The Volokh Conspiracy

My first post addressed some of the common assumptions about what copyright laws can do. The two syllogisms and one tautology were not an expression of my beliefs, but rather an expression of common views, views I believe are mistaken for reasons I detail in the introduction to and in Chapter 3 of the book. That they are mistaken doesn’t mean that copyright serves no purpose: I believe copyright can serve a purpose of protecting against free-riding and in creating conditions under which investments can be made in a stable legal environment.

Agreeing that copyright can serve valuable purposes doesn’t, though, tell us about the necessary level of protection. Chapter 8 of the book deals with the term of copyright, how long protection should last. A great deal has been written about this, and court cases have been brought and lost challenging Congress’s extension of the term of protection, most notably in the Eldred case, which challenged part of a 1998 law extending the term another 20 years.

I believe the Eldred challenge suffered from poor strategy but the outcome is likely to have been the same, nevertheless. Evidencing a deference to Congress rare in most areas, the Court seemingly granted carte blanche to extend the term of copyright to whatever length the legislature wants so long as Congress merely states a belief that doing so would provide an incentive to create. By contrast, in the area of abrogating sovereign immunity, the Court reacted quite differently, getting into the weeds of how many witnesses there were at hearings and the substance of what they said.

The Eldred Court also engaged in what I regard as an indefensible jettisoning of the Constitutional text: the grant of power in Article I, section 8 clause 8 is to promote the progress of science. The rest of the clause says how this is to be done (by granting exclusive rights) and to whom (authors). The Eldred Court however, recharacterized the grant as a prologue, a series of pretty words signifying nothing.

The effect is dramatic. Congress need not be judged by whether it’s laws actually promote the progress of science and in the area of extending copyright, it only has to say doing so will provide an incentive to create, a pro forma word processing chore.

What would I do differently? To begin with, I would rely on the brief that 18 economists submitted in the Eldred case, including George Akerloff, Kenneth Arrow, Ronald Coase, and Milton Friedman. That brief has the great virtue of trying to quantify the expected benefit of different terms of protection by focusing on present and future value. The argument is always made by proponents of extending the duration of copyright that doing so will cause authors to produce more works today based on a judgment that they will receive more money later (that is, during the period of the lengthened term). Alternatively, one could argue that a buyer of copyrights will give the author more money today based on perceived later benefits during the longer term. But in both cases, the assumption is that the later benefits will be significant enough to cause different behavior now.

In Eldred, this is the difference between a term of protection of life of the author plus 50 years and life of the author plus 70 years; the final, later 20 year difference being the alleged source of the expected increased financial benefits. The economists figured out that in the whole period of the extension, assuming very generously that the copyrighted work has a constant stream of revenue, the revenues for the extra 20 years at the end would be 0.33 percent of the present value of the revenue from under the then existing term. Making the term perpetual would increase compensation by at most 0.12 percent. Our current regime is a perpetual regime in all but name, giving rights holders 99.88 percent of the value of a perpetual regime. In a legal system where copyright cannot be perpetual, that’s a problem.

But beyond it being a Constitutional problem, it’s a policy problem. If copyright does provide an incentive to create, we need to ensure that copyright last long enough for the incentive to work, but not beyond that. Our current term goes well beyond what is necessary. Beyond this we have a one-size-fits all approach that gives an email the same rights and term of protection as a $200 million dollar movie or David Post’s Moose book. Incentives works differently for different types of works, and our laws should reflect this. Making copyright laws work effectively means giving the right incentives, not the same ones to everyone. In the next post, Friday, I will go into some specifics as well as the question of reintroducing formalities.

Thanks to Eugene for allowing to be a guest and to discuss my new book How to Fix Copyright (Oxford University Press). This is the first of a few posts. The title indicates that the book is both prescriptive – offering solutions (this is the “how to” part) – and attempts to be constructive: I want to fix, that is, improve copyright law’s effectiveness. I believe laws are tools, not ends in themselves, and that we should measure, empirically, their effectiveness against their stated objective.

