Tuesday, November 15, 2005

Copyright Historiography and Futurists

Historiography involves writing about the writing of history. The field was populated early on by philosophers and literary critics, since historians seemed not too interested in theories about what they did; they just did it. After historiographers began to challenge a number of fundamental assumptions about the writing of history, such as that historians, in the Rankean sense, just "told it like it was," historians joined the battle, and the field has been quite active, although perhaps less so recently.

Copyright histories continue to be written, especially microhistories that is, histories about particular, narrow areas, like Renaissance Venetian printing privileges, or 16th century French printing privileges, or the efforts in the first third of the 1800s in England to extend the term of protection. Another fruitful area is the period leading up to the Statute of Anne, and then Millar v. Taylor, and Donaldson v. Becket[t]. Ronan Deazley and Oren Bracha have written magisterial works about this period.

But none of these are works of copyright historiography (although Professors Deazley and Bracha do a great job of positioning their studies in the larger context of the debates about the nature of copyright). Australian law Professor Kathy Bowrey has developed an important niche beginning with a 1994 SJD dissertation and continuing with a series of articles on the writing of copyright history, what I call copyright historiography. Her work meshes quite well with those of Ronan Deazley and Oren Bracha in establishing the positivist basis of copyright, and in debunking the Romantic/determinist view of copyright, but her work also helps us think about how we think about copyright.

I am particularly taken with her level headed analysis of some futurist writing on copyright. All history is about the present and perhaps the future, and so too historiography. Some futurists, however, appear to be only about themselves. Such futurists, invoking the painfully banal Alvin Toffler have wrought their own version of hell on us, much like Peruvian Incan musicians who play Simon and Garfinkel's Scarborough Fair in the 42d Street subway in Manhattan. One example in copyright is a piece written by a non-lawyer declaring that "Everything you know about intellectual property is wrong," filled with bloviated declarations that copyright is dead. If this is the Third Wave, dude, drown me please. I would venture to say that most people upset about the state of copyright today are upset at its overly vigorous life, not at a perception that it is going the way of the dodo. Generous sorts, like Professor Bowrey, may describe such futurist views as refreshing or even utopian, but my view is that they represent grandstanding whose only value is celebrity status, and of the Paris Hilton kind: one is famous for being famous (if not infamous).

There are other kinds of futurists too, like the one who declared that the "VCR is to the motion picture industry what the Boston strangler is to the woman alone," one of a long line of similar predictions of a catastrophic effect on copyright owners from new technologies.

An excellent dose of copyright historiography is just the antidote to both of these kinds of futurists: not so that we may plod along like the old Rankean historians, but rather so that we may think better about the future.


Gnuosphere said...

"I would venture to say that most people upset about the state of copyright today are upset at its overly vigorous life, not at a perception that it is going the way of the dodo."

Indeed. To me, it appears as though there has been a latent oppression built into copyright itself that has not reared its ugly head until the dawn of the digital age. That oppression being the exclusive privilege to control distribution. The mere cost to copy used to mean a natural enforcement through economics. Now we need to make decisions regarding copyright in the present age that will respect the purpose of copyright law.

According to the united states and their constitution, copyright's end goal is to bring about a benefit for the public. Do exclusive privileges to control distribution in the digital age benefit the public? That is, does the copyright "bargain" pay off with respect to the digitally networked world? I don't think so. But any attempt to declare a "dodoic" state on copyright is obviously extremism at its worst.

I believe the artificially granted privilege of restricting commercial use whilst allowing the natural right for humans to share useful information and culture is a more practical balance we should strive for. This world we currently inhabit is not a world imagined by Jefferson and others.

Thanks for your blog. I enjoy reading your posts and am grateful that people of your expertise are posting their thoughts publicly so that laymen such as myself can benefit from such knowledge.

Anonymous said...

I should declare an interest as someone employed in the film industry, but I'd like to propose a little revisionism in relation to Jack Valenti's endlessly derided (and seldom reflected upon) remark about the Boston Strangler. Of course it was an exaggeration, no doubt in the heat of battle, but as a result of the video cassette recorder a deluge of piracy was unleashed from which many Eastern European and Asian and almost all African countries have never recovered. In most of Africa, the legitimate film industry really is dead, and it's a result of video cassette piracy. The film industry spends millions every year to try to stem the tide - a cost which comes out of consumer pockets. And since JV's alarming sound-bite, the law has been repeatedly tightened in an attempt - as yet unsuccessful - to put the genie back into the bottle.

William Patry said...


First, let me say from direct experience with him, that in my 13 years in DC, Jack Valenti was the single best lobbyist there is. He was incredibly effective and utterly charming. I adore him as I think all members and staff did. Mr. Valenti's Boston Strangler comments had nothing to do with piracy, but with loss of ad revenue from fast forwarding of taped, free over-the-air programming, the Betamax issue that was in the 9th Circuit when he testified in 1982 before my old subcommittee. Here is all of his relevant testimony, and a link to the full hearing transcript, http://cryptome.org/hrcw-hear.htm:

Now, the question comes, well, all right, what is wrong with the VCR. One of the Japanese lobbyists, Mr. Ferris, has said that the VCR -- well, if I am saying something wrong, forgive me. I don't know. He certainly is not MGM's lobbyist. That is for sure. He has said that the VCR is the greatest friend that the American film producer ever had.

