New update

The latest update has just been shipped. If you don't get it, please let me know. Meanwhile, I am hard at work on the next update. I have to get it in to West by May 15th, so if there are criticism, comments, suggestions and the like, please send me before then.

Update on Update

I just finished the first substantive update; it will be shipped I understand in July. I have gone through the entire treatise, beginning to end, and done a true revision rather than merely plugging in new cases. Almost all chapters have new sections; chapters 2 (statutory interpretation) and 9 (pleading) have been substantially rewritten. I will follow this pattern for all future updates (not merely plugging in new cases), and have other chapters I am interested in revising for the next update (there are two a year).

I have also added at no cost new material in the appendix: the 1710 Statute of Anne, the pre-1790 state copyright laws, and all U.S. Copyright Acts from 1790 to the 1909 Act. For the 1909 Act, there are two versions, as enacted and as in effect on December 31, 1977. This should be a valuable resource. I would very much appreciate suggestions for future updates, whether textual additions or to the Appendix.

Webcast on Remedies

I am doing a live webcast today at 1 pm EST on the question of remedies, including H.R. 1201 (the Fair Use Act), punitive damages, laches, and other topics dealing with greenbacks. Here's the link:

Chapter 2: Statutory Interpretation

Here are some issues I am thinking about for Chapter 2, which covers statutory interpretation. The issues are: Could a majority of the Supreme Court hold for itself and coercively for the lower courts, that use of legislative (appreciating that "use" is a vague term) is off-limits in all or some circumstances, or is such a position merely the personal preference of a particular judge? If the Court has such coercive power, what is the source of that power?
A friend who is a federal judge thinks that Scalia’s views on the use of legislative history are not an attempt to coerce others through stare decisis to go along. This raises the question of whether statements by the Court about methodology of interpretation are a "holding" entitled to some precedential weight. Professor Nicholas Rosenkranz, in his epic article "Federal Rules of Interpretation," 115 Harv. L. Rev. 2085, 2144-4145 & n. 267 (2002), says this:

"[A]crucial institutional fact about the Supreme Court is that it comprises nine competing perspectives. To the extent that any given canon persuades some but not all Justices, its value as a component of an interpretive regime is severely diminished. For example, textualism, with its aversion to legislative history, offers a potential economic boon: by ruling inadmissible countless reams of hearing transcripts, committee reports, and so forth, textualism promises cheaper and more efficient lawyering and judging. But, crucially, this benefit can only be achieved when all nine Justices are textualists. So long as at least one can be swayed by legislative history, it will be worthwhile for lawyers to research and argue from it.
Indeed, the Justices do not seem to treat methodology as part of the holding of case law. For example, many cases feature clear majorities that explicitly ratify the use of legislative history. But Justice Scalia never concedes that he is bound to that methodology by stare decisis."

"[267] For instance, Justice Scalia writes:
Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor), nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 390 (2000) (Scalia, J., concurring in the judgment). Does this suggest that he views choice of interpretive methodology not merely as an inalienable component of the judicial power but rather as an inalienable prerogative of each individual Article III judge? Or do the policies underlying stare decisis not apply to interpretive methodology?"

Presumably, Professor Rosenkranz’s question is raised by Justice Scalia’s use of "I" rather than some more general, perhaps imperative terminology. If this is the case, I am happy because I certainly believe that judges should be free not to resort to legislative history; my objection is to the view that they are somehow precluded from doing so under all or some circumstances. (The use to which legislative history is then put is a quite different question). And if he is right about Scalia not regarding the Court’s statements on the use of legislative history as being accorded any weight, then his own statements for the majority (or any other Justice’s for that matter), may be freely ignored too under the what’s sauce for the goose is sauce for the gander cannon of construction.

Why I think this is an issue is that one comes across lower court opinions stating that the Court has told them they shall not resort to legislative history, and fill in the blanks here for the exceptions. Such lower courts then cite selective statements from selective opinions, especially this remark by Justice Kennedy from Exxon Mobil Corp. v. Allapath Services, Inc., 545 U.S. 546, 568-569 (2005):

"As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of insight into legislative understandings, however, and legislative history in particular is vulnerable to two serious criticisms. First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal's memorable phrase, an exercise in " ‘looking over a crowd and picking out your friends.’ " See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L.Rev. 195, 214 (1983). Second, judicial reliance on legislative materials like committee reports, which are not themselves subject to the requirements of Article I, may give unrepresentative committee members-or, worse yet, unelected staffers and lobbyists-both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text. We need not comment here on whether these problems are sufficiently prevalent to render legislative history inherently unreliable in all circumstances, a point on which Members of this Court have disagreed."

This passage acknowledges that there is disagreement on the Court about the general reliability of legislative history (and presumably therefore its usefulness) – I seriously doubt any member of the Court with negative views of legislative history have so much as lifted a finger to empirically study the issue rather than spout off uninformed prejudice masquerading as experience (and it should be noted that the three dissenters had a very different view of the usefulness of the particular legislative history at issue)- but I wonder if there is an indication here that if a majority of the Court could be cobbled together, a coercive ban might be possible. There are some who think such coercive power is inherent in merely being the "Supreme Court" over the "inferior courts," that the power derives from the Court’s self-created "supervisory powers," or, pragamtically, will occur because the lower courts will want to do things the "right" way, as set forth by the Court. Has anyone researched these issues?