We do not inherently need strong laws or weak laws anymore than we inherently need strong or weak medicines. We need laws and medicines that are fit for their purpose. What are copyright laws supposed to do? The most popular things copyright laws are said to do are: (1) provide incentives for authors to create works they would not create in the absence of that incentive; (2) provide the public with access to those works; and, (3) in some countries, provide respect, via non-economic rights, for those who create cultural works.

These goals are often fleshed out in ways that fit into the following two syllogisms and one tautology. Syllogism number one: Copyright is the basis for creativity. Creativity is the basis for culture. Therefore, copyright is the basis for culture. Syllogism number two: Copyright is the basis for a knowledge-based economy. The knowledge-based economy is the basis for competitiveness. Therefore, copyright is the basis for competitiveness. The tautology is the statement that the creative industries are those industries dependent on copyright laws and therefore copyright laws are essential to the growth of the creative industries.

The book examines the evidence for these statements to figure out if our current laws are accomplishing these goals, and if not, whether they can be amended, or if we need to find other ways to fulfill them. I also look at the nature of creativity, markets and technologies: If the, or at least an important, goal of copyright is to encourage creativity and copyright laws can encourage creativity, we need copyright laws that match the actual ways people create and the actual markets for that creativity.

My take on technology is that it is neither a savior or an enemy: Technology is the means by which market expectations are created and satisfied, or not, in which case there are problems. The problems of not satisfying consumer expectations created by technology are market problems and not, as is so often claimed, legal problems. Changing markets and products are an economic fact of life: no copyright law can force people to buy things they do not want to buy, anymore than laws can outlaw recessions or business cycles. This is not to condone massive infringement of others’ rights or to suggest that a failure or decision not to supply markets justifies what is commonly called piracy, but it is to suggest, along with studies done on the issue, that pricing and making products attractive to different markets can go a very long way toward reducing unauthorized copying.

The book reflects my personal views and not my employer’s.

A while back, I posted my early reaction to the SDNY’s decision in the long-running Viacom lawsuit asserting secondary copyright infringement on the part of Youtube. Here’s what I said then:

The case was/is enormously important — Youtube was asserting that it was immune under the Digital Millennium Copyright Act (specifically, Sec. 512(c)) from copyright infringement claims arising out of user postings. Sec 512(c) sets up a “notice-and-takedown” scheme under which website owners are immune from third-party infringements as long as they “respond expeditiously” when notified of specific infringements by copyright holders. Viacom was relying on a portion of the statute that denies the immunity if the website operator has “actual knowledge that the material . . . on the system or network is infringing” OR if “in the absence of such actual knowledge, [it is] aware of facts or circumstances from which infringing activity is apparent . . .”

The critical question in the case was: given that it is a matter of common knowledge that there’s lots and lots and lots of infringing activity on Youtube, does that make the infringing activity “apparent”? If so, the 512(c) immunity is unavailable for Youtube. The court — correctly, in my view — said no, it does not. The “facts and circumstances” to which the statute refers must be of “specific and identifiable infringements of particular items. Mere knowledge of prevalence of such activity in general is not enough.” Sec. 512, and the other immunities provided in the Act for online conduct, “place the burden of policing copyright infringement — identifying the potentially infringing material and adequately documenting infringement — squarely on the owners of copyright. We decline to shift a substantial burden from the copyright owner to the provider . . .”

One could easily argue that these copyright immunities in the DMCA were a critical feature allowing “Web 2.0″ and “user-generated content” sites (like Youtube, Facebook, Myspace, and many, many others) to flourish. This opinion (though it will probably be appealed) goes a long way to protecting those sites from further attack by the copyright police. Nice work, Judge Stanton!

