The End of the Patry Copyright Blog

By Pamela Jones

August 03 2008

William Patry has shuttered [ ] his blog, The Patry Copyright Blog. The archives are gone too. He tells why in a final post. It's a tragedy, nothing less.

No, no one at Google made him do it. He did it for a couple of reasons, both of which resonate with me, and I think they are important to highlight. I must warn you, it's a bit depressing. Here are the reasons:

1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog
2. The Current State of Copyright Law is too depressing

But it's in the details that the story is told.

Here's part of the first section:

While in private practice I never had the experience of people attributing my views to my firm or to my clients. I moved from private practice to Google I put a disclaimer to the effect that the views in the blog (as in the past) were strictly mine. I also set a policy, which I strictly adhered to, of never discussing cases Google was involved in, and I refrained from criticizing those with whom Google was involved in lawsuits. I did not run ads, including not using Google's AdSense program. I cannot see what more I could have done to make what was a personal blog more separate from my employer.

For the first year after joining Google, with some exceptions, people honored the personal nature of the blog, but no longer. When other blogs or news stories refer to the blog, the inevitable opening sentence now is: "William Patry, Google's Senior Copyright Counsel said," or "Google's top copyright lawyer said... ." There is nothing I can do to stop this false implication that I am speaking on Google's behalf. And that's just those who do so because they are lazy. Others, for partisan purposes, insist on on misdescribing the blog as a Google blog, or in one case involving a think tank, darkly indicating also a la Senator Joe McCarthy, that in addition to funding from Google, there may be other sources of funding too. On Blogger, blogs are free. The blog had no funding because it doesn't cost anything, because I don't run ads, and because it was my personal blog, started before I joined Google.

On top of this there are the crazies, whom it is impossible to reason with, who do not have a life of their own and so insist on ruining the lives of others, and preferably as many as possible. I asked myself last week after having to deal with the craziest of the crazies yet, "why subject yourself to this?" I could come up with no reason why I should: My grandfather chose to be a psychiatrist, but I chose a different professional path, one that doesn't obligate me to put up with such nonsense.

I don't know for sure what he is referencing regarding partisans, but this snip on boingboing [ ] might give us a hint. I don't think boingboing is going anywhere any time soon. Patry wrote an article in April about a whisper campaign by media giants to kill fair use. That article is gone, but the link takes you to a report about it by Cory Doctorow, so you can at least get an idea:

William Patry, the Google lawyer who formerly worked for the US Register of Copyrights, has a blog-post in which he outs a global anti-Fair-Use "whisper campaign" orchestrated by the big entertainment companies. The big media companies are trying to convince the world's governments that the USA's statutory exceptions to copyright (embodied in Fair Use) are so broad that they violate the centuries-old Berne Convention, a widely adopted copyright treaty. Berne is extremely rigid, and what's more, it's nearly impossible to update, since any amendments to it require signatures from all the governments that have signed it since the 1800s. Further, accession to Berne is a condition of many other trade agreements, so many countries are required to adopt Berne laws.

If the entertainment giants can convince the world's governments that Fair Use violates Berne, it might mean that the US will be forced by a trade court to eliminate it in favor of something far more restrictive.

I feel so sad about this decision. But I am also stunned to realize that this happens to others, not just to me, even to someone who works at one of the most successful companies in the world and has what I would view as a perfect resume [ ]. Last year, he was interviewed [ ] by K. Matthew Dames of Copycense, and the introduction explains a bit about his accomplishments:

In the area of copyright, there are few that can match William Patry’s credentials. He is the author of three copyright treatises, the most recent of which is a recently released, seven-volume, nearly 6,000 page opus entitled simply Patry on Copyright [ ].

Patry now serves as senior copyright counsel for Google, Inc., but this appointment comes after a quarter century of work in copyright law as a professor; copyright counsel to the U.S. House of Representatives; policy advisor to the Register of Copyrights; and attorney in private practice.

See what I mean? If you followed the link, you know that it says that Supreme Court Justice Sandra Day O'Connor, now retired, wrote the forward, in which she discussed a number of copyright decisions, including Harper & Row, where she cited his work." If you'd like to read that decision, it's here [ ]. I count four references to Patry's book, The Fair Use Privilege in Copyright Law [ ].