Treatise on Westlaw and Other News

Some may have wondered when I would start posting on the treatise. Many things have been going on. First, I spent two months re proof-reading the entire treatise. This was triggered by discovering a few rather glaring errors. For example, in chapter 5 (ownership) an unexplained glitch caused the word "stand" to be deleted in the entire chapter, as in "standing" which became "ing;" "standard," which became "ard;" "nowithstanding," which became "notwithing," etc. Other chapters had lesser issues but still annoying ones. Chapter 10 on fair use frequently spelled fair use as fair-use as in a "fair-use claim." This at least was deliberate, although I think wrong. In many chapters, a coding glitch caused indented quotes to run into text and vice versa. So, I spent two months painstakingly reading the entire book again. The result is that at my insistence, West is providing for free a special supplement in March that makes all the errors I found. (Chapters 5 and 10 will be replaced in their entirely).

Now that that process is over I am beginning to work on the first update, due out in July. As I work through that I will post issues as they are relevant to particular chapters. I have also been working hard - and making good progress - toward putting the treatise on Google Book Search. It is not certain that it will be on, and as a legal treatise that is updated twice a year it poses special problems, but it is a possibility. If it does get on Google Book Search, there is a nifty new tool Google developed that will make it directly accessible from this blog and from The Patry Copyright Blog. I have also been making good progress about getting the legislative history of the 1976 Act scanned and freely available on line- the entire history from 1955 on, including all of the 1950s Copyright Office studies and roundtable discussions, all Copyright Office reports, all Congressional reports, all Congressional hearing transcripts, and floor statements. I have already assembled the materials myself in hard copy. Once scanned and online, this too would be directly accessible from this blog or my other one.

Combined with Westlaw, this will make the treatise more widely available as a research tool, and that is the next news. The treatise is now on Westlaw. I didn't know it was until Louis Bonham emailed me today. Even then, I couldn't find it. The file name is "PATRYCOPY." I have asked that it be placed intuitively in West's directories, but I am not holding my breath. In the meantime, there are a number of ways to find it. Here are four:

Topical Materials by Area of Practice

Intellectual Property

Forms, Treatises, CLEs and Other Practice Material

Patry on Copyright (PATRYCOPY)

Forms, Treatises, CLEs and Other Practice Material

Texts & Treatises in TEXTS & TP-ALL

Patry on Copyright (PATRYCOPY)

Westlaw PRO and Westlaw Libraries

Westlaw PRO Topical Products

Intellectual Property

All Intellectual Property Analytical Library

Patry on Copyright (PATRYCOPY)

Westlaw PRO and Westlaw Libraries

Westlaw PRO Analytical Products, Forms & Libraries

Topical Analytical Products

Intellectual Property

All Intellectual Property Analytical Library

Patry on Copyright (PATRYCOPY)

The Patry Treatise Blog

In conjunction with the release today of my new treatise, I have started this blog as a forum for people to post comments on the treatise. As with The Patry Copyright Blog, you may post anonymously. The purpose of this blog is to begin to break down the one-way nature of legal treatises. I am interested in dialogue, and in improving my own understanding. Usually, one person gets the ball rolling, and that’s how I regard the treatise: it was a way for me to organize and discipline my thoughts. I have yet to have the experience of reading something I wrote (even the day before) and believe it to be perfect. Usually, I cringe. That’s the principal reason I insisted on having the treatise in looseleaf and with twice a year updates.

I am interested in hearing about things people think work: I operate under the assumption that everything is up for revision, but I would hate to change something people find useful. I am also very interested in hearing about things that don’t work so I can change them. This vast category includes readings of cases or statutes, organization, tone (I have an unfortunate tendency to write with too many adjectives or adverbs and to editorialize), and anything else you object to. It can include things you think should have been discussed but weren’t, or were discussed in far too brief or dismissive a way. I will appreciate proof reading errors: I wrote and researched 100% of the treatise, typed most of it, and was the principal proof-reader. The book went through two different word processing programs, multiple versions of those programs, plus having to optically scan numerous chapters and then clean them up word-by-word, a process that took me many months. I have found errors since the book went to press and they will be corrected. (My favorite so far is one that refers to an "obscurity" defense rather than, as it should be an "obscenity" defense). If rather than posting such discoveries, you would be more comfortable emailing me (or simply wish to spare me public humiliation), you can email me at: Wpatry@google.com

On the substantive side of things, I already have files chock full of things I will add in to the first supplement (July), and I will use this blog both to update you on things I will be including as well as things I am thinking of adding, and issues I need to work through in order to figure them out. One such area in 17 USC 512. I have in the past been very hostile to the DMCA amendments, for a variety of reasons, both substantive and process-oriented. I still loathe the chapter 12 additions, and think Section 512 is in need of a translation and redrafting into English. For those reasons, I have very little on those provisions in the book as just published, but will have a substantial discussion in the first update and have been working on that section for some time.
Conversely, there are other issues where readers may think I have too much discussion; chapter 17 may be such an example. Dealing with personal jurisdiction and venue, it has an extensive discussion of general law. The principal reason for the length is that there is little unique to copyright disputes about these issues, yet they are front and center in almost every copyright infringement action; to ignore those issues is to ignore the staple of copyright litigation. I will though be interested if these sections are useful. At the same, not every section will be of interest to everyone: there is material of a jurisprudential nature that practicing lawyers will have no interest in, and vice versa, so please don’t dismiss out of hand long discussions that don’t interest you because they may of interest to others. What I hope is that what is of interest to readers is correct and useful. So please, let me know, anonymously or otherwise, in this blog or by email.

Unlike the other blog, I won’t be posting every weekday although I will check for comments and will promptly respond.