberate.
That remark comes with context, of course—Charlie Ferris, who represented the Consumer Electronic Association, had said the VCR was a friend to the American film industry, and Jack’s comment was in response to that. But Jack’s comment was made in such a way that we remember it to this day, while no one remembers Charlie Ferris’s remark.
How to Fix Copyright is certainly a timely book, as there seems to be a lot of discussion about reforming copyright, proposals like ACTA, and SOPA and PIPA.
Actually, none of those are attempts to reform copyright. Reform, at least as I would use the word, is an effort to take a look at things and figure out how they can be improved in a systemic way. I think what some countries are attempting to do is to update copyright law, to make some changes in some areas. But I don’t think anyone is actually saying we need to go back and figure things out fresh.
Is copyright really in need of, as you say, an “update?”
No, I think it is in need of reform.
Why does copyright need to be reformed?
If we’re moving toward access and away from ownership—and I think that’s a good thing for a lot of stuff, as much as I like ownership—a law that was based on the London book trade in the late 1600s needs more than updating. It needs a complete rethinking. Whether it’s music, movies, books, or whatever, copyright needs to be rethought in ways that fit how people today consume and create. Saying that isn’t meant to prejudice any outcome. It’s merely to say what should be noncontroversial: that our laws should fit the way we live. And right now, with copyright laws, they don’t. And it’s getting more and more out of kilter as technology accelerates.
Now, saying we need copyright reform isn’t a way of concealing a disguised preference for digital, either. It’s just reality. In truth, I’m very old-fashioned. I like hard-copy books. I like print newspapers, CDs, DVDs, sheet music. I’m actually the ideal consumer for the traditional content industries. I buy every hard copy thing there is. I had a Kindle subscription to the Wall Street Journal, which I canceled, because I hated it, even though it was a lot cheaper. I have a 10 year-old daughter who is an incredible reader. She may read 1,000 pages a week, and we go to an independent bookstore in Greenwich, Conn., Diane’s Books, even though the prices are higher, because they know my daughter and they know books. I’m very willing to pay a premium to go there and have them know my daughter by name, know her tastes, and give her a book she’ll like. That’s a value added, and it’s a good experience. That said, for whatever reason, at night my daughter prefers the Kindle. Even at 10 years old, I think she is transitional, because she’s somebody who likes both hard copies and e-books, and I imagine that in a few years you’ll have kids whose dominant experience will be with e-books.
For me, the transition from physical copies to digital raises a question as to whether copyright will be replaced by contracts in a world of licensed digital access. This is a troubling issue right now for libraries, which are unable to buy and lend e-books from some publishers. Are the rights we’ve traditionally enjoyed under copyright, with print books, in danger of being taken away in a predominantly e-book world?
The issue here is the relationship between contract law and copyright law. Generally, in the U.S., we believe in freedom of contract. But not for all things—we do limit freedom of contract in some cases; you can’t agree not to sell your house to a minority, for example. But in the case of libraries, I don’t think that applies to the issue of an admitted, valid contract that is not in fact a disguised effort to take away first sale rights. There is nothing in the law that would stop a publisher from saying in across-the-table, free negotiations that they are not going to give you copies of a work electronically unless you agree to certain things, or that they are not going to sell electronic copies to you at all.
Now, Congress or a court might find that contrary to public policy as expressed in the Copyright Act, or Congress could take the view that we want to have lending libraries and act on that. Or they may not. [Congress] may think that issue exists at a level that doesn’t actually violate public policy. Unfortunately, I don’t think there is any quick fix here.
Almost all of the recent copyright-related bills seem to be doubling down on enforcement. The new Register of Copyrights, Maria Pallante, has even stated that updating copyright has to begin with enforcement. Is that the right approach?
No, and I was disappointed to hear her say that. For enforcement to be effective, you first have to think through why people are not obeying laws in the first place. You don’t start with enforcement. You start with a healthy market. If I, as a consumer, can get whatever I want, pay for it whenever, or however, and get it in the format I want, I’m going to be much more sympathetic to the people who have to enforce their rights against people who are trying to free ride or engage in bad behavior. And once you have a healthy business model, you’re going to find that people will obey the law and will also be much more sympathetic to enforcement, when enforcement is needed.
