William Patry on How to Fix Copyright

From my C4SIF post:

There is nothing wrong with incrementalism. Advocates of private property and free markets want patent, copyright, and other forms of IP to be abolished, but we are also in favor of measures short of abolition that move in the right direction–shortening terms and penalties, etc. Still, it’s frustrating when some commentators identify real problems with IP law but fail to make a more fundamental diagnosis. A case in point is free market economist Alex Tabarrok, who has good criticisms of the existing patent system but who nonetheless resists calls for patent abolition and advocates other statist measures to supplement or replace the statist patent system, like multi-billion dollar taxpayer-funded innovation prize systems.

In the field of copyright, we have Google attorney and copyright lawyer William Patry, whose recent book is How to Fix Copyright (see his recent Volokh post, How to Fix Copyright, Part I). Our mutual publisher, Oxford University Press, sent me a copy a while back. Unfortunately, although Patry makes some useful criticisms of the existing copyright system, his diagnosis and prescriptions are confused (though not as bad as those of Dean Baker, who, like Tabarrok in the field of inventions, recommends taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation).

Patry realizes the current copyright system is rife with problems. But he is not willing to support copyright abolition. It is not for failure to understand the law. He is a renowned copyright scholar, author of the seminal Patry on Copyright treatise. Legal credentials are not enough, however. One must have a firm grasp of economics, and one’s political views must be rooted in the propertarian principles that inform libertarian analysis. Given a grounding in Austro-libertarian analysis, it is easy to see that the only legitimate laws are those that enforce individual property rights, and that the purpose of property rights is to permit productive and conflict-free use of scarce resources. The function of law is to make peaceful, productive use of scarce resources possible, by assigning owners to these resources based on Lockean homesteading principles. Copyright law, like patent law, is a grant of monopoly privilege–the remnant of mercantilism and censorship regimes of the past and is antithetical to the free market, competition, and private property.

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  • Stephen and I have had a constructive to’ing and fro’ing about this on his original post, to which I refer readers.

  • William Patry’s book has several great points.
    I have a great deal of respect for him since he is one of the marginal who are fearless enough to answer the most basic question: why do we have copyright laws at all.
    He sets straight numerous myths following today’s mainstream justification about copyright that it is meant to balance the interests of authors with the interests of the people. 

    The big predicament his book is that it is founded on incorrect suppositions and as a result it concludes with awfully risky proposals.
    In his view, the purpose of copyright laws is to ensure the most benefits to the public but only give authors the bare minimum to would encourage creativity.
    He deems that copyright laws are not about giving originators the right to c how their works are utilized.

    In my critique, How Not To Fix Copyright – My Response to William Patry (http://mincovlaw.com/blog-post/how_not_to_fix_copyright) , I talk about the errors in Patry’s approach and give a lot of detailed commentaries to extracts from his book.