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Patry, William.  Moral Panics and the Copyright Wars.  New York:  Oxford UP, 2009.  Print.

Introduction

  • P. begins by highlighting how language is not a transparent medium: it both is a vehicle for thought and eht means by which we think.  As such it does convey our views but it also works to be suasive to others.
  • P. claims that at the core of this book is a singular argument: an unjustified expansion of copyright law has occurred because of bad business models, failed economic ideologies and the unquestioned acceptance of inaccurate metaphors (for IP).  P. claims early in his introduction that copyright should not be legislated through the terms of the “inherent right of authors” or the rights of creative genius; rather, he claims copyright should be considered solely on the “actual economic effect of the proposed legislation on the public good” (xvii, my emphasis).  As such, P. isn’t advocating for weak or strong copyright laws in this book; rather, he’s advocating that copyright be an “effective” (read increase in the public good) mechanism for social development.
  • What is a “moral panic”?  Well, they’re drummed up corporate interests that use metaphor to cast the other side (folk devils) of things in a poor light.  So, in this piece the copyright lobby are painting folks who use information without permission as pirates, parasites, and thieves.  Further, because of the financial penalties levied on copyright offenders, start-ups and innovators have been hindered in their pursuit of new economic/media advancements.  Further, the copyrightists want to lock down the internet through vertical control mechanisms so that every aspect of production, distribution, and consumption is under their thumb.
  • Why “copyright war”?  “so it is in the Copyright Wars – the creation of misleading discourse about economic issues using the metaphors and language of war” (xxiv).  The thrust of this book:  “The Copyright Wars and the recent grotesque expansion of rights and remedies should be regarded as a legal equivalent of the subprime mortgage crisis:  cancers on our system that were forseeable and preventable but for greed, a failed ideology that the unregulated private pursuit of profit is also in the best interest of the public, and a worldwide lack of political courage to admit to and take responsibility for the damage caused by copyright laws that harm rather than serve the public” (xxiv).

Chapter One:  How the Copyright Wars Are Being Fought and Why

  • P. spends the beginning of the first chapter highlighting how various computer software and web giants passed on Google because they weren’t ready to shift their business model away from “walled gardens” like AOL toward the openness of the Web.  He repeats this operation with CDs à mp3’s and DVDs à Netflix in order to demonstrate how large-scale culture industries would rather litigate and control instead of develop and innovate.
  • P. likens the “push” advertising techniques of the CI to a “extensive command-and-control economy” that operates similar to the Soviet five-year plans: consumers can have what the Politiburo says they can have when they say they can have it and in the quantity, price, and place where they say they can have it (6).  Copyright facilitates this business model.  In contrast the “pull” model wherein consumers and producers are given the tools and resources to address creative opportunities when they arise.  These tools come in the form of software: blogs, audio editing, video remixing, etc.  The “pull” model is also built on systems of cross-organizational cooperation, not control.
  • The “graduated response” model is the new form of response that the CI are initiating to deal with piracy.  This plan does not directly sue the end user; rather, it partners with ISPs to identify and “persuade” copyright infringers to stop pirating material.  Interestingly, this means that individual information is being transferred from ISP to private CI (11-13).  This isn’t a different business model, it is just another form of control that P. calls the “digital guillotine” because it cuts off the ability for some individuals to connect to the world.
  • P. claims that the misuse of language – specifically metaphor – is one of the reasons we find ourselves in this situation.  Specifically, P. identifies the metaphors of “copyright as property” and “users of copyrighted materials without permission as pirates” as the most destructive metaphors (15).
  • Video games sales outpace both DVDs and music.  Wow.
  • P. makes some interesting points in this chapter on who is actually continuing to make music relevant.  He claims that innovators like Apple are responsible for the continue demand for copyrighted material (21).  Using a new definition of marketing (Organizations must think of themselves as doing things that will encourage folks to participate with them.  Organizations aren’t producing goods or services devoid of the end user’s desire), P. claims the CI is failing miserably.  Because the CI are not a “customer-creating and customer-satisfying organism” they use litigation to enforce their vertical monopoly conception of the internet.
  • P. attributes this failed self-conception (We are producers of things) as the basis for the control business model [1. Resonances with Deleuze’s control society are well-made.].  Closed systems (and a non-existent passive consumer) are what is needed for the CI business model to thrive [2. In this way one might argue that the fundamentalist transparency movement is intensely anti-CI.].  In this system “content is king” ; however, as McLuhan pointed out a long time ago, the medium is the message.  Because of this desire to control the online environment has become split into closed systems and the open digital sphere.  The open sphere continues to evolve (because it is OPEN), thus becoming more and more difficult to control (27).
  • Because the CI are aged (most execs are near retirement) P. claims that the “moral panics” are much the same kind that have existed since time immemorial:  they involve a fear of youth (youth tech, youth violence, youth sexuality).  This is precisely the reason the CI go after such big fines: create myths about the punitive possibilities of piracy and you’ll not need to police it as much. . . you have effectively controlled the consumers method of consumption (28-31).
  • P. recognizes the important distinction between copyright as an economic mechanism and copyright as a moral issue on 30.  When the two are conflated and copyright becomes a moral issue then the interests of capital win.
  • P. does a fascinating job tracing out piracy loss claims on 30-35.  He does this to demonstrate the ways that particular numbers chain out throughout the ISA’s; however, the numbers are rarely true.  According to P, all of this is done to create a sense of urgency in the powers that be to address the issues of copyright (and to protect a dying, deteriorated, and useless business model).
  • Schumpeter’s term “creative destruction”: “the introduction of innovative products and business models that displace old ones” (36).  This is the engine of capitalism becauses it keeps the market from moving in the direction of its motives: monopolization and stagnation (the Soviet politiburo model).  “Disruptive technologies” (from Clayton Christensen’s book The Innovator’s Dilemma): technologies that bring to market a different value – cheaper, simpler, smaller, and more convenient.  This is the kind of technology that digital distribution systems take.

