Moral Panics and Copyright Law

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.

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