For many, William Patry is the man who wrote the book on copyright (actually, he wrote a 5,500-page, eight-volume set of books). With his latest project, Moral Panics and the Copyright Wars (Oxford), Patry now throws the book at those who have fueled the copyright debate in the digital age, a debate, he argues, that has taken on unwarranted moral overtones and led to a “bloated, punitive legal regime that has strayed far from its modest but important roots.”
For Patry Moral Panics is a personal work, literally, as the project is separate from his work as Google's Senior Copyright Counsel, and because, as a renowned scholar and self-avowed centrist, he has grown indignant over the tone and direction of what he labels “the Copyright Wars.”
The copyright wars are not new, Patry observes, but in the digital age, they have ramped up to dangerous new levels, as exemplified by the recording industry's 35,000 lawsuits against individual file sharers: would-be consumers, Patry argues, instead, branded as thieves and sued. Such Draconian attempts to assert control in the digital age, he asserts, defeat copyright's very purpose, which is to serve consumers, not to deny them. “Rather than adapt to new technologies and the new business opportunities they represent,” he writes in the book, “the copyright industries litigate rather than innovate, with the goal of turning new technologies into ways to preserve the status quo.” That doesn't make such companies “evil,” as one side of the debate would have you believe, just poorly run, because such strategies fail to acknowledge that “consumers are king, not control, not copyright, and not content.”
With the publishing industry now beginning its digital transition in earnest, we caught up with Patry to talk about the ever-volatile debate over copyright and control, natural product cycles, the lessons of the past, and, of course, business.
PW: What was the impetus for writing this book?
William Patry: Frustration over how the copyright discourse has gone, and how I've regarded it as counterproductive. I'm a centrist. I believe copyright owners should be compensated and I believe that copyright can work. But I don't believe it's going to work unless we stop regarding copyright as a moral or property right and instead focus on selling consumers what they are willing to pay for.
PW: Over the years, copyrights have come to be viewed as property. How has this affected the discourse?
WP: This has not been a productive way to think about things. Copyright in the United States is entirely a creation of Congress to further the progress of science and useful arts. You don't get it because you're a worthy person or because you've done something fantastic. It's not part of some social contract without which society wouldn't be possible. It's a government privilege created to further social goals. When we focus the discussion on “property”, we tend to forget that. The fact that you create something and own a copyright in it doesn't automatically vest you with anything of economic value. Copyright isn't fairy-dust. The only way you get economic value is when someone pays you. Unfortunately, for too many people, there's a belief that copyright means they get to absolutely determine every use of their work, and that inhibits many from realizing that there are uses beneficial to them even if they aren't strictly authorized.
PW: Why has the rhetoric over copyright become so heated?
WP: A large issue, I think, is the idea that copyright is control and that if you lose any control over your copyright, you lose your ability to make money. I think it is a fundamental mistake to assume that if you give up some control, you're lost. It's just not true. To me, that's one of the central errors in the way copyright rhetoric has developed. Control is not the objective. Making money is the objective. And you rarely make money by suing your customers or giving them only what you want to give them, where, when, how and at what price.
PW: Terms like “pirate” and “thief” existed long before the Internet, but they seem to have become defining words in what you call the “copyright wars.” How did such morally loaded language develop?
WP: You can pick how far back you want to go. Use of words like pirates, parasites, poachers, thieves, trespassers, depending upon what letter you want your alliterative words to start with, are attempts to create existential crises for economic goals. That's what moral panic is. It is the exaggeration of a problem to take advantage of it for political, economic or social purposes. If you look back at the debate over the VCR, [former MPAA president] Jack Valenti's famous line was that the VCR is to the American film industry what the Boston strangler is to the woman home alone. Now, that's a lot different than saying, “We're concerned about this product because it permits people to skip advertisements and we think we might not make enough money.” Remember, there was no home market for film at the time. There was no Blockbuster. You couldn't go and rent a tape. So what people did was copy free, over-the-air broadcast television, television that they had been invited to watch for free. Of course, the VCR turned out to be an incredible boon for Hollywood.
PW: How do you view the Associated Press's recent statements that it needs to crack down on how copyrighted newspaper content is used online by others if they are to survive?
WP: The Internet has changed the unit of consumption. The unit of consumption for news is now the article, not the newspaper. I still love reading the newspaper. But I use the Internet to look at a lot of news stories, too, and on the Internet there's a different way of consuming things. No one is saying that newspapers shouldn't make money. But newspapers are where they are for reasons that have nothing to do with copyright. The loss of classified advertising has nothing to do with copyright, that's Craigslist. Newspapers can't blame copyright for expensive labor agreements or heavy fixed costs. You can't blame copyright for all the corporations that bought up news organizations and took on tremendous amounts of debt they now have problems paying off. Copyright is not a particularly large problem for newspapers, and it shouldn't be a problem at all. The focus should be on how to respond to consumers' demands. Focusing on copyright, particularly as a way to circumvent what consumers want, is not healthy for any industry.
PW: But newspapers are closing, we've had congressional hearings, and we're being warned about the perils of “citizen journalism.” It sounds dire, no?
WP: I think what we have right now is actually an incredibly healthy situation. I had a blog that I did for about four years. And while I did that blog, I used a number of sources—other blogs, news stories that I got leads from, sometimes I got material from people who were involved in cases. Often I was just sort of thinking out loud. What I found was that a lot of “traditional” news sources, big-city newspaper journalists, would write stories using my posts. I didn't feel they were being parasitic. I had no problems with them using my material. I think many bloggers know a great deal more about their subjects than the general-purpose journalists. The point is: you don't have to choose. When the US Airways flight went down in the Hudson, the greatest picture I saw was taken by a guy on the ferry with his iPhone and posted to Twitter. The Internet provides a great opportunity for many voices to be heard, and no particular voice should be privileged over another. The sole criteria, I think, have to be accuracy and quality.
