Techdirt Reading List: Moral Panics And The Copyright Wars

from the pay-attention dept

We’re back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

Congress appears to be gearing up to really look at copyright reform again, and so it probably shouldn’t be a huge surprise that we’re starting to see a ramp up of crazy hyperbole about how horrible infringing is, how it’s destroying millions of jobs and billions in revenue. These claims seem to get even more ridiculous whenever legislation is on the line. I may do a post about some of the more recent whining about all of this, but for this week’s reading list post, I thought it might be good to point people to Bill Patry’s excellent Moral Panics and the Copyright Wars. Patry has been involved in the copyright world for decades, working on copyright issues in Congress and with the Copyright Office — and also in private practice as a lawyer. He’s written a massive treatise on copyright law called Patry on Copyright as well as a treatise focusing just on fair use — both of which are frequently cited in legal decisions. He now works for Google — which causes some people to try to dismiss what he says as biased. But with his background, knowledge and experience, you’d be foolish to do so.

Patry used to run an excellent blog, discussing various copyright topics, but unfortunately gave it up a few years ago, after he felt some of the copyright debates got too heated. Either way Moral Panics and the Copyright Wars is a worthwhile read (or reread, if you haven’t read it in a few years), and I highly recommend it for people observing just how the propaganda campaign for stricter copyright laws is shaping up. Patry goes back and explores just how the legacy players have long twisted language to make arguments around copyright that have little basis in reality, but which sound good to policymakers (and to the press). Since that is undoubtedly happening again, it’s important to understand its history to be aware of attempts to manipulate the debate yet again.

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Comments on “Techdirt Reading List: Moral Panics And The Copyright Wars”

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DannyB (profile) says:

Re: Re: Will the sentence be increased?

I was talking about how long copyrighted works are imprisoned by a monopoly before becoming public domain.

I was joking that this imprisonment was due to bad behavior by the copyright industry — which, in fact, it actually is. They ask for longer and longer copyright lengths — which is the bad behavior.

John Snape (profile) says:

Two simple fixes

Two simple fixes could cool down a lot of the current hatred of the copyright monopolists: reduce the exceedingly long copyright term to its original length, and mandate registration for copyright protection.

90% of the stuff I see online was made by people who don’t want or need their creation to be “protected” by copyright, and Elvis (and today sadly, Prince) needs no incentive whatsoever to keep creating works under the current scheme!

DannyB (profile) says:

Re: Three simple fixes

This is a non starter without also fixing DMCA abuse.

There needs to be a serious statutory penalty for DMCA abuse. Where one of:
1. fair use was not even considered, a human did not review the legal under oath of perjury part
2. the one filing the DMCA is not a copyright owner or the owner’s registered agent
3. the DMCA is for an improper purpose, the most common example of which is censorship

And item 3 probably ought to have triple statutory damages. That is not what the DMCA is for and is using copyright to suppress free speech.

Zwaquin says:

Re: Two simple fixes

What incentive do Michelangelo, Leonardo, Donatello, Raphael, Botticelli, Chaucer, Shakespeare, Dante, Cervantes, Bach, Beethoven, Mozart, Tchaikovsky, Gershwin, Abbott and Costello (spoiler alert), Lewis Carroll, Mark Twain, Walt Disney, Frederick Douglass and Harriet Beecher Stowe need to keep creating new works, anyway… no, What’s on second!

DannyB (profile) says:

Re: Re:

So wait, we should take lessons on the constitutional purpose of copyright from a copyright defending lawyer? They have perhaps the least respect for the constitution or due process for the citizens.

I don’t know why you should single out Google?

NOBODY should have respect for copyright.

Google licensed an old song for, IIRC, $70,000, acquiring all the necessary rights to use it in a commercial for Android Marshmallow. Then the singer of that song comes along and thinks she should get a giant payday because of some kind of ‘moral right’ or some such. But we should have respect for such things.

Or a major copyright owner insisting and doubling down on their ownership of someone’s nature recordings of birds chirping.

I could go on and on, but what’s the point.

Whatever (profile) says:

Re: Re: Re:2 Re:

Ahh, stinky troll bait.

The record labels not only generally pay (based on their contracts) but also provide huge sums of money UP FRONT, pre-paying artists to record for them.

Perhaps you need to learn more about the music industry and the millions plowed into artists who many never actually make that money back because they are commercial flops.

Karl (profile) says:

Re: Re: Re:3 Re:

The record labels not only generally pay (based on their contracts) but also provide huge sums of money UP FRONT, pre-paying artists to record for them.

This bullshit has been debunked so many times, it’s a bad joke.

The “huges sums of money UP FRONT” (the advances) are not used for “pre-paying artists to record for them.” They are used to pay for the costs of recording the album.

Equipment, recording studio payments, payments to record producers, studio musicians’ wages, and so on, all come out of that advance. And often it is the labels, not the artists, who determine these things (they bring producers on board, choose the recording studio, etc). Whatever is left over goes to the artists – and their representatives (managers, publicists, assistants, whatever).

And the “pay” (royalties) doesn’t accrue until after that advance is paid back out of the artist’s royalty share. This varies by contract, but a good round number is 15% of the profits.

So, if you have a $200K advance – nearly all of which goes into recording the album – then artist’s royalties won’t accrue until the album has made about $1.3 million dollars. At that point, the label has earned over a million dollars, and the artist has earned nothing in royalties. And this doesn’t count other “recoupables,” such as the album artwork, music video costs, tour support, and so forth, that also must be paid back in full before the artists earn royalties.

There are tons and tons of aritcles out there that detail this, but here is a sample:
How To Sell 1 Million Albums and Owe $500,000 (YouTube video by entertainment attorney Martin Frascogna)
The Problem With Music (Steve Albini) (and here’s his 2014 take)
Courtney Love does the math (Salon)
Major Label Clause Critique (Future of Music Coalition)
The Music Industry’s Funny Money (The Root)
How Record Companies Make Money (Taxi A&R)

Here are some specific examples of how much labels “pay”:
Lyle Lovett sells millions, earns nothing (Reuters/Billboard)
A Conversation With Michelle Shocked (Pure Music)
My Hilarious Warner Bros. Royalty Statement (Too Much Joy)
The Brutal 35-Year War Between Sony, Stephen Popovich & Meat Loaf (Billboard)

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