What’s New with Wu

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.
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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.”

Inner Mongolian soap opera.

Here is a former industry executive turned Radio Commissioner speaking in 1931 (in a quote found by Bob McChesney):

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

In my chapter on radio, one of the most interesting, though obviously not in a good way, theorists of broadcast radio is Joseph Goebbels, the old Minister of Enlightenment and Propaganda for the German government in the 1930s.
Here are his views on the possibility of objective, neutral broadcasting –

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.

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.

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!

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Gone back to long hand to write my book - strange experience to write for hours with a pen and paper.