My Treatise is Now Available

After seven years of intensive work, my new treatise on copyright is finally available for purchase from Thomson/West, here. Justice O’Connor wrote a foreword. I did 100% of the research and writing, never using assistants of any kind. The book is seven volumes, all text. My hope is that some day soon there will be a website that will contain the complete legislative history of the 1976 Act, free and accessible to all, but until then, I feel uncomfortable charging for volumes of what is, after all, public domain material.

In single space, printed form, the treatise is close to 6,000 pages and will be that length after the first year's updates: it is looseleaf and will be updated twice a year. It is, by almost 100%, the largest treatise on copyright published, and is the first new multi-volume treatise on U.S. copyright law in 17 years. Here is table of contents with approximate page lengths:

1 Historical review 402
2 Statutory interpretation 184
3 Copyrightable subject matter 444
4 Noncopyrightable subject matter 230
5 Ownership 316
6 Formalities 108
7 Duration 124
8 Overview of exclusive rights 38
9 Reproduction right 594
10 Fair use 498
11 Other limitations on the reproduction right 124
12 Right to prepare derivative works 52
13 Distribution right 102
14 Public performance right 224
15 Display right 32
16 Visual Artists Rights Act 86
17 Jurisdiction 576
18 Preemption 192
19 Pleading 20
20 Statute of limitations 98
21 Parties 190
22 Remedies 494
23 International 140
24 GATT 292
25 Choice of Law, Extraterritoriality, Forum non conveniens 272

The organization of the treatise is designed to be transparent and as useful as possible. For example, rather than have a single chapter on substantive aspects of infringement which contains infringement and defenses for all rights, I have broken down infringement into each of the exclusive rights, and have provided a separate chapter for fair use. Rather than a single chapter on procedural aspects of infringement, I have provided separate chapters for jurisdiction, pleading, statute of limitations, and parties.

I have also tried to write a different kind of treatise, one that is many kinds of works in one. For those in private practice or inhouse, I have tried to provide the most comprehensive discussion possible, including all relevant legislative history (not just the 1976 committee reports) and case law: where useful, I have broken down footnotes by circuit and sometimes have also broken down the textual discussion that way too, as in Chapter 3, on the sections dealing with computer programs and the design of useful articles). and Chapter 22 (remedies). Chapter 9 (the reproduction right, 594 pages) contains an extensive review of general issues of infringement and then in the second half is broken down by circuit.

I have also tried to place copyright issues in the personal, social, and political contexts in which they arose: there are anecdotes aplenty and enough references to other scholars and disciplines to give a generation of law students ideas for law review notes. I have also drawn on my eight years experience in the legislative branch of government into how problems are identified, debated and ultimately resolved or not at the policy level.

One reason the book took as long as it did and is as big as it is, was my desire to break out of the specialist's blinders which I had voluntarily donned to my detriment for too many years. For too many years, I believed that copyright law was special, the Cinderella of the law, as some referred to it. This tunnel vision prevented me from understanding how the most important generalists in our society -- members of Congress and federal judges -- see copyright, but it also prevented me from seeing how some lines of case law in copyright law are simply wrong. I will give two examples. First, there has long been an erroneous view that there is a split in the circuits on the accrual of the statute of limitations in copyright infringement actions. I thought so too, but after I spent a number of months studying the general law on statute of limitations, I realized there is no such split. (See chapter 20, 98 pages). Second, the standards by which preliminary injunctive relief is granted by the lower courts in copyright cases is profoundly at odds with general law principles, and numerous Supreme Court decisions. The rationale for such favorite treatment simply doesn't make sense, either as an historical or normative matter. (See chapter 22, remedies, 494 pages).

I have further attempted to provide copyright lawyers with a complete and current discussion of important general law issues such as jurisdiction and venue (576 pages), choice of law, extraterritoriality and forum non conveniens (272 pages) and how they are addressed in copyright cases. I think the chapter on statutory interpretation (chapter 2, 284 pages), will be a surprise to those who have assumed that the textualist approach to statutes is the dominant approach, even on the Supreme Court. The chapter represents a painstaking effort to document actual practices. I read far in excess of 1,000 cases, hundreds of law review articles, dozens of books, and of course drawn on my own 8 years in drafting statutes while a federal legislative branch attorney. For those conservatives who bristle at my sustained attack on Justice Scalia’s polemics on this issue, I invite you to prove me wrong, and also to read my equally painstaking attack in Chapter 25 on liberals’ efforts to further a universalist agenda via importation of customary international law into U.S. law. In law, as in politics, I am a registered Independent.
I have also started today a separate blog, The Patry Treatise Blog. The purpose of this new blog is to start breaking down the one-way nature of treatise writing: I want to provide a forum where people can react to the book and I can both respond and provide further thoughts on things I have written or am thinking about putting in the next supplement.

I do encourage those who use the book to post comments on the treatise blog (and you can do so anonymously, as you can here). The book will always be a work in progress: my objective is to learn, every day, and I at least learn best by being challenged: I am very happy to live in a glass house as the price to pay for learning. I am also quite happy to be proved wrong: as Judge Leval once said to me, the best way to know you have a mind is to change it. So having to correct something is a cause for rejoicing, not resistance. With your help, I hope to change a great deal.