Wednesday, January 10, 2007

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.


Anonymous said...

A post-Christmas release and I got no Westlaw gift cards. Only Barnes and Noble. The treatise is a trade-off of 54 hardcover books equally 12,000 pages for 6,000 pages. It is the newest thing in 17 years and I have been waiting for several years.

Zvi said...

For those of us with Westlaw, how can we access the treatise there?

Anonymous said...

Congratulations, and I look forward to reading/using it. I know that you mentioned in a previous post something about electronic access to it. Do you know if it will be available to (and searchable by) Westlaw subscribers, or is the electronic access something that comes with the purchase of the paper copy?

William Patry said...

Thanks Anonymous. I am checking with West about when it will be available on Westlaw and under what conditions.

Anonymous said...

Congratulations! Some day I hope to be able to buy a copy (or I should say, to get my future employer to buy a copy for me).

I like the part of the ad where it tells you it takes up over 2 feet of shelf space.

Crosbie Fitch said...

Which do you hope for?

1) That your work serves as the primary reference on copyright for the next century?


2) That your work serves as the primary reference on copyright for the next decade, and the primary historical reference on copyright 1710-2017 for the following three centuries?

You know it can't last don't you? ;-)

William Patry said...

Crosbie, everyday I am reminded of my mortality and have no illusions about that or the book's. But if I worried how long something might be useful, I wouldn't have written anything. We do what we can with the time we are given.

Crosbie Fitch said...

You remind me of Gandalf:
"All we have to decide is what to do with the time that is given to us."

One day, I hope that mankind will be able to build upon your work, and great works such as yours - without the author's permission, and without waiting a century after the author's mortality has been determined.

Anonymous said...

Congratulations, Bill. I am certain it will an extraodinary contribution to the practice and consideration of copyright law.

The notion of a blog as a living supplement is terrific. Maybe on that blog all commentary should be refrenced to the organization of the treatise and then elsewhere on the blog sorted and searchable in that fashion as well. You should also double-post where appropriate so that neither blog is slighted for the other. Unlike the treatise, there are no measurable ecological damages from a double posting process. ;-)

William Patry said...

Thanks, Josh. For the treatise blog I will follow the treatise's organization and want to work out a searchable function too. As for double-posting, I am reluctant to do that: I have tried to make postings self-contained and so an extraneous reference would muck that up unless of course they both relate to the same topic in which case it would make sense. But I am open to any suggestions.

Anonymous said...

"Maybe on that blog all commentary should be refrenced to the organization of the treatise and then elsewhere on the blog sorted and searchable in that fashion as well."

Yes, or perhaps even eventually transformed into a wiki organized like the treatise. In any event, congratulations.

Kim said...

Congratulations, Bill. That is a simply amazing achievement, and I'm looking forward to seeing it sometime. As you say, you can only do what you can with the time you have, and I'm sure many for quite some time will be thanking you for spending your time this way.

Kim Weatherall

Anonymous said...

Congratulations on the release of your magnum opus!

I'm trying to figure out what to make of your commment "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."

Looking over the table of contents, it looks like the set has lots of commentary (that's clearly copyrighted) and some primary source legislative and judicial material that's in the public domain. Did you have electronic copies of that material when preparing your work, or were those inserted by the publishers? If you have them electronically, are you interested in releasing those PD portions to someone who could then set up the site you're hoping to have created? Some of it's already online, I'd imagine, but I suspect not all of the various Acts and cases are. Or are you prevented from doing so, for some reason? (Or am I missing the meaning of your comment? That's certainly possible.)

William Patry said...

Dear Mr. Ockerbloom. Since you only have seen the table of comments, I can see why you might wonder what I meant. Here's the situation. In two chapters 9 (fair use) and 24 (GATT), I provided at the end of the chapter selected material that is discussed in the chpater, as a service to readers so they don't have to hunt it out in order to follow the discussion. In only one case (chapter 9) is there any material from the legislative history of the 1976 Act, and even there, it is limited to excerpts from committee reports relevant to the discussion and to something extracted from a copyrighted work, The Kaminstein Legislative History Project, namely an evolution of selected statutory language.

What I was referring to in my comment was a desire to see the full legislative history of the 1976 Act -- the Copyright Office studies, the Discussion trasnscripts, the Register's reports, the hearing transcripts, and the committee reports made available electronically. I have the hard copy but that's it.

Anonymous said...

Congratulations, Bill!

As for the 1976 Copyright Act legislative history, I happen to know that your employer, Google, has a rather impressive book scanning capability. Perhaps you can persuade them to (carefully) scan your copies and add them to the Google Library Project. As public domain documents, that would mean that anyone could freely download and copy the resulting PDFs (which include OCR, I believe).

Not quite as linkable as html (here, I doff my hat to the Copyright Office's online version of Title 17, in both PDF and TXT), but still an enormous improvement over the status quo.

Take it up with your fellow Googlers! Might even earn Google a few new friends among copyright practitioners.

Anonymous said...

"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."

But not uncomfortable enough to keep from charging just under $1,500.00 per set?

Guess I'll have to wait for it to come out in paperback.

William Patry said...

David, I am very very comfortable with the pricing of the book at $1498. What I am uncomfortable with is comments like yours. Nimmer's treatise is almost half the size of mine, but is $250 more.

I devoted 7 years of my life to this work and it is based on 25 years of practising law at the very highest levels of the profession, 13 years of which were spent as a public servant and in academia. Where were you then, what were you doing with your time? Did you offer to help me? Did you offer to help pay my mortgage or pay my kids' medical expenses while I wrote the book? Did you offer to help with any of the expenses of the book? What have you done to advance the public interest?

You go write a treatise like mine if you can and only then should you talk to me about being comfortable with pricing.

Anonymous said...



(I'm writing all caps because of the incredible achievement).