Ezra Klein has a smart piece on copyrights today, slamming Chuck Schumer's (D-N.Y.) draft bill to copyright fashion and grandly titled the the Innovative Design Protection and Piracy Prevention Act link here. We really need a lot more op-eds like this if public opinion is to change and we have any chance of stopping still more cancerous IP.

Canada is involved in a furious debate over copyright - the music lobby pushing for U.S. style DMCA restrictions, against a loose coalition including consumers and some musicians pushing for a more balanced rule including strong protection for fair use (called fair dealing in Canada). Michael Geist is blogging up a storm about some of the music industry shenanigans.

Moral Panics and the Copyright Wars, by copyright lawyer William Patry (see his related blog), is forthcoming next month. 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, from the summary alone one can tell it will be a disappointment:

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.

Terrible. 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.

Update: I got 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).

[SK cross-post]

Update: see my comment on Mises Blog here:

William Patry:

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.

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:

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.

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,

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.

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.

You don't like that the law is as it is.

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.

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.

Of course. I have always accepted the idea that positive law and justified or libertarian law are not the same thing.

Don't criticize me for accurately stating the current state of affairs.

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.

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.

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:

Someone wrote me that my comments on Patry's book are premature, that the description is misleading and that I will like and agree with most of it. My edited comments:

***

You are right, I haven't read it. But I saw enough red flags for grave concern.

You say that I might not agree with all of Patry's book--I don't have a problem with not agreeing. It's that the approach most people take is bankrupt. Unless you have clear property rights principles--i.e. are basically a libertarian--there is no way to be very good on this. Only a few utilitarians are good--like Boldrin and Levine. Any honest, intelligent, informed utilitarian would be against copyright, not want to "improve" it.

I realize his book focuses on how copyright holders have twisted the law in their own interest. But look: I am an anarchist. I think the whole system is corrupt. I am not surprised that people "twist" it. That's part of the system. People who expect it not to be twisted are naive. In fact it's twisted by virtue of being state law. It's impossible not to be twisted; it's impossible for people to ignore incentives to twist it even further. As Mises wrote in Human Action, "No socialist author ever gave a thought to the possibility that the abstract entity which he wants to vest with unlimited power whether it is called humanity, society, nation, state, or government could act in a way of which he himself disapproves."

In my view talk about how the system has been "abused" only serves to reinforce the state propaganda that the state is basically legitimate, that the basic system is "good" but has been corrupted. This is all nonsense. It just serves to keep the state in power and to perpetuate the myth that the system is basically legitimate and fair. It's not. The state is quite literally just a mafia gang--the only difference being that it is largely perceived (falsely) as legitimate, partly because the people are so stupid and have been bamboozled by state propaganda--so the state cloaks its criminal actions with just enough of a veneer of legitimacy to keep up the pretense, to go on deluding the stupid populace that it's really "their agent" and there for "their good." It's all just a big scheme.

The problem is not that copyright holders have twisted the law. The basic system, even without "ridiculous" twisting, violates individual rights.

You claim that the description on Amazon is misleading, that the book is all about how copyright law is consistently and repeatedly abused. Well, I hope so. I agree that pointing out abuses and excesses of the system is worthwhile. And if he calls for a shorter copyright term (say), that is an improvement, though in doing so he undercuts the principled case against it.

But the blurb does say he's a centrist. That he is a "believer in appropriately balanced copyright laws". Unless this is flat out mistaken, I believe it's impossible for him to have a sound critique--given such a confused, unprincipled view (though yes, he could be good enough to point out bad consequences of the current system, as a reporter).

The blurb says: "Patry concludes that calls for strong copyright laws, just like calls for weak copyright laws, miss the point entirely"

If this is true, he's against weak copyright law. This is terrible. The copyright law should be weaker. Even someone merely chronicling its abuses should see that this is an obvious response to that abuse.

"the only laws we need are effective laws, laws that further the purpose of encouraging the creation of new works and learning"

This seems to buy into the false notion that utilitarian concerns are what should drive law. It buys into the Constitution as legitimate and sensible. It's neither.

"Our current regime, unfortunately, creates too many bad incentives, leading to bad conduct."

If he is, as appears, just a mainstream statist (supporter of the state and our democratic-welfarist-socialist system), such critiques sound hollow. It's like Bush or Obama talking about saving a million dollars in a pork bill, in the midst of trillion dollar boondoggles. It avoids making a radical critique of the regime per se.

"Patry calls for a remaking of our copyright laws so that they may once again be respected"

I do not want our copyright laws to be respected. I want them to be ridiculed and seen as what they are: illegitimate, arbitrary decrees by a criminal gang, issued at the behest of special interest lobbying groups. I realize that the criminal state survives on the false perception of legitimacy: I want this illusion to be burst. I don't want the state or its laws to be respected. The only way civilization will advance is to throw off the shackles of its pathetic allegiance to the state--the entity that harms them most. We have a societal case of Stockholm syndrome.

