Seeing the Forest
Tuesday, July 8th, 2008 by Patrick RossIt is admirable when someone spends a quarter-century examining every strip of bark on every single tree; they can be an accomplished arborist that way. But that can make it very difficult for that person to see that in fact a forest is comprised of those trees.
I never claim to be a copyright lawyer. I’ve consciously resisted law school for 20 years, despite suggestions (and pleadings) by those close to me. Yet someone who apparently dislikes me greatly (despite having never met me) feels superior to me because of his knowledge of copyright law, and if the discussion is copyright law he should (although I work with plenty of copyright lawyers in the Copyright Alliance who could give him a run for his money).
What Mr. Patry fails to see is that copyright, at its core and in my heart, is not about copyright law or its interpretations here or abroad; it is about encouraging creation, and specifically creators. Mr. Patry lists a long curriculum vitae of his background in copyright law. He mentions nothing of having been an artist.
As I have written before, I spent ten years as a singer, touring with groups across the US. I spent six years self-employed as a freelance writer, negotiating with publishers what rights I would retain or surrender over my work. I spent ten years as a work-for-hire journalist, most of that time with newsletters that were easy to duplicate yet relied on subscriptions for revenue, making them extremely vulnerable to piracy.
I grew up around copyright, as my mother is a journalist-turned-author, who has published 100 books and has with her recent novels made the New York Times bestseller list (her latest, Crossfire, is out in September). In other words, my whole life has involved copyright, and every dime I’ve earned starting with my first internship with a magazine in college, with the exception of my time on Capitol Hill in the 101st Congress working for Harry Reid, has been a result of copyright.
When I talk about copyright, I’m not talking about some obscure legal case and how it should be interpreted thirty years later. I’m talking about how one of my bandmates will get paid for the songs he wrote. I’m talking about my colleagues who stayed with freelance writing (I gave it up when I became a father for a more stable income) and how they are doing in a time when so many publications are struggling. I’m talking about how my mom wants to retire in exactly 297 days (she has a countdown timer on her computer) and I’m wondering whether the royalty statements she’s come to expect and rely on will continue in an era of piracy.
I respect Mr. Patry for his knowledge of copyright law, and for his apparently successful balancing act in keeping separate his personal blog and his corporate affiliations. As far as I know, I have never written a bad word about him, and at his request I helped promote his treatise on copyright back in January of 2007 (he was much friendlier in that request).
Mr. Patry has written about just about every nuance of copyright law, I suspect (every strip of bark). That’s good for Google, I suppose. He also takes time, repeatedly, to attack the Copyright Alliance and me personally. That is his choice. But it willl not deter me from continuing to work for artists, including the ones who are daily paying dues to join our social network one voi©e. Someday Mr. Patry will understand that this cause for me isn’t so much about how copyright is written into law, it’s about how its principles positively impact the creative community.
I get attacked by Mr. Patry about once a month. I hear from grateful artists and creators every day, praising the Copyright Alliance for caring about them and trying to do something on their behalf.
I’ll take that ratio any day.
July 8th, 2008 at 4:39 pm
Dear Mr. Ross, I am happy for you to have commented, and anywhere you want. I have responded to your comments on my blog, although I have also posted it here too. First, I don’t dislike you at all. As you point out, I don’t know you. I imagine you are a wonderful chap.
My criticisms have been of the views expressed by you on behalf of the Copyright Alliance. It is true I hold the Alliance in very low esteem, but that doesn’t mean I feel the same way about you.
The reason I hold the Alliance in such low esteem is because of the views it expresses, and for no other reason. I disagree with the views it expresses because they are to me cartoonishly one-sided, and because of the claims that it represents people it clearly doesn’t.
I don’t go out of my way to criticize the Alliance, although it may seem that way. If I went out of my way, there is more than enough fodder to do it much more than once a month. In this particular case, what triggered my post was your attack on the Best Practices study. I found the attack shallow and silly, especially the statement that what the Center was doing was a dangerous effort. Surely your can’t really believe that.
