Interview With William Patry: Understanding How The Copyright Debate Got Twisted

from the such-is-life dept

As you know, William Patry, who’s devoted most of his professional life to copyright issues, is coming out with a book, Moral Panics and the Copyright Wars. I’ll have a full review of the book in early September (though, the short version is “it’s great”), but if you want a signed copy of the book (along with signed copies of four other books related to these issues) order soon, since the Techdirt Book Club is almost sold out.

In the meantime, I got a chance to ask Patry some questions about why he wrote the book, and his views on the state of copyright these days. Patry is a world-renowned expert on copyright law, and has written what’s recognized as a definitive text on copyright law, Patry on Copyright (read a shot review of that work). Here’s our interview. Enjoy:

What drove you to write Moral Panics & The Copyright Wars?

I wrote the book out of frustration; frustration over the way the language of demonization has been successfully used to frame copyright debates in order to achieve results that are anti-consumer and anti-innovation. The importance of framing is well known in political circles. John Kerry was brilliantly framed by Karl Rove in 2004. Barack Obama brilliantly avoided similar efforts in 2008.

Innovative companies have similarly been subjected to the Karl Rove treatment by content owners. We can laugh at some of the metaphoric language used by copyright owners, and think, rightly, that it reveals how out of touch some of them are with the way technology has changed consumer demand. But laughing at such language ignores that such characterizations are coldly strategic; they are not uttered off-the-cuff in the heat of an emotional moment. The strategy is to retain existing business models in the face of disruptive, new business models that respond better to consumer demand. Rather than engage in self-evaluation, rather than examine whether they should change in the face of changed circumstances, too often copyright owners attack change itself, by conjuring up what sociologists call moral panics, hence the title of the book.

You’ve spent many years in “the copyright business” in a variety of different roles in both the public and private sector. You’ve discussed in the past why you’re a supporter of copyright — and yet, you are greatly concerned with what copyright has become. Can you explain when you first started to become concerned about the way copyright was being used/portrayed — and what brought you to that realization? Was there a moment when it occurred, or was it a gradual thing? Or do you feel that your position has remained unchanged?

I certainly began my career as what we would call today a copyright maximalist, based on a view of copyright as inherently good, so why should more of a good thing not be even better? I began to change when I went to work for the U.S. House of Representatives, Committee on the Judiciary in the very early 1990s. Taking seriously the job of trying to craft the best possible for the larger public interest, I began to think about what that meant in practice, and this was regarded by some in the copyright industries as heresy. Others were, however, understanding, and I remain friends with many in the industries, which are, after all, populated with a large number of very talented people. 1998 was a watershed year for me, with term extension and the anti-circumvention parts of the DMCA, which, in tandem represent the Rubicon for me, the point at which copyright became unmoored from its fundamental purposes. I doubt it will ever find its way again.

Based on that, in your mind, is there any way we bring copyright back to the purpose of “promoting the progress” rather than being used to prop up business models and prevent innovation? Is it even possible?

I think it will be extremely hard to make significant changes in fundamental areas due to the international commitments we have made not to change fundamentals. The globalization of high levels of copyright has, in my opinion, been quite injurious because it takes away the freedom of countries to admit they made mistakes and to then fix them. The best hope, I think, is that copyright will become irrelevant by virtue of copyright industries responding to consumer demand.

What, then, makes you most optimistic about creativity? Pessimistic?

I am very optimistic about creativity. I think we are in a highly creative period fueled by the democratic means of creating and distributing works to the public made possible by the Internet.

In an ideal world, what would copyright law look like to you?

The 1909 Act. It had a much shorter term, formalities that separated the wheat from the chaff, and fair use wasn’t mentioned in the statute because it was regarded as a robust common law doctrine.

Why is it better to have fair use not in the statute, but in common law doctrine?

I think it is better not to have it in the statute (or to say simply “the fair use of a copyrighted work is not infringement”) because courts have treated the doctrine as if it is codified in 17 USC 107 and therefore as if their role is to merely interpret it. This is not the case; Congress intended that courts continue to have the freedom to develop the doctrine as they wish, but the statute has scared them off. Judge Pierre Leval of the Second Circuit, one of our greatest scholars on fair use, has written persuasively about this, and from first hand experience.

You and I both feel that the copyright “debate” is really a debate over business models, but is there any way to separate the two things? That is, will copyright debates always be about business models?

Copyright is an economic right, not a moral right so I would hope the debates will be about economics, about the best way to encourage innovation, both in the creation of works and in their distribution.

You say that copyright is an economic right, rather than a moral one, and while that’s true in the law, there are many who believe it should also be a moral right (as it is in some other countries). How do you respond to those who say that pointing out that it’s really an economic, rather than a moral right, are really just avoiding the issue, since they feel it should be a moral right?

I talk in the book about the attachment and endowment effects, which explain part of it, but as my mother used to say “don’t confuse me with the facts” remains a strong instinct.

For many of us who are concerned about what copyright law has become, what do you think is the most effective way to change things? Historically, changes to copyright law have been driven by industry, not everyone else. The entertainment industry has spent plenty of time trying to block us out of the public debate by claiming that we “just want stuff for free” or are “defending pirates.” What do you believe is the best way to get beyond that, and actually effect change?

I would talk to Michael Geist in Canada. He is, to me, the single most effective advocate for the public voice in copyright debates. He is also respected by many Canadian government officials. We do not have anyone remotely like him. It’s not enough to rail about things you don’t like, or have a following of people who idolize you. And that, unfortunately, is the rut we are in here.

