How to fix copyright

William Patry, among the pre-emininent legal minds in matters of copyright, has just published How to Fix Copyright, a successor to Moral Panics and The Copyright Wars.

The earlier book covered the history of copyright and its evolution from “a utilitarian government program” to what he described as “a bloated, punitive legal regime”.

In the new book, Patry returns to many of the same themes, building a case that results in a practical (and ambitious) approach to reforming copyright: stop making new laws until we evaluate the effectiveness of the current ones; and make no new laws without a basis in evidence.

The book, which I highly recommend, has been strongly endorsed by folks like Cory Doctorow at boingboing, who described Patry’s work as “a superbly argued, enraging book on the state of copyright law today.” As was the case with Moral Panics, the book is astoundingly footnoted (55 of 323 pages), underscoring the author’s commitment to evidence.

If you’re on the fence, make some time to read three excerpts that were published last month by Bloomberg:

If you do make the time, be sure to read the comments, because Patry engages fully and fairly throughout.

Contrast Patry’s approach to the specious claims made about how much movie revenue is lost to file sharing. Compare Patry’s tone with that seen in the temper-tantrum tweets of Rupert Murdoch, criticizing the President for “giving in” to Silicon Valley and pirates.

Although the arguments made in these two books directly pertain to legislation like SOPA/PIPA, we are already living under bad copyright law. The Digital Millennium Copyright Act, passed in 1998 without any recourse to facts, has resulted in a host of unintended consequences.

The call for a new approach to copyright comes from many quarters: social media guru Clay Shirky; best-selling author Barry Eisler; as well as Cory Doctorow and William Patry.

It is time to take them seriously. Rather than continue a debate that is heavily influenced by campaign donations, let’s try doing it Patry’s way: figure out what copyright should do, and measure how well it is doing it. Then, change the law in ways that evidence says will make a difference. Repeat as necessary.

Almost two and half centuries ago, John Adams argued in defense of the British soldiers accused of killing civilians in the Boston Massacre. His was not a popular role, but he famously observed:

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.

Would that we could look back in a decade and say that we had done something defensible for copyright. You can start by reading the book.

Brian O'Leary

About Brian O'Leary

Founder and principal of Magellan Media Consulting, Brian O’Leary helps enterprises with media and publishing components capitalize on the power of content. A veteran of more than 30 years in the publishing industry and a prolific content producer himself, Brian leverages the breadth and depth of his experience to deliver innovative content solutions.

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