William F. Patry, Senior Copyright Counsel at Google, Inc. and one of the foremost copyright experts in the nation, spoke with students and faculty on March 4, 2010. He discussed the Digital Millennium Copyright Act (DMCA), fair use, digital licensing, and he also explored some of the pressing issues faced by new media companies. The discussion was co-sponsored by the Intellectual Property Law Association, The Dennis J. Block Center for the Study of International Business Law, and the Brooklyn Law Incubator & Policy Clinic (BLIP).
Patry discussed the effectiveness of the DMCA at length, specifically its take-down notice protocol. He did not take sides on questions of blame when infringing material is posted on seemingly “passive” websites, including some owned by Google. Instead, he took a more centrist approach to the issue, focusing on effective remedies for infringement. “If infringement occurs,” he posited, “should it matter that it is taking place in a hard copy world or a digital environment?” He compared the copyright regime of the U.S. to those of other countries, describing failures and successes.
Patry took questions on the extent and interpretation of fair use in digital media websites such as YouTube and Vimeo. Much of the debate during this discussion centered on who should be responsible for determining what is infringing and what is not, and who should be responsible for deciding who is liable for infringing material. “One of the problems with fair use,” he said, “is that it is a very fact-specific question.” Patry noted the difficulty in balancing the desire to protect and reward artistic creators with the need to encourage the free flow of information. He described the trouble that companies like Google have in dealing with different standards set by different countries. Canada, for instance, has no fair use exception for satire, he said.
A consistent pragmatist, Patry tried to reconcile the confusion surrounding much of copyright law by calling for adequate notice for both creators and consumers. “If we are going to have legal consequences for law, at least make them clear, otherwise don’t penalize us,” he said. Lastly, Patry weighed in on the pros and cons of requiring certain formalities in copyright registration and enforcement. On the one hand, he said, we want to allow citizens to enjoy the benefits of copyright without the burdens of complex registration requirements. On the other hand, the consequence of a formality free copyright system has been a lack of public information about who owns what copyright. “Many companies that would be willing to pay for content can’t find out who owns the material,” he said.
Before joining Google, Patry served as Professor of Law at the Benjamin N. Cardozo School of Law, copyright counsel to the Committee on the Judiciary of the U.S. House of Representatives, policy planning advisor to the Register of Copyrights, and an attorney in private practice. Patry is the author of the treatises Patry on Copyright (Thomson West 2009 ed.) and Patry on Fair Use (Thomson West 2009 ed.). He is also the author of the recently released Moral Panics and the Copyright Wars (Oxford University Press 2009), and he is a prolific blogger.
By Matthew Handler ’10