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.

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.

We can begin with the example of a book review. It is sometimes stated that a book review would be infringing if it weren’t protected by the fair use doctrine, particularly if it quotes from the source. But the prior question should be asked: whether a usual book review is an infringement at all, regardless of fair use.

The text of the adaptation right seems to suggest that the answer is to be “no.” The question, based on the definition of “derivative work” is §101 is whether the original work is either listed in the text, or in some way “recast, transformed, or adapted.” It seems a implausible to suggest that a book review is the adaptation or recasting of a book into a new form, in the sense that a novel is recast into a play. Hence the conclusion reached by Judge Richard Posner in the Beanie Baby case, Ty, Inc. v. Publications Int’l, which asks, among other things, whether a collector’s guide to a series of stuff animals is an derivative work. He writes there that “a collectors’ guide to a series of copyrighted works is no more a derivative work than a book review is.”

Unfortunately, courts – in particular the Second Circuit, sometimes act as if anything related to or somehow borrowing from the original has been “recast, transformed, or adapted.” In Twin Peaks Productions v. Publications International, concerning a guide to the Twin Peaks series, the court summarily concluded that the guide was a derivative work by simply saying “the Book contains a substantial amount of material from the teleplays, transformed from one medium into another.” Unlike the Seventh Circuit approach, the Twin Peaks approach, taken with little evident thought, turns almost every secondary work into a derivative work.

The other possibility is that a book review is an infringing reproduction that is “substantially similar” to the original. On first reading, the idea that a book review is a copy of a book seems plainly ridiculous (unless, of course, it were just a disguised abridgement of the book). The question gets a bit harder if we speak of a book review that includes quotations from the book. Nonetheless, while realizing some of the caselaw goes in other directions (discussed below) I don’t see how it makes any sense to think that a book review, even with quotes, satisfies the classic idea of a copy being something that usurps the market for the original, by appealing to and drawing away the same audience. This is the idea of a copy in the Second Circuit’s Arnstein v. Porter, which says that he owner’s “legally protected interest is in … the potential financial returns from his compositions, which derive from the lay public’s approbation of his efforts.” The court decides infringement by deciding, “whether defendant took from plaintiff’s works so much of what is pleasing to the ear of lay listeners, who comprise the audience for whom such popular music is composed, that defendant wrongly appropriated something which belongs to the plaintiff.”

This statement in Arnstein reflects the idea of an illegal copy stealing the market for the original product. That view also anchors the work of Professor Paul Goldstein, whose work on the distinction between derivative and reproduction rights is foundational. In his 1983 paper, Derivative Rights And Derivative Works In Copyright, Goldstein is in search of “the point at which the right ‘to reproduce the copyrighted work in copies’ leaves off and the right ‘to prepare derivative works based upon the copyrighted work’ begins.” It is, he says “that point at which the contribution of independent expression to an existing work effectively creates a new work for a different market.” That means that the “infringer who copies a novel verbatim violates only the right to reproduce, for he has created neither independent expression nor a new market. But the derivative work right is infringed differently: “By contrast, motion pictures, translations and comic strips based on the novel will all infringe the derivative right because they add new expressive elements and serve markets that differ from the market in which the original was first introduced.”

But sometimes we find language that don’t reflect this understanding of what a substantially similar reproduction is – language that seems to focus on brute fact of reproduction of even some small amount of the original work, regardless of whether the result is to create a product that competes with the original. Sometimes, and crucially, this language comes from cases that are not true cases of changing genres: they feature, instead, two competing products, and a contest over the idea-expression dichotomy. That’s why it is dangerous to misuse nuggets such as “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” That phrase is from Learned Hand’s famous Sheldon opinion – one in which there was no question that the original play at issue in that case (“Dishonored Lady”) would be competition with the defendant’s film (“Letty Lynton”). The quote pertains to the idea-expression dichotomy, not the question of market competition.

But other times courts, especially the Second Circuit, have loosely allowed the reproduction right to expand so as to cover what is really a derivative work. The worst offender is the Second Circuit’s “Seinfeld” case, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., which asks whether a trivia game (the “Seinfeld Aptitude Test”) infringes the copyright in the television show Seinfeld.

