The Copyright Clearance Center (“CCC”) is an organization about which many information professionals have formed opinions. The opinions vary from positive to negative; they may be formed based on direct involvement with the company or its representatives, or through hearsay. The organization plays a pivotal role in the symbiotic, yet often contentious, relationship between those people and entities that need information and those who wish to make it available. But CCC also has become – fairly or unfairly – a lightning rod in an environment that has elevated copyright law into the forefront of social, political, legal, and commercial discourse.

As CCC’s president and chief executive officer, Tracey Armstrong is responsible for managing the delicate balance between collecting licensing revenues for copyright owners and advocating for new ways to deliver information to end users. Armstrong, who has worked for the organization since 1989, became CCC’s CEO last summer, succeeding Joseph Alen. The organization she leads earned more than $175 million for the fiscal year that ended June 30, 2007, and has enjoyed strong growth for several consecutive years. At the same time, she takes over the company in a time of unprecedented legal flux, and will be expected to maximize licensing revenue and company earnings in the midst of uncertainty.

During an hour-long interview that Copycense executive editor K. Matthew Dames conducted with Armstrong earlier this year, Armstrong indicated she welcomes the challenge.

The January 2008 edition of Online magazine will feature a substantial portion Dames’ interview with Armstrong, which is one of the first extensive interviews a CCC executive has given in several years. Both candid and engaging, Armstrong answers questions about CCC’s organization and structure; the business’ opportunities and challenges; and CCC’s role in the larger debate about access to information.

The full interview will be republished on Copycense in Spring 2008.

This Is Copycense™: Code + Content. A venture of Seso Group LLC.

Correction: Copyright Clearance Center Inc. is a New York not-for-profit corporation. As such, CCC does not earn profits, as a previous version of this post indicated.

Technorati Tags: Copycense, Copycense Conversations, Copyright Clearance Center, K. Matthew Dames

Back in April, we published a portion of an interview K. Matthew Dames conducted last winter with William Patry. Patry, who writes, edits and publishes The Patry Copyright Blog, is one of the foremost authorities in the field. Bill also is the sole author of a new seven-volume treatise, Patry on Copyright, for which he has completed a first substantive update, to be published later this month.

(Bill maintains a separate blog for the treatise, The Patry Treatise Blog.)

Our interview with Bill lasted nearly 90 minutes, and a large portion of that interview is now available in the June 2007 edition of Searcher magazine. (Cite below.) There are some portions of the interview, however, that were not published in Searcher. The following passage — about the importance of civil procedure in copyright law — is a Copycense exclusive.

K. Matthew Dames: I found it interesting in looking at some of the [treatise’s] categories that you have [that] fair use is a large chunk of material, and I think people would expect that. Remedies is also a large chunk of material, and I think people would expect that. What surprised me was the number of pages devoted to jurisdiction. Could you talk about that?

William Patry: If you look at the remedies chapter itself it would surprise you because, consistent with my earlier comments, what I tried to do there was is to place copyright inside the general jurisprudence on remedies. First of all, while there are certain peculiarities in copyright law – for example, statutory damages – the concept of actual damages or profits is no different in copyright than they are in any other form of the law. So one has to take that into account.

In terms of injunctions, there are special things in copyright law – for example, the presumption of irreparable harm once somebody has made a prima facie case of infringement. What I discovered through research and my own views is that the way in which copyright law has been treated specially – as if there is a niche, as if the general rules on preliminary injunctions somehow don’t apply to intellectual property – really are wrong. So I spend a lot of time on the general doctrines of preliminary injunctive relief.

I have a circuit-by-circuit breakdown on just general law: how the circuits deal with preliminary injunctions. Then, I place that within how [the courts] deal with intellectual property, and trace the origins of this idea that there should be a presumption of irreparable harm once you make out a prima facie case of infringement; how it came about; how I think it went wrong; and how it may, for example, conflict with the Supreme Court’s more recent eBay case.

Another example of that is in the chapter on statute of limitations, which is a fairly long chapter for that discrete topic in what might be regarded as a specialty treatise. There has long been a supposition that the Seventh Circuit [Court of Appeals] is sort of off on its own … that somehow they treat statute of limitations differently. And you’ll see lots of many cases from other circuits, and lots of commentators say that.

So I spent about three months just steeping myself in general statute of limitations law, learning as much as I could about it. I then discovered that, in fact, there is no such split in the circuits at all. While there may be some language that would make someone think that [there is a split], indeed it’s not true. And I actually confirmed that with some of the judges in the cases, and I sort of lay out how general limitations law works, and how it has been applied in copyright cases. You discover there’s no split in the circuit. That’s sort of another example of how my attempt to educate myself about general law, and then place copyright in general law, paid off. But it only paid off because I attempted to take the time to really steep myself in general limitations law.

The [jurisdiction chapter] arose out of the same instinct that led me to have fairly long chapters on remedies and statute of limitations. For jurisdiction, there are two elements. First, part of it deals with Copyright Office registration practices. I could have treated that as a separate chapter, but since [such issues] really are encountered as a jurisdictional question – “Do you have a registration or not?” is a subject matter jurisdiction question; “Is your registration valid or not?” “Is there fraud in the Copyright Office?” – those sort of issues arise within challenges that typically come at the jurisdictional phase. So within that admittedly long chapter, there is substantive discussion about Copyright Office practices on registration. So that accounts for some of it.

