Moral Panics and the Copyright Wars, by copyright lawyer William Patry (see his related blog), was just released. Currently Senior Copyright Counsel at Google, Inc., Patry had a well-known copyright law blog, which he terminated last year, because he found the current state of copyright law too depressing to blog abou (as I posted about previously). So one might hope for a decent take on the copyright issue, especially given this comment on Amazon by the heroic IP foe Mike Masnick of TechDirt:
Patry’s insight into copyright law itself has long been established, but with this book he takes us deep into how the debate surrounding copyright law has been twisted and distorted. This is a must-read for anyone looking to understand the real issues in the copyright debate, both from the business-model and policy perspectives.
Alas, the summary would make one suspect the book’s soundness:
A centrist and believer in appropriately balanced copyright laws, Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct. Just as President Obama has called for re-tooling and re-imagining the auto industry, Patry calls for a remaking of our copyright laws so that they may once again be respected.
Not good. Sure, he’s right that, as the Amazon description indicates, “copyright is a utilitarian government program–not a property or moral right.” But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, “In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal”; see criticism here. Just another legal positivist. So he of course would think that, “As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose.” Whatever.
Since noting the above, I’ve since received the book (the book’s publisher, Oxford, is also mine and so sent me a copy gratis). It looks like a carefully done and well written work. It looks like it provides lots of ammo for our side–pointing out problems, excesses, abuses, fallacious pro-copyright arguments, and showing how it does not accomplish the goals set.
But it is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state’s encouraging innovation by such tricks. On the other hand, it at least argues that the test should be whether it does create the extra wealth it claims to, and that the burden is on those who advocate copyright; so in a way it leaves the door open to total abolition (I think; haven’t read the whole thing–more here when I do).
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This reminds me of a central problem with the state constantly debating whether to further infringe on property rights: as a property owner, you can’t just say “Look, I’ve got this property and I’m not interested in whatever new schemes you come up with that promise to increase the overall wealth of the nation by appropriating some of my property without my consent. If I hear about some plan that I find compelling, I’ll consider voluntarily offering some of my property for it. Otherwise, leave me the hell alone.” Such a person instead has to be constantly vigilant in dealing with each new plan with false promises, because each is a new attack from a different angle. Even if such plans were well-designed, they always put some people at a disadvantage. It’s similar to the recent article here about inflation and how it requires one to be constantly vigilant in protecting the value of his savings, even if one just wants it to keep its current value.
If copyright etc. were really such a good scheme for us all, that we’d voluntarily buy into, why couldn’t buyers simply refuse to buy except from those who have permission to distribute the work? A few people might not follow this, but if most did, they’d make the same profits as currently. Or is the argument that it does benefit everyone, but they’re too short-sighted/impulsive/undisciplined to avoid downloading/buying the cheaper version that isn’t authorized to be produced? Obviously this argument only applies to copyright; it wouldn’t work for patents, as the masses aren’t the direct buyers of licenses to use them.
The essence of copyright, although there maybe problems with the actual positive laws regarding the issue, is basically the individuals right to be left alone.
The producer of relevant product and services want to freely make contracts with the willing, and have nothing to do with the ones who are not willing to make a contract.
the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning.
This is what gets me–sure government can do things to “encourage” more business in one area or another, look at the Cash for Clunkers program, but that tells us nothing about what the market would generate. Perhaps these laws are encouraging too many “new works”, that is, more than what the market would bear, or what people would willingly pay for. However, one could also say that IP protection is a restriction on the development of the “useful arts”, given how it works. If the market works in providing goods and services of all other kinds, then why wouldn’t the market work to encourage the creation of “new works and learning”? Why does the government need to do it?
SK,
I am not attempting to spam, but just in case you do not look into the other blog of yours where I have posted the same message, I am posting it here in this most recent post of yours.
I think your entire theory is flawed because at the root lies the assumption that “all rights are property rightsâ€. Even more monstrous is to go on and talk of “scarce resources†and treat people and their bodies as scarce resources. Sounds very much like an economist trying to apply the tools of economics to politics.
To begin with, I need to mention that while you may have read Ayn Rand, I think you don’t have a clue about the meaning and implications of what she said. Further, your entire understanding is from the perspective of a lawyer, not that of a political philosopher (though you seem to like to pretend like one). Hence the bundle of misunderstandings and misrepresentations.
What Rand proposed, above all, was a MORAL FRAMEWORK.
A moral framework is not a guide for designing a legal system (though it should be if the legal system is to make sense). It is a guide for individual action.
