What’s New with Wu

I am finishing my copyright paper on “Tolerated Use.” Since most stuff published in law reviews never shows up in search engines, I’m going to post parts of the article that might be interesting, here. No footnotes, obviously.

Tolerated Use

Tim Wu

Cite as: Tim Wu, Tolerated Use, Columbia Program on Law & Tech Working Paper (2008).

Better Treatment for Complements

One reason that many uses of copyrighted works are tolerated is that they cause no harm to, and in fact help, the owner of the original copyrighted work. For example, if I create a film that is obscure, and a fan creates a loving website for the film that uses images from the film, it is probably the case that the fan has infringed. Nonetheless it is also obvious that the web site creates value for the owner of the original work. In fact, many fan websites and other tolerated uses are exactly the kind of thing that content creators pay for when it is called “marketing.”

In economic terms, what the fan has created is called a complement (as a opposed to a substitute) – a good that makes another good more valuable. For those unfamiliar with this concept, examples are plentiful. More lenses make my camera more valuable. The sale of screws makes a screwdriver more valuable. My coffeemaker becomes more valuable the more varieties of coffee are available. And so on.

Now while is this relevant? I am suggesting that one of the chief problems in the present copyright world and its patterns of mass, tolerated infringement is that the law is not sensitive to complementarity. One way of helping ease the whole problem of massive casual infringement is to make the complementary-nature of the work more explicitly the leading determiner of whether a given secondary work is considered a reproduction or adaptation of the work under §§106(1)-(2), or fair use under §107.
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Here’s my Slate piece on the great Harry Potter Lexicon debate.

Slate is a great publication but there’s not always room for a full legal analysis in the relatively short format.  So here are a few additions  to my comments in that piece, mainly meant for lawyers.

First, in my writing I suggest that the right way to think about the Lexicon is not as fair use, but rather as not a derivative work of Potter at all.

I think that’s right for the text of the guide, particularly the description and comment sections.  However, the fan-drawn pictures in the guide are a harder case.

As I say in my copyright class, character copyrights are powerful  and are often what decide cases.  The question is whether the fan-drawn pictures are copies or adaptations of the characters in the book.  The copy question is debatable, but is probably the case that the fan-art is technically an 106(2) adaptation of the characters from text into art.

That being the case, the question is whether the fan-pictures are far use, which is a somewhat lengthy question.  This is one area where there would be a difference between the book and the web-site, if we accept that the book has a more commercial purpose.  On the other hand there does seem something dumb about allowing there to be a guide but then forcing the guide to consist of nothing but pictures of things like Hogwarts.

The second point I left out of the Slate piece is the relevance of the Seinfeld trivia case Castle Rock v. Carol.   This case found a Seinfeld trivia game to be an infringing derivative work of the show.   Its relevance is obvious, as it is an example of a court finding a product that is quite different from the original to nonetheless be a copy.

The simple answer is that Castle Rock is just wrongly decided.  The case wierdly finds that a trivia game is “substantially similar” to the show and therefore a violation of the reproduction right (occasionally, to back itself up, the decision does refer to the derivative work doctrine).

The basic test of infringement of the reproduction right is, in part, whether you have misappropriated the market; whether the product you have produced would be a substitute for the original.  Only in the most contrived way can a trivia game be a market substitute for a TV show - and the opinion, while it cites some of the right opinions (like Peter Pan) just goes on to ignore what they say.

The harder question is what happens if we ask if the trivia game was a derivative work of the TV show.  My answer, as I said in the Lexicon piece, is that it doesn’t fit into the statutory definition of “adaptation”; either the examples or the space created by the words “adapted, recast, or transformed.”  As I read the statute, to be under 106(2) a work must in some way share the purpose of the original work but in a different medium or form.

By this analysis the Seinfeld Trivia game is not an adaptation of the TV show, and therefore is not infringing to begin with; hence there’s no need to discuss fair use.
I accept that Seinfeld has not been overruled in the 2d circuit; though the 7th Circuit in Beanie Babies obviously views the case as erroneous without overruling it.