Chapter Two:  The Role of Metaphors in Understanding

  • P. notes that metaphors are stronger than simile because they are direct associations (x is y) rather than indirect associations (x is like y).  This is why the CI say “He is a pirate” rather than “He is acting like a pirate” (43).  P. goes on to note that the metaphor is a function of thought and a form of cognition – this is at odds with the merely ornamental/aesthetic conception of the linguistic form.
  • P. claims that metaphors are utilized in the CW not as a way to describe reality but as an attempt to deflect reality, redrawing it in such a way as to make them appear justified in their control-oriented business models (failed models, according to P) (47).  The CI use repetitions (pairings of particular phrases/words) as a rhetorical device to make their conceptual metaphors stick.
  • Copyright is particularly subject to the workings of metaphor because it is itself metaphorical and deals with the abstractness of intangible property (49).  In this way they are what Lakoff and Johnson call “conceptual metaphors” or metaphors that rely on abstractness and indeterminacy to function.  Because of this abstractness, conceptual metaphors actually constitute a cognitive process – they are not merely linguistic constructs but make meaning and associations in their use.   Through the process of “mapping” elements from the first (source) domain (the unconscious memory or long-term memory) are mapped over the second domain (the conscious, in-the-now target domain of perception) to create a meaning for what is being perceived (52).  P. goes on to highlight how the “cognitive miser” (Fisk & Taylor) is the thinking process wherein a small amount of present information is received and checked against the huge reserve of experience and memory in order to make judgments about said information.

Chapter Three: Metaphors and Law

  • P. begins by noting that copyright law protects the original expression of ideas (the words authors use to clothe their thoughts); however, the ideas themselves are not protected (58).  Unfortunately (or fortunately!) ideas are only available through words, as such, copyright becomes expansive.
  • The ideas as objects metaphor operates on another metaphor: mind is container (of ideas or objects that can be property).

Chapter Four:  The Mythical Origins of Copyright and Three Favorite Copyright Metaphors

  • P. turns to myth in this section to highlight how copyright – as an extra-constitutional myth – doesn’t have a single origin story.  Instead it naturalizes the contingent history, culture and politics so that they appear natura rerum or the way things are.  Copyright as individual property rights are just such a muth (61).  In other words, these myths frame the debate for now, they don’t create a faithful historical narrative of what occurred.
  • Copyright as utilitarian/consequentialist:  This is the myth that copyright originated as a means to protect authors so they would have the incentive to continue producing works for the public.  Problem:  many, many things are protected under copyright that require little to no economic incentive for their production (letters, academic writing, speeches, DEAD PEOPLE).  This argument is also at odds with the number one goal of capitalism: multiple competitors that generate competition (and efficiency through improvements on competition). In this way the utilitarian argument actually hinders innovation – it doesn’t create it.
  • Copyright’s Labor Origin:  This is the myth that copyright exists as a protection of “mental labor” in much the same way that we protect the rights of physical/manual labor.  Problems: creative works aren’t necessarily the equivalent of time spent on something; rather, they are valued because of their originality and potential for novel use.
  • Copyright as natural rights of genius:  This is the myth that copyright is a fundamental human right that preexists legal recognition in a statute (65).  Problem:  the exclusive right of the copyright holder inherently denies the natural right of anyone else – it deprives others of their liberty as well.  This is the copyright argument that elevates the “natural genius” or “Romantic author” so that they occupy another sphere of human being – one that must be PROTECTED.
  • P goes on to sketch how the historical importance of copyright was next-to-nothing before considering the three metaphors that copyrightists love to claim:

o    The Birth Metaphor:  this metaphor understands a cultural artifact as a “child” of one author’s incredible imagination.  To insult or abuse that child is an affront to the personhood of the original author.  This metaphor has a long history and was even included in the world’s first copyright provision, the Statute of Anne.  Problems:  The Romantic author doesn’t exist as all texts are produced contextually, rooted in common understandings, and created in a social division of labor.  In other words, everything is derivative.  Second, copyright is an economic right, not a moral obligation.  This means that the production of any author is a commodity.  Historically, this claim has always been made by those with a financial interest in a work: booksellers, film companies, record producers, etc.

o    The Agrarian Metaphor:  This is the “reap what you sow” metaphor.  The metaphor takes two forms:  authors should enjoy the fruits of their labors; and reaping what you haven’t sown Problems:  If all works are derivative, those crops to be harvested aren’t just your effort alone.  This metaphor is particularly effective because it posits a producer-consumer model (author-reader) that assumes the consumer is lazy and immoral (when, in all actuality, they may be creating quite a lot).  The other problem here is temporal: how long can one retain rights to the planting?  The US Supreme Court struck down this argument when they shifted the focus of copyright away from the author and toward the public good (Feist Publications, Inc. v. Rural Telephone Service Company).

  • P. does work at the end of the chapter to highlight the workings of criminalizing legal acts vis-à-vis copyright:  Once the action is framed as immoral (even if it is legal) individuals must be disciplined and punished in order to reify newly created rights (in this case, the right to intellectual property) (87-9).  P. claims that this “property sickness” made possible by turning all abstract principles into issues of property, ownership, and control is a particuarly pronounced issue in corporate sectors.  This part is good so I’m going to quote at length:  Describing someone as a theif or trespasser is a metaphoric step in gaining property rights, and not the result of having property rights in the first place.  If one already had a property right, the property owner would sue for violation of that right and would not have to strut around like a peacock blaring loudly about “piracy.”  Claims of piracy are rhetorical nonsense  (88)
  • P. highlights how the metaphor or “property” in IP is just that: a metaphor.  According to the US Supreme Court, IP “comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. . . . However, this protection has never accorded the copyright owner complete control over all possible uses of his work” (94).  To wit: fair use.  As such, copyright infringement isn’t theft.

Chapter Five: Property as Social Relationships

  • P. begins by highlighting that property is not a Hobbesian “state of nature”; rather, it is a construct of a community to facilitate the creation of social goals (97).  In this sense, it is born with law and bound by law.  Property is a social creation.  That being said, property doesn’t necessarily act in the interest of the social; rather, to have property – by definition – means to control something, to have an obligation only to oneself.
  • Economic freedom is defined in terms of private property.  P. calls the ideology that supports these claims “free market fundamentalism” or the view that unregulated free markets will always work out because everyone will be operating self-interestedly.  Keynes pushed against this idea when he argued that enlightened self-interest operates in the public interest.
  • P. likens the free-market ideology of Greenspan’s tenure as the Fed. Chairman to the false ideology of copyright:  a monopoly over my ideas will result in the best interest of the entire public – BUNK.  As such, regulation in copyright is an absolute necessity as the CI will only act in the interest of the public good when they are forced.  So, as a way into that brave new world, P. argues that we must shift our laws so that copyright no longer operates on property relations but instead functions through social relations (102).
  • P. argues that if we see copyright as an end to the social objective of furthering learning we can begin to reformulate a copyright system predicated on social relations not financial transactions.  This means inverting the argument so that copyright is not conceived of only in terms of a private right but also in terms of a public right.