Morals are a code of values. A moral framework is a code that helps a man assign a value to every option he ever faces and thus enables him to make choices from available options. Value is subjective and relative. Nothing has intrinsic value. Value is that benefit which something brings to me. It is the enhancement of my life that comes with it. The ultimate value for man is his life. Everything else is valued relative to it. Without life, no other value has any meaning.
Life itself is a sequence of self-generated self-sustaining actions. While other animals engage in actions based on instinct, man acts based on rational choices worked out by his mind, which in turn works on the basis of the concepts he has gathered till-date and his (individual) assessment of reality. To sustain life, man needs to act. To act, he needs to what will enhance the conditions of his life and what will worsen them and thus make it tougher for him to sustain his life. This is where a Moral Framework comes in. Because man lacks the instinct that other animals have, he depends completely on his moral framework to guide his actions.
Man is also apart from other animals in the range of concepts he can form. “Range†here refers to spatial as well as temporal. Man, unlike other animals, can form concepts of time. In particular, he can form concepts of time way beyond anything he may himself experience in the short-term. He can talk of a life-time and beyond. He can conceptualise aeons past and future. When man acts, he acts not just for the range of the moment (which too he does) but also for the immediate and not so immediate future.
Man is different from other animals in another basic aspect – he lives by producing. He could live by hunting and gathering, but his rational mind led him into the task of production which greatly enhances his chances of survival and the period and quality of such survival. Modern man produces not just what he needs but also what he estimates other people need and to obtain which, they are prepared to give in exchange other products they themselves produce and which the man himself has need for. He produces not just for his own needs of today but for the needs of the distant future for himself and for others who are ready to trade with him.
Man’s only guide in all this is his mind. Man lives by his mind and not by his physical labour. Physical labour got him his first berries and deer to eat. The working of his mind brought him the tools he produced, the crops he cultivated, etc. Without his rational mind, man would still be in the jungles, much like the dinosaurs did or the tigers still do.
Man is a being of volitional consciousness. His senses bring him percepts of the world around him. His rational mind helps him make sense of these random percepts, organise them into concepts and thus derive principles according to which he may act. He chooses, on his own and based on his cognitive apparatus and the concepts he has formed using it, the course of action to follow in any circumstance.
We now come to the most important point of all – the concept of morals and the definition of the concept “rightâ€
Life, especially human life, is not something that happens. It exists and sustains itself by choice. The most important choice man makes is the choice to live. Once he makes that choice, he has a whole lot of choices to make to be consistent with that. To a man who makes the choice to live, any action that tends to enhance his life (in terms of quantity and quality) is moral and that which diminishes it is immoral. As a simple example, to a man who wants to live, consuming poison knowingly is immoral.
Having said this, there is only 1 axiomatic right – the Right to Life. This right is a completely moral principle that essentially means that Man, as a being of volitional consciousness, needs to be able to act as per the directions of his rational mind if he is to live as per his nature as man. Violating the Right to Life is nothing short of condemning man to death. The only way to prevent man from acting as per the directions of his rational mind is to initiate force against him. In other words, by taking away his Liberty to act as he deems fit.
The Right to Life is very interesting indeed because it automatically prescribes the range of actions a man may undertake and simultaneously defines those that he may not undertake. This becomes clear when we realise that the very concept of Right to Life (and indeed all rights) makes sense only in a social context. In other words, the Right to Life, like all other Rights, is a political right. It is a statement that no man may prevent another from acting as per the directions of his own rational mind. Failure to acknowledge this principle is acceptance of the initiation of force. Since this is not in a man’s rational, long-range self-interest, he accepts the principle.
A man who says “I recognise the Right to Life†automatically says that he recognises the Right to Life of every rational human being like himself on the principle of reciprocity. He does so because doing so has a better chance of guaranteeing that others likewise respect his Right to Life.
The Right to Liberty is a logical corollary, though the most obvious one, of the Right to Life. Since preventing a man from acting as per the directions of his rational mind is a violation of his liberty, violation of the Right to Liberty is tantamount to violating his Right to Life. On the assumption of reciprocity, men thus realise that recognising the universality of this Right to Liberty is in their long-range self-interest.
Property is a tricky question, but then a little application of mind soon reveals that it too is a logical corollary of the Right to Life, but is meaningless in an environment that denies the latter.
Firstly, to recognise property, one needs to go back to the point that man acts to sustain his life as per the directions of his rational mind. He does this by seeking things of value. Value is that which one acts to gain or keep. On acts to acquire values because of one’s rational judgement that they add to one’s life. (In contrast, that which takes away from life would be called a disvalue).
