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The End of the Patry Copyright Blog
Sunday, August 03 2008 @ 02:28 PM EDT

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.


  


The End of the Patry Copyright Blog | 116 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections
Authored by: Aladdin Sane on Sunday, August 03 2008 @ 02:28 PM EDT
Corrections to the story belong here.

---
"Experience is what you get when you didn't get what you wanted." --R. Pausch

[ Reply to This | # ]

News Picks Discussions here
Authored by: Erwan on Sunday, August 03 2008 @ 02:31 PM EDT
Please, don't forget to quote the article's title.

---
Erwan

[ Reply to This | # ]

Off Topic Here, Please
Authored by: Tufty on Sunday, August 03 2008 @ 02:33 PM EDT
Even when you are off tropic.

Tufty


---
Linux powered squirrel.

[ Reply to This | # ]

Sorry, PJ, but crazies do just show up
Authored by: elderlycynic on Sunday, August 03 2008 @ 03:01 PM EDT
That is gloomy news indeed, especially what he says about
copyright law. While that is not news to any Groklaw reader,
for someone that eminent and part of the legal establishment
to say so indicates that the rot is indeed deep.

However, I am certain that the reason that the "crazies" that
persecute you and Patry are actually corporation apparatchiks
is not because crazies don't just show up. They do, just not
to your sort of blog. The reason is that you aren't posting
anything seriously heretical - what you are posting is in
opposition to an informal cabal's nefarious schemes of
unenlightened self-interest. So you make an enemy of the
cabal, and the rest follows.

The people who attract the real crazies are those who post
the unthinkable (often literally, for some people), and can
and do justify it with solid analysis and evidence. I don't
mean people who post extreme views, but the views that hit
the unthinking masses in the dogmas. And there is NOTHING
that winds most people up so much as to have their dogmas
shown to be self-contradictory or just plain false. They will
laugh off the obvious loons, and people who can't justify
their arguments, but they can't stand heretics who can.

I speak from bitter experience, but history is full of
examples :-(

[ Reply to This | # ]

Click here to download your archive copy of Groklaw
Authored by: Anonymous on Sunday, August 03 2008 @ 03:11 PM EDT
I wonder who can click the button to make Groklaw disappear forever? Can PJ? Maybe before the one-day depression hits someone should make a "download your archive copy of Groklaw here"-page? (Or is it there, and I missed it ...?) When we reminisce to our unwilling grandchildren about the goode olde days when villians were mostly bad, and lawyers were mostly just lawyers, it will be handy to be able to whip out our birthday memorial edition archive on gold plated memory stick and browse through it as they drop off to sleep from sheer desparation.

Hang in there PJ. Be negative about evil, be positive about good. (And of course it's personal! It's your software!)

[ Reply to This | # ]

Even Warriors get tired
Authored by: BarbieLee on Sunday, August 03 2008 @ 03:42 PM EDT
PJ you will find as Patry did, like water wearing out stone, you get tired of
the fight no matter how right you are. Sometimes it seems like you are standing
alone tilting at windmills. No matter what you do, you can't seem to make the
upside down world right again. Common sense seems to have left humanity and you
wonder, "Why am I doing this? No one cares anymore."

Hang tuff girl. Great leaders down through the ages felt the same way before
they looked behind themselves to see a sea of silent armies swelling up to
follow. I have no idea how you have kept going at the burn out rate you have set
for yourself but in time I hope you learn to pace yourself for the long haul.
Remember Paltry when you feel like giving up. He made a difference; he may have
been one story away from turning the tide. He nor we will ever know.

Is humanity better off because of one Paltry? Of course it is.

Is humanity better off because of one PJ? Dare anyone ask such a dumb question?

Hang tuff kid. Your army is there. I've seen them step up when you delegate
orders.
Barb

[ Reply to This | # ]

Do you all get it now?
Authored by: Anonymous on Sunday, August 03 2008 @ 06:19 PM EDT
You are being attacked. It is political.

Don't give up. The darkside will hang themselves
eventually. But, you can't give up.

[ Reply to This | # ]

Three step test
Authored by: DaveAtFraud on Sunday, August 03 2008 @ 06:44 PM EDT
Since I had to look it up. Here's the Wikipedia article on the "three step" test.

Cheers,
Dave

---
Quietly implementing RFC 1925 wherever I go.

[ Reply to This | # ]

The Copyright Blog archive may return
Authored by: ChrisP on Sunday, August 03 2008 @ 08:05 PM EDT
I would like to add my voice to those who are saddened by the end of the Copyright Blog, and the reasons for that, and wish Mr. Patry well in his future endeavours.

Over at RecordingIndustryvsThePeople, William Patry writes in a comment

"Thanks Ray [Beckerman]. I will think about creating an archive and am happy people find the posts to be of interest. I deleted the posts because leaving them up still leads to one of my reasons for stopping the blog: people inaccurately claiming that the views expressed are Google's."

