Friday, August 08, 2008

Restoring Old Posts

The voice of the people has been heard. I will restore the posts, hopefully by tomorrow. This is not what I would prefer, but I respect that almost everyone else feels differently, other than those anonymous posters who were happy for the blog to go anyway. As I mentioned before, because I laboriously deleted the posts one-by-one, I needed a tool to capture the actual URLs for each post, which isn't as easy as it sounds since the URL did not always match the title of the blog. Thanks to Peter Ecklersley, who developed very cool tool to capture the URLs, and the great Blogger support team, almost all have been recaptured. They were recaptured as drafts though and there are posting limits that have to be overridden, so some work needs to be done yet. I will also try and cross reference those posts that were not captured and add them later.

Because so many people wrote asking for an archive, I will also compile an archive and send it to those who asked for it. That archive will not contains comments because the actual posts will be available for people to access. Deleting the comments from the archived posts will helpfully reduce the size of the archive, and avoid unanswered questions about the status of comments.

Thanks all of you for your kind words, and I hope restoring the links will show will my appreciation.

Wednesday, August 06, 2008

Archiving the Blog

It may sound trite to say I am overwhelmed by the response to ending the blog, but I am. I have read all the requests to either restore old posts or create an archive of them. As much care as I gave to the posts (well, most of the time), I regarded them as ephemera. In the past I weeded out old ones I thought unsuccessful. This time, I deleted them one by one, rather than just killing the blog in its entirety since if I had killed the blog in its entirety, that would have simultaneously killed the last post announcing the end of the blog too. But because I eliminated the posts one by one, to restore them, I would have to restore them one by one, by URL, rather than by name of the post. That's way too much work for something I am not wild about anyway.

But, since so many people asked, I am doing this: I am creating a file with most of the posts (weeding out really trivial one). I will organize them by subject matter too, like registration issues, or infringement issues, architectural works, photographs, or discrete policy issues etc. I will finish in a number of days and will happily send the file to anyone who wants it. (You can email me at: I am happy if anyone wants to take the file and host it. I am also happy for anyone to copy any or all of the cached copies and do whatever they want with it. I will also revisit the issue of posting again after I have had a break and if I can figure out the answer to the problems I noted.

Thank you all very much for your comments and support. I still have my day job doing copyright, I still have the treatise which I update twice a year, and I may have a book on copyright discourse if I can find something constructive to say.


Friday, August 01, 2008

End of the Blog

I have decided to end the blog, after doing around 800 postings over about 4 years. I regret closing the blog and I owe readers an explanation. There are two reasons.

1. The Inability or Refusal to Accept the Blog for What it is: A Personal Blog

I have been a full-time copyright lawyer for 26 years. My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

I started the blog when I was still in private practice with the above goals in mind and one more: I felt there was no blog devoted to the geekery of copyright; meaning a blog where people who loved copyright could come and discuss copyright issues in a non-partisan way. In order to encourage open discussion I permitted not only comments but anonymous and pseudonymous comments. I did that because I wanted to encourage the largest number of people to participate, and after four years I believe that was the right decision. But it is also the right decision to end the blog. 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.

In the end, I concluded that it is no longer possible for me to have a blog that will be respected for what it is, a personal blog. I don't draw any grand conclusions from this and hope others don't either. The decision was 100% mine. No one at Google ever asked, suggested, or hinted that I should end the blog. To the contrary, in keeping with Google's deep commitment to free speech, the company encourages blogs like mine, and has stood completely behind me.

2. The Current State of Copyright Law is too depressing

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.

So between the inability or refusal of some people to accept the blog for what it is -- a personal blog --- and my inability to continue to be Cassandra, I decided it was time to pull the plug. I thank profusely all those who have accepted the blog for what it is, and who have contributed so much to it and to my learning over the years. I intend to spend my free time figuring out a constructive way to talk about the difficult issues we face and how to advance toward their solution.

It was a Crime Alright but was it Pled Properly?

The Sixth Circuit just handed down a case that involves unusual questions of pleading in a criminal indictment, United States v. Teh. Defendant Thian Teh was arrested at the Detroit airport after flying in to the country from Malaysia. Customs had previously seized shipments of counterfeit DVDs sent to defendant's business in Oklahoma. When his luggage was searched at the airport, Customs officials found four boxes with 756 DVDs and 284 DVD sleeve packages. The DVDs were counterfeit and of poor quality. Defendant claimed he didn't know what was in the boxes and that a friend had asked him to deliver them to the friend's daughter. There was bench trial; defendant was convicted and appealed.

Defendant was charged with "fraudulently or knowingly import[ing] ... merchandise contrary to law." He was charges with violating 18 USC 545, which pretty much states what I just quoted. But what was the law that defendant acted contrary to? Obviously the copyright act, but the government never referred to any statute other than Section 545, nor specified at any time how the proof met the contrary to law element of Section 545. This failure, the court of appeals noted, "[w]ithout question ... caused considerable confusion for Teh, the government, and the district court." The indictment did allege that the DVDs were "counterfeit" and "in violation of ... copyrights," but as defendant pointed out "a copyright is not a law."

In the end, the court of appeals confirmed the conviction, as a kind of harmless error, but there is nothing harmless in this type of counterfeiting: it is a cancer on the motion picture industry, and a quite appropriate use of government resources to stop it. Hopefully, in light of the Teh case, some of those resources will be allocated to proper drafting of indictments.
H.T. to C.E. Petit.