L. Ray Patterson: A Tribute

Peter Jaszi

I want begin my remarks about Ray Patterson with a bow to my favorite reference work: the tried and tested (if none-too-glamorous) Webster's New Collegiate Dictionary and (in particular) its appendix of "Biographical Names." For sheer succinctness there is nothing like it. Here we find the lives of the great and good boiled down to (non-copyrightable) short phrases - some of which rise to the resonance of a fixed epithet. The Marquis de Sade, for example, is typed as "Fr. soldier and pervert." Some more estimable figures must make do with fewer words, one of which (again) may even be abbreviated. Thus, Sir Thomas Coke, is simply an "Eng. jurist" (and William Blackstone the same). The odd person of exceptional moment rates as many as four words, like George M. Cohan ("Am. actor, dram. & producer"), but the gold standard appears to be three, like those awarded to William Shakespeare, the "Eng. dram. and poet."

So what words would I choose to sum up the career, so far, of our friend, colleague and mentor L. Ray Patterson? That's easy enough! They would be: "Copyright scholar & activist." This short phrase says little but implies much. In the three words that comprise it lies the essence of Ray's unique and vital contribution to a field of study and a vision of the good, for which he is being recognized by the American Library Association. So I would like to pause briefly on each of them.

At the outset, I recognize that I am subject to the charge of taking poetic license. "Copyright," after all, is not conventionally regarded as a designation of nationality, like "Fr." or "Eng." Many of us enjoy our visits to the country of copyright, but if ever it had a true permanent resident -- one who has chosen to make his intellectual home there in good times and bad-- it is Ray Patterson. Ray came into the country, and declared his affinity for it, long before its centrality to the map of the new world was widely recognized. After so many years of study and struggle, it is fitting that he should receive general recognition as one of its outstanding citizens -- and statesmen.

I say "general" recognition because in some circles, Ray has been notorious (in the best sense of the word) for decades. And that brings me to the designation "scholar." Of course, Ray Patterson's writings have been familiar to me as long as I have been working in intellectual property law, but it wasn't until I began to collaborate on some multi-disciplinary projects that I realized that outside of legal studies, Ray was downright famous! Among scholars of English literature and cultural history, Copyright in Historical Perspective, his magisterial study (a description few books deserve but this one merits mightily) of the history and prehistory of copyright, remains far and away the best-known, most widely-cited and most extensive relied-upon book of its kind. In particular, Ray's findings about the roots of the Statute of Ann in the 17th century book trade have both inspired a generation of scholars - and withstood the test of that new generation's inquiry. And that's not all. Like no other contemporary classic of legal history, Ray's great book has proven enduringly influential in the policy process. For it was his central insight -- that copyright legislation was intended to serve limited regulatory purposes, not to erect a new general property right in intangible creations of the mind -- that informed organized resistance to the hyperextension of literary and artistic property and inspired the movement that seeks to restore "balance" in the relationship between copyright owners and information practitioners (also known, somewhat disparagingly, as "consumers" and "users")

Which brings me to "activist." Not content to be a detached scholarly bystander, Ray has labored to produce a body of work that mobilizes his research findings and makes them count. In The Nature of Copyright, and in a series of elegantly crafted articles (almost too good for the law reviews), he has helped us to see how our policymakers' misunderstanding of copyright history affects how wealth and opportunity are distributed in the information society. In particular, he has made visible the hidden tectonic shift that occurred in 1976, when the regulatory vision of copyright was supplanted by a proprietary one. And he has sketched a persuasive basis for constitutional reevaluation of the developments he documents (and deplores). His writing (with Craig Joyce) on rights in compilations was profoundly influential on the Supreme Court's landmark. Feist decision. More recently, Ray's work has been a crucial factor enabling the current round of challenges to "big copyright," including the Eldred litigation. But Ray Patterson has been more than a goad to activism by others. He has himself served honorably in the line: as an expert witness, drafter of progressive institutional copyright policy, organizer of professors' amicus briefs (an advocacy technique he helped to pioneer), and much more. And he has done all this without ever compromising the warm geniality and true gentility that are his personal hallmarks. If we succeed in saving copyright from its overenthusiastic boosters, it will be in no small part because of Ray Patterson's influence and example. In naming this award for Ray, and designating him as its first recipient, the ALA honors the man, his work and his cause.

Peter Jaszi, Professor of Law, American University, Washington College of Law

An article from the forum, "On the Shoulders of Giants: Tributes to L. Ray Patterson"
Published October 2002 at info-commons.org. Copyright © Peter Jaszi

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