Near the start of How to Fix Copyright, William Patry discloses that he is the chief copyright lawyer at Google. He insists that his book represents his personal views, not those of his employer. Fair enough. But then he adds, “So please don’t preface any discussion of this book with: ‘Google’s Senior Copyright Counsel said,’ or any other variant.”
The trouble is that if Patry is Google’s senior copyright counsel and did write the book, it’s a matter of fact that “Google’s Senior Copyright Counsel said” what’s in it. To reveal a fact and then forbid inferences from it is to play mind games. Many might feel that Patry’s role at Google adds significance to his opinions on copyright; his publisher advertises his Google affiliation on the book’s back flap on that account. Patry’s vocation may also color his opinions about copyright. My vocation, for example, colors mine. As someone who makes his living as a writer, I feel a little protective of the legal basis of my income. Patry makes his living from a company that depends on using the copyrighted work of others—both with permission and without it, both within the traditional understanding of what’s legal and at its edges. Surely a reader is entitled to wonder about the relationship between Patry’s day job and his ideas.
The non sequitur I’m objecting to here is a small one. Unfortunately it’s representative; Patry’s reasoning is slipshod throughout the book, and more than once he tells the reader what to think instead of taking the trouble to convince him. Nor are these the only signs that the book may have been hurriedly—or just poorly—written. Patry often repeats himself. Though he seems to wish to address a broad audience, he uses legal terms of art such as “de minimis” and “worldwide exhaustion” without explaining them, and the later chapters sprint faster and faster through vagaries of international copyright law that are more and more complex. His priorities seem unsorted; he devotes a whole chapter to discrediting a 1995 article that consists only of notes in outline form and that by his own admission seems to have been little read. Nonetheless, if only because of Patry’s connection to Google, the ideas in his book will be taken seriously.
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Patry believes that copyright laws have failed, and for evidence of the failure he begins by pointing to conflicts. Creators of copyrighted work have tussled with the distributors to whom they sell it. Record labels, for example, have been found guilty of withholding payments to musicians, and Patry recounts that in his capacity as a writer, he was recently forced against his will to sign away valuable rights in negotiations with a powerful online publisher. Creators have also been quarreling with their audiences, especially about pricing and access. Patry cites a recent dispute over Amazon’s Kindle: Amazon enabled the device to read books aloud in a mechanized voice, and the Authors Guild protested that the function would cut into sales of audio books. Amazon backed down—a matter for regret, in Patry’s opinion.
Moreover, Patry continues, copyright laws as currently written don’t do everything that has been claimed for them. They aren’t “the basis for creativity,” he asserts, and they “do not help the majority of authors and artists in making a living.” They don’t make a country’s economy more competitive, because the concept of productivity doesn’t apply to the arts, and because, in America, a small number of corporations own most copyrights. In addition, the laws have become obstacles to technological innovation. The consumers of the future, Patry believes, will want temporary access to works of art instead of ownership—they will want to stream rather than download—and Patry doesn’t think that the ephemeral, infinitesimal duplications that make streaming possible qualify as copies, even though some lawyers have tried to claim that they do. So dim is Patry’s view of copyright that he seems at times to doubt that it was ever a good idea. He suggests that when copyright was introduced in England in 1710, it had the effect of confining books to a luxury market. After 1774, when Britain’s House of Lords ruled that copyright couldn’t last in perpetuity, prices dropped and there was an explosion in the number of new titles published.