I had earlier believed that I was attacked and smeared because I am *not* affiliated with any company and am essentially nobody, so that folks felt free to be abusive. Now I understand that it's anyone on the other side of certain commercial interests. That would mean more than just copyright law is depressing.

Here's part of what he says about that:

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.

It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. I have tried various ways to leaven this state of affairs with positive postings, much like television news shows that experiment with "happy features." I have blogged about great articles others have written, or highlighted scholars who have not gotten the attention they deserve; I tried to find cases, even inconsequential ones, that I can fawn over. But after awhile, this wore thin, because the most important stories are too often ones that involve initiatives that are, in my opinion, seriously harmful to the public interest. I cannot continue to be so negative, so often. Being so negative, while deserved on the merits, gives a distorted perspective of my centrist views, and is emotionally a downer.

I hope that he will consider reposting at least some of the material he has now removed, even from Wayback. Of course, Groklaw would publish it, and I'm sure there are lots of folks with more prestigious credentials who would do the same gladly. Even if it were published anonymously, it would have value. And if he gets a second wind, perhaps in time he will start up again.

By the way, from my experience crazies don't just happen to show up. I've come to believe that sometimes large corporate interests find ways to direct negativity toward an individual they would like to stop blogging. Part of the process is to try to damage your reputation; the rest is to discourage you to a degree that you give up. I do, sadly, completely understand his decision. He's tired of dealing with it. He isn't saying that there's no hope for copyright law, just that he's more interested in doing effective work without the added unpleasantness of blogging. Of course, I have the advantage of doing Groklaw with a large group, and folks kindly write to me all the time and make donations with notes about how much they enjoy Groklaw and that they think it's important, and that definitely does help me to persist. If I was doing this all alone, I probably would have quit long ago.

Now, when you follow links to Patry's blog, you get this:

Sorry, the page you were looking for in the blog The Patry Copyright Blog does not exist.

It's our loss. However, I'd like to repeat what Patry wrote in the article about the whisper campaign and the attack on fair use, as quoted in boingboing, so that the information will continue to spread even further:

The counter-reformation movement is presently at the stage of a whispering campaign, in which ministries in countries are told that fair use (and by extension possible liberal fair dealing provisions) violate the "three-step" test. And who wants to violate the three-step after all? The appeal by counter-reformation forces to external and abstract concepts like the three-step test is a time-worn tactic: when you can't win on the merits, shift the debate elsewhere to grounds on which you think you can win. Given that few ministry officials are experts in copyright law, much less arcana like the three-step test, these appeals -- made by those who claim to be such experts -- can be effective. They shouldn't be. National governments should make policy decisions based on the merits of the proposals, free from such scare tactics. The three-step test is not a bar to a single proposal of which I am aware.

The biggest of the three-step scare tactics is that Section 107 of the U.S. Copyright Act is incompatible with the test. Baloney. WIPO and European copyright experts testified before the U.S. Congress during the hearings on U.S. adherence to Berne, hearings that spanned four years: 1985, 1986, 1987, and 1988: there was no lack of time or opportunity to raise any concerns. Congress even went to Geneva and convened a round table discussion there on November 25 and 26, 1987 with WIPO and European copyright experts, the sole purpose of which was to determine which parts of U.S. law needed to be amended to permit Berne adherence. Not once at this round table or during four years of hearings were the words "fair use" ever raised by a foreign expert who appeared before Congress nor did any domestic witness (of whom there were many dozens) consider there to be a potential problem. (A transcript of the round table is reproduced in the House Hearings: "Berne Convention Implementation Act of 1987, Serial No. 50, 100th Congress, 1st & 2d sessions 1135- 1213(1987, 1988)). I can say from direct experience of having been involved in these efforts at the Copyright Office that I never heard a single European expert claim there was a compatibility issue with fair use.

And may I say to William Patry, from all of us who are neither crazies nor vicious partisans, that we are so sorry this happened to your life.

02:28 PM EDT

Copyright 2008 -