In the aftermath of the decision, there’s been, predictably, a backlash from commentators inside (and occasionally outside) the entertainment industry, arguing either that the decision’s not really that important, or that it’s just plain badly reasoned. Ben Sheffner’s piece over on Copyrights & Campaigns criticism of the opinion is thoughtful, but ultimately wrong-headed. Sheffner makes an interesting observation:

Section 512(c) of the DMCA identifies two triggers for the obligation of the host to remove the subject material (if it wants to maintain the safe harbor). First is actual knowledge of infringement (which can be obtained through receipt of a facially valid takedown notice pursuant to Section 512(c)(3)). Second is where the host becomes “aware of facts or circumstances from which infringing activity is apparent.” Id. § 512(c)(1)(A)(ii). This latter situation is known as “red flag” infringement; the idea is that the host can’t claim the safe harbor if red flags are being waved in its face, suggesting the obvious presence of infringing activity. The Ninth Circuit gutted the red flag doctrine in Perfect 10 v. CC Bill, specifically in this thoroughly unconvincing paragraph:

Perfect 10 alleges that CCBill and CWIE were aware of a number of “red flags” that signaled apparent infringement. Because CWIE and CCBill provided services to “illegal.net” and “stolencelebritypics.com,” Perfect 10 argues that they must have been aware of apparent infringing activity. We disagree. When a website traffics in pictures that are titillating by nature, describing photographs as “illegal” or “stolen” may be an attempt to increase their salacious appeal, rather than an admission that the photographs are actually illegal or stolen. We do not place the burden of determining whether photographs are actually illegal on a service provider.

In other words, under Ninth Circuit precedent…, having material identified by its poster as “illegal” and “stolen” is not a red flag that infringing activity is taking place. One is left to wonder whether the panel would have ruled the same way had actual red flags been waved in the defendants’ faces.
Judge Stanton, incorrectly in my view, adopted CCBill’s holding without much analysis, further rendering red flag infringement a dead letter. The statute (and legistlative history) clearly indicate that some form of knowledge beyond that imparted via DMCA notices qualifies as knowledge of “facts or circumstances from which infringing activity is apparent,” thus triggering a site’s takedown obligation (on pain of losing the safe harbor). But after reading Judge Stanton’s opinion several times, I simply have no idea what would actually constitute such “red flag” knowledge. And, again, his opinion does not even scratch the surface of the evidence presented by Viacom on this issue, see, e.g, Viacom Br. at 5-24, 50-56, and explain why none of it would raise a red flag for a reasonable service provider in YouTube’s position.

Sheffner’s absolutely right — the courts are indeed in the process of making the “red flag” exception disappear. And good riddance to it.

[Incidentally, there should be a name for this rhetorical phenomenon -- where an opponent gives you, in the course of his criticism of a decision, ammunition for strengthening and even expanding its rationale. You see it a lot in dissenting opinions: "Under the majority's reading of sections 543(c)(1)(ii)--(vi), all a defendant need show to escape liability is blahblahblah . . ." - and then defendants start to argue (even citing to the dissent) that because they can show blahblahblah, they shouldn't be liable.]

Sec. 512 is a powerful defense precisely because it sets up a simple procedure: copyright owners find infringing material, they notify the host, the host takes it down, and the host is immune from liability. All steps along the way easily verifiable. “State of mind” inquiries — wasn’t it “apparent” from all the surrounding “facts and circumstances” that such-and-such was infringing? shouldn’t the host have known that? — are out of place here; among other things, they’re preposterously ill-suited to the scale of this problem. It would, I read recently, take you 15 years to watch the content uploaded to Youtube in a single day. What is, or is not, apparent to Youtube’s operators from this avalanche of material is not something we want to be arguing about, and it is not something I want web hosts to be worrying about. Judge Stanton got it spot on — the web host has no duty to act until the copyright owner identifies specific infringing material.

