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Moral Panics and the Copyright Wars, by William Patry

As a veteran of many copyright campaigns over the years, I welcome William Patry's exposé on rhetoric as a weapon of war. I'm speaking rhetorically, of course.

In Moral Panics and the Copyright Wars, Patry - he's senior copyright counsel at Google, a former copyright counsel to the U.S. House of Representatives, a policy planning adviser to the Register of Copyrights and a law professor, so he has the credentials - analyzes the use of language in the copyright debates, demonstrating convincingly, in engaging and vigorous prose, that how we talk about copyright often clouds the very issues that we are attempting to clarify, impeding the reasoned arguments we need to arrive at good policy.

Chief among his targets are such metaphorical terms as "piracy," conjuring up images of banditry on the high seas, and "property," invoking an individual's right to absolute dominion over his own. The word "war" itself, Patry points out, is a metaphor importing into the copyright debates a moral imperative to fight the enemy, creating a misleading discourse about economic issues, using the language of war.

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Patry takes us through a multiplicity of disciplines to make his case against language abuse. Ranging from Aristotle and Leviticus to Lord Macaulay and Mark Twain, with a stop to describe the "Golden Age of Piracy" in the early 18th century, he brings a diverting eclecticism to his argument. In the process, he takes on various "mythic origins" of copyright. We learn, for example, that the powerful "creation-as-birth" metaphor - the idea of authors as "parent" to their art - is ancient. It was employed by Plato to describe Homer and Hesiod's relationship to their works, and later by Cervantes, Milton, James Joyce and Daniel Defoe to describe their own.

And the "agrarian metaphor" from Leviticus - that is, the right to "reap what you have sown" - was first used in regard to intellectual property at least 588 years ago, in 1421, in the case of a design by Brunelleschi for a boat to carry stone on the Arno River in Florence.

Patry's goal through this entertaining history of metaphors is to show their serious shortcomings as a basis for reasoning about copyright. Repeated with numbing regularity over the past 300 years, they are so loaded with prejudicial emotional associations that they impair our ability to think. Far from being merely a poetic device, metaphor comes to frame and define our thinking, playing a key role in understanding itself. Patry cites cognitive linguists who say that metaphors are in fact essential to thought, so that, since we cannot rid ourselves of them, "we must pay constant attention to how metaphors are used to ensure that the associations made are apt and helpful." Patry's point is that the metaphors in the copyright wars are anything but.

The metaphors mask a new-market, old-market clash in which an unproven new market is pitched against an existing profitable one. The copyright industries resist innovation in the Internet age because it means "cannibalizing their core business." In defence of their outdated business models, they insist on control and refuse to give consumers what they want. They use rhetorical devices in a deliberate attempt to create a "moral panic," a sense of imminent existential threat to society's values and interests, a manoeuvre Patry calls "an opportunistic political tactic by which undeserving economic interests are advanced under the guise of false moral imperatives."

He cites the motion picture industry's fight against the VCR in the 1980s and, more recently, the lobbying for DRM (Digital Rights Management) protection in the Digital Millennium Copyright Act (DMCA) as examples.

The success of the copyright industries' defensive campaigns, he argues, has led to a unjustified expansion of copyright law in the U.S. - repeated extensions to the term of copyright, digital locks and an assault on the public domain, amounting to "anti-consumer, anti-competitive, anti-innovative conduct."

The key point, Patry asserts, is that the debate over copyright is essentially an economic debate over business models, and not over moral principles. The guiding principle of copyright is not some inherent fundamental right of an author - as the obfuscating metaphors suggest - but a purely utilitarian calculation of what is in the public interest. "Calls for strong copyright laws, like calls for weak copyright laws, miss the point entirely: the only proper goal is effective laws, with 'effective' being judged empirically by whether proposed legislation will lead to an increase in the public good, i.e., the promotion of learning."

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Patry has achieved the miraculous in a book on copyright. Highly readable, with a clear, consistent thesis carrying the reader easily through his material, he makes a bold and compelling case for the danger of metaphor. But he is very much a partisan in the copyright wars, and it tells.

The critical comments Patry makes about metaphor can and do apply to both sides. But, apart from one reference in his introduction to "dinosaurs, Luddites and evil monopolists" - epithets levelled at copyright owners - he makes no mention of metaphorical misuse by copyright challengers.

Indeed, for all Patry's brilliant analysis of the distorting power of rhetoric, he himself falls prey to its seductions. Like any good writer, he knows the value of concrete imagery in an abstract argument. And he has a flair for it. (My favourite example is his outrageous description of the DMCA as "the twenty-first century equivalent of letting copyright owners put a chastity belt on someone else's wife" - an example of "moral" panic for sure.)

More seriously, Patry uses the term "monopoly" - every bit as much a legal term of art and metaphor as "property" is - several times to describe copyright as a concept, quite without regard to whether there is an actual market concentration in a relevant market through the amassing of copyrights (where it might conceivably be apt).

And although there is plenty of historical precedent for that, here Patry is actually engaging in the very metaphorical misuse that he so strenuously deplores in the hands of the copyright industries. For though a single copyright grants an author certain defined and limited exclusive rights in his book, to call that a "monopoly" is a gross distortion of the term. Can a single book constitute a "relevant market" for anti-trust purposes? Do one author's unique rights in his book eliminate competition or dominate the market in books? When each year more than 350,000 books are published in the English language, do these constitute 350,000 new monopolies? Of course not. "Monopoly" here is being used as a metaphor, and as a weapon in the copyright wars.

I owe that insight to Patry.

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Grace Westcott is a lawyer and vice-chair of the Canadian Copyright Institute. She is looking forward to an armistice.

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