Moral Panics and the Copyright Wars (review)

This is a curious book in many ways. It is also disappointing, coming from an author whose reputation raises high expectations and from a prestigious press like Oxford.

Structurally, it is odd because the chapters vary so greatly in length. Chapter 3 is only four pages long; chapter 7, six pages; chapter 5, eleven pages; and chapter 2, thirteen pages, whereas the remaining five chapters range from twenty-eight to forty pages.

Copious references to law review articles and other authoritative sources in the fifty pages of notes at the back are mixed with frequent quotes from Wikipedia entries, making this a peculiarly schizophrenic book, as though the author could not decide between aiming at a popular audience and impressing his professional colleagues with his grasp of the specialist literature.

For a book on copyright, it strangely lacks a copyright notice. The publisher tells me that it was omitted at the author's insistence, but it is difficult to understand how this omission in any way supports the argument of the book. Clearly, however much he decries some recent changes in copyright law that in his view favour proprietors over users, Patry is not opposed to copyright in principle. If anything, one would read him to be saying that the adherence to the Berne Convention that led to the elimination of formalities like the copyright notice was a step in the wrong direction since it exacerbated the problem of orphan works.

The author constantly takes monopoly to task for constraining innovation, which is ironic given that he is a lawyer for Google, a company recently chastised by Judge Denny Chin for attempting, through its settlement with groups of authors and publishers claiming status as a class, to set up a business that would have effectively created for Google a monopoly over orphan works in the marketplace.

Additionally, the author condemns those who create 'moral panics' by resorting to overblown and misleading rhetoric, all the while striking a very moralistic pose himself and employing similar rhetoric to make his case.

Why, exactly, did Patry write this book, one wonders. His attitude throughout suggests that he is morally offended by the rhetoric he lambastes. Yet as someone who worked for years as a staff adviser to the House Judiciary Committee, he surely understands the role that rhetoric plays in advancing one's cause in political arenas, and that agonistic language is commonly employed in such contexts. At one point he lavishes high praise on Jack Valenti for being a master rhetorician during his years as chief lobbyist for the Motion Picture Association of America (MPAA) but then turns around and blames him for being so effective an advocate for his employer in steering Congress toward making changes in the law favourable to the film industry. Would Patry have lobbyists and other advocates adopt the language of neutral and impartial scholars in arguing their positions? Perhaps he is upset that this rhetoric has spilled over into the judicial arena as well, where neutrality and impartiality are more to be expected, or that it is also echoed in the professional legal literature and the popular press. One can only speculate since he does not make the source of his animus really clear at any point.

No one can question Patry's expertise. A highly regarded authority on copyright law, he is the author of a major legal treatise on the subject, as well as another specifically on fair use, and, previously, a much followed blog. Yet he shows himself in this book to be like others from the copy-left who have berated copyright owners for seeking to maximize protection under the law in every possible way that they view as not consistent with the public interest, while avoiding the really hard questions.

So, for example, he attacks the Recording Industry Association of America (RIAA) and the MPAA for their tactics of suing customers and for their failures to adapt to...