But the other part of that chapter is just general law: personal jurisdiction; subject matter jurisdiction, forum selection; venue selection clauses, and those things. The reason for that, again, is my desire to understand general law, but it also came from reading [nearly] 30,000 copyright cases. If you look at the volume of cases, the majority of cases are jurisdictional cases involving copyright. The ones that people tend to focus on are the substantive ones: “Is it infringement” “Is it fair use?” “What are the remedies?” Those [issues] are all important, but if you look at what is the actual meat-and-potatoes stuff that litigators and judges face in copyright cases, the majority of those [issues] are jurisdictional.

So I felt that in a treatise on copyright, it would be irresponsible not to devote a substantial amount of time to the issues that are of the most obvious importance, as judged by the number of cases that are out there. There you find there is nothing truly spectacular about jurisdiction in copyright cases. Copyright really is determined by general jurisdictional issues; for example, because there is no national service of process in copyright cases, jurisdiction is determined by state law. (Subject matter jurisdiction, of course, is federal.)

So I had very long discussions because those are the issues copyright lawyers are going to be dealing with, and many copyright lawyers who are specialists don’t take the time to understand general jurisdictional law. And for that, they can get creamed by people who do, and certainly by judges, who handle jurisdictional issues every single day of the week. So I wanted to provide a resource by which copyright lawyers who may not spend too much time on jurisdictional issues as others do, could have at their hands really the most recent stuff on general jurisdiction. To me, it was a service to provide for specialists.

See also:

K. Matthew Dames & William Patry. The Evolution of Copyright. Searcher. June 2007. An Information Today exclusive.

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Technorati Tags: Copycense Conversations, K. Matthew Dames, William Patry

There are two kinds of interviews: interviews that go well, and interviews that are difficult. This is one that went well.

We here at Copycense have been following The Patry Copyright Blog for some time now. And why wouldn’t we? In the area of copyright, there are few that can match William Patry’s credentials. He is the author of three copyright treatises, the most recent of which is a recently released, seven-volume, nearly 6,000 page opus entitled simply Patry on Copyright.

Patry now serves as senior copyright counsel for Google, Inc., but this appointment comes after a quarter century of work in copyright law as a professor; copyright counsel to the U.S. House of Representatives; policy advisor to the Register of Copyrights; and attorney in private practice.

So when William e-mailed me earlier this year to ask, effectively, would I mention Patry on Copyright in Copycense, my rather incredulous response was: “You are kidding me, right?” To me, that was the equivalent of Wynton Marsalis asking a musician if he could make time to sit in with the Lincoln Center Jazz Orchestra.

What follows is a portion of an hour-long interview in which Patry discusses his new treatise, his position at Google; the Google Book Search litigation; and why he thinks copyright terms last too long.

Editor’s Note: Over the next few weeks, additional portions of this interview will be made available on Copycense both in text and as the publication’s inaugural set of podcasts. Most of this interview also will be published in the June issue of Searcher magazine.

K. Matthew Dames (Copycense): I did want to ask you your opinion about a case that Google is not involved in, but is continuation of the term extension issue and gets into the public domain area. This is the Kahle v. Gonzales case that was decided at the end of January. Do you think that case was correctly decided, and what is the continuing effect on the public domain based upon this litigation?

William Patry: I heard the oral argument in the case, and I’ve read the opinion. The issue that the plaintiffs were advancing is “What is the correct standard of review?” That’s what the [Ninth Circuit] Court of Appeals was deciding, at least at plaintiff’s request. [The plaintiffs] wanted to go back to the trial court and have legislation reviewed under a particular First Amendment standard.

And the Court of Appeals said, “Well, we’re not sure that’s not the right standard because this isn’t a First Amendment case. This is a copyright case. So, we’ll take you on the merits and say ‘The argument that you made is the same argument that was made in the Eldred [case], and rejected.” Although, [the issue] wasn’t exactly the same because the statute was slightly different, and there were different issues [in Eldred v. Ashcroft] (.pdf).

In terms of a narrow reading of that as turning on either what’s the appropriate standard of review for legislation, or whether the Supreme Court had already taken a look at that, the [Ninth] Circuit’s view was that [the First Amendment argument] wasn’t the appropriate standard of review, but even if it is, we’re going to say that the Supreme Court has already addressed this. So, you lose: you don’t get to make your arguments [at the lower, trial court]

From a policy standpoint, I think the duration of copyright is way too long. Whether “life plus 50 [years]” was correct or not I think can only be answered by taking into account what we got internationally. There was never an argument that “life plus 50” was required to give adequate incentive; “life plus 50” had been the standard in the Berne Convention for some period of time, and the idea of shifting to that in the [Copyright Act of 1976] was … because it benefited us overseas. If I had the ability to write the copyright laws myself, I would probably make the term life of the author and that’s it. I think the [current] term is way too long from a policy standpoint.

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Technorati Tags: Copycense, Copycense Conversations, copyright, K. Matthew Dames, William Patry