Anyway--I'll read the book and gladly print a retraction in the happy event that I'm wrong.

I wrote here on 6/14 "And once again we come up with the question posed by copyright, giving publishers and owners a claim on an income stream that would not otherwise have existed. There is no clear public benefit from paying them. The owners will provide no service to receive this bonanza. Nor is the public interest protected to achieve the lowest possible price, consistent with providing the service, the marginal cost to the provider." I return to Google today, focusing once more on the proposed settlement (as no doubt I will again as more of the details emerge on the proposed settlement the feds now have under review). This essay was prompted by David Carr, writing in the NYTimes link here.

The dilemma has several aspects. One is the gain from making so much written human effort readily available on the internet, both conveniently and hopefully, at modest cost. Against this is the cost that consumers will have to pay Google for access, the amount of which is still unclear. And the fact that Google will end up with a monopoly at selling access to these books, with the minuscule exception provided by borrowing the copy from a library which provided Google the chance to scan it in the first place.

That monopoly will exist by virtue of the government agreed terms now proposed by Google. No other companies willing to scan and offer public access will be in a position to compete unless they can undercut Google's resale prices and Google has the advantage of first-to-market. Libraries for the most part seem to have got little for providing access--those that provided the books for scanning and their members get free access to the Google files. In the end these institutions were funded by the public through taxes (our money) in the first place, so this seems like a clever move to capture the return from a public investment.

But the deal is still subject to government approval. Will the government try to renegotiate the deal? Hopefully yes. The cost, of course, is the delay is making access publicly available. To me, that is a small price to pay.

As an opponent of copyright, however, I would like to see the whole deal and copyright itself abolished. That is unlikely. How about a deal in which unregistered copyrights beyond five or ten years old, automatically expire. And an expiration date on all other copyrights of ten or twenty years. Not very realistic politically, but unless we find some basis for compromise, I suspect we will get no real welfare-increasing improvements.

More later.

This is partially a bleg: does anyone know what the Google book settlement means? It is asserted that Google gets preferential treatment. So my questions:

1. Could I file a class action lawsuit against Yahoo claiming to represent copyright holders and settle with them for a nominal sum - promising them all existing copyrights in exchange for 0.0001% of their revenues? It seems as though it would be difficult for holders of orphan copyrights to opt out of the settlement?

2. Can the Author's Guild and the team of lawyers that ripped off Google on behalf of a bunch of copyright holders who will never see a penny of the settlement money legally offer a less generous arrangement to Yahoo?

3. Why on earth do we allow class action lawsuits anyway, given that the only beneficiaries are the lawyers that file them?

As we know... politicians don't use computers. (via Robert Levine)

I don't think I will ever understand how groups with a private interest in an outcome can continue to expect the public to accept the most outrageous arguments for their position. Mike Masnick has been a consistent popper of such arguments, and he has another now on some in the fashion industry who again want to copyright their designs link here. One wonders where they have been, as they have totally failed to realize what they are advocating.

Fashion depends on a constant stream of change to get people to buy the latest in-thing. Think about the design dimensions that are possible link here. How many inches above or below the knee can a hemline be? Are they going to copyright that? Take the next step. How many inches can a skirt flair? How many pleats? How wide each pleat? How many colors? How high the waistline? I'd love to be the lawyer defending a copyright infringement case in court. Ask the plaintiff what distinguishes his design. How can he answer?

It gets only slightly better when one considers the example of pretty obvious knockoffs. But big-name fashion houses aren't going to produce them. So now we are in the realm low-end fashion. Isn't the copied better off accepting the emulation as what high-end fashion is all about? The design is obviously widely admired. The original must be worth several times what the knockoffs have to sell for. And why worry? The next season will bring a whole new set of fashions. That is the definition of fashion.

Copyrighting fashion is a contradiction in terms. It will kill innovation (and profit) in the industry. Like so much else with intellectual property protection..

Fifth RIAA appointment to the Department of Justice. No revolving door of lobbyists here.

You may have heard that an international treaty that would make serious revisions to copyright enforcement and penalties is being negotiated secretly by the Obama administration. Organizations that have tried to obtain documents and related information under the freedom of information act have been denied on account of "national security" although every pro-copyright lobbyist is apparently allowed to participate. Stephan gives a link to a nice video report discussing the matter link here.

Obama picks RIAA's favorite lawyer for a top Justice post. As had already been pointed out

Campaign rhetoric aside, this should be no surprise. Obama's selection of Joe Biden as vice president showed that the presidential hopeful was comfortable with someone with firmly pro-RIAA views. Biden urged the criminal prosecutions of copyright-infringing peer-to-peer users and tried to create a new federal felony involving playing unauthorized music.