We may be asking too much for fair use. Any legal doctrine needs to be coherent to be practical. Once we say it's x then we know that it's not y. Fair use is incapable of definition in some ways. If Google scans a million books under copyright we really don't know what follows. If a judge says something is fair use each case is ad hoc in general. Once fair use or any other doctrine is stretched to fit many new issues it usefulness gets stretched as a doctrine. The issue is really far broader than fair use, one doesn't discuss it dispassionately. Distressing to see an inability to discuss these things constructively. Given that state of affairs, why? Epistomology of copyright, how did one come to believe in your view, what did you bring to it initially?

Moast people assume what we assume that copyright is about is what others think. But if people come out in different places, what then? One bill in Congress is a "pro-copyright" bill. We can agree that copyright is a good thing in someplaces, not in others. You wouldn't say you're pro-medicine or anti-medicine. How does one become pro-copyright or anti-copyright? People see videos on YouTube and it's my property, that's mine, well, that's one way of looking at this. If you see copyright as a mark of property you're in one camp, but you could look at it as a regulation enacted by Congress. The word "property" has certain connotations. Usually when we say copyright is property we say that it's intangible property. So what makes intangible property versus tangible property? What does it mean that I own property?

Generally ownership means that one has dominion over things and to exclude people from doing stuff with your things. You can just say no, it's your property, it's your right. All that matters is that it's yours, end of discussion. Valente: If you can't protect what you own, you don't own anything. Well, do you own it, and if so, what do you own. Unlike Valente, not being able to stop each and every use doesn't mean that you don't own it. 1898, writer Augstine Berell, Western culture venerates property. Rights were supposed to be outside law, natural rights, without which society would not be possible. He who interferes with it is a thief or a tresspasser.

To describe someone as a thief or tresspasser you need an owner. Robinson Crusoe, cannibals in a cave, do the cannibals really care if Crusoe care about his property, no, they see him as food. To say that copyright it property over things, is problematic. What I assert is that it's a system for ordering social relationships. If Rowling has copyright over Potter it means company A can make a book, company B make a movie, and so on. It means that we can say who can do what, it's not a right over the thing itself. It's a social judgment. Courts choose between conflicting interests.

How do you order these social relationships and why does it matter? If you think that copyright is a property right, than any use is offensive and any one who does it is a heathen. It's not healthy or accurate. If instead you see copyright as a social system set up for really good reasons, you start thinking of what the goal is of copyright - namely furthering learning. A social system designed to encourage learning, if it is, then it's a good thing. You will stop people from interfering with people learning things. Not productive to say that people who use copyrighted works without permission are bad, just not true.

If copyright is to help people learn, how to we implement this? Learning requires a generosity of spirit, you can't have it both ways, you can't say you want innovation but not for your business model. Has to work that way for everybody. However the copyright system works it has to encorage innovation, don't want tenth goose to cut off all other golden eggs.

Question: A cursory reading of copyright law asserts temporary rights. Intent was built at a time when the commons were a common concept. How do you see the law evolving when the mass no longer attends to the intent of the law.
Patry: The constitution is a living thing, has to be adopted to current needs. Any law should be adapted to where people are. I don't think that most people abhor laws that don't really apply. There's an awful lot in copyright law to abhor, the legal system has enabled rights extraordinary, many people have evolved to see copyright as oppressive, I believe in copyright and found that problematic. Original term of copyright was 14 years, with one renewal possible -28 maximum. Now since 1998 everything can be copyrighted up to 70 years (Disney). There's no way in the world that we needed that extra twenty years. No living author says life plus seventy or nothing. It was for old works. Every single use has to be with permission, like a male dog walking down the street, you think everything was yours. Was no performance rights until 1909. The way that people are using stuff is in a collective way, a fanstasic thing, could not have come about if one central person said we need this and this and this. A long way to say that we have evolved in unproductive ways.

Question: Has to be that way, but how do we protect and encorage the creators?
Patry: In DC, pro-copright bill, everyone believed that anyone harmed by infringement should get all they deserve. Existing law is extremely favorable to copyright law. I do worry about people not respecting copyright law because it's too strong, that's a complete rationalization. As a practical matter would like to see change in public perception that people respect it.
Follow-up: Contradictory?
Patry: Speaking of copyright as a property right isn't productive, saying everything else is theft is bad for them, they need certain rights. Fair use is given as unpaid use, they shouldn't have to stop all uses. trick is to find the balance.

Quick Take: A well-constructed argument overall, if with some potential gaps, the question is how the ability of publishers to help people learn via enabling valuable to reach people who need it has to be addressed more specifically. To some degree it's mostly a matter of publishers recognizing that protecting the creation of copies is not the real issue, it's the rights associated with that copy that are at issue. In this sense we really need to think of copyright as context rights and to accept that online technologies need to evolve for authors and publishers to express their desires more effectively. We're going to see strong innovation on these lines over the next few years, I expect copyright issues to diminish and publishers who can adapt their models to making the enforcement of context rights the priority more successful

Labels: fair use copyright, google, SIIA Information Industry Summit 2008