There are 2 ways of gaining something – taking possession of that which exists and producing something that did not exist before in the form in which it becomes the value sought. As far as the former is concerned, the fundamental principle of nature is that of “finders keepersâ€. The first person to stake claim to something found in nature becomes the rightful owner. Absurd statements like “What if someone stakes claim to all the air on earth?†are easily disposed off by the sheer irrationality of such a claim, especially on the implementation. It would take a really stupid person to make such a claim on the air (unless of course he has the ability to trap all the air on Earth).
The tough part is production. Production is the act of modifying the environment to produce the value sought out of previously available materials. The key to this process is the production of ideas. The idea that something would be of value to his life logically and temporally precedes the actual production of the value. The ideas that make it possible for the creation of the value too go into the production of the value. These too are not given to man. He needs to produce them based on the range of concepts that he has managed to gather till date and their application and extension (meaning new ideas) to the problem on hand. Thus, a prerequisite for production of physical goods is the production of ideas. A world bereft of ideas will soon be bereft of valuable physical goods (except of course those that occur in nature).
Having said this, it is now time to come to the Right to Property. The Right to Property is nothing more than the right to the fruit of one’s actions. In other words, if the value man produces to sustain his life as per the directions of his rational mind may be taken away from him, he is condemned to death. A rational mind working in a man’s own long-range self-interest would conclude that a productive man is most benefited by an environment in which there is no taking away of the fruits of one’s actions. Every rational man now needs to make a choice. Either he decides to respect the right of everyone else to the fruits of their respective actions and thus hopes to get his respected as a reciprocal gesture. Or else he prepares for a world where everyone is just trying to take away that which other people have produced. Once again, a rational man working for his own long-range self- interest has only one option – Recognise the Right to Property.
By doing so, he immediately accepts the principle that the way to attain the value that someone else has acquired or produced is to deal with him on the principle of voluntarism – as a trader giving and receiving value.
As mentioned earlier, physical goods or ideas need to be produced. They do not pre-exist. Every man needs to make a moral choice. Either he respects the Right of each person to the value (physical good or idea) he has produced and trade with him to get it or he soon creates for himself a world in which people have no incentive to produce and hence, where he has nothing of value to get from them, by trading or otherwise (unless of course he chooses to live as a cannibal).
Rational men forced into a situation where others do not respect their right to the fruits of the ideas they produced have only two options. Produce ideas and stop sharing them with others (the beginning of the Dark Ages) or just keep mooching on others . The latter option of course assumes that others will continue to produce ideas which they can parasite on. Only a truly irrational person detached from reality will make that assumption. Such a world will soon become completely bereft of ideas.
Thus, the case for IP is a completely moral one, on the same grounds as the case for the Right to physical property. Rational men would recognise IP because doing so would be in their long-range self-interest.
Stephan, I had tried to post on your previous review of the book on the other blog you post on, but you rejected it; so much for intelligent and civil comments I guess. I hope you will post this. I reject your conclusion that the book “is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state’s encouraging innovation by such tricks.”
What you really mean is that I don’t have the same view of copyright as you do. My views are clear and coherent, you just don’t like them. My view is that copyright in common law countries is entirely positive law and was created in order to further socially useful goals. My view is in fact correct, as a matter of law. There is zero doubt about this. You don’t like that the law is as it is. I am perfectly fine with that; dissent and loyal opposition are noble callings, and I am a dissenter and opposition on a number of issues. But you have to be honest and accept that your view is contrary to what the law is. Don’t criticize me for accurately stating the current state of affairs.
We share a view that copyright should be means tested, and only differ in my view that copyright can in some cases meet such a test.
Stephan, I had tried to post on your previous review of the book on the other blog you post on, but you rejected it; so much for intelligent and civil comments I guess. I hope you will post this. I reject your conclusion that the book “is a bit meandering, not grounded in any coherent or fundamental principles; it accepts too many positivist and statist bromides; and worst, it accepts the basic legitimacy of the state’s encouraging innovation by such tricks.”
What you really mean is that I don’t have the same view of copyright as you do. My views are clear and coherent, you just don’t like them. My view is that copyright in common law countries is entirely positive law and was created in order to further socially useful goals. My view is in fact correct, as a matter of law. There is zero doubt about this. You don’t like that the law is as it is. I am perfectly fine with that; dissent and loyal opposition are noble callings, and I am a dissenter and opposition on a number of issues. But you have to be honest and accept that your view is contrary to what the law is. Don’t criticize me for accurately stating the current state of affairs.
We share a view that copyright should be means tested, and only differ in my view that copyright can in some cases meet such a test.
