What’s New with Wu

“An unbalanced blindside in a tendentious hit piece which is clearly designed to advance an agenda.”

“Wu is not to be taken seriously, and until pigs fly, he hasn’t a prayer of making his kook agenda stick.”

The Sample Troll article has set off lots of debate on forums. I like being criticized — means you’ve hit a nerve!

Most of the criticism I’ve seen revolves around the following:

1. Hip hop artists merely untalented idiots who are just ripping off legitimate artists;

2. Reversing Bridgeport is the same as abolishing copyright and basically a variation of Marxism; once you have collected rights, they are not to be criticized;

3. Tim Wu is working for Universal and/or a hack who has never worked in business (other than the years at Riverstone), or never owned IP (other than my book, photos, and various articles);

4. Nothing he proposes will ever happen, so Wu should be ignored.

If these are the strongest arguments my critics have, bring it on!

I’ll address the fourth argument, which is the only one that isn’t obviously self-defeating. I think odds are that the law in fact will change to make their business untenable. I don’t think that the 6th Circuit’s position will survive scrutiny in other courts–the 2d Circuit, importantly, or the Supreme Court.

In other words, the Second circuit breaking from Bridgeport is a far cry from pigs flying–

Of course, there is plenty of support too, like this

“To register ad hoc the works of an artist ficticiously so as to capitalize on an otherwise vague, difficult-to-enforce law is just a criminal as the purported act. It stinks and everyone is the loser except the vultures and ambulance chasers.”

Other discussions:

At digg
At Muses’sMuse
At KVR

Just returned from Peru, the most charming country in South America.  Some pictures soon.
In the meantime, nice to see alot of readership and response to the Sample Troll article, including the usual and expected volume of hate mail.

One thing I do regret — the piece had too many small errors in it, like calling “It Takes a Nation of Millions” Public Enemy’s first album, when it was actually their second (but their breakout album).   I wish I’d had the piece error-checked a few more times, though I did make sure the piece was clear of any potential libel problems.

Slate does fairly rough error-checking, compared with other publications, unfortunately.

The article on the Sample Trolls ran in Slate today.   Thanks to those who have already sent comments.

Coming this week to Slate — “Sample Trolls,” the back story of the catalogue companies that make millions on rappers from Jay-Z through Public Enemy

I’m doing a mob-blog at the UChicago Blog site.

Randy Picker is in charge.

Topic is the Kal R. and Chris Springman’s paper on the IP protection of fashion, or more precisely the lack thereof.

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.

Philippe Gillieron writes an excellent response to my Slate YouTube article:

“In an article that was published on October 26 in Slate, Tim Wu, Professor at Columbia Law School and co-author of the interesting “Who Controls the Internet?”, argues that YouTube is likely to remain safe of any copyright liability as long as it complies with § 512 of the DMCA and its notice and take-down procedure.

This may well be true in the US. However, YouTube can by essence be reached in any country and one may easily argue that its audience is not limited to the US public; numerous videos related to Japanese or French music works (which primarily target these countries) are for instance available.”

Basically, Philippe is right — 512 doesn’t do YouTube any favors internationally. In fact, I have a vague sense of being hoist on my own petard, for this is a point we made repeatedly in “Who Controls the Internet?”

What YouTube may eventually have to do is begin to use Google’s very excellent geographic screening technology, and block users from reaching videos that cause it copyright problems overseas (at worse, it will have to block off whole countries if they are too litigous).

That isn’t death for YouTube, but it does suggest a limit on its profitability in markets without a safe-harbor.

Published a piece in Slate, “Does YouTube Really Have Legal Problems?”

The concept I am the most interested in in that piece is the concept of “tolerated use.” That is, I think across a range of copyright areas, we’re seeing the emergence of usage that is okay, so long as the CR owner doesn’t complain about it. That’s an effect created by 17 USC 512. But it is also something we are seeing in other areas, like Google Books.

tim wu

Without getting into matters deeply, it strikes me that rumors of Youtube’s copyright liability are greatly overstated.

Read 17 USC 512(c) and tell me if you don’t agree. There are arguments that Youtube should be liable, but the text of the law is clearly on You Tube’s side.