So there's hope that the commentary will return even though it may never be extended. If you can find a way, bring the archive back, please.

---
SCO^WM$^WIBM^W, oh bother, no-one paid me to say this.

[ Reply to This | # ]

The End of the Patry Copyright Blog
Authored by: mattflaschen on Sunday, August 03 2008 @ 09:02 PM EDT
I do wish he chose to continue the blog, since I think it has been quite
valuable. However, I fully respect his decision to stop posting.

[ Reply to This | # ]

Berne Convention
Authored by: Anonymous on Sunday, August 03 2008 @ 09:09 PM EDT
I don't get the point of the "whispering campaign." The US has never
cared much about being in strict compliance with the Berne Convention. The
so-called "Berne Convention Implementation Act of 1988", for example,
makes it very explicit that the US will apply U.S. law, not Berne treaty law, on
the subject of "droit morale", and also that the Convention:

"shall not be enforceable in any action brought pursuant to the provisions
of the Berne Convention itself."

[ Reply to This | # ]

The End of the Patry Copyright Blog
Authored by: Anonymous on Sunday, August 03 2008 @ 09:52 PM EDT
Patry should get both major Presidential candidates to agree to a basic set of
common sense reforms to start shifting the balance from the monopolists back to
the public.

[ Reply to This | # ]

The End of the Patry Copyright Blog
Authored by: JesseW on Monday, August 04 2008 @ 02:13 AM EDT
This is a crying shame, especially the removal of the archives. Mr. Patry --
you did, and are doing, really good work. Even if you can't bear to deal with
the crazies right now, don't toss your previously published material into the
fire.

And, for whatever good it may do -- THANK YOU.

Jesse Weinstein

---
(Contact me for comment licensing, e.g. GPL, CC, PD, etc.)

[ Reply to This | # ]

The two scariest terms
Authored by: argee on Monday, August 04 2008 @ 03:36 AM EDT
There are two terms that really scare me.

1. "Open Source." The term is like many others; they mean
different things to different people at different times.
Sort of like "Sex" or "Faith."

At its lowest level, open source means that the source code
is accessible to individuals after some work. It may be
payment of a looksie fee, or it may be available to anyone.
There is absolutely no requirement that anything in open
source be available for use or development under ANY
FOSS license. FOSS, specifically, is a special case.
Albeit a large special case.

While GPL is Open Source, a lot of open source is not GPL
and can in fact mire people in NDA's, restrictive licenses,
etc. When I hear Microsoft talk about Open Source in a
positive light, I aways note they do not include GPL.

Back in the late '80s and early 90's, the buzzword was
Open Unix, or Open this or Open that. But try to take
that code and do anything with it.

Open source, to many -if not- most companies means "We
Open the code so You can program for US for FREE."

And when you talk to anyone about open source, you really
have NO CLUE what they mean by it, and vice versa. It is
even more pernicious than the term "Intellectual Property."

2. "Market Share." This one is equally sad. We hear
about the market share of Microsoft vs Linux. Back in '96,
when I dumped MS in favor of (gasp) Caldera CND Linux, I
made a decision that went like this:

I am not going to use MS products. If anyone requires I
use Windows, or IE, or Word, I will take my business
elsewhere. I do not care if such and such can only be done
by a MS- or Windows- program or product. In that case, I
do without. Or code it myself.

I did not, and do not care what they do over at the MS side
of the lake. They can do whatever they want, and good for
them! I am a Linux guy, and I do what I want.

But slowly people wanted to monetize Linux. All sorts of
nastiness has crept into the balance. One of them is
"Market Share." Folks, Linux is not commercial. Even if
75% of people ran Linux, the market penetration -- in
Dollars, of course -- will be small. There is no way to
come up with meaningful statistics when you balance a labor
of love vs a labor for money.

The measure, "Market Share" when applied to Linux, to ME,
means that Linux has LOST that much in terms of love,
usability, decency and independence. I REALLY wish that
Linux market share was exactly ZERO dollars. I also
realize that some, even most, of the Linux programs I run
have had massive injections of dollars from corporate
concerns.

Scary, worrisome, and perhaps inevitable, but ultimately,
SAD.



---
--
argee

[ Reply to This | # ]

Patry, PJ and attackers
Authored by: grouch on Monday, August 04 2008 @ 09:06 AM EDT
Like others, I am both sad and mad about Mr. Patry's blog being shuttered. Also like others, I can understand his reasons and respect the resultant decision.

There have been several times during the life of Groklaw when I feared PJ would likewise decide that the battle or the accomplishments were not worth the personal, abusive attacks. Each time she posts either an article or a comment, she risks a storm of attacks ranging from innuendo to downright demented rants against her. I continue to be impressed by her toughness and resiliency in the face of these.

