Why We Must Call Them "Intellectual Monopolies"

As long-suffering readers of this blog will know, I insist on calling patents and copyrights "intellectual monopolies". That's mainly because it is a better description of what they are; but there's another reason, which becomes clear from this post by a pro-monopolist who is conducting an revealing exchange with William Patry on his new copyright blog:

Bill --

You want to redirect the conversation to the question "why do copyright owners insist on describing copyright as a property right, rather than say as a regulatory privilege or a tort?" Fair enough. If I took a bit more time for research, I could probably come up with a very sophisticated answer, digging up 18th Century texts to support my position. But instead I'll give you a much simpler one, one that might not satisfy the philosophers, historians, and economists among your readers, but one that happens to be accurate (and will probably work for most lawyers): Because pretty much everyone refers to copyright as a form of property. Contrary to the premise of your post, it's not just "copyright owners" who use the term "property" in this context; it's exceedingly common for those on all points of the copyright spectrum.

There we have it: the more opponents collude by using the "eye-pea" term, the more the monopolists can point to this as "proof" that copyright and patents are property, not monopolies.

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A Sad Day for Copyright

In the dark, twisted world of copyright, one ray of light has been William Patry's blog. No more:

I have decided to end the blog, after doing around 800 postings over about 4 years.

Although Google's top copyright man, he wrote his blog in a purely private capacity as one of the leading copyright scholars in the world. Indeed, despite his position at that company, he was remarkably approachable: when I asked him to do a quick email interview for this blog he readily agreed. Sadly, one answer has proved prophetic:

I think copyright has become less and less responsive to the balance of incentives and exceptions that the 18th century English common judges grasped intuitively. Our ability to adapt has been seriously hampered by trade agreements, and that's a big problem.

Indeed, Patry now feels that this crucial "balance of incentives and exceptions" has been lost to such an extent that he can no longer blog. Alongside the fact that people kept assuming his views were official Google policy (they weren't), his other reason for stopping was simply:

The Current State of Copyright Law is too depressing

This leads me to my final reason for closing the blog which is independent of the first reason: my fear that the blog was becoming too negative in tone. I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

When one of the world's pre-eminent experts in the field is so depressed by the state of copyright that he can't bring himself to blog about it, you know that something is rotten in the state of Denmark.

Thanks, Mr Patry, for all you gave, and sorry to see you go. Now it's up to us to carry on the fight for some copyright sanity.

Of Books, Sharing and the First Sale Doctrine

Here's a short but poignant meditation on the centrality of sharing to the joy of books:

Ultimately, I do not much care whether these books are paper or made of some other less organic substance, whether substrates and electrons, or plastic polymers. Instead what matters is that we are able to share books with each other; in return for the gift of spreading delight, a wait of days and the cost of media rate shipping are very modest penalties.

Whatever digital (ebook) books look like in the future, if they do not embody the right to share, in an unrestricted and platform independent manner, they will be poorer things.

This is called the first sale doctrine. It's part of why people love books -- a love built from sharing. It's what makes libraries possible. A world where content is licensed, and sold with restrictions on use, is a world less full of enthusiastic readers; less full of love.

To any publisher who sees the wisdom of DRM: don't.

(Via The Patry Copyright Blog.)

Where Would We Be Without Patry?

William Patry, incidentally Google's copyright man, and, more pertinently, pretty much the world's leading expert on anglo-american copyright, has the shameless demand of the Music Business Group (MBG), a coalition of UK music publishers, record labels, and licensing organisations, for a second licensing fee for personal format shifting nicely skewered in this great post:

What this means to me is not that consumers have captured value that belongs to the industry, but rather that consumers have long been deprived of the value of their money, and are finally beginning to get something close to the true value of the product being sold. It is that market reality that scares the you-know-what out of the MBG, and that forced it to turn to a consultant to come up with a theory to sell to government policy makers as an example of the sky is falling from yet another effort to blame consumers for the industry’s own shortcomings. The proposed solution by MBG is an attempt to obtain a government-mandated subsidy by consumers of an industry that is finally being forced to give consumers what they want. There is no value for policy makers in mandating such an undeserved subsidy. And, as a policy matter, the theory on which it is based, namely that every unauthorized use by consumers is the misappropriation of value properly owned by copyright owners, has no limit; it applies to book reviews, news stories, quotations, parodies, the first sale doctrine, and a limitless term of protection (note the connection between the value theory and the concurrent effort at term extension for sound recordings in the UK and Europe). Even Blackstone’s view of property as the sole, despotic dominion of the owner never reached this far.