Filed amicus with written with Henry Lanham on Friday in the case Twentieth Century Fox v. Cablevision.

You can download a PDF here; introduction is below.

AMICUS BRIEF OF PROFESSOR TIMOTHY WU & HENRY LANMAN

II. INTRODUCTION AND SUMMARY OF ARGUMENT

The decision below should be reversed for two reasons.

The principal problem with the lower court’s decision is that it creates an end-run around the Supreme Court’s secondary liability doctrines for copyright, as set forth in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), and MGM Studios, Inc., et al. v. Grokster, Ltd., et al., 545 U.S. 913 (2005). The Supreme Court’s secondary liability jurisprudence represents its best effort to balance content owners’ rights against the public’s interest in innovation. By creating a new form of direct liability, the district court’s holding would upend the Supreme Court’s careful work in this area and introduce new uncertainties for technological innovators.

Cablevision’s liability under Sony/Grokster, if any, is an open question. Were this dispute presented as a secondary liability problem, this Court would be forced to engage in a careful analysis of the social costs and benefits of the technology in question, weighed through the various safe harbors created by Sony and Grokster. Unfortunately, because of plaintiffs’ waiver of secondary liability claims, such matters are not before this Court, making this case a “bad vehicle” for the questions presented. The Court should not respond to this waiver, though, by creating a new form of direct liability that would side-step the Supreme Court’s rules in this area.

Second, and more broadly, the holding below creates a “regulatory asymmetry” – an unjustifiable difference in the legal status of competing solutions for providing DVR services. Copyright law unavoidably plays a major role in setting the conditions of competition in communications and technology markets. See Wu, Copyright’s Communications Policy, 103 Mich. L. Rev. 278. Given two competing and functionally similar means of communicating information, where one is held to infringe copyright and the other is not, the resulting regulatory asymmetry distorts competition. Here, the district court’s approach would create a major advantage for Device DVR technologies (or “STS-DVRs” in the district court’s terminology), by holding Network DVRs (or “RS-DVRs”) subject to a different and more stringent legal standard.

There is no reason that copyright law should chose a winner in the DVR market. Both Network and Device DVRs should be subject to the same standard – namely, the secondary liability standard set forth in Sony and Grokster.

For these reasons, amicus curiae Professor Wu respectfully suggeststhat this Court reverse the district court’s ruling that Cablevision’s proposed DVR program would directly violate the copyright laws, and suggests that liability, if any, lies under the secondary doctrines of Sony and Grokster.

I’m currently working on an amicus in the Cablevision Network DVR case, with the enormously talented Henry Lanman.

The argument is for reversal. And the brief says, roughly, that -

1. The district court’s decision creates an end-run around Sony & Grokster; and

2. It creates regulatory asymmetry, by picking a “winner” as between “Network-based” and “Device” DVR.

The waiver of secondary liability really throws a wrench into this case; my basic argument is that the second circuit should take that waiver seriously, instead of throwing elements of principal-agent analysis into direct liability.

I support creative commons, but lately I’ve been more into just throwing works into the public domain, through PD dedication. (CC of course, has a handy PD dedication tool).

Its simple and leaves behind no questions as to what anyone can do or not. They can do anything. No complex contract - copyright questions.

Of course there’s some chance someone will take something I wrote and do something I don’t like, but why not live dangerously like that

Meanwhile, I’ve also posted a draft of a new paper, “Copyright’s Authorship Policy,” on SSRN.

The idea of the paper is a defense of authorial copyright — the theory being that authorial ownership can seed new means of producing information that challenge existing industry structures.

My paper Copyright’s Communications Policy was on the long history of copyright lawuits being used to set national communications policy, as incumbents used copyright as a means of slowing or trying to destroy their rivals.