Do we want a powerful defense like this against claims of secondary copyright infringement on the Net? Damned right we do. I made the point in my earlier posting, and I think it’s interesting enough to reiterate. Virtually all of the wildly-successful 3d-party content sites on the Net — Youtube, Facebook, Twitter, Myspace, Flickr, Google News, Wikipedia, Blogger, . . . — come out of the U.S. Why is that? Why didn’t some college kid in the UK, or Italy, or Brazil, come up with the idea for Facebook? There are, I’m sure, lots and lots of factors at play — but I’m convinced that the existence of the immunity in sec. 512 in our copyright law is one of them. Even if Simon or Allessandra or Joao had the idea, and the technical wherewithal to pull it off, they’d be crushed before they got started – by many things, perhaps, but copyright liability is high on that list of crushers. Sec. 512 has meant that you can put your startup on line — even go to a bank or a VC and get financing — without worrying about potentially devastating copyright infringement liability. We don’t have many legislative successes in the copyright arena, so we should celebrate the ones we have.

[Thanks to Justin Gordon for one of the pointers]

In this, my last post – thanks so much Eugene and to those who took the time to comment – I will address remarks by Brian, the devil’s advocate. He very politely stated:

“While Orin let you off the hook, I think you, and maybe he given his acquiescence, miss the full import of his second question. If the maintenance of property is dependent upon the positive law, it becomes a utilitarian or consequentialist chit to be done with as government wishes.”

…
“At root you’re saying you are not sure you believe in real property. Given the fact that government has exceedingly the same view, and I think this contrary to, constitutional guarantees, natural and positive law, the normative understanding of the founders, as well as to utilitarian or consequentialist outcome oriented philosophy, I must respectfully dissent… .”

I would like to hear Brian’s views on is what he thinks copyright is if it is not positive law and what foundational authority there is for copyright not being a creature of positive law. It would really interesting to see how Brian thinks that would work out in practice, meaning someone goes into court and claims that their natural copyright rights have been infringed. What should a judge say to such a claim?

On the utilitarian or consequentialist point, I readily confess to holding that view. Copyright can be granted or not, or taken away as the government wishes, based on its utilitarian or consequentialist judgment. After all, the Constitutional grant in Article I, section 8, clause 8 is discretionary: Congress may grant copyright rights but it need not; hence my point about natural rights: Assume Congress decides to repeal the copyright act for all future works (and preempts state law too). A writer creates a work after the abolition of protection: under what authority would courts think they could hear a claim of infringement? None, in my opinion.

I don’t understand what Brian is getting at when he questions whether I believe in real property, because I don’t know what it means to “believe” in this context. I own a house and the land around it. I am very happy I do. I pay taxes on it, and when I pay my mortgage off in 12 years, I will really “own” it. I believe it is mine now subject to the mortgage and taxes. I love the house and am secure that I have the usual legal rights. If this is what it means to believe in real property, I happily do.

I am also happy to regard copyright as a government program. Because
copyright law is positive law, created solely by the government, the government must shape its contours as it sees fit to achieve copyright’s objectives; doing so is not adventitious, but is instead an obligation of governments. I don’t think this makes the government socialist or demeans copyright. It does mean that efforts by Congress to craft laws that fit into its utilitarian or consequentialist views shouldn’t be regarded as government intervention in a free market. There is a humorous example of this argument in the reaction of record companies to proposals by members of Congress to amend the DMCA in ways the copyright owners didn’t like. This effort met with the following response in a letter sent by the lables, made without a hint of irony:

“[H]ow companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and
should not be regulated. . . . The role of government, if needed at all,
should be limited to enforcing compliance with voluntarily developed
functional specifications reflecting consensus among affected interests.
If the government pursues the imposition of technical mandates, . . .
record companies may act to ensure such rules neither prejudice not
ignore their interests.”

Not only is all copyright government intervention, but the DMCA was invention by the government in the marketplace on a fairly massive scale, at the request among others of the record labels that made the above statement. The Congressional recommendation to amend the DMCA was thus a proposed amendment to earlier government intervention.

Thanks again for having me as a guest.