Hopefully the UKIPO will reject the proposed levy and the theory out of hand. Rejection would be a valuable lesson.

Attack of the Copyright Were-Rabbit

There is a counter-reformation movement afoot in the world of copyright. The purpose of the movement is to chill the willingness of countries to enact fair use or liberal fair dealing provisions designed to genuinely further innovation and creativity, rather than, as is currently the case, merely to give lip service to those concepts as the scope of copyright is expanded to were-rabbit size.

Another great post from William Patry, one of Google's better hires.

Why Has Copyright Expanded? - The Answer

Not mine, but Neil Netanel’s:

Numerous commentators, including myself, have decried the growth of copyright holder rights in recent decades. Copyright’s expansion is widely said to be inimical to copyright’s core goals and economic rational. If so, why has that expansion occurred? Without question, there are multiple causes. This essay surveys and critiques a number of them, beginning with the copyright industries’ raw political muscle and moving to the rhetorical and theoretical frameworks for expansion.

To which William Patry adds:

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.

Indeed: it ain't light, but it's right....

Messrs. Copyright and Copyright Say "Basta!"

William Patry is Senior Copyright Counsel, Google; he's also author of a seven-volume, 6,000 page treatise on copyright, which suggests he knows a thing or two about the subject. In one of the longest blog posts I've seen in a while (and not exactly light reading, either), he wrote about "the legendary UK intellectual property authority Sir Hugh Laddie" and his inaugural lecture as a Professor at the University College London.

The title of his lecture was "The Insatiable Appetite for Intellectual Property Rights" - interesting in itself. But what is really remarkable is that Patry agrees:

Regrettably, both Sir Hugh and I have been lead in recent years to speak out in protest over the unslakable lust for more and more rights, longer terms of protection, draconian criminal provisions, and civil damages that bear no resemblance to the damages suffered. As Sir Hugh noted in his speech, “A calm look at the way IP rights are obtained and enforced in practice suggests that something is wrong. The drive for more IP rights has produced startling results.” He then gives page after page of examples, drawn from copyright law, trademark law, and patent law

When two of the top copyright experts in the Anglophone world both speak out in no uncertain terms against the current intellectual property maximalism, you know that there's something seriously rotten in the state of Denmark.

Google's Patry on "Patry on Copyright"

It would be hard to imagine a more definitive study of the field of copyright than this: over 5,500 pages, in seven volumes, occupying 25 in./63 cm of shelf space. Although there are no figures on the weight, these are clearly weighty tomes.

It takes a particular kind of individual to devote seven years of their life to writing such a treatise (and goodness knows how many more acquiring the ability to do so), but the author, Bill Patry, seems to have the perfect biography for the task:

Bill Patry is a renowned expert on Copyright Law who currently serves as Senior Copyright Counsel to Google Inc., where he is involved in diverse cutting edge issues. Patry has practiced copyright law for 25 years, 12 years of which have been in private practice, including appellate advocacy. He has been cited numerous times in landmark U.S. Supreme Court decisions.

As a full-time law professor for 5 years and an adjunct for another 5 at the Georgetown University Law Center, Mr. Patry appreciates the importance of teaching and scholarship.

From his eight years in working in the U.S. House of Representatives and Copyright Office, Patry is familiar with the nitty-gritty of legislation and the broader policy issues that Congress deals with. He has testified before Congress, and been retained as an expert witness on numerous occasions.

Patry is the author of numerous law review articles and several books. He also served as editor or editor-in-chief of the Journal of the Copyright Society of the USA for over ten years.

Given the centrality of Patry's expertise for many of the areas covered in this blog - notably open content and open source, to say nothing of intellectual monopolies - and his current position at Google, which allows him a privileged perspective on the online world, I thought it would be interesting to ask him a few questions about his work.

Glyn Moody: As background to yourself, could you say briefly what exactly the Senior Copyright Counsel to Google does - what sort of things do you get involved in that readers might know about?