PW: J.D. Salinger's lawyers are attempting to stop a novel they claim is “an unauthorized sequel” to “The Catcher in the Rye, “ and I can't help thinking that for most of his life Salinger never dreamed he'd be fighting this copyright fight in 2009, because the book was supposed to enter the public domain by now. Can you give us your perspective on copyright term extensions?
WP: That's a wonderful example of copyright gone awry. If you look historically at the terms of copyright, they used to be relatively short. From 1909 to December 31, 1977, you had a 28-year original term and a 28-year renewal term, with renewal being conditioned upon filling out an application. The book industry had a shockingly low rate of renewal, around 10%. Book publishers had staffs that were quite capable of filing renewals. It wasn't a burden for them to do, and it was cheap. Yet publishers didn't renew the vast majority of their copyrights. Why not? Because, economically, it didn't mean anything to them. Most books make their money in a very short period of time. It differs by industry, but for most books, 28 years is enough. With the last extension in 1998, copyright became totally unmoored to its purpose of providing incentive to create new works. The public got nothing from that, and no author in history has ever said, “Life plus 50 is just not enough. I will not create that work unless the copyright exists for my life and 70 years.” That's absurd.
PW: But the public did get something: these extensions have contributed to the “orphan works” problem we now hear so much of, right?
WP: Yes, that and the abolition of formality. From 1909 to 1977, we had no orphan works problem because the formality of renewal took care of that. You had to renew to get your second 28-year term. There were records, and the public domain was being fed with those works that were not renewed. Now we have no renewal formality and copyright terms that can run well over a century. The issue of orphan works, however, raises another huge misconception: that copyright is actually important to most authors. Historically, it's been unimportant. Most authors never registered in the first place, and of those that did register most didn't renew. How could copyright have been so important if most people never even used it? Copyright became important during the consolidation of copyright-based industries into corporations that manage assets.
PW: In the digital world “copy” has become a loaded word. Should publishers be so concerned about unauthorized copying that they must insist on DRM or other technological curbs on fair use?
WP: I certainly don't think concerns about massive unauthorized copying are illegitimate, but we now seem to have one corner that is pro limitations and one that's against limitations, and it's wrong to think of things that way. It's not the way copyright is designed. Copyright is designed to work as a whole, a system of social relationships, and fair use is as much a part of the system as rights are. Publishers will tell you they benefit as much as anyone from fair use. The real question is: how should fair use evolve in a new environment? The way that I think it should evolve is: don't pay attention to the back end, pay attention to what consumers see. If the front end is something that you don't think is fair use, then you deal with it. But in the online world, it's necessary to make complete copies of things for totally technological reasons that have no market impact at all on the original format. In those circumstances, it makes no sense to pay attention to back-end copying.
PW: In the book, you examine the music industry's efforts to stop peer-to-peer networks. What's your perspective on the Napster era?
WP: Napster is an example of how copyright has been used nonproductively to try to stop new products from coming out, products that are the organic result of where consumers want to go. It coincided with the end of a natural product cycle—CDs, and really the album format. There is a false belief that Napster killed CDs, but the CD market was going down anyway. Unfortunately for the record industry, a new way to give consumers what they always wanted, which was singles instead of albums, came along at the same time. Now, what any rational business person does once consumers vote with their feet is to try to find a way to satisfy consumer demand. But that's not what happened. Instead, the industry sued Napster out of existence. Even after they did that, they still could have tapped into this new market, which other people developed for them, but they didn't. I think some in the industry thought that if they put Napster out of business, they could just go back to selling CDs for a while and they would be the ones to determine when change was going to happen. But it just doesn't work that way.
PW: As publishers now turn to e-books, what would you say is the lesson of Napster?
WP: I recently read a biography of the woman who created the Barbie Doll and Mattel with her husband, and she wrote that anybody can manage the upside of the product cycle, the hard part is managing the downside. That's where you need real leadership. And that's where there's been a dearth of leadership in the copyright industries, many of which still believe they will determine when a product cycle ends. Even the Wall Street Journal, hardly an “anti-copyright” newspaper, criticized the record industry for “the false lessons of Napster.” The false lessons were that people are thieves, or that they wanted things for free. I think iTunes has proven that false. The true lesson of Napster, and this is what the Wall Street Journal said, is that consumers wanted downloadable songs at a modest price. That's it. And the labels didn't give them that.
PW: Since Napster, you note, there has been a campaign to “educate” the public about copyright. Does the public really care about or can they even grasp copyright law?
WP: I'll go one better, copyright owners should not want consumers to care about copyright, and if copyright owners were doing their job better, the public would never have to think about it. What we should want consumers to think about is, “wow, that's a great book. I want to buy as many books as I can.” The extent to which the public cares about copyright, I think, is the copyright industry's great failure, because they use copyright in most cases to thwart consumers' desires. Once you get the public thinking about copyright, you've already lost, because it's in business's best interest to focus attention on giving consumers what they want.
PW: How do we change the way we talk about copyright? How do we refocus on balancing innovation, consumer desires and rights going forward?
WP: If we want innovation, we have to accept disruption. Otherwise, it's not innovative, it's incremental. I don't want to say that all change is inherently good or that all people who resist change are dinosaurs. I share people's angst about how to do things better. As an author, I debated whether to do my book myself online without a publisher. I went with a traditional publisher, and I'm glad I did. But what's most important to me is to figure out who the consumers are, how to get to them and how to give them what they want. Using moral rhetoric is a deliberate strategy to accomplish an economic objective. The purpose of this book is to say, hey, copyright is not about morals. It's about business.