One of the biggest criticisms I have with the focus on enforcement is what I call the Mt. Sinai approach: the belief that you can, from on high, make people obey laws they fundamentally disagree with. It didn’t work for God and Moses, and it’s a mystery why anyone would think it’s going to work for copyright. You’re not being tough on crime by passing harsher and stronger laws that people disagree with. In fact, to me, it is a sign of weakness. For enforcement to be effective, the public has to stand behind you. And what eventually happens when you don’t have the public behind you is that the law becomes disrespected. And once you reach that point, where everyone disrespects the law, you’re in serious trouble.
Do you think there’s a chance Congress might pursue a more holistic kind of copyright reform?
Well, politically, reform is very hard to do. It’s hard enough to amend an act, much less say we’re going to start from scratch and do it all over again. Of course, reform doesn’t mean you throw everything out. If you take the 1976 act, for example, they kept a lot of the existing structure there. And that’s yet another reason I think we should approach reform—many of the provisions in the ’76 act were agreed upon in the early 1960s, so we’re talking about 50 years ago. That’s a long time, and especially now that we are heading toward an era when we’ll have copyright law without physical copies.
In the book you discuss the role of copyright in encouraging creativity, and you make the point that creativity is not based on copyright. Can you elaborate on that?
When I wrote that, I realized that some people would regard it as an attack on copyright. But it’s not. The point is to simply recognize that people create for a variety of reasons, but they are successful for reasons that have nothing to do with copyright. Copyright isn’t why people buy things. It isn’t why people create things. I have never bought or not bought something because of its copyright status. That doesn’t mean copyright isn’t important. Copyright can play a great role in protecting investments. The point is to recognize what copyright can and cannot do.
For example, when it comes to encouraging creativity, we have to figure out what creativity really means. And this is a problem, because in law, creativity means something very different from what it does to most people. Section 101 of the Copyright Act is a section I think people should focus on more—it’s the definition section. But in it, you won’t find a definition of music or sculpture. Section 102a protects original works of authorship, but that’s not defined, either. Rather, “creativity” as viewed in U.S. copyright law has come to mean anything that you didn’t copy from somebody else, and so copyright law has come to protect virtually everything we create. Copyright protects artistic expression, but it also protects lawyers’ cease-and-desist letters and business documents. Is that actually what people think of as creativity? Is that what we want copyright to encourage? I don’t think so.
So all I’m saying is that if we have this societal goal of encouraging creativity, we need to figure out how to meet that goal. If the stated goal of copyright is not just protecting works that are financially successful, but encouraging the creation of works in the first place, then there are other things that are more important than copyright. That doesn’t mean overturning copyright. It means realizing that copyright can do some things, but not everything that we think it can do.
If piling on enforcement provisions isn’t the answer, what’s the key to fixing copyright?
I believe that if people are doing things you don’t like, you have to figure out why they’re doing it, and figure out ways to get the behavior you want. One idea I think is a better approach is to flood the market with authorized works. I don’t mean free works. I mean authorized works that people pay for at fair prices, in formats they want, when they want it, and under terms they can accept.
I’m not suggesting that pricing is the answer to everything, or that having a market full of authorized things is going to stop all piracy. It won’t. My book, for example, is available on some torrent sites, and I find that baffling. Not because I don’t think people infringe, but because for $10 you can get it instantly as an e-book, and I think that’s a fair price. I think some people are copying my book just to make a political statement, not because there’s a market failure in this case. But I also know I’m not going to be able to stop people from making political statements, and I’m not even going to try.
What I am saying is this: copyright can’t force people to buy things they don’t want to buy, or stop people from making political statements, or from engaging in illegal activity where you have created all this demand and you are deliberately not fulfilling it. I believe that focusing first on making things available to consumers in ways they want them will substantially diminish the amount of copying out there.