I am just speaking for myself and not for Stephan:
“Stephan, I had tried to post on your previous review of the book on the other blog you post on, but you rejected it; so much for intelligent and civil comments I guess. I hope you will post this. I reject your conclusion”
Do you know for sure, that Stephan rejected your post? Or could it be that it was “rejected” because of a technical glitch/failure and so on? Just have a look at this blog entry and you will see eg that your blog post and others is doubled here. There are after all technical failures sometimes hindering correct function of posting.
On the topic: You seem to accept positive law. Most libertarians don’t do that. Therefore there have to be strong differences in acceptance of positive copyright laws.
From a libertarian perspective your support for copyright law is flawed because positive law is flawed.
You also seem to support copyright laws for utilitarian reasons. Most libertarians base there ethics on deontological principles.
Stephans blog entry http://blog.mises.org/archives/010592.asp is really helpful understanding that.
William Patry:
Bill, as discussed privately with you, I didn’t block you (and indeed don’t have such authority on the Against Monopoly blog which had the post you refer to. I do not think David Levine, proprietor of that site, would block your comment either. There must be a technical problem; my apologies for the impression this apparently made on you regarding my posture toward you and your book.
Let me make some preliminary comments before replying to some of your particular points. First, as I noted, your book looks to be a “carefully done and well written work. It looks like it provides lots of ammo for our side–pointing out problems, excesses, abuses, fallacious pro-copyright arguments, and showing how it does not accomplish the goals set.”
For this I am grateful and hopeful, and this is the reason it is on my reading shelf right now. I hope to extract useful arguments from it.
(By the way, I can understand your having no use for my own IP work which is based on libertarian principles you probably don’t share, but I am a bit surprised you did not so much as cite any of Levine and Boldrin’s work which is the seminal work in this field on utilitarian and practical aspects of IP; the online version was online as of Jan. 2008 and preliminary versions years before that.)
Second, I was clear that I had not read your book yet, and indeed was initially hopeful based on the endorsement of Mike Masnick who is himself heroic and very principled, clear-headed, and even radical on the IP issue. But, as I noted, it appeared from quotes from the book that your case is weaker than it could be due to acceptance of too many flawed mainstream assumptions. Again, I have not completed your book and hope to be proven wrong.
The main problem with copyright is a principled one. Copyright violates property rights. It is really that simple. Further, it is nothing but a grant of privilege from a criminal state–the handing out of favors by the mafia in charge to preferred recipients at the expense of others. Third, the utilitarian, wealth-maximizing case made for copyright is flawed ethically and economically; it is impossible to justify copyright on utilitarian grounds, no matter what the evidence. Finally, as a decidedly secondary or maybe even tertiary mark against copyright, one can note that–even if we turn a blind eye to the violation of property rights, the criminality of the state and all state legislation, to the moral and other problems with the wealth-maximization basis for copyright–the advocates of copyright have not shown that the benefit outweights the cost.
Now, I am all in favor of incrementalism. I don’t mind even focusing on a tertiary issue like this (I do this in my There’s No Such Thing as a Free Patent). I wouldn’t even mind simply using this focus to argue that at the very least the copyright term should be reduced, as I do in a forthcoming article on how to improve the IP system. But in doing so one does not need to grant the validity of their utilitarian case; and one does not need to admit that some copyright term, some copyright law, is obviously needed–even if it’s radically reduced from what we have now. It concedes too much. In fact, if you concede that any copyright law or term at all is legitimate and “needed,” you have lost your case, in my view: because it throws the principled approach out the window; and it grants the validity of the wealth-maximization approach. Once you do this, all bets are off, because there really are methodological problems with utilitarianism. (See Rothbard’s Toward a Reconstruction of Utility and Welfare Economics.) Only a clear, principled approach with awareness of the ethical issues involved and the key fallacies used repeatedly by those pushing IP propaganda can avoid their traps. The only solution is to make it clear that the burden of proof is on them. Now the truth is they can never satisfy it–they can never show that there is some net benefit to society. All methods of estimating this are systematically flawed (value is not cardinal, it is ordinal; and it cannot be interpersonally compared much less measured and summed up in cardinal terms). (And even if they could somehow “show” this, it’s still irrelevant, as it’s still immoral.) But as long as the burden of proof is on them, it doesn’t matter if they can’t prove their case because all the studies happen to be against them, or because any study has inherent flaws.
