Moral Panics and the Copyright Wars (review)

As I write, a couple of copyright wars have broken out in Canada. Lines have been drawn, arms chosen, and I regret to report that there has even been evidence of wounding from friendly fire. As William Patry makes very clear in Moral Panics and the Copyright Wars, metaphors matter.

Central to Patry’s book is the importance of words. The book begins with a pithy passage on language from the twentieth century German philosopher Hans-Georg Gadamer. From the start, the reader knows that this is not your standard work on copyright or is it a quick read. It takes time and careful study but is worth it. It is a measured and considered treatment of a complex subject, indeed several subjects. Patry covers in an engaging and entertaining manner a wide range of topics, including metaphors, push and pull marketing, economic analysis, business models, monopolies, the origins of the Internet, the history of copyright, and innovation and “creative destruction.”

Patry is entitled to his opinions. He has been a copyright lawyer for more than 28 years, is a copyright scholar, and the author of an eight-volume treatise on fair use. He has served as copyright counsel to the U.S. House of Representatives, as well as a policy planning adviser to the U.S. Register of Copyrights, and is now senior copyright counsel at Google, Inc. Moral Panics and the Copyright Wars is his opportunity to step away from the fray to make some “personal observations.” His partisanship and candid opinions on several matters are amply on display. That said, Patry does not present quick fixes or prescriptions, which is not the purpose of this book. If you want solutions to specific copyright problems, you will need to wait for Patry’s next book; and, if the current book is an indicator, it will be worth the wait.

The point of Moral Panics and the Copyright Wars is to address, in a sustained manner, how we talk about copyright. While chapter one begins, “Words matter,” it is largely concerned with a discussion of economics, business models, marketing, innovation, and creative destruction. In brief, Patry focuses on the “copyright wars as a rearguard effort to stave off innovation.” (p. 39) In the next two chapters, Patry provides an engaging review of the importance of metaphor and why it is important that we pay attention to how language is used in discussions about copyright. Patry’s perceptive analysis of the words “orphan works” in three concise yet dense pages alone makes the book worth reading. He argues, “The use of a false metaphor is greatly inhibiting resolution of [a] critical problem.” (pp. 76–8)

The following three chapters extend the discussion of language and metaphors by reviewing the mythical origins of copyright, with an outline of three favorite copyright metaphors. Key to this section is the analysis of copyright as property (Patry argues it is not) versus copyright as social relationships (he says it is). This is must reading for anyone interested in the foundations of the history of and how we talk about copyright.

Chapters 7 and 8 deal with “moral panics” and “folk devils,” providing specific examples that draw together much of the discussion in the earlier chapters. The book ends largely where it began—with a discussion of the economics of business models and how innovation occurs. This is appropriate because, as Patry says in the introduction, “The argument of this book is that bad business models…have led to an unjustified expansion of our copyright laws.” (p. xv)

Patry’s book is well written, substantial, and serious, and is, at the same time, an engaging and entertaining read. Anyone interested in current copyright wars will want to study it for context but especially to see how language frames how we think about copyright.