Bill Patry: Google's legal department is uniquely organized. We have the traditional litigation and transactional lawyers, but we also have "product counsel," counsel who work on particular products, like Books or Videos. We also have policy and government relations lawyers. People tend not to be segregated though, and will work on projects across what in a law firm would be called a department. And that's my role par excellence: I deal with copyright issues wherever they arise.

Glyn Moody: How did the copyright treatise come about - is it something you'd been dreaming of doing for years? Was there any particular inspiration?

Bill Patry: The book started out as a second edition to an earlier work and had I stuck with that, it woudn't have taken so long. But I got into a dispute with my prior publisher, pulled the book, rewrote it almost entirely and expanded it about three fold. My idea was to write a book that drew on all the things I done and to also rethink the way legal treatises are written and used. Blogging has been an important part of that process, making the exchange of ideas interactive and not just one-way.

Glyn Moody: Could you give a few facts and figures about it for those of us who won't have the opportunity to get our hands on the real thing?

Bill Patry: The book is 7 volumes, no appendices, about 5,832 pages, 25 chapters. It is the first new multivolume treatise on copyright law in the U.S. in 17 years, is the largest by almost 100% (in text), and is I think one of the largest legal treatises even written by a single individual.

Glyn Moody: How will the The Patry Treatise Blog function alongside the book? What do you hope to achieve by creating it?

Bill Patry: I have high hopes for the blog as helping in a number of respects. It provides a way for people to give me feedback, suggest things, ask me what I meant etc. All of us have read things and have not been sure what the author meant. We're reluctant to ask the author and it takes time to write letters. With a blog, you can do it quickly, easily, and get very fast answers. I also want to be able to provide readers with important updates before the actual updates come out and to try out concepts.

Glyn Moody: Looking to the future, do you think there will ever be another such hardcopy treatise on copyright, or is this the last one before everything is purely online? Any hope the next one will be free and accessible to all?

Bill Patry: I'm not a futurist; I can't understand the past or present, much less the future.

Glyn Moody: As a copyright scholar, what's your view of Richard Stallman's GNU GPL, which draws its power from copyright? Is there any weakness in the GPL's approach to granting software freedoms from a copyright point of view?

Bill Patry: I met Stallman about 20 years ago, but haven't folllowed him since.

Glyn Moody: What impact do you think Google and its various projects will have on the field of copyright?

Bill Patry: Don't know.

Glyn Moody: From a historical perspective, how important do you think open content and the Creative Commons movement will prove? Are we moving from one copyright era to another? Is the role of copyright changing?

Bill Patry: I think Creative Commons has been wonderful in providing a way for people to license their works as they see fit. Recently, I did a post on the "Long Tail" and its effect on copyright. Copyright is an economic right and it will follow, willingly or not, where the market eventually goes.

Glyn Moody: From a theoretical viewpoint, in the best of all possible worlds, how would copyright evolve to create a legal structure that allows all these new kinds of uses to flourish? Similarly, drawing on your knowledge of copyright in the past and present, how do you think copyright will actually evolve - both in the US, and globally - in the short term and longer term?

Bill Patry: I think copyright has become less and less responsive to the balance of incentives and exceptions that the 18th century English common judges grasped intuitively. Our ability to adapt has been seriously hampered by trade agreements, and that's a big problem.

Glyn Moody: Do you have any words of advice for people like Larry Lessig who are trying to change the legal framework of copyright to allow more sharing and collaboration?

Bill Patry: I have trouble enough figuring out my own problems.

Glyn Moody: Any other comments you'd like to make about your treatise or copyright?

Bill Patry: Please buy it, use it, and give me feedback.

Going All Googly on Copyright

Some people might say I already write too much about copyright; but for those who don't, and are dying for even more of the stuff, here's a blog on the subject. And not just any old blog (like this one); how's this for author credentials:

Senior Copyright Counsel, Google Inc. Former copyright counsel to the U.S. House of Representatives, Committee on the Judiciary; Policy Planning Advisor to the Register of Copyrights; Law Professor Georgetown Law Center (adjunct), Benjamin N. Cardozo School of Law (full-time faculty member, founding director L.L.M in Intellectual Property program), author of numerous treatises and articles (including one on fair use with Judge Richard Posner), including a forthcoming multi-volume treatise on copyright.

The latter, by the way, is a cool 6,700 pages long.... (Via Against Monopoly.)