1) reference to poison? I referred to “position enhancement,” not poison. My take on “position enhancement” was elaborated in a talk Mike attended, so I’m sorry if this “inside reference” was not readily graspable by other blog readers. But my work on the topic can be Googled, and as you’ll see, I take a pretty nuanced approach…position enhancement ain’t poison!

2) as for cost–all I was referring to was the fact my school already had Nimmer, and since that was a sunk cost, the only relevant comparison I was making was a) buying your treatise or b) sticking with what we have. If a) we are updating Nimmer and b) those updates will soon eclipse the cost of your work, I may well recommend the library stop those updates and buy your work instead.

There are also folks who will want both books, just like people want lots of recordings of classical music, or in the case of law, see value in having on hand the most current thought from mutiple sources. Again based on the above, one can hardly characterize mine as extraordinarily high priced.

The final scenario is one where a customer has an installed book and is thinking abut replacing it with a newer one. There are alot of factors that go into such a situation, and part of surprised me about Frank’s remark was an implied assumption that I should price mine so low that it was a easy, reflexive decision to dump Nimmer. I actually did not set out to and have not asked anyone to dump Nimmer or Goldstein, or anyone. I am happy for people to use whomever and however many resources they can. Moreover, my work like anyone else’s can only succeed on its own merits: I can’t gain acceptance for my ideas merely by knocking someone else’s, leavng aside entirely the horrible uncollegial nature of such an approach. Let a thousand flowers bloom.

Viewed on its own, no one, could say that a treatise (especially a new one) that is twice the size of another and is $250 less is exorbitantly priced. Instead, the description of an extraordinarily high price is seemingly tied to a belief that given another work’s price, mine should be so deeply discounted as to make the the switching cost a no-brainer. I don’t know where such a belief comes from, but if you want to create a bar to market entry that’s a pretty good one. And such an approach overlooks another perhaps even more important point about legal publishing, namely updates. More money is made off of updates than from the initial sale. Focusing on the initial price therefore misses the forest for one tree. I believe that over three to four years, the difference in price between my updates and Nimmer’s updates will equal the entire initial cost of my book. You will have gootten the value of my original book for free, and over the period beyond three or four years, my updates will always be less expensive every year.

First, as Bill points out, there is no barrier-to-entry from the point of view of a would-be treatise author who is committed to the project. Whether the market will accept the product at the end of the day is, of course, an entirely separate question, and that’s the one that I had in mind when I suggested the Microsoft analogy. In other words, the Nimmer treatise is so deeply embedded in copyright jurisprudence (see Ann Bartow’s paper, the full citation for which is The Hegemony of the Copyright Treatise, 73 U. Cin. L. Rev. 1 (2004)) that switching costs alone may preclude potential subscribers from buying the new treatise. If those switching costs are high enough, then purely from an economic point of view, incentive-driven authors and publishers won’t invest in the new work.

But as Bill also points out, he is not merely an incentive-driven author; he is deeply and personally invested in the project, as many authors are in theirs, because he loves the material and because writing the treatise is a (even the) right thing to do. I’m putting thoughts in Bill’s mind and words in his mouth here, but I think think that I’m not too far off. So the second variant on the barriers-to-entry question here is whether the story of the Patry treatise tells us anything more generally about allocation of legal rights in light of the standard incentive-to-produce narrative of copyright law. Specifically, what if copyright law did not confer an entitlement on Bill’s work? Would the work still have been produced? There is a hint in Bill’s comments that the answer is yes, but I’m speculating. Would other appropriation mechanisms exist that would return to Bill and to Thomson West enough profit to satisfy any remaining expected payoff? The virtual explosion of blogospheric praise for the announcement of the work, coupled with the extremely strong, positive branding effect of this being “Patry” on copyright, suggests, again, that the answer might be yes. But I’m speculating again.

Note that Bill challenges conventional authorial wisdom here in at least two more ways, one that concerns the stability and permanence of the artifact (the Patry Treatise blog makes the book not a self-updating thing, but a more dynamic text than the usual legal treatise) regarding, and a second the (via the same blog) intentionally engages readers in a conversation about the content and meaning of the text. At last, then, my mind stops wandering to the Microsoft and Windows and starts wandering to . . . Linux.