Those in the “copyright maximalist” camp will often suggest that much of what they’re doing is really about “education.” For example, the RIAA has repeatedly said that its lawsuit efforts were really an education campaign. But, what your book argues is that the education campaign is part of that moral panic, rather than a true education. So what is the best way to actually educate people on these issues. I agree that Michael Geist has been very effective in Canada, but his efforts have been focused on legislative issues. I’m wondering how (if it’s possible) to have people educated on copyright in general. Is it just through books like yours? Is it through education campaigns in schools? Or is it just an education that today’s kids are getting on their own online?

In the book, I equate the RIAA’s education campaign to the Maoist Great Proletarian Cultural Revolution, especially the December 1968, “Down to the Countryside Movement,” in which intellectuals living in cities were ordered to go to the countryside, where their bourgeoisie thinking would be worked out of them and they would be reeducated by the masses. That said, I do think that education about copyright is important, but like health care reform, I fear that the sides are so polarized that there is little chance that all could agree on the content. This is what happened in Canada. I think parents have an important role to play in this, and I certainly would not tolerate my twins engaged in unauthorized file sharing. I buy them only authorized works and try to set an example. The industry also has a responsibility to provide people the means to buy legitimate product, in formats and at prices that make sense.

I would think that many in the industry would cry foul at that final statement (about the industry having a responsibility to provide people the means to buy legitimate product), saying that copyright gives them exclusive rights, including how to distribute and sell their own product, and they would then argue that, to many consumers, the “price that makes sense” is “free” and that they cannot build a sustainable business that way. It is a common refrain, “you cannot compete with free.” So what do you think is the proper response to such claims?

I think that is no more valid a response than those who offered by filesharers who argue that its OK for them to do what they are doing because the labels screw the artists. Not only does iTunes refute the idea that people just want free stuff, but look at what happened in January of this year when Monty Python started a YouTube channel and gave away free streams of their stuff: their DVD sales on went up 23,000% (not a typo). Here’s another example. My wife owns a cafe. She makes espresso there and the guy who makes it used to work at Starbucks. I obviously can get espresso for free there. But I don’t, I drive two miles away to a Starbucks store and pay $2.01 for it because I like the way it tastes.

Like you, I’m most optimistic that the real solution to all of this is the innovative new business models that are coming along, that may make the old limitations functionally obsolete, even if legally still in place, but it’s very difficult for those who are so immersed in the old way of doing things to see the possibilities there. It’s a classic “innovator’s dilemma” type problem. So separate from how best to educate “the public” — do you have ideas on how best to educate “the industry”? Is it just showing success story after success story? Or is there something more effective?

I fear that only the market will educate the industry, but that education won’t be even; for example, look at the different approaches taken in the Redbox controversy by Sony and Lion’s Gate on on hand, and by Universal and Fox on the other.

This isn’t directly related to the book, but an interesting issue that I’ve been exploring lately are the different ideas on how to reconcile copyright law with the First Amendment. The traditional explanation has been that the idea/expression dichotomy, combined with fair use, allow these two rules to co-exist. What are your feelings on the issue?

I think the two can co-exist only if fair use is robustly and generously applied. The AP v. Shepherd Fairey case is one, therefore, that I view with great alarm.

There are many in our readership who question the need for copyright at all, noting that there are plenty of other mechanisms for incentives to create and business models to support creators. You obviously disagree. How do you respond to those people — and what makes you confident that 1909-style copyright policy wouldn’t eventually lead to the same issues found in copyright today?

I think that there are works that have no need for copyright, such as private letters, works of architecture, and many business documents, to say nothing of emails. I also think the term of protection is way too long for all works. Unfortunately, we have never tried to fit the length of protection to particular types of works. There are works though, especially those involving large investment, like motion pictures that do need the ability to secure financing through the asset of copyright and to go into court to stop massive unauthorized copying. This is also true for commercial label music. I think ideology or displeasure with business practices has interfered with recognition of these legitimate needs.

I want to thank William Patry for taking the time to do this interview. I was tempted to dig deeper on that last question, but already taken way more of Patry’s time than was warranted — and I appreciate him giving such thoughtful answers. As mentioned, I’ll do a more thorough review of the book later, but it really is a must read, no matter where you stand on copyright issues.

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Comments on “Interview With William Patry: Understanding How The Copyright Debate Got Twisted”

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Community Manager #1 says:


William is an amazing person with an incredible patent and copyright acumen. Unfortunately, a first, and somewhat unsavory person seemed to take over the previous story about him that may have drove the previous set of comments.

I sincerely hope that this thread is more focused, and perhaps includes comments from Mr. Patry himself. I suppose my comment can be best summarized as this: If your desire is to troll, please seek another thread.

Thank you.

Derek Kerton (profile) says:

Re: Re: Oh woman

Yes. Despite his sound rationale, I think people will still argue many of his points. But he’ll pay most dearly for this one:

“My wife owns a cafe…but…I drive two miles away to a Starbucks store and pay $2.01 for it because I like the way it tastes.”

He may be able to get coffee at either cafe, but I know something married guys can only get in one place, and he’s going to find the supply severely constrained!

Ah, marriage: much like copyright, we confer in one person the monopoly rights to something of value. It can be produced anywhere for free, but we agree to only get it from one place. Economics suggests: the supply will be constricted, the price will go up, and total utility will go down.

Josh (profile) says:

Large Investments

William is awesome. I only have one significant disagreement with anything he said, despite being of the opinion that copyright causes more net harm than good.

That last question applies to me. I have gone from accepting copyright as reasonable (in 1909 terms, pre-1976/DMCA issues), to disagreeing that copyright is necessary at all.