A few comments on my first two posts referred to the characterization of copyright as “intellectual property” or a “property.” While there have been a number of efforts to track down the fairly recent usage “intellectual property,” efforts to describe copyright rights as property are of an older vintage in both the United States and Britain. What interests me is not tracking down the first time the term “property” was used in conjunction with copyright, but why the association is sought to be made, both in the past and quite a bit recently.

To me, the debates about copyright as property are always political, not historical; they are always efforts to influence the present and the future, an effort to get the legislature or the courts to reset the boundaries. The use of the term property is not meant to simply describe what you own; after all if we took the current copyright act and added alternatively at the beginning “copyright is a privilege and not a property right,” or “copyright is a property right, not a privilege,” but changed nothing else, why would this matter?

Rather, use of term property is an effort to influence the debate about how far your property rights should go; this is what that great Victorian man of letters Augustine Birrell realized 111 years ago in a series of lectures on copyright he gave at the University College, London, later published as “Seven Lectures on the Law and History of Copyright in Books.” Mr. Birrell was ruminating, as we still do today, on the various origin stories for copyright. On the question of why copyright owners insist on describing their government created and granted right as a property right, Mr. Birrell wrote:

“The reason[] th[is] question[] was asked . . . was this—Certain rights over things amounting in the aggregate to a more or less complete exclusion of others than the owner from participating, save by consent, in their enjoyment had in the Western World become recognised as property. . . . The origin of property, of exclusive ownership, is one of the subjects about which our predecessors in title loved to discourse at large after a fashion more ingenious than historical.”

“Occupancy and Labour are the mythical parents of Property, but we shall be less wrong in assuming that the pedigree was invented to account for the fact of possession than in attributing the fact of possession to the virtues of the pedigree.”

“But whatever its origin, the Western World has throughout its long history shown an ever increasing disposition to recognise the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognised, venerated, worshipped, under the word property.”

“To be allowed to enter this sacrosanct circle is a great thing. None but the oldest families need apply. . . . Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law—they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible.”

“Neither were these romantic conceptions mere jeux d’esprit. Consequences flowed from them. If your right to turn your neighbor off your premises, to keep your things to yourself—was property, and therefore ex hypothesi founded on natural justice, he who sought to interfere with your complete dominion was a thief or a trespasser.”

Birrell nicely points out the fallacy of the “virtue of the pedigree,” in which we are to assume that copyright owners have the rights they have due to being, simply, copyright owners. One need not inquire further: to be a copyright owner is to have been vested with an ancient pedigree; one is a property owner and by itself that is all the justification that is needed. The alleged classification of copyright as a property right is made to take copyright protection outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified (that’s the theory, at least, propounded by its advocates). Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as those who break into our homes or steal our cars, a trope that some copyright owners have used, more than once.

What are the real world consequences of this? Are there any, or is this just a semantic waste of time? The principal use of property-talk in copyright is to frame debates over the scope of copyright in a way in which we start from a default of absolute rights, even though, as with all property, we concede there are “always” exceptions. (The copyright act has a bunch of them in 17 USC 107-122). The exceptions are, though, precisely that, exceptions and those who seek (either through legislation or court decisions) to use copyrighted works without permission are stated to need a good reason to depart from the presumption of Blackstonian absolute dominion. The burden is on others to show why they should be allowed to use copyright owners’ works without permission.

Fair use, for example, is said by some to be an exception; it is, after all an affirmative defense. Judge Pierre Leval has, however, taken a different approach, writing: “Fair use should not be considered a bizarre, occasionally tolerated departure from the grand conception of the copyright monopoly. To the contrary, it is a necessary
part of the overall design.” Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1110 (1990). Consistent with Judge Leval’s overall design approach to copyright, I argue in the book that copyright is a set of social relations, created for a specific social purpose: the promotion of the progress of science. The advantage in regarding copyright as a system of social relationships is that it focuses attention where it belongs: in mediating conflicts within that system, and not, as the property as ownership model does, by positing ownership as the natural state of affairs, and by regarding every effort to regulate for the public interest to be a hostile act that must be ferociously fought against as if it is an existential threat, or conversely, that copyright rights are inherently against the public interest, which I reject as well.