Chapter Six:  Why Classifying Copyright as Property is Important in the Copyright Wars

  • P. begins by noting that if we treat copyright as property-in-social-relations then we can begin to mediate conflicts within the social system.  This is much more equitable and preferable than envisioning property as a natural state of affairs that needn’t take into consideration the public good (109).  This social view of copyright is exactly how the U.S. government has framed the issue:  copyright has always been a regulatory privilege granted by the grace of Congress as a very limited grant originally intended for literary works, and conditioned on rigorous compliance with formalities (110).  Likewise, the view that personal property is regulation free is also farcical: consider zoning.
  • P. echoes the double-speak typical of IP advocates in the globalizing economies of the current era when he recounts how the London Booksellers responsible for the copyright wars (hardcore advocates of copyright) made “sunny expressions” about the value of unfettered free trade.  Please, don’t regulate; however, you MUST protect our interests. [3. This is the basis of my CCCC presentation this year in Atlanta].  (117)
  • P. notes that copyright infringement, in US courts, has not been considered a violation of property right; rather, it is a “statutory tort” or a legislated law that defines how a particular behavior of an individual deliberately causes injury (121).  Despite this, copyrightists continue to define copyright as property and only emphasize the advantage of that property right, but also the burden (in this case, property owners property affects others those others interests must be taken into account) [5. Think of a classic example from The Simpsons: Mr. Burns’s nefarious pollution dumping on his own property affects the wider community; as such, he must pay the city of Springfield for the burden of his property.].  As P. notes, “Freedom in the field of copyright is not the freedom of copyright owners to be free of government regulation, but rather the freedom of consumers to be free from excessive copyright” (123).
  • The Endowment Effect: from economist Richard Thaler (“Toward a Positive Theory of Consumer Choice” 1980), this theory demonstrates that we value things that we already possess far more than equivalent things that we could attain at a lower cost.  This theory is directly at odds with neoclassical economic theory.  This principle plays out a lot in copyright because individuals inflate the value of their work, thus raising licensing fees, etc. [9. This is particularly the case when the number of individuals controlling the copyrights is fairly small.  Of course, by individuals, I mean the corporate controlled Culture Industries.]  Endowment is an even stronger attachment if it is the result of an attachment; hence, overvalue because of personal investment further drives the intellectual property as natural right mechanism.

Chapter Seven:  Moral Panics, Folk Devils, and Fear as a Tactical Weapon

  • P. begins this chapter by highlighting how copyright owners who utilize the property metaphor need to create conflict with others because it is the only way to draw attention to their flawed position.  They do this through creating “moral panics.”  Some previous moral panics included the Rocker vs. Mod scene in 1960s England, Elvis Presley, and Louis Louie.  Definition: “a reaction by a group of people based on the false or exaggerated perception that some cultural behavior or group, frequently a minority group or a subculture, is dangerously deviant and poses a menace to society” (135).  P. uses the DMCA as a prime example of the sort of overreaching legislation made possible through a moral panic directed at youth technology culture.  Moral panics are essential to the expansion of copyright.
  • Folk devils: the groups of people portrayed in folklore or the media as outsiders, deviant subjects, and the source of social ills. [10. Anonymous is beginning to take on this role, especially considering the distributed, anonymous nature of the organization’s members. . . it is easy to make a folk devil out of a user handle in IRC.]

Chapter Eight:  Copyright Owners and Moral Panics

  • This chapter recounts a series of moral panics created by folks like Jack Valenti.  Each example underscores how technological advances were mapped onto a particular cultural group to create a moral panic in broader society in the interest of passing more draconian copyright regulations.
  • The end result of the latest moral panics:  DMCA – the first piece of legislation that controlled access to copyrighted works, design of consumer electronics used to view said works, and prevented acts that circumvented the first two clauses.  P. takes Apple to task for being an early and rigorous adopter of the possibilities of control afforded by DMCA (164).
  • Take-down notices are another result of DMCA and operate as a suppressive mechanism for free speech and creativity (169-171).

Chapter Nine:  How Innovation Occurs – Creative Destruction and Disruptive Technologies

  • P. begins the chapter by highlighting how the transition from Fordist manufacturing economies to post-Fordist information economies shifts the locus of industry away from capital accumulation toward constant innovation (172-175).  After explaining how we need to encourage innovation through less copyright restrictions [10. P. notes, “We will never be a productive country unless we focus on those who are innovative rather than on large entertainment corporations whose defining characteristics are quixotic battles against technologies, their own customers, and the very nature of capitalism as a dynamic, competitive force”] and embracing creative destruction, P. highlights how the internet and WWW developed in an open-standards, anti-IP environment.
  • Next P. turns to S. Korea to demonstrate how interconnectedness via technology has resulted in a vibrant digital economy.  Turning next to Japan, P. draws attention to the effect of open standards and advanced digital infrastructure has on the production and distribution of copyrighted digital works.  He also draws attention to the possibilities created by the interactivity of the web. . . and the perils of cutting that interactivity (read remix culture) off in order to preserve copyright regimes.

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