We have already seen many examples that prove that you don’t need hundreds of millions to make either excellent movies or music – especially as the cost of production/distribution has dropped to very little as technology has advanced. Mike regularly lists successes of this here.

We have music of equivalent (and many would say better) quality being made by small groups or individuals in their homes or with no major label backing. Same with movies – although not as many yet, there have been some excellent ones (anyone else love Primer? a full length film made by a couple guys running off a few computers in his kitchen).
And let’s not forget a summer blockbuster from 1977 made with a paltry budget of $11million (~$40m in today’s terms) with a cast of no-names that influenced entire generations and most sci-fi after it (Star Wars).

And even without those big successes, we still don’t need copyright. Every music album and movie doesn’t need to be a blockbuster/chart topper. We’re entering a point where more music than ever before is being created – there are fewer top stars making millions and many more average musicians making a living wage (making music that is just as good or better). The same will happen with movies. And video games (already happening to an extent). And TV shows. And whatever other legacy industry is still hung up on copyright as their business model opposed to serving their customer’s needs.

And we’ll be better off, too.

andrew johnson (profile) says:


It seems like discussions about copyright are often framed as a conflict between the interests of producers and those of consumers. Myself, coming from a background in open-source software, have always wondered where copyleft licenses would fit into an ideal system for copyright. When Mr. Patry describes copyright as an “economic” right I couldn’t help but assume that he was not thinking about the consequences that type of thinking would have on a subculture of copyright law where the intent is to create a work that is ‘free as in freedom, not free as in beer’.

KD says:

Re: copyleft?

That issue has bothered me, too, and I’ve not been able to imagine another way to achieve the GPL goals without relying on copyright. Perhaps it is just a failure of my imagination, and others can see a solution.

It might be that giving up GPL is a price we would have to pay to get the benefits of a copyright-free world. Or perhaps GPL works would be a category of works for which copyrights would still be justified. Note that Paltry mentions in his answer to the last question that he believes some works could deserve copyrights while others do not.

Richard says:

Re: Re: copyleft?

RMS is on record as saying that in a world without copyright copyleft would become unnecessary. Copyleft primarily exists to prevent people from taking s/w that was intended to be free, making small modifications and releasing it under their own copyright restrictions. In the absence of copyright this would not be necessary anyway.

KD says:

Re: Re: Re:2 copyleft?

I wonder whether you are thinking this through completely?

Abolishing copyrights and patents would remove all legal barriers (with respect to *any* program) to the first freedom, the freedom to run the program for any purpose you choose, and the third freedom, the freedom to redistribute the program so that others may use the program.

If the original developer would have used GPL for the program, in the copyright-free world, he would still freely publish the source, enabling the second freedom, the freedom to study the program and change it to suit your needs, and the fourth freedom, the ability to redistribute the changed versions of the program.

So nothing would change with respect to the base version of a program whose author wished to share his program and source code with the world.

A proprietary program developer would lose the ability to prevent free sharing of his program, but would still be able to keep his source code secret. At least I’ve never seen it suggested that eliminating copyright would in any way force the original developer of a program to publish the source code of a program. I don’t know. Maybe no developer would feel it important to keep the source secret given that he could not prevent copying the object code of the program, but I expect many still would want to keep their source code secret.

The thing about GPL that we would lose in a copyright-free world is in the case where someone who did not honor the spirit of the GPL took a GPL program, changed it and redistributed it, but did not make available the altered source code. People would still have the first and third freedoms for the altered program, but would not be able to build upon that second person’s changes if the second person insisted on keeping his changes a secret, and so people would not have the second and fourth freedoms for the altered program. In the current world, the author of the original program can use his copyright to prevent that second person from distributing the altered program (which is a derived work) when the second person does not honor the license which requires the altered source to be published. In the absence of copyright, the original author would not have a copyright and so could not prevent distribution of the derived work when the modified source was not published.

I know there are many people who feel that the enforced sharing of the source code for improvements to a GPLed program is not justified, but that is one of the main purposes of the GPL, so I think it is true that in a copyright-free world the public would not necessarily have all the benefits that GPL gives them today.

Many, maybe even most, people would freely share their source code changes to a program which they had obtained freely from the original author without being forced to do so by the GPL. So there could be legitimate debate about how much GPL-provided freedom we actually would lose in a copyright-free world. But I think it is indisputable that the potential is there to lose the second and fourth freedom in the case of a second person who refuses to publish his changes to an open-source program.

I think the important question is whether the benefits of a copyright-free world are worth giving up the guarantee of the second and fourth freedoms in those cases of a second person who won’t share his changes.

Crosbie Fitch (profile) says:

Re: Re: Re:3 copyleft?

How many binaries currently published secretly rely upon GPL source code? Does anyone actually care? Does the prospect of being sued dissuade anyone from publishing a binary derivative without source?

In any case, without copyright who in their right minds is going to pay any money for a binary? If you’re paying someone to produce some software for you then you’re going to damn well make sure you get the source code or no deal.

Lastly, the natural right to privacy prevents you bashing someone’s door down because you suspect the binary you’ve found was written by them and you want the fricking source code. It could be a poor student who’s just chucked out a cool demo. Are you going to sue them for millions because they’ve published a binary derivative without source?

Don’t get hung up on flawed dogma.

See Flawed Freedoms.

KD says:

Re: Re: Re:4 copyleft?

You seem a bit argumentative about this. Could we have a calmer discussion of the issues?

How many binaries based on GPL code have been published without publishing the source code? I don’t know, but the number is certainly not zero, and at least some people certainly do care.

