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Patry Copyright Treatise

Copyright maven Bill Patry has publicly announced the release of his new multi-volume copyright treatise, along with the introduction of a blog to support it:  The Patry Treatise Blog.  Congratulations to Bill, and to us beneficiaries in the copyright community.

There is but one sad (and ironic) note:  The text of the work can be obtained solely by purchasing a hard copy of same from Thomson/West.  That’s good for Bill (I hope), and for Thomson/West, and indirectly for authors and still more indirectly for consumers everywhere.  For those of us without law firm budgets, however, it puts us in a bit of an (understandable, and entirely traditional) price-related bind.  I hope that my law library buys a copy, because I’m certainly not going to find one under my tree come next Christmas.  (Right now, the set appears not to be available on CD-ROM or by online subscription.)  The irony, of course, is that Bill Patry recently became Google’s chief copyright counsel.  Wouldn’t it be nice, as the Beach Boys might say, to have the treatise included in Google Book Search?

Update:  Bill Patry notes below in the Comments that the work will be available shortly via Westlaw, at a price that (I infer, and very plausibly) grossly understates the time value of Bill’s labor.  That’s great for me and others who have access to Westlaw, especially those of us who have access that’s paid for by others, and I would never suggest (and didn’t above) that Bill or anyone else should undertake this kind of effort merely out of the goodness of their heart.

A question that Bill poses — “Dosen’t it say something that in fact no one else has taken the time to undertake such a project?” — raises a slightly different issue, which (as Frank points out in Comment #1) is the hegemony of Nimmer on Copyright.  My mind wanders (as it often does) to claims that Microsoft’s monopoly in the OS market is and was insuperable on account of network effects and, going further, that regulating Microsoft in the name of antitrust law was required in order to prevent MS from “leveraging” that monopoly into adjacent markets.  We now know (and Larry Lessig has acknowledged) that regulators underestimated the ability of noncommercial enterprises to develop platforms that compete with the Windows OS.  So — again, without detracting from the time, labor, or accomplishment represented by the Patry Treatise, or critiquing the particulars of the economic logic that Bill offers — I wonder whether it is economics, alone, that explains the absence of a competitor to Nimmer (or Goldstein, or Boorstyn).  Hegemony may be cultural and social as well as economic.  Is it possible that an “open” (perhaps wiki-fied) treatise lies within us as copyright scholars, waiting to emerge?  Or does hegemony (to coin a phrase) love company?

12 thoughts on “Patry Copyright Treatise”

  1. Thank you for highlighting a great example of “position-enhancing information.” I’m afraid I’m likely to keep going to Nimmer, given that extraordinarily high price.

  2. Mike, thanks for the posting. The work will be available in February on Westlaw. The price works out this way: $214 a year for every year I worked on this version. Since it also incorporates and revises material from 7 previous years of work, that’s $107 a year. I put in over 2,000 hours most years on it, so by the hour, that’s not much. Nimmer, I would note, is a but half the size and costs $250 more. So while it would be nice to have it free on Book Search, who would work for 14 years at 2,000 hours a year at $107 a year? Dosen’t it say something that in fact no one else has taken the time to undertake such a project?

  3. Mike, thanks for you follow-up. I had not seen Frank Pasquale’s posting when I did mine, so I want to respond to both. I find Mr. Pasquale’s comment most distressing. It is, for me, an example of reflexive reaction that is all too common. Such a reaction purports to based on some type of knowledge-based opinion, but it is not. Instead, it is simply a polemical position divorced from any familiarity with the facts. So in Mr. Pasquale’s case, he has not even seen my book yet. Still, he feels comfortable with opining that the price is an example of “poison-enhancing information.” How could anyone make such a nasty comment based on ignorance? He is ignorant not only of the content of my work but its comparative value to Nimmer’s work whch he states in light of my price he will stick with; please do. But to make a genuine evaluation of my work, he would have needed to look at it, which he hasn’t. Among factors one might look at after such an evaluation is the quality and comprehensiveness of the work. Might my 25 years experience as a copyright lawyer in govt service, academia, private practive and inhouse be a factor in what the treatise brings to the table? What about the quality of my analysis and the extent of the research? It boggles my mind that people can dismiss a price out of hand without having thought about such factors or having read the book. Even based on a quantitative analysis, which Mr. Pasquale also did not undertake, you tell me: is my book, which is twice the length of Nimmer’s in text and which doesn’t charge for 7 volumes of public domain material, and which sells for $250 less overpriced?

    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.

  4. Thanks to both Bill and Mike for a nice colloquy. Here is the nub of the problem, as I see it: A treatise like this (and just about any other great legal work) has at least two uses: 1) to give an accurate vision of what the copyright law has been, is, and (perhaps) ought to become, and 2) to give those with access to the information advantage in a legal battle vis a vis those without access.

    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.

  5. Frank, I think your comment highlights an interesting intersection of two strands in this discussion.

    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.

  6. It all depends on the purpose of a copyright treatise, it seems to me.

    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.)

  7. Thanks for you further comment Frank. I must say I was quite pissed by your first one. The reference to poison I felt to be perjorative as well as your judgment that it was extraordinarily high priced such that you would stick with Nimmer. I of course have no comment about who anyone should stick with, adopt, or whatever: my work has to stand on its own. But I remain baffled by how mine, which is twice the size in text and $250 less than Nimmer’s could be anything but a bargain in comparison, even leaving aside questions of content which is far more important any way and which you can’t have done a comparison of since you haven’t read mine.

    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.

  8. The barriers-to-entry question raises some interesting variants:

    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.

  9. Thanks Mike for the further posting. In terms of any new book, there are a few scenarios where there is already a book on the market that covers the same topic. The first and easiest scenario is where a prospective customers doesn’t have the older work. Then, the new author makes his or her sale based on the quality and price of the new book and those features can be compared to the older one. In terms purely of price, mine is $1498 and about 6,000 pages. Nimmer is $1745, about 3,000 pages. Whose book has an extrordinarily high price?

    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.

  10. Sorry, I didn’t see all of Bill comments here. In response:

    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.

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