In the Seinfeld case, the court managed to find that a trivia game is a copy of a TV show. The absurdity of that result seems to speak for itself. The idea of finding a trivia game to be any kind of substitute for the original show seems laughable. And that something is deeply wrong is obvious from the opinion itself, which struggles painfully with tests designed for two works competing in the same market, like that from Learned Hand’s Peter Pan (where the question is whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal [of the two works] as the same”). It doesn’t make any sense to compare the market appeal of a trivia game and TV show because they do not compete. Similarly, stumped with how to compare the “concept and feel” of a TV show the court simply declined altogether, saying that works in “different genres and media, must necessarily have a different concept and feel.” What the court should have said is that works in different genres are simply not covered by the reproduction right.

A case like Seinfeld is so confused because, at risk of repeating myself, it is absurd to ask whether products that remotely in the same market or genre are copies of each other. It is like asking whether the Superbowl is a copy of “War and Peace,” or whether the LSAT is a copy of Star Wars – the question is nonsense to begin with. It serves as an example of what Felix Cohen once described as law’s tendency to create “pseudo problems, devoid of meaning.”

But like many such questions, the answers have a consequence. And the consequence of cases like Castle Rock is to create genre-spanning reproduction right that helps create the mass infringement problem we’ve discussed in this paper, by making nearly anything that draws on the original an infringement of either §106(1) or 106(2), unless it is fair use.

The better approach, tracking the Seventh Circuit’s suggestions, is as follows. The question of reproduction should be what Arnstein and Paul Goldstein suggest: a copy is a work that misappropriates the market that the original product reasonably could have expected to capture. An adaptation, meanwhile, is a work that is at least a partial substitute for the original product, in the sense of taking that product and adapting it to a different medium, yet retaining the basic structure and purpose of the original product. And finally, a pure complement, like a book review, or yes, a trivia game, is outside of both the §§106(1) and 106(2) rights altogether.

Some might say that this approach strips the adaptation right of any scope. The approach is certainly in tension with some of the caselaw, though it is supported by some as well. But in defense of the approach, I point out that the right of adaptation between media remains – preserving such things as film rights, translations, photocopies of magazine articles, and book versions of a ballet, all of which substitute in part for the original rather than complement it. What would be excluded from the adaptation right under this reading are works which share some content but do not share the object of the original – like fan sites which report information about a show, but which cannot replace the story-telling aspect of the show itself.

I don’t deny that a broad adaptation right, even one that covers complements, may create incentives for authors or publishers to invest more initially. But a too-broad definition of reproduction or adaptation, that leaves nearly nothing out, creates ridiculous results as well. As we’ve already seen, it has created the right so broad that it is no longer even in the interest of owners to try and enforce it. My suggestion is that this construction of the adaptation doctrine might prove a useful way for reducing the pressure created by great expansion of tolerated use. It would move much valuable secondary usage of copyrighted works into a different category — such works would not be adaptations at all, and hence would not have to be ‘tolerated’. Instead, they would simply be works falling outside the ownership of the initial creator.

Another and to my view messier approach is to more rigorously understand complements as generally falling under the heading of fair use. In brief I am suggesting that judges should straightforwardly declare that uses that do not substitute for the original, and instead make the original more valuable, should be considered fair use, end of story.

Today this conclusion is already occasionally reached using factors one and four of the fair use doctrine. Courts examine the purpose of the use, with particularly interest in whether it is transformative and/or commercial. They also ask whether the use in question will substitute in the market. These questions are a way of getting at the idea that a use of the copyrighted work to create a complementary good should be a fair use.

In the current case law, however, the approach is inconsistent and the results often at odds with what I have suggested. Again the Seinfeld case is a good example of how wrong this can go. The court decided the fair use issue by concluding that the trivia game would substitute, not for the TV show, but for a potential trivia game created by the owner:

“…Our concern is not whether the secondary use suppresses or even destroys the market for the original work or its potential derivatives, but whether the secondary use usurps or substitutes for the market of the original work. … The SAT [the “Seinfeld Aptitude Test,” the trivia game] substitutes for a derivative market that a television program copyright owner such as Castle Rock ‘would in general develop or license others to develop.’”

As we discussed before, the court never figured out whether, in fact, the trivia game was actually a derivative work owned by the owner – and the statutory definition of derivative work actually puts that in doubt. But once it assumes that the trivia game is a derivative work, the court’s method means that any secondary work inescapably must be in competition with the imagined derivative.