One recent example is some Linksys router code used some GPL code and didn’t publish their modifications. Another is that Microsoft used some GPL code in something connected with virtual machine support and failed to publish their modifications. There have been quite a few others over the years, but I don’t remember any more details right off. I don’t follow those things closely. I think the people at the Free Software Foundation might keep records that would shed some light on that question, if it were important to have those details.

The Free Software Foundation often resolves such violations without ever filing lawsuits simply by contacting the offending organization or individual and explaining their obligations. It usually is not the case that an offender was intentionally avoiding doing the right thing. Most often, they just didn’t realize what they were obligated to do. I wouldn’t be surprised if some companies or individuals intentionally try to use GPL software without following the rules, but it probably isn’t very common.

Who is going to pay for a binary? Oh, how about anyone who buys a Red Hat distribution, a SUSE distribution, or any other Linux distribution now? People can build businesses around organizing and supporting open source software whether copyright exists or not. They are providing useful services and people will pay for that.

I don’t see how the question about getting source that someone wrote for you in connection with some sort of contract is relevant to this discussion. If I’m overlooking something about that, please clarify the issue.

No one is talking about bashing in someone’s doors. As I said, most disputes over this are settled calmly by discussion between the original developer or the FSF on his behalf and the company or individual who seems not to be honoring his obligations. If that doesn’t work, a civil lawsuit might be appropriate. In the course of a lawsuit, proper discovery procedures might involve some sort of production of source code, but even that doesn’t involve bashing in doors. You may be thinking of what the BSA does, not what GPL people do.

I don’t believe I’m hung up on dogma, flawed or not. Didn’t I suggest that giving up this feature of GPL might be a good trade-off for the other benefits elimination of copyrights might bring? I’m just suggesting that this point is something that deserves thinking about, discussing, and weighing as we talk about whether eliminating copyright would be good. What objection do you have to that? I get the feeling that you are an anti-GPL person, though I can’t be sure of that just from this discussion.

Crosbie Fitch (profile) says:

Re: Re: Re:5 copyleft?

I am actually a very calm pro-GPL person, but I’m also against the abuse of the weapon that is copyright – the temptation to use rather than neutralise its power, even for apparently good ends. It may seem cool to be able to force a monopolistic corporation to surrender their source code with the threat of million dollar fines, but I’m concerned that people will then turn a blind eye when this weapon is then directed at an individual.

Compare this with the misanthropy that copyright has become today. Few really cared about printers having monopolies, and so few were too concerned when copyright started being used to protect monopolies against individuals. “You have to hurt a few to teach the rest a lesson”

The publishing industry and their legal departments have gradually fooled people into believing that privileges are rights, and that if all ‘rights’ must be protected, their monopolies must be protected too.

What is most important to protect are the natural rights of the individual. The unnatural privileges of copyright and patent should be abolished. The corporations should be relegated as regulated financial instruments (instead of being regarded as equivalent to human beings).

Here’s some further discussion on why advocates of the GPL aren’t consequently pro-copyright:

If you see the GPL as a neutralisation of copyright, then upon the abolition of copyright the loss of the GPL is not a loss of liberty, but the redundancy of a mechanism that restored it.

When liberty is restored through the abolition of the privilege that suspended it, it is important to recognise that the public’s liberty naturally ends at the front door of each of its members’ private domain. Liberty grants no sanction to sequester private source code (though many are confused into believing it does).

KD says:

Re: Re: Re:6 copyleft?

As far as I understand, your claim that one can use the GPL to force someone to surrender source code is incorrect. As far as I understand, the only penalties provided for copyright infringement are financial and probable injunction against further infringement. Financial penalties do not force the infringer to release the modified source code. The infringer of a GPLed work has three ways to avoid further infringement: (1) stop distributing the binary, (2) buy a license to the original source code that permits him to make and distribute derived works without revealing the changed source code, if the holder of the copyright agrees to sell such a license, or (3) continue distributing the binary along with the modified source code. Neither the court nor the holder of the copyright on the GPLed work can force the infringer to choose the third way. It is the decision of the infringer alone.

I’m not a legal expert, so my understanding might be wrong, but the above is what I believe I have seen a lawyer write about the topic.

I don’t believe you are correct to say that the GPL only neutralizes copyright, and so I think you are wrong to say that the absence of copyright would remove the need for the GPL. My understanding is that the GPL was a reaction to the then new practice of hiding source code, not to the practice of copyrighting source code. In the absence of copyright, I doubt people who now would take freely-available source code, modify it, then distribute the resulting modified binary without revealing the modified source code would somehow change their minds and decide to start sharing the modified source code.

Let me note once again that, at the moment, I’m not arguing that we must keep copyright for GPLed works, or anything like that. At the moment, I’m only trying to point out that it seems to me that you are wrong that eliminating copyright would eliminate the need for the GPL, assuming we want the world without copyright to have the same level of source code sharing that the GPL insures.

It is fair for you to argue that it isn’t justified to insist that someone who makes a derived work by modifying freely-shared source code must make the modified source code freely available. That is basically saying that we shouldn’t pass laws to enforce kindergarten virtues such as share and share alike, and that is a fair topic to debate. I don’t think it is fair for you to claim that such sharing would happen in the absence of some legal structure that insures it.

I don’t completely understand the last paragraph in your above post, so there might be some points there that I’m not responding to. If you are saying that the public has no right to see source code that someone created himself from scratch, I agree with that. But the GPL doesn’t talk about that. The GPL says that the public has a right to see source code someone creates by building on source code provided to the public by another.

