What’s New with Wu

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.

Not really a big deal, but I noticed reaching 10,000 downloads on SSRN today. The % of those papers that were actually read — well that’s another story.

Law review articles aren’t much read — but they when they are read (like when they end up being useful for a case before a court, or for someone else’s research) they are read really intensely. So writing them, as compared to other articles, is kind of a strange business — you can’t expect alot of readers, but then you may have some very intense ones. They may also show up after you are dead (I often rely on writings from the early 20th and 19th centuries.)

Academic articles are also kind of a lottery. Most simply wash through and become history. But the odd article becomes an absolute classic, and changes the field. In advance it is impossible to say which will happen, though the former is all you can bet on.
The same is probably true of books and magazine articles. As an author, it is easier to take comfort in knowing you have alot of readers. But in truth, especially in popular writing, most of your readers, a few years from now, won’t remember a single word.

tim wu

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

I guess I forgot to write about this, I was on a PBS Special last week called “Net @ Risk.” The producers did a good job spicing up the topic of telecom with strong narratives that made it very watchable.

As for me I am glad I talked about vacuum cleaners.
The show can be viewed online here.

tim wu

Here’s another example — this time a letter from an LA reader attacking my New York provincialism.

In your 9/27/06 Slate article, “A Dumpling Manifesto,” you write, “your best bet [for finding good dumplings] is to seek out tiny shops serving northern-style dumplings…. [They are c]ommon in New York and slowly sprouting up across America…” — as if New York City were the Dumpling Capital of North America, determinedly pushing its culinary influence out into the hinterlands like tendrils of kudzu.

I gather you have never visited the Los Angeles metropolitan area (or, as some call it, the “Queen City of Asia”), specifically Chinatown — the Empress Pavilion, for example — or virtually anywhere in Monterey Park. I suggest you contact Jonathan Gold, food writer for the L.A. Weekly, for some suggestions as to where to find the best dumplings not only in Los Angeles, but in the United States. New York indeed; the provincialism of its inhabitants never ceases to amaze me.

Fair point, though having been to LA I’m not sure New York has a complete monopoly on provincialism.

I get alot of hilarious and some interesting feedback on the articles I write — especially the Slate ones.

The Dumpling Manifesto attracted alot of very nice letters on dumplings (and some angry ones too).

“I was in HK in ‘97 when I had my first dumpling orgasm. It was a fat shrimp won ton that came in my favorite noodle dish, duck shrimp won ton noodle soup. When the server put the piping hot bowl in front of me, I could see the pink of the shrimp and the brown of the mushroom through the thin skin. The first bite was like an awakening of my taste buds and my smell. I thought, how could I have gone through me entire life without eating something as good as this won ton?
I sometimes wonder in my search for an as good as or better dumpling, if having a great dumpling is like taking heroin. I have heard that taking heroin for the first time creates a chemical reaction in your brain and opens the part of your brain that senses and feel pleasure. Once this part of your brain is opened it can not be closed and the feeling of euphoria can’t be duplicated. The addiction to heroin can be caused by trying to recreate the feeling of overwhelming pleasure. I hope it is not true in my quest to find an as good as or better won ton in the San Francisco bay area, but sometimes I wonder after eating so so dumplings.”

Getting many good Project Posner suggestions.  It will get better and better.

After spending 3 days in Budapest, and having lived in California and Japan it is finally time to write a review of “best hot springs & baths in the world” (to go with the fruit and airport reviews).
Budapest’s Szechenyi baths may not be for the purist. But they are arguably the Louvre (or maybe Walmart) of the hot springs worth — over 20 baths, saunas, various exercise rooms, chess, mud pack, wierd treatments etc. etc.  You could spend days.
All that in a setting that looks like a Hapsburg palace turned into baths (see above).

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.