William Patry Interview

I have been fortunate to be able to practice copyright law, and in lots of different environments: private practice, as a federal legislative branch lawyer, as a law professor, and for the last three years in-house at Google. Each experience gives you new insights into how things work and why. The more you can learn, the better. As an author, you need to be able to provide answers to the questions that your readers have, so the more experiences you have had, the more I think you have to offer your readers.

I have a number of sources. For caselaw, I am a prolific user of Westlaw, for which there is no substitute. I also comb blogs for discussions of cases, and I have a large network of colleagues who swap information daily. It's something you have to do regularly since there is so much going on.

There are new sections on the early English cases that really resulted in the formulation of the doctrine as we know it today. It is remarkable how early the doctrine was developed in its essentials. There is also a new international chapter that covers the current debates over Berne's three-step test as well as fair use provisions in a number of other countries' laws.

Fair use was not codified in the 1976 Act, but rather statutorily recognized; the difference is important. Section 107 doesn't contain fair use but rather recognizes that the defense exists and notes some factors. Because Section 107 remains a common law doctrine, the caselaw before Section 107 is as relevant as the caselaw after Section 107.

Fair use remains important in the hard-copy world - witness the dispute between the Associated Press and Shepherd Fairey over the Obama "Hope" poster. The existence of fair use issue in the online world is in part due to the generally increasing importance of the online world, and of the novelty of the issues.

Fair use has always been fact-specific, with determinations made after the fact. This makes ex ante advice difficult. The most you can do, and what the book is intended to do, is to give you full access to how similar cases have been decided.

Before the 1976 Act, there was not even the concept that one factor was more important than others, or that there were a set number of factors. One of the unfortunate consequences of statutory recognition was that some courts felt compelled to "interpret" the factors as if they were ordinary statutory language, which they are not.

Things got really silly with the Supreme Court's 1984 Betamax opinion and its presumptions. Blessedly, the Court in the 2 Live Crew case (written by the soon to be retiring Justice Souter) took care of that and also took a holistic approach to copyright. Others, such as Judge Posner are contemptuous of the factors, which is his right as a common law judge.

I think fair use will continue to be relevant in both the hard copy and online world. I regret that it wasn't used in the Cablevision case, because the issue of copies being used to facilitate uses that are fair use is an important one.