My position on the broader topic is only that we must recognize that eliminating copyright would undermine the base upon which the GPL is built, so we must take that into account in any arguments for or against copyright. I’ll admit that it appears to me that eliminating copyrights and patents is pretty attractive, so I do lean in that direction, but before coming to a decision, I want to understand as many of the effects as possible, and the impact related to GPL is one of them. It might well be that it would be worth giving up the benefits of the GPL (and possibly other beneficial things that depend on copyright) in order to gain the benefits of eliminating copyrights, but we must understand all of the effects to make a good choice.

Headbhang (profile) says:

Educating the industry

“I fear that only the market will educate the industry…”

And there he said it. The industry can only be educated by the market and surely it is already getting some tough lessons from it, only it’s mainly the BLACK one (i.e. filesharing) which should take the credit for it. Do you really think that if everyone only ever did the legal thing the industry would EVER get educated?

nasch (profile) says:

Re: Educating the industry

Yes, if everyone stopped consuming RIAA music entirely, legally or illegally, the RIAA would get educated by the fact that the dues stopped coming in from their member labels that have all gone out of business.

The piracy phenomenon is clearly not effective in educating them, and IMO never will be. Either people stop pirating and start buying, in which case they will be assured their anti-piracy worked (whether their actions had anything to do with it or not), or people will continue to pirate, in which case the labels will continue to claim that they need greater and greter legal protection to combat the piracy.

The only way they would get the message is if people stopped pirating AND stopped buying, and we know that is not likely.

Killer_Tofu (profile) says:

Sad people

It is funny how a sad few individuals (such as AC # 3 here) seem to think and claim that Patry is completely against copyright.
This whole interview is just more proof positive that he does not want to abolish it completely (like me and a few others do).
Although, that won’t stop them from claiming he does. Silly copyright maximalists. Facts are so easily swept aside for them.

Danny (profile) says:

Mike, dig deeper next time

“I want to thank William Patry for taking the time to do this interview. I was tempted to dig deeper on that last question, but already taken way more of Patry’s time than was warranted…”

Mike, you are selling yourself short here. Not only does your interview add context and depth to the discussion, but you are helping Patry reach a broader audience with his book. Digging deeper with your questions serves both us and him.

farooge (profile) says:

I have not been convinced

>”there are works though, especially those involving large investment, like motion pictures that do need the ability to secure financing through the asset of copyright and to go into court to stop massive unauthorized copying.”

Explicit language limiting that protection to commercial use would probably interest me but I don’t know if I could even go for that.

The system has been abused so badly for so long I don’t know if it’s continued existence can be justified in any form.

I’ll put it like I would to my children:

“Prove your responsible enough and I’ll consider it”

And don’t forget past [bad] behavior needs to be punished as a deterrent to future [bad] behavior.

Which, I guess, necessitates at least a short (predefined) period without it, right?

DanOfSoCal (user link) says:

Getting money

I agree that copyright is an economic right, not a moral one. If we could all figure out a way that artists could be “incentivized” to create their works, then I have no problem changing or abolishing copyright laws. Same goes for the people whose job is to bring us the material, whether it’s a film distributor or an iTunes server administrator. Every step in the act of publishing must be rewarded with money, or it simply will not get done.

Josh’s comment above said, “And even without those big successes, we still don’t need copyright. Every music album and movie doesn’t need to be a blockbuster/chart topper. We’re entering a point where more music than ever before is being created – there are fewer top stars making millions and many more average musicians making a living wage (making music that is just as good or better). The same will happen with movies. And video games (already happening to an extent). And TV shows. And whatever other legacy industry is still hung up on copyright as their business model opposed to serving their customer’s needs.” I challenge him to back up his statements with facts. Methinks this sort of idealistic thinking contains echoes of Marxism.

My most significant concern is that often it DOES require a big budget to make a good movie. A simple tour of Universal Studios will convince you of that. Basically, we need to decide if we really want those big movies to be made at all, and if so, then how we finance it. Two chuckleheads in a garage with a Mac can’t compete. Oh maybe they can make a YouTube video that goes viral, but anything on the scale of a feature-length movie requires a lot of people, a lot of time, a lot of resources, and a lot of cash. Same for the games industry — Halo wasn’t invented by some guy on a drunken weekend tapping out computer code in his spare time. It took millions of dollars and many artists of several disciplines to create a truly good game. If payment weren’t guaranteed in some way, games like Halo would never get past a single line of computer code, ’cause, basically, works of art are created by people that need money to feed their families.

True, restrictive copyrights can stifle creativity and innovation, but on the other end of the economic spectrum, a realistic lack of revenue will strangle it in its infancy.

nasch (profile) says:

Re: Getting money

“I challenge him to back up his statements with facts. Methinks this sort of idealistic thinking contains echoes of Marxism.”

Actually it’s capitalism. You know, let everyone compete in an open market without government interefence. Remember, “Marxism” doesn’t mean “something I disagree with”. I have a lot of confidence in capitalism. My opinion is if there’s sufficient demand for something, someone will figure out how to make it profitably. Clearly there is a lot of demand for video games and movies. I’m sure someone can figure out how to do both in the absence of copyright.

I mean, can you really imagine that if copyright suddenly went away that we would no longer have great video games or movies? It would all be Bejeweled and YouTube, is that really what you think? The fans would be clamoring for more and better, beating down the doors and waving fistfuls of money at anyone who could give them what they crave. I’m sure plenty of people would be able to do it.

DanOfSoCal (user link) says:

Re: Re: Getting money

No, I’m not saying that copyright laws are keeping the industry in business. All I’m saying is that in a capitalist system, money is needed to create the big productions.