The Verizon v. Vonage litigation suggests a new chapter, on patent.  Verizon is using patent to try and kill a rival, with implications for communications policy.  The merits of the patent suit I cannot say; but this is a classic example of IP rights playing a role in communications policy — potentially decisive in this case.

I was at Yale on Wednesday giving my “Treaties’ Domains” paper at Oona Hathaway’s international law seminar. But later on I dropped by the Yale Information Society Project and had a chat about an interesting idea.

Eddan Katz was talking about a paper by Tony Reese about the reverter interest in copyright and its effect on creative commons licenses. This made me wonder – is there more of a place for a creative commons license that includes a reverter? For all I know this may be a well-discussed issue among creative commons people, but I’m curious.

Right now CC licenses are irrevocable. As the site says, “Creative Commons licenses are non-revocable. This means that you cannot stop someone, who has obtained your work under a Creative Commons license, from using the work according to that license.”

But might this be sometimes usefully different?  For example, say I license my photographs subject to a reverting creative commons license. Most of my photos I am perfectly happy with everyone using as they like. But maybe I just so happened to take a photo of Yochai Benkler that becomes famous and worth millions. In that case I might want to revert that license, and, in the future, start licensing the photo for a fee.

There’s a few problems with the proposal. First no one would want to use a CC work that could later be revoked, to the tune of possibile liability. It’s almost like a trap. Second, the structure of the CC contract makes it hard to see how your work, already out there, might be restricted from further usage. But if you somehow wrote a license that grandfathered specific uses before revocation, but stopped others, that might be something.

Another option is a license that came with an expiration date – this is free to use until 2010, say.

The attraction is that such licenses might encourage more people to put their potentially valuable work under open licenses, at least for a while, to test the waters, and see what gets popular. On the other hand, the idea might be bad, and create even more copyright confusion.

A more on the law, as opposed to strategy in the Viacom lawsuit.

Legally, the most interesting element is Viacom’s apparent argument is that YouTube isn’t even covered by s. 512 — because, in short, it isn’t really “you” enough.

Viacom seem to be preparing to argue that, since Youtube plays such a role in hosting the videos, and doing things like screening porn, the videos are not, in fact “user-directed content,” the hosting of which is protected by 17 U.S.C. 512(c).
The main challenge for that argument is the text of 512(c), which protects “user-directed content” or “the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”

That sounds like Youtube, since as the name suggests, Youtube stores content at the direction of a user. However, no one knows whether little steps, like making thumbnails, or screening sometimes and sometimes not, or offering search services, might take Youtube out of 512(c)’s protection.

The strongest argument that YouTube is not covered depends on the text.  The idea is that Youtube is going beyond “storage” of videos, and is in fact that active agent here, not the user.

That reading of 512(c) leaves most Web 2.0 sites with alot less coverage than they may have though they had — that is, all sites other than naked web hosting sites.  Facebook, Flickr, Myspace — all of these sites do more than just “store” information .  Are they covered by 512(c)?  Stay tuned.

Back from Thailand.   Less scuba and instead mostly rock climbing in Tonsai, near Krabi, which I recommend.

Came back to Viacom’s suit against Google is interesting.  One interesting thing is the risk to Viacom posed by its lawsuit.  Since Viacom’s competitors aren’t on board, the lawsuit poses risks.   Viacom’s properties probably couldn’t set up a competitive Youtube site to save their life — have you seen how bad comedy central’s video site is?   So one risk to Viacom is of Youtube actually beginning to screen all of their content, while leaving up its competitors who make deals.
For that reason I suspect like others that the point of the lawsuit is to negotiate a better share of advertising revenue than other companies are managing to get.   Unless Viacom really thinks it can compete with Youtube in the video space.  Companies sometimes become self-deluded like that, but I suspect Viacom knows better.  Alternatively Viacom may just want to keep its content only on medium it controls well, like TV, where at least you see the commercials flash by as you use Tivo, or perhaps cell phones.