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.

The VCR avalanche, I told you about that. Now, what about the VCR owners. Now, from here on out, Mr. Chairman, I am going to be speaking about a survey done by the Media Statistics Inc., which is a prestigious firm out of Silver Spring, Md. We, meaning the MPAA, did not commission this survey. We bought it after it was done when we heard about it. So, this was not a case -- we have commissioned a lot of things, but this is not one of them.

Now, I want to tell you about it because I think it is absolutely fascinating. This survey was taken in October 1981. It is the newest and freshest data available. Here is what it says. Median income of a VCR owner is between $35,000 and $50,000 a year. Not a lot of what we call today the truly needy are buying these machines. One-third of all the owners have incomes of more than $50,000. Now, here is the next one: 87 percent, 86.8 percent of all these owners erase or skip commercials. I have here, Mr. Chairman, if you are not aware of how this works -- this is Panasonic. This is a little remote control device that you use on machines. It has on here channel, rewind, stop, fast forward, pause, fast advance, slow, up, down, and visual search, either going left or right.

Now, let me tell you what Sony says about this thing. These are not my words. They are right straight from McCann Erickson, whom you will hear from tomorrow, who is the advertising agency for Sony and here is what they say. They advertise a variable beta scan feature that lets you adjust the speed at which you can view the tape from 5 times up to 20 times the normal speed.

Now, what does that mean, Mr. Chairman? It means that when you are playing back a recording, which you made 2 days or whenever -- you are playing it back. You are sitting in your home in your easy chair and here comes the commercial and it is right in the middle of a Clint Eastwood film and you don't want to be interrupted. So, what do you do? You pop this beta scan and a 1-minute commercial disappears in 2 seconds.

Mr. RAILSBACK. Is that all bad?

Mr. VALENTI. If you are watching a Clint Eastwood film it is the most cheerful thing you can do. However, if you are an advertiser who has paid $280,000 a minute to advertise, he feels a very large pain in his stomach as well as in his checkbook because it destroys the reason for free television, the erasure, the blotting out, the fast forwarding, the visual searching, the variable beta scans. the technology is there and I am one who has a belief that before the next few years the Japanese will have built into their machines an automatic situation that kills the commercial.

Being advertised today in all the video magazines, and if any of you take video magazines, here is a marvelous little device called the Killer. It eliminates those black and white commercials. You put the Killer onto your Sony and it automatically takes out the commercial. You don't like the Killer, try the editor. The editor will do the same thing. It will wipe out commercials.

The technology is there in my judgment, in the next several years, where an integral part of the machine will be automatic Killer. But you don't need that now as long as you have this. Indeed, when my son is taping for his permanent collection, he sits there and pauses his machine and when he is finished with it, he has a marvelous Clint Eastwood movie and there is no sign of a commercial. It is a brand new movie and he can put three of those on one 6-hour tape.

Now, the average --

Mr. KASTENMEIER. May I interrupt, Jack, on that point?


Mr. KASTENMEIER. And it is a point that just occurs to me. Actually, the advertiser doesn't pay for a taped replay of any program of that sort. He pays only for a live telecast, where his commercial appears and no matter how it is deferred, he doesn't pay for the deferral because that person wasn't there watching it the first time, presumably it is missed for commercial --

Mr. VALENTI. Mr. Chairman, I am going to defer that question because I have at this table Mr. Eliasberg, for 34 years a practitioner and a student of research in what Nielson and Arbitron present to networks and advisers, what they pay for and what they don't pay for. And rather than me, race over, take time, may I defer the question to Mr. Eliasberg. "

Anonymous said...

Like you, I like the careful academic historians more than the polemical, popular futurists, though I'm kind of curious how your concern about celebrity (of the Paris Hilton variety) fits in here. To be really antiquarian, you could see this as a war between the demos and the senate.

William Patry said...

I don't really see myself as an antiquarian, I mean I have 10 pair of Vans. I just wish that when I read the New York Post in the morning train ride, Page Six would talk about something other than Paris or Nicole, or at least would finally tell us the real reason for their spat: did Nicole really slip in a copy of Paris' home video at a party?

Anonymous said...

Thank you for the quotation, I'm grateful to be corrected. I wonder whether people would stop using the quotation to bash the industry's piracy concerns, if they knew that it was directed at something else...

William Patry said...


I had meant to add that nothing in my post is intended to diminish the very serious piracy issues facing the motion picture industry. As a Policy Planning Advisor to the Register of Copyrights, I went on many USTR/State Department delegations to foreign countries and saw first hand the rampant piracy to which you refer. That is an issue of a completely different nature, and I believe Mr. Glickman, whom I met when he was on the subcommittee is doing an excellent job in trying to confront it, as Jack did too by making it part of trade laws.

Gnuosphere said...

Thos said:

"In most of Africa, the legitimate film industry really is dead, and it's a result of video cassette piracy."

Is that so?

Please explain how you've identified this causal relationship.