When I was a law student, a professor asked us whether we believed law and morals were co-extensive: if the law did not prohibit certain conduct, did that mean it was moral to engage in it? One of the comments on my first post similarly asked how I distinguished effective laws from moral considerations, whether I thought we could distinguish illegitimate from legitimate copyright conduct without a moral scheme.

The reference to effective laws was to my argument that we do not need strong copyright laws or weak copyright laws, but only effective copyright laws, with effective being judged by whether the copyright laws serve their purpose. This remark drew a comment that I was a typical academic, trying to “logic out” things. There was also a question about what I meant by means testing and a request for more information about Jack Valenti’s Boston Strangler testimony.

If only I was able to give a typical academic response to these questions. Of my 27 years as a copyright lawyer, only 5 were in academia, and even during those 5 years many of my colleagues did not regard me as an academic: I had spent my career up until then in private practice and government service. Since leaving academia, I spent 6 more (out of 12) years in private practice, and now three years in-house at Google. To me, then, effectiveness is not a logic problem, but an empirical one. Here’s an example, an easy one, term extension. If we say with Judge Posner and Professor Landes that we want to provide copyright in order to provide to convince creators to bring their works to market where they otherwise wouldn’t (say because they could more money doing something else), we have to figure out the proper level of incentives, in the form of the type of rights we grant and how long protection should last.

What type of empirical evidence might we look at to determine the length of protection? George Akleroff, Kenneth Arrow and others took a stab at this in their Eldred brief. They concluded:

“Term extension in existing works provides no additional incentive to create new works and imposes several kinds of additional costs. Term extension for new works induces new costs and benefits that are too small in present-value terms to have much economic effect. As a policy to promote consumer welfare, the CTEA fares even worse, given the large transfer of resources from consumers to copyright holders.”

Another way is to look at the renewal records under the 1909 Copyright Act, when the original term was 28 years but another 28 years was possible if the copyright owners merely paid $10 and filled out a simple form. Who wouldn’t pay $10 and fill out a simple government form to get 28 years of protection? As it turned out almost everyone except for motion picture studios. Here is a sample of the renewal rates from a study the Copyright Office did:

Type of Work Renewal Percentage
Books 7%
Periodicals 11%
Lectures, Sermons and other oral works 0.4%
Dramatic Works 11%
Music 35%
Maps 48%
Works of Art 4%
Technical Drawings 0.4%
Art Prints 4%
Movies 74%

These are some ways to determine what effective laws are: I assert life plus 70 is inefficient because it wildly exceeds necessary incentives and has negative impacts on the creation of other works.

In terms of morality and the Valenti quote. To me, copyright is an economic right, not a moral right and does not raise moral issues. The Second Circuit made this point too, agreeing with Judge Lynch:

“Copyright and trademark are not matters of strong moral principle.
Intellectual property regimes are economic legislation based on policy
decisions that assign rights based on assessments of what legal rules will produce the greatest economic good for society as a whole.” Sarl Louis Feraud Int’l v. Viewfinder, Inc., 406 F. Supp. 2d 274, 281 (S.D.N.Y. 2005), affirmed on this point, vacated and remanded on other grounds, 489 F.3d 474, 480 n.3 (2d Cir. 2007).

Morality is used in the Copyright Wars as a way to cover up the inability to justify expansion of rights on economic grounds. Valenti’s Boston Strangler quote is a good example of this. On April 12, 1982, Mr. Valenti testified before Congress about the alleged dangers posed to the motion picture industry by videocassette recorders:

“We are facing a very new and a very troubling assault . . . and we are
facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. “

“We are going to bleed and bleed and hemorrhage, unless this
Congress at least protects one industry . . . whose total future depends
on its protection from the savagery and the ravages of this machine.
[Some say] that the VCR is the greatest friend that the American
film producer ever had. I say to you that the VCR is to the American
film producer and the American public as the Boston Strangler is to
the woman home alone.”