All in all, an interesting metacopyright meditation.

I also don’t agree with with your second point that the purpose of a legal treatise is: “2) to give those with access to the information advantage in a legal battle vis a vis those without access.” Where does that come from? Who was supporting me for the seven years that it took to write the book? Who is supporting me now? How did I get enlisted in a binary battle whose premise I don’t even accept exists? I do want to note that I have given all my complimentary copies (except for one set for my inlaws and two for me) to non-profit organizations (along with free updates), something I have been told by them no one else has done.

As for Mike’s point abot Microsoft, I don’t accept the analogy: there are no entrance costs to legal treatises. Anyone can write one if they have the committment to doing so. If one doesn’t have such a committment, it seems a bit much to go telling those who do how they shold market theirs.

A well-done treatise can synthesize and analyze disparate legal sources to present a coherent view of the law. This undertaking is labor-intensive and must be limited to one author or a handful of like-minded co-authors to succeed. A lot of the great treatises, in IP and elsewhere (think Wright & Miller) started out that way.

The aim of the wiki-fied open source treatise would be different. Ideally, it would draw on the knowledge and viewpoints of a broad and diverse cross-section of people and emerge with a description of the law that represents the accepted/conventional wisdom on the topic, and then makes that description freely available. Both projects are worthwhile, but the incentives are quite different: the first requires a lot and the second, as Yochai Benkler would say, is harnessing the wealth of networks.

Now, many (though certainly not all) famous treatises today accomplish neither of these goals. Their original coherent synthesis has become outdated or buried beneath an overgrowth of updating footnotes written by research assistants, yet they are not accessible to most people, either in the way they are written or the price that they cost.

(On a separate note, Ann Bartow made some interesting points about the “hegemony” of the copyright treatise in a paper a few years ago, which is available on SSRN.)

The first is about incentives vs. open access. The second is about the purpose of a treatise like this (about which I wrote some more over at Info/Law).

If it is done well, I think a treatise can synthesize the law and present a coherent portrait of a complex area. I’d say that was the original goal of all the big IP treatises (along with Wright & Miller and many others). Such an effort can only be undertaken by a single author or a small group of co-authors, not by an armada of research assistants. And it is certainly quite different from a wiki-fied open-source treatise.

The latter of these could have enormous value, too, mind you. If there is enough buy-in from contributors, such a document would represent a much broader consensus of what, descriptively, the law is, and then gives the public access to that description. But it’s a different function.

Arguably, some (obviously not all) famous treatises today don’t do either of these well: their original authors’ coherent synthesis has become outdated or concealed by the overgrowth of updated footnotes, yet they are still not particularly accessible or even always that reliable.

So far as 1) is the dominant role/effect of the treatise, more power to Bill, and Westlaw, for making this enormous contribution to knowledge.

However, so far as 2) becomes important, we should (as Robert Frank notes in the Winner Take All Society) be very wary about profit-maximizing access schemes (particularly any premised on a high-margin/low-volume business model). This may well have been a policy concern behind Veeck and other cases expressing wariness of the copyrightability of law.

One of the most morally compelling aspects of Google’s vision of universal access to “what’s out there” is its leveling effect. Perhaps we can count on projects like Chilling Effects and Stanford’s Fair Use Project to adequately serve those unable to afford the treatise. But if we can’t, Mike’s vision of a wiki-fied treatise (and open access to legal scholarship in general) becomes all the more convincing.

My answer to Mike’s comment about Microsoft is two-fold. First, the analogy is inapposite. The reason no one else did what I did is simple: they didn’t have the committment to do so. After all, unlike Microsoft there are no entry costs to writing a treatise, only how you value your time, and that is why I find infuriating the suggestion that my work is overpriced, especially releative to a work that is half the size and sells for more. What price did others put on their not working almost every night and weekend for well over seven years nd producing almost 6,000 pages of a dense reference work? But let’s test it. Let Mr. Pasquale and anyone else write a treatise of the same size and value and price it for substantially less than mine. If you aren’t willing to do that, you really should be silent on gthe issue of price.
P.S. There is no extra charge for using the work on Westlaw.