Neil Netanel’s “Why Has Copyright Expanded?”

On the day when the House IP subcommittee is holding a hearing on H.R. 4279, a bill that may be the most outrageously gluttonous IP bill ever introduced in the U.S., it is fitting to pay tribute to an incisive look at how we have come to the point where such an initiative could be dreamed up even in the porcine corridors of K Street. Greed of course is the short and complete answer, but those of a more historical and analytical turn of mind will want to study carefully Professor Neil Netanel’s 33-page “Why Has Copyright Expanded? Analysis and Critique.” The article is to be published in 6 Directions in Copyright Law (Fiona Macmillan ed., Edward Elgar pub. 2008), but it is available for free here via ssrn. The article was planned as part of a longer, forthcoming book, solely authored by Professor Netanel, “Copyright’s Paradox” due out in March/April 2008, but was spun off. I have pre-ordered my copy of “Copyright’s Paradox” on amazon.com, and I strongly urge everyone else to as well: here’s the link.

In “Why Has Copyright Expanded?” Professor Netanel has answered the question posed by some who commented on my posting on H.R. 4279: how is it that the scope of copyright has become so obviously and seriously in conflict with the public interest, and that the problem is getting worse, not better? A foundational answer is that corporate content owners are very effectively at lobbying and that their interests are in maximizing profits, not serving the public interest. Professor Netanel states:

[M]y point is not that the motion picture and recording studios are evil actors. it is simply that their interest is not necessarily the public interest. The copyright industries naturally wish to obtain all-encompassing a copyright protection as as possible for their extensive inventories of content. And they naturally wish to use that protection to ward off competition from new media entrepreneurs that threaten their traditional ways of doing business. But the public interest – as reflected in some 300 years of copyright precedent – is for a narrowly tailored incentive for authors to contribute to the store of knowledge and enrich the public domain. Copyright is meant to spur creativity and expressive diversity. When it has the opposite effect – when authors cannot freely build upon their predecessors’ works in creating new expression and when copyright serves as a tool for enriching media conglomerates – something has gone awry.
And things have gone very awry. Maximizing profits and eliminating all threats to existing business models are, however, not appealing public positions to take, although one does on occasion hear pure expressions of it, as when CEOs talk about their a duty being to shareholders, and when the hired help is treated like hired help, as witnessed in the current writers’ strikes; the short-lived effort to have sound recordings statutorily enumerated as a category of work for hire; and in the 1998 term extension, when composers were told that if they didn’t agree to have the extra 20 years go to music publishers directly rather than to those who actually created the works, there would be no extension at all: some crumbs are better than none.

It is and has long been an open secret that the paeans to authors paid by those who buy rights are phony; this has been the case since 1709, when book publishers, rebuffed in their efforts to extend monopolistic licensing laws benefiting solely themselves, put authors out in front as lobbying puppets.; and this was in a period of time when authors received a one-time, small payment for all rights: royalties payments were in the future.

Current rhetorical strategies are hardly any different. Jack Valenti’s clothes may have been more colorful than his 17th century Grub Street predecessors, but his language and rhetorical purpose were not. Sometimes the language is uncannily the same, as when Mr. Valenti testified in 2002 that “We don’t want to shut down innovation. We just want to protect private property from being pillaged.” But of course he and other content owners very much want to shut down innovation; it is the creative destructive force of innovation articulated most famously by Joseph Schumpeter that shakes content owners’ in their boots and that Mr. Valenti has so famously opposed every step of the way, from cable television in the 1970s, to the VCR in the early 1980s, and to the Internet. Digital tape, Mp3.com and the iPod were the record industries analogs. But such raw efforts to control business models (like shoving whole CDs down our throats) dare not publicly speak their name, so it is necessary to use a beard, and no beard is more effective than property.

The importance of metaphorically characterizing copyright as a property right has been known for well over a century and was pointed out in 1898 by that wonderful Victorian man of letters and member of Parliament, Augustine Birrell, in a series of lectures he gave as Quain Professor of Law at University College, London. Mr. Birrell wrote:

[T]he Western World has throughout its long history shown an ever increasing disposition to recognise the right of individuals to the exclusive possession of certain things, and these rights it has clustered together, recognised, venerated, worshipped, under the word property. To be allowed to enter this sacrosanct circle is a great thing. None but the oldest families need apply … Once inside this circle your rights were supposed in some romantic way to be outside the chill region of positive law—they were based upon natural rights, existing previously to the social contract, and without which Society was deemed impossible. Neither were these romantic conceptions mere jeux d'esprit. Consequences flowed from them. If your right to turn your neighbor off your premises, to keep your things to yourself—was property, and therefore ex hypothesi founded on natural justice, he who sought to interfere with your complete dominion was a thief or a trespasser… .
Professor Netanel reviews some of these invocations of property in the maximalist campaigns, but I go further. The description of someone as a thief or trespasser is, I assert the flip side of the initial classification of copyright as property. The appellation thief or trespasser is meaningless without an owner of property: in Mr. Defoe’s famous novel, did the cannibals care a hoot about Robinson Crusoe’s fenced-in habitation and cave? Hardly, to them he was food and if they had eaten him they would not have taken over his abode; nor would it prevented Crusoe from becoming an entrée if he had proclaimed a fee simple absolute over his living quarters and refused entry to the cannibals as trespassers. What good is it, after all, to say you own property if there are no thieves or trespassers to do battle with? This is where moral panics and folk devils are pressed into service as the vehicle for obtaining ever-greater rights.

The concept of Moral Panics got its name from British sociologist Stanley Cohen’s 1972 book “Folk Devils and Moral Panics.” Professor Cohen studied the reaction to the Mods and Rockers phenomenon of the 1960s. Moral panics are essential to the theory of copyright-as- property for the most pragmatic of reasons: it is hard to enact indefensible legislation granting powerful rights unless you can convince legislators that folk devils pose an existential threat. In the United States, the most colorful expositor of moral panics and folk devils was the late Jack Valenti. (Lest one mistakenly think I am attacking Mr. Valenti personally, please see my praise of him here).

Throughout his career as the MPAA’s chief lobbyist, Mr. Valenti skillfully and successfully employed moral panics and folk devils before Congress in an effort to gain increased copyright protection. As metaphors, Mr. Valenti’s moral panics provided the means by which busy and sympathetic members of Congress could appear to be engaged in sober reasoning. Moral panics in copyright are the result of a carefully constructed political strategy for obtaining political benefits. They are not hyperbole; they are the core of a careful strategic plan to alter the copyright landscape, and they have worked extremely well.

The other element of this plan, which Professor Netanel very carefully lays out is how copyright became a trade issue, a jobs issues. This plan has onvolved a complicated dance involving the copyright industries, the Executive Branch/USTR, WIPO, and Congress. Copyright industries were allegedly a powerful engine of the economy and as such need ever greater rights to wield against the folk devils pirates and thieves; all the better of course that these folk devils can be located overseas since foreigners are much easier demonized.

It is not possible to justice to the beauty of Professor Natenel’s work even in as bloated a blog as this. The only answer is to read the article yourself, and as soon as possible.