What’s New with Wu

A San Francisco shop devoted to old Hondas.  Like finding a group of long-lost cousins.

My bike in ‘69

My once idealized vision of U.S. Park Rangers was sure sullied today by their operation of a speed trap in Yosemite Park. Near Tuolumne meadows, on a straight empty stretch of road, there’s a sudden drop in the speed limit from 45 - 35 mph, and the rangers make a good business of busting everyone going 50 mph.
When the Ranger stopped me I thought he was coming over to help with directions or something, and I was actually quite pleased about that, because in fact I had a few questions. But no, it was the whole tough guy state cop routine; and instead of a hiker suddenly you’ve become some kind of felon. In fact, the stupid thing took so long I got out of the car for a while to go wander around (its nice in Tuolumne Meadows) - but oh no, out came an order to return to the car.

In trademark law there’s a term called “tarnishment” and it is exactly what George Lucas specializes in. He destroys his own brands, and make you wonder if you were an idiot for liking them in the first place.

So why was Jones 4 such a bust? The comparison to Iron Man is a good reminder of what’s gone wrong here.  IJ 4 while entertaining, was fundamentally tired and lame. It had that Brezhnev-film feeling: line up and eat your entertainment, whether you like it or not. But maybe a few specifics can help.

1. Acting. Alot of it is just about Robert Downey Jr., who actually got to play himself to a degree we assume, while Harrison Ford was forced to play a boring-as-can-be family man who can still “rock it.” Jones 4 could have been made in the Code era.

2. Pointless action. Jones 4 had this in common with Phantom Menace and the rest of those films - a certain pointlessness and forced feeling to all the chases and action scenes. It felt like “chase” was put into the script, and someone was delegated to try and make it interesting however possible. The audience even if it likes the effects, feels the difference between a chase that actually has something at stake, and one that is just sort of an independent set piece.

4. Forced Nostalgia. Both films are based on old franchises, but in Iron Man they just throw references around in ways you might not notice, especially if you’re not a comic reader (i.e., the references to SHIELD and War Machine). Meanwhile Indiana Jones just waterboards you with the whole “remember Indiana Jones” stuff, from the fetishization of the fedora onward.

There’s something sticky and gross about forced nostalgia — it destroyed the apocryphal star wars films, and IJ 4 shared a bit much of it too.

5. Bad sets. Indiana jones looks like it wasn’t actually filmed anywhere like it was supposed to be, with the exceptions of the scenes at Yale. Lazy and kinda lame.

6. Overuse of CGI. Jones 4 had, as usual, boring CGI that makes you wish you’d stayed home and played with photoshop for a while. Iron Man had some too, but the ratio of reality to CGI was just different. Huge parts of Jones were like a video game.

In the end Jones 4 had maybe the crippling disadvantage of being the fourth; Raiders of the Lost Ark, though I haven’t seen it for a while, was better than Iron Man. But still, Lucas, frankly, makes me mad - everytime he makes a film, he manages to erase and confuse what were once fond memories.

He did have about 4 or 5 good films in him (I didn’t like American Grafitti). But I wish that after the Last Crusade he’s been banned from ever making a film again, for he’s managed to sour me on my own childhood.

When National Public Radio held its first planning board meeting in late 1969, to decide what NPR would be, here was the contribution of one of its planners from the University of Texas (taken from Jack Mitchell’s book, “Listener Supported” (2005).

Six Assumptions

1. That our society is in the midst of a revolution.
2. That the revolution is rooted in a reexamination of values.
3. That artificial barriers to understanding are common in our society.
4. That these barriers prevent us from making rational choices as we deal with the revolution.
5. That a means of eliminating barriers is needed.
6. That NPR is probably not the means – but might be.

General Burnside:

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.
(more…)

I reread today Felix Cohen’s 1935 classic and became convinced that Columbia ought rededicate itself to the cause of functionalism in the legal system.  I was also reminded of the reason law reviews articles today are rarely read: it’s because they don’t read like this (from the introduction).

Some fifty years ago a great German jurist had a curious dream.
He dreamed that he died and was taken to a special heaven reserved for
the theoreticians of the law. In this heaven one met, face to face, the
many concepts of jurisprudence in their absolute purity, freed from
all entangling alliances with human life. Here were the disembodied
spirits of good faith and bad faith, property, possession, laches, and
rights in rem. Here were all the logical instruments needed to manip-
ulate and transform these legal concepts and thus to create and to solve
the most beautiful of legal problems. Here one found a dialectic-
hydraulic-interpretation press, which could press an indefinite number
of meanings out of any text or statute, an apparatus for constructing
fictions, and a hair-splitting machine that could divide a single hair into
999,999 equal parts and, when operated by the most expert jurists,
could split each of these parts again into 999,999 equal parts. The
boundless opportunities of this heaven of legal concepts were open to
all properly qualified jurists, provided only they drank the Lethean
draught which induced forgetfulness of terrestrial human affairs. But
for the most accomplished jurists the Lethean draught was entirely
superfluous. They had nothing to forget.

This article Fan Feud - ran in the New Yorker this week.

Unsurprisingly, the fan reaction has been visceral, in all sorts of directions. I particularly like being compared to Rita Skeeter. Obviously there is much more I would have liked to have put in - there were hours of interviews, and great contributions from Sheryll Townsend that were cut in their entirely to my dismay. But overall the thrust of the article was to describe the feud over Steven Vanderark in fandom, and his punishment therein.

Ironically, the article itself seems to have led to even more feuding in fandom.
Melissa Anelli in particular feels she has been misrepresented; though I am not sure I see why. Briefly, I mention and quote language to the effect that her and other leaders in fandom have been strong supporters of Rowling, and tough on Steve Vander Ark. This no one can deny. It is also true that Anelli herself has a good relationship with Rowling, and is writing a book, on fandom, with her blessing. These are the facts - and I didn’t refer to her as having mushroom hair, so she ought be happy.

Perhaps I will end with a para that was cut from the piece that seems to capture things:

Sheryll Townsend, a forty-eight year old Slytherin and fellow member of Harry Potter for Grownups (she calls herself a “list elf”), said, “Fandom tends to eat their own.”