I highly doubt fans would wave fistfuls of money at anyone that could give them what they crave. It’s human nature. Everyone agrees that people should be paid for their services, but when it comes to actually digging into their wallets, people get real quiet. Oh sure, you’ll find a few guys willing to pay ten dollars or so, but it will not amount to enough to guarantee investors to move forward with an expensive production. Without a reliable revenue stream to feed the artists, I can indeed imagine everything devolving into Bejeweled and YouTube.

I’m also sure someone can figure out how to do both in the absence of copyright. However, I have no clue how it would be done without some sort of realistic and reliable revenue stream. Copyright, for all its faults, does provide a revenue stream today, and if we are to get rid of copyright, then some means of reliable revenue would have to replace it. Call it copyleft, if you will. Some means of ensuring payment will have to be implemented, and whatever the means, it’ll have to be enforceable. Uh … kinda like a copyright. 🙂

KD says:

Re: Re: Getting money

I think you are right that video games and movies would still be produced even in the absence of copyrights on them, since, as you point out, there would be demand for them. Given sufficient demand, someone will figure out how to satisfy it.

With current technology, I can’t quite envision how it would work out, but as technology advances, making the cost of producing those works smaller and smaller, eventually, I imagine it would work out much like the current experiments we are seeing around musicians trying business models that don’t depend on copyright. Music production is much farther along the technology curve than movie or video game production, so the musicians are getting there first.

KD says:

Re: Getting money

This is, I think, an example of the Innovator’s Dilemma that Mike posted about earlier today. Yes, it used to cost a lot to record and distribute music, but current technology has greatly reduced that, and the labels, in true Innovator’s Dilemma fashion, are trying to hold onto the old ways.

Movie production and distribution is on the same Innovator’s Dilemma path, just not as far along just yet. It almost certainly will continue to become much less costly to produce movies, as technology that is only dreams now is developed.

At some point, the justification for copyright for a product disappears as the cost (and maybe other factors) to produce and distribute it diminishes, and there is no need to provide a big incentive to do it. Somehow, a properly-functioning copyright system should take that into account. Patry even hints at this in his response to the last question, although I wonder whether he would acknowledge that he does. I don’t know how one could ever get someone/some industry who has become accustomed to benefiting from copyright to agree that it is time to eliminate it for his type of works, so any moves in that direction seem highly unlikely (unless I’m suffering from some lack of vision akin to Innovator’s Dilemma on that point).

DanOfSoCal (user link) says:

Re: Re: Getting money

I agree. Distribution costs on a lot of material are nearly zero, and so we can eliminate a lot of the “middle-men” in the distribution chain. That may make a difference in consumer price, and perhaps that should be reflected in copyright laws. On the other hand, production costs … ah … not so sure I agree with your statement.

For audio, you still need sound boards, engineers, studios, backup musicians, managers, etc. True, editing is easier. You can mix several tracks in a PC more efficiently than on magnetic tape. But then, how much mixing is normally done? If you’re mixing together several “takes”, then you’re paying extra studio time for those takes. It’s always been more efficient to try and get everything in one take. Backup vocals are sometimes added after a final take, but that’s never been difficult to add to the soundtrack, whether you’re using magnetic tape or doing it on a Mac. Enlighten me if you can find how audio production is less expensive because of technology. (Don’t confuse “easier” or “higher quality” with “less expensive.”)

Same goes for movies. FX are better because of CG, but not less expensive. It just means that Godzilla looks so much more awesome than a man wearing a monster suit with a zipper on the back. If anything, CG is more costly than a monster suit. To create a movie, you need actors, grips, gaffers, soundmen, caterers, casting, directors, producers, editors, drivers, etc. Enlighten me if you can find one movie production task that is made less expensive by today’s technology. (And don’t equate “easier” or “higher quality” with “less expensive!”)

Some things are indeed less expensive, and distribution is one area that has been hit hard with this technology. I agree that copyright laws shouldn’t penalize the rest of us because distributors are struggling to survive. On the other hand, let’s not throw out the bath water with the baby. 🙂

Josh (profile) says:

Re: Getting money


First, as to being called a Marxist – you’re the one arguing for government supported monopoly rights (copyright), whereas in this instance, I’m the one arguing for a free market with no regulation. Please think about that one before trying to call someone else a communist.

As to evidence, I gave one specific example of a few guys making a full length quality film, out of their home. Movie is called Primer. It won one of the Sundance awards. I own the DVD. IMDB link:

I also gave a second example of a low-budget film that became that year’s summer blockbuster and is one of the highest grossing films (even before accounting for inflation). The first Star Wars movie.

Everything else I would say other commenters have covered.

Svante Jorgensen (profile) says:

Nice interview

Thank you for a very nice interview.

Did the 1909 copyright act require people to register their works to be granted copyright?

I think that another, often overlooked, side of copyright is the fact that copyright is automatically granted. Putting works in the public domain automatically if not registered would serve several purposes.

1. Copyright is there as an incentive to produce. So works where copyright was not an incentive to produce can not later be registered, as there is no need for incentive after it has been produced. And public domain will be bigger (the ultimate goal).

2. If all copyrighted works was available for searching in a public database, file shareing networks and other services would actually have a fighting chance to block out copyrightet works without treating every file as “copyrighted until proven un-copyrighted”.