As you can glean from Mr. Patry's comments, these attacks are far from limited to the reply comments that are permitted on such personal blogs. Many appear in strange places that are topically unrelated to the blog, where the target is unlikely to stumble across them even if the target wanted and could take time to seek them out for response.

[PJ said:]

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.

[...]

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.

From what I've seen, the attacks can come from genuine "crazies", outraged individuals whose livelihood or deep-felt convictions are threatened by your blogging, trolls who get a thrill by stirring up arguments, 'sheeple' who turn with the latest rumor, and the corporate astroturfer and shill. The corporate astroturfers and shills will naturally try to leverage all of the others. ( This document was written with Microsoft in mind, but it applies to many corporations in general). "Stealth", "guerrilla" or "viral" marketing is big business. The same ones who use such tactics have little or no hesitation in applying it to 'de-market' (smear and belittle) anyone opposing or exposing their underhanded activities. (See, for example, SpankMyMarketer.com [warning: some folks might be disgusted by the photos accessible from the link 'The "Spank My Monkey/Anti-Christ" Campaign' on that home page]).

It boils down to the convergence of excess greed, deficiency in decency and ease of global communication. We will always have such sewer rats in our midst, so we'll always have to shine some light on them to minimize their damage to decent people.

[PJ said:]

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.

I hope Mr. Patry takes you up on that generous offer! Your comment policies, record of follow-up to press misinterpretations, and the fairly active 'troll patrol' and news hounds on Groklaw should help Mr. Patry concentrate on his writing instead of the backlash of attack comments. It's a veritable haven for such work.

---
-- grouch

GNU/Linux obeys you.

[ Reply to This | # ]

This is why superheros wear costumes...
Authored by: Marc Mengel on Monday, August 04 2008 @ 03:19 PM EDT
... in all of the comic books.

When you do Good Deeds, you want to avoid the Bad Guys knowing who you really are.

[ Reply to This | # ]

Give Up? No! Just Keep Away From The dark Side!
Authored by: Anonymous on Tuesday, August 05 2008 @ 02:16 PM EDT
One of the dangers in this Open Source war is to jump on a bandwagon of someone
or some group that appears (notice appears) to be ethically in line with the
notion of Open Source. But in fact are not.

OLPC is the absolute best example of the latter. A lot of energy, goodwill (and
dollars) was sucked out of the Open Source 'community' by OLPC.

The horrible outcome of OLPC wasn't the sell out to M$; it was the decision not
to ask USERS what they needed. We middle class whiteys knew what was best for
them! Just like Bill Gates knows what is best for us. Absolutely no difference.

[ Reply to This | # ]

The End of the Patry Copyright Blog
Authored by: Ray Beckerman on Tuesday, August 05 2008 @ 05:09 PM EDT
1. I think it's a real loss; his blog was an excellent resource.

2. I don't think copyright law is as bad as all that; I just think there are 10 frequent plaintiffs who wish it were. I think US copyright law is bigger than they are, and will win. There is a string of recent rational decisions in which the content cartel's attempts to get judges to ignore the statute have been rebuffed.

3. If you have a link to the post you're looking for, you can retrieve it from Google's cache by preceding the URL with this one: "http://64.233.183.104/search?q=cache:"

4. My gut tells me.... he'll be back.

---
Best regards,
Ray

[ Reply to This | # ]

The End of the Patry Copyright Blog
Authored by: Ray Beckerman on Tuesday, August 05 2008 @ 07:16 PM EDT

PJ wrote:

"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."
PJ, why did have to leave me out like that?

Some of us crazies and vicious partisans will miss him, too.

---
Best regards,
Ray

[ Reply to This | # ]

The End of the Patry Copyright Blog
Authored by: Anonymous on Wednesday, August 06 2008 @ 02:10 AM EDT
Two words: Internet. Archive.

[ Reply to This | # ]

How copyright got to its current state (Patry blog ending)
Authored by: Anonymous on Friday, August 08 2008 @ 10:55 PM EDT
via O'Rei lly, by Andy Oram - August 07, 2008.
William Patry, one of the most respected online commentators on copyright, has shut down his weblog. His parting observation is stated in the personal, non-analystical style he liked to cultivate online, but it will serve as a declaration of policy (as well as a cry of protest) among artistic and technically creative people for some time to come:
The Current State of Copyright Law is too depressing
It so happens that copyright is a major subject covered in a book recently released by O'Reilly, Van Lindberg's Intellectual Property and Open Source A Practical Guide to Protecting Code. This blog continues with an excerpt from Van's book about how copyright got to the state it's in, then a brief statement of my own.
Andy Oram's post is a plug for Van Lindberg's book, but the Lindberg work presented here is a good read.

more at the kliki

[ Reply to This | # ]

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