November 17, 2017

Don't Panic! | Peer to Peer Review

By Barbara Fister, Gustavus Adolphus College, St. Peter, MN

Barbara Fister takes a look at William Patry’s new book, Moral Panics and the Copyright Wars

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Barbara Fister, Peer to Peer Review

In the past week, I’ve encountered signs that publishers are doing their best to discourage readers from buying books.

For example, Knopf is raising a legal eyebrow at booksellers who have imported UK editions of the third volume of Stieg Larsson’s popular Millennium Trilogy to satisfy readers who can’t bear to wait for the lagging U.S. publication in May; Knopf calls such imports a violation of their copyright, even though impatient readers are savvy enough to order books online from British retailers if they’re thwarted at home.

More recently, several publishers have announced that they will delay ebook releases until premium-price hardcovers have spent a few months on sale in order to protect their industry. Readers have lost the patience formerly required to wait for a cheaper format—like the year-long paperback embargo that is hardwired into publishers’ business models, not taking into account robust online outlets supplying cheaper copies. The first sale doctrine wouldn’t stand a chance in today’s environment if it were open to debate.

These conflicts, framed around rights and legalities and the need to preserve traditional business practices, never seem to take into account the good news that readers are eager to read and are ready to pay for the privilege. Arrr, me hearties; you might turn honest readers into pirates if you stand between them and their books.

Causing panic
William Patry has a few things to say about pirates in his new book, Moral Panics and the Copyright Wars. The well-known blogger, senior copyright counsel for Google, and author of the seven-volume definitive work, Patry on Copyright, steps back from purely legal analysis to examine the super-heated rhetoric surrounding copyright battles. Corporations trying to extend their control and resist new technologies tend to frame disputes in stark moralistic terms. Copyright is property, and control of one’s property is a moral right; those who use copyrighted material without paying the owners are thieves, parasites, and pirates.

But this is inaccurate. "By describing copyright as a private property right, proponents of the description hope to get policy maker and courts to believe that only private, and not public rights, are implicated," he writes. Copyright is not a private good; it is a social relationship. "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," a focus that is hidden when the argument is framed purely as theft of private property.

This book examines the rhetorical framing devices used by corporate interests to expand copyright laws. The purpose of this framing is simple: "to get what you want by defining yourself positively and by defining your opponent negatively." Nothing works better than inducing a moral panic, the systematic distortion and exaggeration of a problem in order to make it more compelling, and in the process demonizing those defined as deviant, making them appear much more threatening than they are.

The making and molding of social issues
Social issues are often shaped by the careful cultivation of anxiety. An issue is often identified and named as something that challenges commonly-held moral values. ("Property is important; I’d be upset if somebody stole my property.") Issues are typified through dramatic narratives, telling worrisome stories that can be picked up, repeated, and amplified in the press. In the process the threat is often distorted to enhance its significance. As a result, the government is often called in to deal with the threat and to regulate behavior by extending its control. All of these players—claims-makers, the press, and the state—have something to gain by making people fearful. And moral panics do the job.

Stanley Cohen, who named the phenomenon in his 1972 book, Folk Devils and Moral Panics, called those who engineered panics "moral entrepreneurs." The interesting thing about the RIAA, the MPAA, the AAP, and other lobbies that want to extend copyright and limit the use of cultural materials is that they are not behaving like entrepreneurs—rather the opposite. Instead of seizing on technological opportunities to offer new products and open new channels to purchase them, they pull out all the stops to prevent innovation.

"The Copyright Wars must be understood as archetypal responses of businesses that are inherently non-innovative and that rely on the innovation of others to succeed . . . The problems of the Copyright Wars are not caused by technologies or by consumers acting badly, and they cannot therefore be solved by laws, and certainly not by more draconian laws. The problems—such as the decline in sales of CDs and DVDs—are the result of the copyright industries many and considerable failures to focus on satisfying consumers’ desires as opposed to stifling those desires out of a woefully misguided view that copyright equals control and that control equals profits."

Patry makes the claim that innovation is not the problem, it’s the solution because it "provides the means by which new content can be created and then distributed to consumers in a form and manner consumers desire. The problem lies with those in the copyright industries who are neither innovative nor willing to license to those who are." When innovation is rejected, consumers are only left with illegal (but easily available) means to get what they desire. (The criminalization of the majority of young people who find it natural to engage in read/write culture is what prompted Laurence Lessig to write Remix.)  

Patry points out that the rhetoric of fear includes flatly misleading information. He cites an Ars Technica investigation into figures frequently cited in the press and in congressional hearings claiming that piracy results in 750,000 lost jobs and $250 billion in costs to the U.S. economy annually. Because they are repeated so often, they become authoritative numbers, but when painstakingly tracked to their source, they turn out to be complete rubbish. (This article, by the way, is a wonderful example of critical information literacy.)

Innovation was demonized in the past in ways that seem absurd in hindsight. Jack Valenti (yes, the same Jack Valenti who for years predicted the complete collapse of the film industry if pirates aren’t punished) testified before Congress in 1982 that Hollywood’s future "depends on its protection from the savagery and the ravages of this machine." Which machine is that? "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."

Balancing act
Patry’s book unpacks the rhetorical devices used in copyright debates, but he does not oppose copyright. "For policy makers and the public, copyright is not a winner-takes-all proposition,” he writes. “Copyright is a system to advance public interests; those interests can be furthered by a copyright regime tailored to provide sufficient incentives to create new works. But at the same time we must recognize that the public interest is genuinely harmed by overprotection."

Though academic librarians are understandably caught up in the issues surrounding scholarly communication, a system in which much of the content is publicly funded and the authors are primarily rewarded by exposure, not protection, we still have a stake in popular culture and in the ways that copyright as it is defined today thwarts creative expression and hurts innovation. Moral Panics and the Copyright Wars is an informative interdisciplinary excursion into the issues that draws on legal, economic, and sociological theories to examine a debate that affects us and our students on a daily basis.

Barbara Fister is a librarian at Gustavus Adolphus College, St. Peter, MN, a contributor to ACRLog, and an author of crime fiction. Her next mystery, Through the Cracks, will be published by Minotaur Books in 2010.

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