William F. Patry

This was published in 2009, which was a very particular sort of moment in which to dive into copyright issues. A moment when the internet was still full of promise, a moment right between the fall of Napster and the rise of Spotify, and a moment when the entertainment industry was going full-blast on a campaign to sue kids, little old ladies, and anyone else they could usefully make an example of for downloading songs or copying videos without authorization, painting them as immoral show more criminals no different from car theives.

This book is very much of that moment, but there are also ways in which it seems prescient. A quote the author cites about how if things keep going the way they are "we are moving inexorably toward a 'pay-per-use' society, in which every instance in which we interact with culture will be commodified" particularly caught my attention. Also still distressingly relevant: the discussion of how these companies, rather than changing in response to the needs and desires of their customers, try their damndest instead to control those customers' behaviors through laws and technological limitations. (Video game companies wanting to delete purchased games when they're done supporting them, anyone?)

In one particular way, though, the passage of time didn't do it any favors, at least from my point of view. Because I'm way more cynical now, and it took a while for me to get over a certain feeling of mistrust towards the author, who is (or, when he wrote this, was) a Google guy. He's quite emphatic that he isn't writing here as a Google guy or speaking for the company at all, but it does suggest a certain self-interested bias, plus I'm much less kindly disposed towards Google these days than I was in 2009. I have also come to look askance at people who, like Patry, use the word "innovation" constantly in rah-rah tones, thanks to Silicon Valley's "move fast and break things" attitude having now broken entirely too many actually important things.

Still, getting past all that, I find that he's saying a lot of things that I was also saying in 2009, and that I do still agree with them. Yes, innovation in response to changing technology and culture is better than desperately trying to enforce the status quo by using the law as a tool to force consumers to keep buying what you're offering exactly the way you're used to offering it. Yes, "the death of the copyright holder plus seventy years" is a ridiculously long period for copyright, one that primarily benefits corporate copyright holders and works, on the whole, to the overall detriment of society. Mark Twain should not have to be seven decades in the ground before it's legal to write James -- my example, obviously, not his -- and using DMCA takedowns as a chilling effect to quash even fair use practices sucks for everybody.

And Patry is clear here: the good of society has always been what copyright is supposed to be about, and a good copyright policy is strong enough to encourage and enable creative endeavors but not so strong that it thoroughly stifles our ability to build creatively on the works of others. A lot of the problem in reaching that good policy, he contends, comes in the way we use bad metaphors in our attempts to understand copyright, often because those metaphors are intentionally chosen to benefit those arguing for more restrictive controls. In particular, he believes that conceiving of "intellectual property" as property is entirely wrong, which very much fits with the way I could never watch one of those "you wouldn't steal a car!" warnings on DVDs without feeling a genuine urge to laugh at the absurdity. Because of course stealing a car and copying a DVD are not actually the same thing, whatever you think about the ethics of either.

I also find that, after some musing, reading this has clarified something in my own mind. As someone who has, in fact, always felt a certain amount of disgust at companies like Disney or organizations like the RIAA moaning about copyright and wielding it like a weapon, what do I make of the fact that suddenly I find myself on the copyright-holders' side when it comes to AI issues today? Am I a hypocrite? Do I owe Disney an apology? But, no, when I apply Patry's mantra -- that it's not about morals or rights or fairness, but about what's in the public interest -- it all becomes a bit clearer to me, and the contradiction becomes easy to reconcile. Because the only question, then, is whether letting AI chew up and spit out the works of human beings is good or bad for human beings as a whole. I'm sure those who create the things would argue that it is, because it's going to do all kinds of amazing magical things to make the world a better place. Whereas I'd argue that AI, at this point, isn't so much usefully building on the creative work of others in ways that improve the world as replacing them with stuff that is generally much worse, putting the actually creative human beings out of work in the process, a decided net negative. Yay, it turns out I have a consistent point of view, after all!

Anyway. I won't say this book is fantastic or anything. It is still, to some degree, the product of a moment that's now passed. And the writing is... okay, I guess. Patry is constantly borrowing others' words as quotations, which may in fact be a deliberate showcase for his point about how all human expression inevitably builds on the works of others, but it does make the whole thing read a bit like a college freshman's essay paper. And, yeah, here in the deeply jaded year of 2025, I could definitely do with a bit less of the "corporate innovation will save us all, yay, capitalism!" attitude. But I did get a lot out of it -- more than I expected to going in, to be honest -- and I am glad I read it. show less

Of course I’m not really the audience for this entry into the ever-growing category of books on copyright for the general-interest reader; this one has some nice bits, though, including a riff on copying as a central element of creativity—Patry focuses mostly on copying as training before the development of one’s individual style, but he notices that individual styles still retain a bunch of copying, necessarily. I liked his take on why we should restore formalities (notice and show more registration/renewal to keep a copyright over a longer term): “The theocracy of formality-free copyright belongs to the Romantic ideal of artists starving in their Parisian garret. Copyright doesn’t want to be free any more than information does.” He defends fair use and “unauthorized creativity,” pointing out that copyright owners don’t like criticism or competition and are perfectly willing to use law to suppress both, but that doesn’t mean we should let them do it. show less

Patry, who begins this short book on copyright’s overextension of control with the mildly ironic request not to preface any discussion of the book with the fact that he’s now Senior Copyright Counsel at Google, doesn’t have much to say on the subject that you couldn’t get more punchily from Larry Lessig and the like. He focuses his discussion on the use and misuse of metaphors, specifically piracy and property, in expansionist copyright rhetoric, but I was most amused by his show more discussion of the metaphor of work-as-child: Daniel Defoe claimed, for example, that an author’s work is “as much his own, as his Wife and Children are his own.” Patry makes two points in response: (1) no author creates in a vacuum, and (2) copyright law has never actually worked that way. By contrast, I’d think the most obvious responses include (1) actually, you do not own your wife or your children, at least (Inspector Clouseau voice) not any more, and (2) if you claimed the rights to do to your children what copyright owners do to their works (including to sell, chop up, and destroy them), we would send you to jail. Someday I want to write a paper on this metaphor, and, though today is not that day, Patry does have a good point about the rhetorical differences between “orphan” works—poor works faultlessly separated from their owners and in need of protection from exploitation—and “abandoned” works—which also need to be taken care of, but differently. show less

I reviewed this book in Library Journal's Academic Newswire.