But back to incrementalism: if someone just avoided the whole issue and said, “look, let’s approach the state’s law on its own terms: even assuming its goals are valid, does it achieve them?”, etc., this is fine. I do the same in my writing. But I never admit their assumptions are correct. I’m just saying even if you accept their utilitarian rationale, where’s the proof? And note that this means that even accepting the wealth-maximization rationale for copyright, the default presumption is no copyright, zero years–unless and until the advocates of copyright can show decisively that a given proposed system would clearly produce a signficant “net gain”. Until they have done so, the default position even for the incrementalist has to be no copyright. If, instead, you say, “well, let’s have a more reasonable system–say, 10 years–one that works; of course we need some copyright system”–if you grant this, even when there is no evidence even for this truncated copyright system, then you have lost because you are admitting that “copyright system X” is justifiable based on intuitions, hunches, and feelings of “reasonableness.” And if you grant this, you have no ground to challenge their view that a 100 year term is “reasonable.”
Further, given that I’m a libertarian–and I’m a libertarian for a reason–of course I cannot help but see any approach to this issue as helpless confused or unprincipled if it is not based on libertarian principles… unless it is very narrow and does not concede ground to the enemy.
So, when you say:
Well, true–I don’t like them because they are based on the wrong principles (in my view). Despite your protestations I do not see that your thesis is grounded in fundamental principles–and by this of course I mean normative principles, since you are in fact making a normative criticism, not merely engaging in positive law discourse.
You write,
Actually I disagree with you. It was not created to further “socially useful goals.” In fact, no state law is. Now sure, there is a stated purpose of copyright law. That does not mean it is its real purpose. Likewise, the stated purpose of the “Protect America Act” is, well, to protect America. But of course that is not its real purpose. We must be careful not to conflate the window-dressing the state puts on its laws to obtain the silent acquiescence of the sheeple with the truth. That said, I agree that we can use the stated objectives of legislation rhetorically against the state to try to hold them to the lip service they give to the law.
This is correct; and neither do you, apparently–and good for you. You appear to be better than 99% of our IP attorney colleagues. I am very glad you are arguing from an informed position to radically reduce copyright term.
Of course. I have always accepted the idea that positive law and justified or libertarian law are not the same thing.
I am not, in the slightest. My understanding is that you are in favor of having a copyright system. This is a normative position. It goes beyond merely recognizing that we have copyright law. As the blurb for your book states, “Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely: the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning. … Patry calls for a remaking of our copyright laws so that they may once again be respected.”
Now, if this is inaccurate–fine. But if it’s not, you oppose calls to weaken copyright law. Why? It is not justified, even on utilitarian grounds. No one has shown that even a 10 year copyright term generates net wealth. Do you disagree? If not, can you produce the proof or study? And if you can’t, why wouldn’t you agree that the default position is then that we should have no copyright law (and one way to get there is to make it weaker), at least until someone can show that a truncated or minimalist copyright system is justified? Why would you oppose weakening it?
Further, I disagree with your wanting copyright law to “be respected.” Why would anyone want this unless he admitted the basic normative legitimacy of the criminal state and its edicts including copyright legislation? If copyright law in its current form is unjust, as you seem to think it is, one way to reduce this unjustness is to persuade the evil congresscritters who enacted it in the first place to “do the right thing” and adopt a good law–a pipe dream, of course. They are not interested in justice. Anyway, this is one approach–a futile one, in some ways, but I’m glad some of us are obstinate enough to keep fighting anyway. But a second approach would be to urge disrespect for the law and the state. The more people see that the emperor is naked, the less able is the state to trample our rights–yes, in the name of the abomination that is copyright law.
To my knowledge there is no study demonstrating this (see Yet Another Study Finds Patents Do Not Encourage Innovation). Maybe you do one in your book, but I haven’t found it yet, if so. Maybe you cite one in your book that I’m unaware of. If so, maybe you can point it out here.
Let me reiterate that no disrespect is intended by my (admittedly blunt–but honest and sincere) comments. I do respect your work and your pushing in the right (as I see it) direction, even if I do disagree with you on some aspects of this issue and think your argument could be strengthened by taking into account some of the concerns such as I have pointed out above and in other writing. I look forward to seeing what you produce and what effects your book has, and welcome any further dialogue with you. In particular, I have tried as best I can to concisely set out the essence of the libertarian perspective on IP in The Case Against IP: A Concise Guide. If you are interested in what we think about his and how our very principled, pro-individualism, pro-freedom, pro-property rights, informed-by-sound-economics and informed-by-sober-assessment-of-politics bears on this issue, I urge you to take a look at this, and again, would welcome your feedback and discussion.
***
Addendum: In case you missed it, I had an extended comment about this on my blog, which I reproduce below:
certainly the origins of copyright were shabby, however effective the make-over may have been. one suspects that under the fine clothes, she’s still a tart.
@SK: Congratulations. A very precise and informative answer.
Even on utilitarian grounds (as flawed as they may be) ip is not justified because of no proof of its effectiveness to heighten the net gain of the people.
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