It goes nearly without saying that the approach is a classic example of “if value then right,” whose problem is circularity. As Felix Cohen wrote in 1935 on the same problem in trademark, the “vicious circle inherent in this reasoning is plain.” The method “purports to base legal protection upon economic value,” wrote Cohen, “when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected.”

The objection to my complement-centered approach is already hinted at: that if complements to original works are either protected, the author may lose income. But it is not completely clear that that is true, based on the definition of what a complement is. There are costs incurred by ignoring the economics of complements. By definition, the complement increases the value of the original work, and in a world of high volume and low value complements, licensing of them is difficult. Today, many pure complements are already tolerated; were they clearly made legal, more might be produced.

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.

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.”

Inner Mongolian soap opera.

“What has education contributed to radio?” he asked.   “Not one thing.  What has commercialism contributed?   Everything — the lifeblood of the industry.”

The radio must subordinate itself to the goals which the Government of the National Revolution has set itself. The notion that the work of radio can remain an end in itself cannot be refuted enough.

There is nothing at all that is not tendentious. The discovery of the principle of absolute objectivity is the privilege of German professors - and I do not believe that university professors make history…

In other words, the Nazis believed that everything was necessary partisan; aiming for objectivity or neutrality in any form a dream of university professors.  The rejected idea of a communications network as “an end in itself” is interestingly, both the idea of common carriage and the founding principle of the internet’s design.

In his best quote of all, Goebbels liked to say of broadcasting that it is simply:

the spiritual weapon of the totalitarian state.

]]> http://www.timwu.org/log/archives/253/feed/ http://www.timwu.org/log/archives/252 http://www.timwu.org/log/archives/252#comments Wed, 12 Mar 2008 23:59:06 +0000 wu Photography http://www.timwu.org/log/archives/252 Decided to get myself a new camera to travel with - and what a beauty it is. The 1978 Canon A-1 with a 1.4 lens.

]]> http://www.timwu.org/log/archives/252/feed/ http://www.timwu.org/log/archives/243 http://www.timwu.org/log/archives/243#comments Wed, 12 Mar 2008 19:28:49 +0000 wu Writing http://www.timwu.org/log/archives/243 I’m not exactly the only one to write on Gygax, but hey why not. I originally started writing this for Slate but didn’t finish in time. However the good part is that means I can put in a bit of autobiographical and D&D-specific stuff that would never make it in Slate.

On Gary Gygax’s Ideas

I was once a D&D player – okay! I’ve said it. My first real character was a strong and charismatic paladin named, yes, “Timothy.” He was perfect in every way, more or less, and advanced slowly through the levels, and since he was basically supposed to be me, I was rather attached to him. One day, however, I made the mistake of going into a place called the Tomb of Horrors. (created, I might add, by Gygax). Rather, I was lured. Jason the dungeonmaster, who was also our babysitter, had a sadistic streak, and he goaded my brother and I and even Onil into playing a game that was way too hard for us. After a promising start Timothy was crushed lifeless by a large marble juggernaut. When the death came it was sudden, unavoidable, and completely devastating.

It was only a character but I took the death of “Timothy” a little hard. Hey – I was nine years old! I kept thinking there must be some way to bring in him back; but he lay buried under thousands of pounds of rock. And for some reason my babysitter never thought to say, poor kid, and bring him back to life somehow. He just packed up the game and said, too bad. Later on I realized that he had actually cheated to make us die – and I’m still bitter.

(The Tomb of Horrors)

After that my next character was a much safer choice. He wasn’t me — Drowdabeer was a dwarf whose chief attribute was that he was very hard to kill. Under D&D’s rules he could jump off a 100′ cliff and just brush himself off. I didn’t really like Drowdabeer quite as much as Timothy, but at least he didn’t die on me.

Instead and unfortunately Drowdabeer was a bit of a bully. For some reason I can’t quite remember, I’d often find a way to kill my friend Cory’s characters. Just as Cory was about to grab the treasure he’d find a poisoned crossbow bolt in his back. Maybe still bitter about the Tomb of Horros, I took it out on Cory.  Luckily Cory and I are still friends, and maybe his D&D misfortunes played some tiny role in making Cory into the hugely successful author and Boing-Boing blogger that he is today.