I am happy to debate specifics of the Center’s Best Practices; that I think would be constructive. What is not constructive is your blanket condemnation of a thoughtful effort by thoughtful people who know a lot more about the subject than you do. In this respect, you state on your blog about me:
“It is admirable when someone spends a quarter-century examining every strip of bark on every single tree; they can be an accomplished arborist that way. But that can make it very difficult for that person to see that in fact a forest is comprised of those trees.”
Well, what is it you think I am missing? Don’t just throw out trite aphorisms that are meaningless; that is why I criticize you. You are all aphorism and no substance. What is it about fair use that you think I am missing, and that you miraculously get? What is it in my blog that makes you think that? Point to one thing in my blog that makes you think I am missing whatever it is you think I am missing, and that you get. You cannot expect respect by simply making pronouncements. I respect differences and learn more from people I disagree with than from those I agree with. My friend Judge Leval, who also apparently is a tree hugger, once told me, “The best way to know you have a mind is to change.” I love changing my mind because it means I have learned. So, go ahead teach me.
July 8th, 2008 at 5:03 pm
Oh dear. I’ve spent my career as a professional writer, but it appears my opening metaphor fell flat. That doesn’t bode well for the rest of the original post, obviously.
What I was clumsily trying to say was that in reading your blog over the years, I’ve seen a lot of attention paid to various legal precedents, international treaties, and law suits, but I never see a lot written about individual artists and creators. That’s not a bad thing, really, it’s not what you focus on and it’s not what your readers are looking for. But it is what copyright means to me, and I frequently write about artists and creators, sometimes in the abstract and sometimes specifically. I’ve also been encouraging artists and creators to guest-blog on our site, and now that we are adding individual members I would suspect that will increase.
I know you’re aware that copyright law addresses the rights of copyright owners. I know you also know that frequently copyright owners in the market are individuals, and that even when an artist or creator is no longer the owner he or she likely maintains a stake in that copyright being respected.
You once wrote this in reference to the Copyright Alliance: “Lets skip the flatulent rhetoric about government intervention and get down to the real issue: finding the policy that does the most good for the most people; and when we do we’ll be thankful to have the government intervene.” Your “most good for the most people” line struck a nerve with me. It showed me that you were like many who found fault with some of us who call ourselves supporters of copyright; you were focused on the larger community that enjoys creative works. Again, I am not criticizing here, because I think this also applies to the population at large and to many in the media.
As a member of our community I certainly wish to enjoy these works as well, but I fear anything that involves “the most good for the most people,” because as you know well artists and creators are a distinct minority. You could easily derive a copyright system serving “most people” that completely ignores artists and creators.
So when you discuss fair use, you’re looking to expand options for the community to better enjoy creative works. I respect that. When I look at fair use, I want fair use to encourage the creation of new works, but I also want to make sure it doesn’t go so far as to discourage the creation of the original works, without which fair use isn’t possible.
We are simply looking at opposite ends of the same looking glass, but for each of us our view is magnified. I can’t possibly imagine that we’ll successfully manage to turn the other around to see through the other side consistently. I would instead humbly suggest that we each feel passionately about our perspectives on copyright, that we each bring our own backgrounds and perspective to the debate, that those respective backgrounds give each of us some advantages over the other regarding perspective on the issue, and that the best path is always civil discourse.
July 9th, 2008 at 12:19 pm
Patrick,
Good for you!! I think it is unbelievably offensive for Patry to assert that a guy who has made his living by creating copyrighted works and exercising fair use doesn’t know anything about copyright. His characterization of the AU document as “a thoughtful effort by thoughtful people who know a lot more about the subject than you do” is not only offensive, but is elitist pedantry at its patronizing worst. As one who IS a copyright lawyer, who shares a background with Patry as the counsel on the House IP Subcommittee, and who actually knows you, I think you are a lot more knowledgeable about the practical effects of copyright on creators than the pedants.
I also feel compelled to point out the hypocrisy implicit is his assertion that you and the CA don’t actually represent creators (despite the fact that you and all of your members are creators), while he uncritically characterizes as “thoughtful people” the drafters of the AU report, who also claim to speak on behalf of creators but whose ranks do not include a single person who makes their living through creation of copyrighted works (not including textbooks their students are forced to purchase).
July 28th, 2008 at 6:56 pm
bcrm ueakpx kfbgexm cbpkwoa ozivfx oiue cied