Note that Mr. Valenti spoke of the VCR as a threat not only to the
movie industry, but also and much more broadly to the American public. It is the essence of moral panics that folk devils (here VCRs) be demonized as a threat to society itself. Mr. Valenti knew keenly that it was not enough to appear before Congress as a special pleader for his clients; instead, he had to appear as the savior of society itself, which could only be saved, of course, by Congress giving powerful rights to his clients. Had Congress done so, Mr. Valenti’s clients would have inflicted severely injuries upon the public and themselves. Where would the morality have been in that?

Thanks Eugene for allowing me to be a guest blogger. I wrote Moral Panics and the Copyright Wars for two reasons. The first is the reason I have written everything, to learn. For me, writing is a way to discipline my thought, to the extent I am capable of doing so. The second reason was to offer a different take on why it is we have such a high level of copyright protection and why the copyright industries have such a long history of opposing new technologies.

Jane Ginsburg wrote an article in 2003 entitled “How Copyright Got a Bad Name For itself.” In it she cites some legislative efforts by copyright owners to obtain broad control over new technologies and says that these efforts suggest that “some copyright owners, if not paranoid, are Pavlovian in their response to new means of making copies or communicating new works.” But she ultimately dismisses this conduct as one of “appearances.” At the other end of the political spectrum, some on the copyleft side regard copyright owners as Luddites, or dinosaurs who just don’t get it, and who are intent on shoving corporate culture down our throats.

How is it that we have ended up with high levels of protection that to me are divorced from any sort of means testing, term extension being the archetypal example? One explanation is that Congress is corrupt, or less extremely, that there is a terrible asymmetry in lobbying power. Having worked for the House Judiciary Committee I don’t buy the first explanation (a bad choice of words!), while the second can be overcome, as the recent experiences in Canada on Bill C-61 and with the just-concluded consultative process show.

The book contains two basic conclusions. First, attempts to obtain economic rights that cannot be justified under means testing (i.e., are necessary incentives for creation) are cast in moral terms in order to create a political atmosphere in which those rights are seen as essential. This is the moral panics component, and it explains Jack Valenti’s “Boston Strangler” testimony and many other such metaphoric usages, such as pirate, parasite, trespasser, and the like. These are efforts to cast opponents as the archetypal Other, whose threat to society can only be removed by giving copyright owners vast rights. Use of the term “property” as in intellectual property or “copyright is property just like real property” is part of this, both because those who use copyrighted works are by definition trespassers, and because it sets up a discourse in which uses that copyright owners do not approve of are seen as “limitations and exceptions,” departures from a natural state of affairs in which no unauthorized uses are permitted, and engaged in if at all only in the most narrow circumstances, circumstances that cannot conceivably cause economic diminution to copyright owners.

My second conclusion is the economic conflict at the heart of copyright owners’ repeated reactions against new technologies lies in Schumpeterian “creative destruction”: the introduction of innovative products and business models that displace old ones. Innovation, in the form of new technologies and/or business models —is the root cause of creative destruction—but it is also the way capitalism survives its own inherent tendency toward monopolization and stagnation, even as innovation is regarded as an existential threat to those who benefit from the status quo. In words that are quite applicable to the copyright industries, Schumpeter wrote that “a new firm’s intrusion into an existing industry always entails ‘warring’ with an ‘old sphere,’ which tries to prohibit, discredit, or otherwise restrict every advantage afforded to the new form by its innovation.”

So for me, copyright owners’ reactions are normal; this isn’t to say we should countenance them, we shouldn’t. But if we shift the debate from the moral panics discourse to an evidence-based discourse in which we require our laws to be effective for their purpose (and who wants laws to be ineffective?), hopefully the results will be better. Certainly, innovation we can believe in depends on it.