William Patry (user link) says:


My wife does know about my Starbucks runs and is baffled my them. I do the same thing when I am Google’s NYC offices. I could make free espressos there but instead I go to a Starbucks on the first floor and pay for it. I will also buy nice public domain editions of works if I like how it was done, but I have never bought anything because it was copyrighted (or not). I doubt anyone makes their decisions based on its copyright status. We buy things because they have value to us, not because they have value to the seller, and that’s why I have said that copyright isn’t fairy dust magically imbuing copyright owners with economic value. It is only consumers that can give goods economic value by buying them and that’s why I have argued copyright owners should stop focusing on what they want to sell and focus on what consumers want to buy.

Crosbie Fitch (profile) says:

Re: Coffee

I don’t think people make a purchase decision based upon whether or not a work is copyrighted, but upon whether the holder of that privilege would use it to prosecute the purchaser should they share or build upon it.

People might not care whether one publisher sues another for infringing their monopoly, but they sure as hell care if they are going to be in the firing line, e.g. for umpteen court appearances, invasive discovery searches, and a fine of around $2,000,000.

The idea that a corporation such as Disney or Sony should be able to bankrupt a family for doing what comes naturally, sharing mankind’s culture, should be properly recognised as abhorrent, let alone an injustice.

It’s a mystery as to why so many seem to think that bankrupting families as part of an educational campaign to persuade people not to share music is reasonable, measured and proportionate. What people miss is the fact that people should be free to share music in the first place – there is no cause to fine them even a penny.

Hence the rise of ‘free software’ and ‘free culture’, artists and audiences who realise that the privilege of copyright is an unethical anachronism wholly unsuited to protecting a printer’s reproduction monopoly in the information age.

LostSailor (profile) says:

A Sane Voice

I agree with much of what Patry says here (and look forward to reading the book). The extension of the term of copyright in the late 90s was a mistake, but fixing that mistake will be difficult, if not impossible, due to industry push-back and international treaties. Copyright may become irrelevant to creators and publishers in that it may become in their best interests not to enforce it, but it’s going to be on the books for a long time.

In the meantime, there are changes that can be made in the law, and not just on the margins, that would help greatly. One is expanding fair use. Patry says that its codification in law should be removed (which may be difficult to do in the current political climate), but another option would be to ammend how fair use is defined to broaden its reach (for example by making non-commercial copying for personal use expressly legal). Another issue is so-called “orphan works”: works that are out-of-print and off the market and for which the copyright status and owner are unknown. There have actually been efforts to get Congress to deal with this issue by changing the law such that good faith efforts to ascertain the copyright status and owner (say by posting notice on a centralized web site) without response automatically presume the work is in the public domain.

But any change would take advocacy. Patry mentions Giest in Canada and says
We do not have anyone remotely like him. It’s not enough to rail about things you don’t like, or have a following of people who idolize you. And that, unfortunately, is the rut we are in here.

Too bad there’s no one with a media pressence that might become that advocate.

But the best part, a voice of sanity:

There are works though, especially those involving large investment, like motion pictures that do need the ability to secure financing through the asset of copyright and to go into court to stop massive unauthorized copying. This is also true for commercial label music. I think ideology or displeasure with business practices has interfered with recognition of these legitimate needs.

Mockingbird (profile) says:

"international commitments"

Are there any actual treaties that require the U.S. to have a term of life+70? Berne only requires life+50. The U.S. could drop back to life+50 without running afoul of Berne. I would especially like it if, at the same time, 1909-Act works had their copyrights knocked back down to 75 years, or to “time already served” whichever is longer. I think this would be constitutional since what Congress gives it can take away, and all 1909-Act works that had their terms extended by the CTEA have already gotten more than the 56 years they originally settled for.

Richard says:

Re: "international commitments"

I think it is excellent that copyright terms have been extended – and even better that in some places (like the UK) this has been done retrospectively – including even bringing works back into copyright…..


it sets a precedent.

What has been changed in one direction can be changed back – and potentially even further – even to zero – what is sauce for the goose is sauce for the gander.

if copyright terms had been left untouched for the last 50 years it would be much harder to argue for reducing them.

By extending terms the copyright industry has sowed the wind….they will reap the whirlwind…

herodotus (profile) says:

“For audio, you still need sound boards, engineers, studios, backup musicians, managers, etc. True, editing is easier. You can mix several tracks in a PC more efficiently than on magnetic tape. But then, how much mixing is normally done? If you’re mixing together several “takes”, then you’re paying extra studio time for those takes. It’s always been more efficient to try and get everything in one take…..

Enlighten me if you can find how audio production is less expensive because of technology. (Don’t confuse “easier” or “higher quality” with “less expensive.”)”

People don’t need big ‘sound boards’ to make decent recordings, nor do they need backup musicians or managers. They need microphones, preamps, and a recorder. All of these things have gotten immensely cheaper in the past 10 years. Or rather, the market for cheaper but functional alternatives for all of these things has grown.

Mixing boards are merely a convenient collection of preamps with various routing options, some simple equalizers and some gain controls. Most modern recording software has all of the functionality of these boards except the preamps. And the cheapest prosumer audio interface boasts a much better signal to noise ratio than the finest Studer Revox tape recorder.

But if you really want a board, they have gotten much cheaper in the past 10 years as well.

As for “But then, how much mixing is normally done?” The answer is ‘A LOT’. Most modern music is heavily processed and edited. Frequently the whole thing is assembled after the process of tracking is finished. Mixing engineers are the celebrities of the audio world.

As for “It’s always been more efficient to try and get everything in one take.” well, sure. In the world of classical music, or acoustic jazz, that methodology would still apply. But most pop music doesn’t work that way at all. The drums are edited into loops; the vocal parts are comped from 30 different takes, autotuned, and compressed to death; The whole song is edited to insure that every single chorus sounds exactly the same. And all of this is done during the mixing stage.