(Cory Doctorow)
I could go on about our old D&D game but this is actually supposed to be about Gary Gygax, who died last week. I never knew much about Gygax the man, and in fact I didn’t know what he looked like until just now. But I know an awful lot about Gygax’s ideas. For Gygax was our patron saint – the man who had his name on every book; the guy who played the game first and played it right. It goes without saying that D&D affects your mind in all kinds of ways. (At some level, for example, I think of the classes I teach as just a sort of academic D&D campaign.) But Gygax had his own ideas within that world — a sort of ethos, a way of thinking, that affected all of us D&D players.

(Gary Gygax)

1. The main thing that Gygax taught is that you have to be very serious and rigorous about fantasy. I hasten to mention that this is an idea that can go too far. It can turn you into to someone who wears chain mail to work or refuses to associate with anyone who isn’t “chaotic neutral.” But what Gygax was teaching is that you sometimes have to lose yourself completely to get anything. Like Daniel Day Lewis acting, you have to inhabit the fantasy completely.

2. Along those lines Gygax also taught that the project of fantasy is collective. When I was in elementary and junior high school, the golden years of D&D, this was easy. Onil, Sean, Cory, Raja, my brother David, even Jason – we were all kids ready to get out of our heads. It helped that we went to an alternative school (the Alternative Learning Program) that regarded cynicism as a sin. And we actually had time set aside for playing D&D at school - it was great!

But of course when we got older, we stopped playing, for an obvious reason: we all lost some of that capacity for shared hallucination. Of course, it didn’t help that most of the kids who kept playing D&D wrote off any chance of losing their virginity.

(Relatedly, at the the time I could never quite understand while girls, who could spend enormous amounts of time fantasizing about Duran Duran, couldn’t get that excited about D&D. In retrospect its obvious that girls liked fantasy fine – they just didn’t happen to think that spending hours fighting 30 hobgoblins was much of a fantasy.)

3. Back to Gygax. The second Gygax principle was this: you had to suffer. He structured the game to create a kind of protestant rigor. Under the original and very harsh rules, your characters were destined to be fairly average – more like Bilbo the hobbit then super-man.  The magic-user, in particular, was a pathetic creature to begin with – almost any blow would kill you, and you could cast but one spell a day. The life of a new character was most likely to be unpleasant and short.

(the mighty owl-bear)
In this sense there was something very English to the whole thing. Gygax created a natural D&D narrative that began with suffering but sometimes led to greatness.  The natural narrative was like Oliver Twist or Charlie from the Chocolate factory. Mostly, you could expect to die with nothing. But if a character made it he’d be like Harry Potter – the boy who lived. That led to a lot more emotional investment than playing a superstar from the outset would.
3. A related Gygax idea was that most of the world was way out of your reach. Gygax andhis friends created all kinds of great powers and capabilities, and then made them generally unreachable – a sort of fantasy within the fantasy. There were spells of unbelievable power (like “Wish,”) monsters who could kill by touch, artifacts of unspeakable age and abilities, deities and so on. But most players would never encounter any of this stuff, if you played by the rules. It would remain far, far out of reach for many years. Instead, most players would remain in modest dungeons fighting orcs – stuck in the middle management of the D&D world.

(Orcus)

As strange as it may sound for the creator of a fantasy game, delayed gratification was what Gygax was all about.

4. A final Gygax idea, and maybe the most famous one, was the concept of “cheating fairly.” While Gygax envisioned a hard world of death, suffering, and glories that would forever remain out of reach, he also believed in the necessity of miracles. The Dungeon Master was allowed and even encouraged to cheat for the right reasons. When the harshness of the rules were creating just too much bleakness, the DM was supposed to create a little hope. A spell might work a little better than expected. When all was about to be lost, reinforcements might arrive. And so on.

The absolute trick was for the DM to cheat – to create small miracles – without the characters realizing it. The world had to be harsh even if secretly it was being softened. Even in a fantasy world, you want to think that your accomplishments are, well, real.

That’s what made me so bitter about the death of poor Timothy. The babysitter cheated all right, but to kill us, not to save us. But all is forgiven. For who among us, in the end, is as perfect a DM as Gygax was?

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