COPYCENSE

There are two kinds of interviews: interviews that go well, and interviews that are difficult. This is one that went well.

We here at Copycense have been following The Patry Copyright Blog for some time now. And why wouldn’t we? 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.

So when William e-mailed me earlier this year to ask, effectively, would I mention Patry on Copyright in Copycense, my rather incredulous response was: “You are kidding me, right?” To me, that was the equivalent of Wynton Marsalis asking a musician if he could make time to sit in with the Lincoln Center Jazz Orchestra.

What follows is a portion of an hour-long interview in which Patry discusses his new treatise, his position at Google; the Google Book Search litigation; and why he thinks copyright terms last too long.

Editor’s Note: Over the next few weeks, additional portions of this interview will be made available on Copycense both in text and as the publication’s inaugural set of podcasts. Most of this interview also will be published in the June issue of Searcher magazine.

K. Matthew Dames (Copycense): I did want to ask you your opinion about a case that Google is not involved in, but is continuation of the term extension issue and gets into the public domain area. This is the Kahle v. Gonzales case that was decided at the end of January. Do you think that case was correctly decided, and what is the continuing effect on the public domain based upon this litigation?

William Patry: I heard the oral argument in the case, and I’ve read the opinion. The issue that the plaintiffs were advancing is “What is the correct standard of review?” That’s what the [Ninth Circuit] Court of Appeals was deciding, at least at plaintiff’s request. [The plaintiffs] wanted to go back to the trial court and have legislation reviewed under a particular First Amendment standard.

And the Court of Appeals said, “Well, we’re not sure that’s not the right standard because this isn’t a First Amendment case. This is a copyright case. So, we’ll take you on the merits and say ‘The argument that you made is the same argument that was made in the Eldred [case], and rejected.” Although, [the issue] wasn’t exactly the same because the statute was slightly different, and there were different issues [in Eldred v. Ashcroft] (.pdf).

In terms of a narrow reading of that as turning on either what’s the appropriate standard of review for legislation, or whether the Supreme Court had already taken a look at that, the [Ninth] Circuit’s view was that [the First Amendment argument] wasn’t the appropriate standard of review, but even if it is, we’re going to say that the Supreme Court has already addressed this. So, you lose: you don’t get to make your arguments [at the lower, trial court]

From a policy standpoint, I think the duration of copyright is way too long. Whether “life plus 50 [years]” was correct or not I think can only be answered by taking into account what we got internationally. There was never an argument that “life plus 50” was required to give adequate incentive; “life plus 50” had been the standard in the Berne Convention for some period of time, and the idea of shifting to that in the [Copyright Act of 1976] was … because it benefited us overseas. If I had the ability to write the copyright laws myself, I would probably make the term life of the author and that’s it. I think the [current] term is way too long from a policy standpoint.

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