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Jonathan Handel

Jonathan Handel

Posted: October 24, 2009 08:04 PM

Review: Moral Panics and the Copyright Wars by William Patry

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The content and technology businesses are at war, as is well-known and as I discuss in a recent article. It’s a struggle that focuses on unauthorized file sharing and new business models—in other words, a copyright war. Undeniably, the entertainment industry often battles demand rather than trying to satisfy it, and copyright laws have taken a corporate turn. Who better to write about this conflict, one would think—and point the way to solutions, one would hope—than an author with 27 years experience in copyright law as a professor, practitioner and government attorney?

That author is William Patry, who is now Google’s senior copyright counsel (though he emphasizes that he’s writing to express his own views, not Google’s). He says he’s in favor of “effective” copyright statutes, and I opened his book hoping to learn what those might look like, since the divergence of public behavior and existing copyright laws makes it clear that something has to change. It’s an area of great interest to me, not just personally, but also professionally, as my law practice at TroyGould focuses in large part on new media and, more generally, the intersection of entertainment and technology. I was writing a review for the Los Angeles Times, and I hoped I’d be able to write a positive one.

Alas, not. What I found was a book riddled with invective, unoriginal observations, and numerous typographical errors—about 200 typos at my count, including twice referring to Martin Luther King’s most famous oratory as the “I Had a Dream” speech (as though King had simply given up) and inadvertently transmuting federal judge Richard Posner into “Judge Richard,” perhaps positioning him for a gig on syndicated television.

The text is heavily footnoted, yet still marred by unsupported claims. Thus, Patry says that imposing public-access easements on beachfront houses doesn’t reduce their value. That’s doubtful, and he offers no evidence. We’re told “orphan works” is a metaphor used to unjustifiably protect certain kinds of works, but actually those using the term want to loosen protection (a position I agree with, as does Patry). Patry claims that declining CD sales are not related to unauthorized file sharing, but offers neither discussion nor footnotes. Moreover, the book is larded with unnecessary block quotes, among them a half-page endnote analyzing the phrase “Tastes Like Chicken.” Whatever the entrée, a sharper carving knife would have helped.

In short, I was hoping for a significant contribution that would build on previous work in this oft-discussed field. Instead, I found a deeply flawed narrative that didn’t even acknowledge the existence of landmark books in the area by such authors as Lawrence Lessig, Neil Netanel, William W. Fisher III, Jessica Litman, Siva Vaidhyanathan, Tarleton Gillespie, and James Boyle. As I discuss in the LA Times piece, the book is not without some virtues, but I was largely disappointed and surprised. You can read the full review here, then come back and leave comments if you wish.

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