Furthermore, the instrumental parts often employ samples, not as in sampled parts, but as in immense collections of multisampled instruments triggered via MIDI. Many of the orchestral parts that you hear in pop music, TV and movies are made this way, using computer workstations and sample libraries like VSL or EWQLSO. This, too, dramatically cuts the costs involved.

Now VSL and EWQLSO are plugins. And the amazing fact about audio plugins is that many of them are free. Legitimately free. Just to be clear, we are talking about free musical instruments and audio effects here: complex synthesizers, samplers, equalizers and enhancers, compressors with sidechain controls, de-essers, noise gates and just about every other signal processing device one can imagine. And each of these plugins can be instantiated as many times as one could want, meaning that e.g. one compressor plugin can be 20 different compressors at the same time, each with different settings, whereas a hardware compressor can only process one or two tracks at a time.

And many of these free musical instruments and audio effects are amazingly good. So much so that they drive down the prices of their commercial competitors.

It is obvious how all of these things make recording a much cheaper process than it used to be.

KD says:

Re: Re:

And the same sorts of things are going to happen for the video side of movies, eventually.

It is beginning for animation now. Sometime, probably sooner than we would guess, we will see it start for what will look like live actors. As always, the first attempts will be lacking in some respects and the studios will ignore them, but after further development, people will be able to create, entirely with their computers, video that appears to be live actors on sets, or even on real locations.

People using such tools will be able to create movies for a few percent of what the traditional methods cost, and the studios (and movie stars) will see the bottom drop out of their business. The studios could survive by adopting the new technologies if they aren’t as stuck in the past as the recording labels are today. But I suspect movies stars are going to disappear, or at least things will be much different for them.

This won’t happen soon, but it *will* happen.

Richard says:

Re: Re:

and it seems that – if no vocals are involved – it can all be done in the computer now.

A couple of years ago I bought a flight simulator game that had some really nice instrumental background music. I looked through the documentation to try to find out who wrote it and performed it. No information, anywhere, – eventually I found it in the credits…music PROGRAMMING by ….. (the same name was also credited for some other parts of the code – so he’s not even a specialist.

David Yetter (profile) says:

" . . . to promote the useful arts and sciences. . ."

My own favorite example of how far from its Constitutional intent copyright (and patent) law has strayed doesn’t involve programs, digital music, or video, but a poem.

The goth band Unto Ashes recorded a beautiful song with Robert Frost’s 1928 poem “Fire and Ice” as the lyrics. Only “pirated” copies are available to their U.S. fans because, even though the poem was over 60 years old, and its author had died more than 20 years ago, Henry Holt & Co. has a state-granted monopoly on Frost’s literary estate, and wouldn’t release the rights for a price the band was willing to pay.

Now whether poetry or goth music count as ‘useful arts’ may be disputed (if not, what business does Congress have in granting copyrights on them?). Personally, I think a sound enough case for the utility of the beautiful can be made. But what this example shows is that copyright no longer fulfills its Constitutional purpose.

Perhaps the RIAA and like groups should be militating to amend the Constitution to give Congress the power to impede the arts and sciences by securing to commercial interests exclusive use of authors’, artists’, scientists’ and inventors’ works for an indefinite term. That would set the issue in high relief and make it clear why defense of copyright as currently instantiated in law is not the defense of artists and scientists, but often works against them.

It has almost come to the point that “piracy” might be seen as a legitimate act of civil disobedience against the corruption of intellectual property law.

Crosbie Fitch (profile) says:

Re: " . . . to promote the useful arts and sciences. . ."

That’s mostly the problem. People don’t notice any art that has been impeded because it doesn’t see the light of day.

How can people compare the progress we’ve made whilst being prohibited from standing upon the shoulders of our fellows, with that which would have occurred given the liberty to do so?

No-one sees the loss of what could have been, and instead comforts themselves with the perverted delusion that without monopoly we would have gained nothing.

Piracy is the ethical assertion of the individual’s natural right to liberty. An ethical infringement of an unethical privilege.

See A Pirate’s Code – 21st Century Edition.

Gene Cavanaugh (profile) says:

William Paltry

Excellent interview, but I take exception to the conclusion in one remark (realizing it may be correct for Paltry):
Paltry said: “My wife owns a cafe. She makes espresso there and the guy who makes it used to work at Starbucks. I obviously can get espresso for free there. But I don’t, I drive two miles away to a Starbucks store and pay $2.01 for it because I like the way it tastes.”
No – it has nothing to do with taste. The reason (for everyone except Paltry, perhaps) is the need to conform (herd mentality). EVERYONE goes to Starbucks, so “for better or for worse” (so long as not much worse, which it isn’t), we go to Starbucks.
MARKETING – that’s where the sales originate!
Of course, like everyone else, Paltry assumes if he is expert in one area he is “expert”.
I see this with Mike all the time (joke, Mike!).

Doug (profile) says:

Even he uses copyright industry lingo

As well informed as Patry is about how the copyright industry has miscast rights as property by manipulating the language, it’s disappointing that even he refers to “copyright owners” rather than “copyright holders.” The false idea that rights are “owned” rather than merely “held” is one way the public’s perception has been changed to confuse copyrights with property, and to view infringement as stealing.

Owning property is a much simpler and more natural concept than holding temporary rights that other people have conceded to you. Portraying rights as property and rights holders as owners makes it easier for the copyright industry to cast itself in the role of a little old lady fending off a purse snatcher. Nobody wants to be the purse snatcher.

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