Copyright junkies will remember the superb blog maintained for several years by copyright scholar, author and practitioner William Patry.  Many will also recall that Patry shuttered his blog in 2008, in part because of his growing perception that readers were not able to separate his personal opinions expressed therein from official policies or opinions of his employer.

I can not claim even a fraction of Patry’s erudition or experience around copyright matters, but I am afraid I can claim a little bit of his problem.  Several recent communications about this blog have pushed me to want to be very clear about the relationship between what is written here and the policies of Duke University.

To begin with, I have to acknowledge that the problem of separating my opinions from Duke policy is a little more difficult on this site because it is part of the Duke Libraries website and is maintained, as is the whole Libraries’ web presence, by Library IT staff.  Nevertheless, much of what has been and, I hope, will continue to be written here is my opinion, and solely my opinion.

To begin with, I need to distinguish the blog from other parts of the web site.  Many of the “static” pages are intended to provide guidance for Duke faculty, staff and students, as well as others who stumble across them.  These pages contain, to the best of our ability, objective analysis and application of copyright law.  Likewise, one category of blog posts, that labeled “Copyright Information Notes,” is used for explanations of copyright law principles, provisions and applications.  All of this material, while not University policy per se, is somewhat more objective than mere opinion and is intended to be useful in guiding practice.

All of the rest of the blog posts, however, reflect my own opinion and not in any way the policies of Duke University.  Indeed, I often express opinions about what legislation ought to be adopted or how a court in a particular case ought to rule that are at odds with my advice to individuals engaged in actual creation or use of copyrighted materials at Duke.  This is because the way the law actually is can often be very different from how I think it ought to be.

To be very specific about this point, let me refer to two recent posts on this site.  In one, I expressed agreement, after long uncertainty, with the general shape of a fair use argument for streaming digitized video for teaching purposes.  My agreement with this argument, however, does not mean that Duke will suddenly embrace the practice, nor that I will encourage the University to do so.  The reason is that, first, even well constructed fair use arguments do not always win in court and, second, that defending a fair use case is very expensive even when the defendant is successful.  So my advice on this matter will always be tempered with a risk analysis for the University and a discussion of how the benefits of a new practice weight against the potential costs involved.  This is a discussion that is unique to each institution and must remain distinct from the more theoretical opinions expressed in blog posts.

As another example, let me say very clearly that my comments about the flaws and/or causes for concern that I see in the plaintiff’s motion for summary judgment in the Georgia State copyright infringement lawsuit cannot be used to speculate about Duke’s policies about the practices in question.  Indeed, Duke’s policies are clearly formulated and usually can be found on its website.  Those interested can look for official documents and neither need to nor should assume that the opinions I express about how other conflicts ought to be resolved reflect University policy or practice.

Finally, I want to express my gratitude to Duke for allowing me the leeway to express my opinions in this manner.  No one at Duke has ever challenged my right to say what I please in this space and this current message is not instigated by any internal concerns at Duke.  Instead, I have become aware that some of my readers from elsewhere have tried to draw erroneous conclusions about Duke from what I have written.  I hope that readers in the future will be more careful to recognize the nature of what they read here and that I will, on the basis of that care, be able to continue to trespass on Duke’s generosity by expressing my own opinions on this site.

 

3 Responses to It probably needs to be said

  1. Luis Villa says:

    As a Duke alum and an IP lawyer, let me add my thanks to your employer for allowing you to express yourself so clearly, frequently, and well. This is a great blog, and I’m glad you can keep it up!

  2. Joe Toth says:

    Thinking critically about a difficult and changing subject such as copyright and forming opinions on its attendant issues permits you to offer Duke and the rest of us the well-reasoned analysis you consistently provide. We need it! Please forge ahead bravely.

  3. Nic says:

    To echo thoughts above, this is an exceptional resource for me as a student thinking about and grappling with issues of IP in the LIS world. The fact that it’s done in a university published webspace is all the more encouraging.