Is Copyright Reform Possible?
Samuelson, Pamela, Harvard Law Review
COPYFRAUD AND OTHER ABUSES OF INTELLECTUAL PROPERTY LAW. By Jason Mazzone. Stanford, Cal.: Stanford University Press. 2011. Pp. xiii, 295. $27.95.
HOW TO FIX COPYRIGHT. By William Patry. New York, N.Y.: Oxford University Press. 2012. Pp. x, 323. $21.95.
Copyright law has taken quite a beating in the legal literature in the past decade or so. (1) Complaints have been legion that copyright industry groups and corporate copyright owners have sought and too often obtained extremely strong and overly long copyright protections that interfere with downstream creative endeavors and legitimate consumer expectations. (2) Two recent contributions to this literature are William Patry's How to Fix Copyright and Professor Jason Mazzone's Copyfraud and Other Abuses of Intellectual Property Law.
Although Patry and Mazzone agree on the need for reforms to counteract or deter overreaching by copyright owners, they make substantially different recommendations about how copyright ills should be cured. Patry is mainly concerned with articulating principles that should be used to recraft copyright law (for example, making it "technology neutral" (pp. 46-47) and demanding evidence to support any expansion in the scope of protection (pp. 54-56)), whereas Mazzone mainly wants to sanction those who claim copyright in public domain materials and those who attempt to thwart the exercise of fair and other lawful uses of copyrighted works (for example, through license restrictions (pp. 27-29) or digital locks (pp. 69-70)).
Each book makes powerful arguments and offers important insights. Patry, for instance, does a lively job debunking copyright industry claims about the "losses" it sustains from "piracy" and about the economic significance of the industry as a job creator (pp. 61-70). He also draws upon insights from the field of cultural economics to explain why copyright law does not accomplish the oft-stated objective of promoting creative work as effectively as is commonly assumed (pp. 14-29). Mazzone offers a dazzling array of examples of the multifarious ways that people and firms in a wide variety of settings assert entitlements beyond what copyright law provides. (3) He considers these unwarranted claims of rights to be a form of fraud ("copyfraud," to be specific) for which new penalties need to be devised (p. 168).
As much as I admire these books, their agendas for reform are incomplete. Patry's is incomplete in three respects: first, it does not flesh out specific details about the substantive recommended reforms; second, it does not discuss how such reforms might be accomplished; and third, it does not consider a sufficiently wide range of needed reforms. This book is, however, a valuable contribution to the copyright reform literature, as it provides a rich explanation about how and why copyright policymaking has become dysfunctional. One cannot fix a law if one does not recognize the complex problems that beset it. As a former staffer in the Copyright Office and in Congress, Patry is keenly aware of the political economy difficulties likely to attend any serious effort to bring about comprehensive copyright reform through legislation. Yet readers of his book will want to know how Patry thinks these problems can be overcome so that the major reforms he recommends--shortening the duration of copyright terms (ch. 8), requiring copyright owners to comply with registration requirements or other formalities (ch. 9), and establishing a compensation scheme for noncommercial peer-to-peer file sharing (ch. 7)--could be accomplished.
The recommendations in Mazzone's book are both more specific and more idealistic than those in Patry's. However, by focusing on copyfraud issues, Mazzone does not explore the more pervasive malaise to which copyright law is now subject. I began exploring this malaise in a previous article, Preliminary Thoughts on Copyright Reform, (4) which argued for a substantial overhaul of U. …