Two Responses to Donna Bogatin
Donna Bogatin, who writes at ZDNet, had this to say
Columbia Law School professor Tim Wu offers a somewhat oxymoronic characterization of the status of online video, “technically illegal†(see “Google ’safe harbor’: ‘Nice’ way to do business?”):
It’s not ‘fair use,’ the famous right to use works despite technical infringement, for reasons of public policy. Instead, it’s in the growing category of ‘tolerated use’—use that is technically illegal, but tolerated by the owner
What does a lack of “crisply defined†game rules breed? An online scramble.
What I think is going on here is not quite an “online scramble.” Rather we are seeing a slow a change in how copyright works — a gradual move from a system where its a illegal to use other people’s works without prior permission, to one where its illegal when people object.
This is something I call “Two Touch Copyright” or “Tolerated Use.” We’re seeing it in the DMCA 512 area, but also the orphan work debate, and also the Google book search litigation.
The basic idea is this: sometimes, the practice seems to suggest, it is better to have a system where potential infringers need seek forgiveness than permission.  In other words, be allowed to act, so long as there aren’t objections. That seems to, as one group says,”turn copyright on its head,” but for some areas it actually makes sense.
Full disclosure: I am developing these ideas in better theoretical form in a current work-in-progress called
“Tolerated Use: A Theory of Two-Touch Copyright.”
Second, in an earlier post, Ms. Bogatin wrote
NICE? Admirable quality, but not a legal defense.
Arguably, “nice” is starting to matter for copyright law defenses. If you read Grokster, the main complaint about the company isn’t that they facilitate infringement (nearly every company does that), but that they were rude about it — they induced people to break the law, as opposed to sort of trying to stop it.  Believe it or not, these points of etiquette can make legal differences.