What Gets Created Under a “Tolerated Use” Regime?

I’ve been meaning to say a few words about Tim Wu‘s copyright law essay over at Slate, “Tolerated Use: The Copyright Problem.” It’s typically witty Wu, illuminating current controversies in copyright in a short essay peppered with Harry Potter and other pop-culture references. And I’m fully on board with the notion that anything that educates the general public about copyright without requiring anyone to read Baker v. Selden is an unqualified good. But I can’t help wondering whether we should really want to buy in to the “tolerated use” regime for copyright that Wu describes, and towards which he comes across as pretty sympathetic.

Wu’s observation, and it’s a good one (although one that’s been made before) is that there’s a disconnect between what a strict reading of copyright law allows and what copyright holders might rationally prefer from a business perspective. A certain amount of technically infringing conduct, copyright holders may conclude, is actually beneficial to them: it can stimulate “buzz” and draw more paying customers. Wu offers the following example:

In 2006, shows like Saturday Night Live began to see their skits dowloaded millions of times on YouTube and other similar Web sites. That meant both millions of copyright violations and millions of viewers, prompting very different reactions between and within large media firms. The legal departments jumped: “Millions of people are stealing our work!” The marketing departments responded gleefully: “Wait—millions of people are watching SNL?” The tradeoff is between control—what lawyers want—and exposure—what marketing departments crave. And for media companies that want both at once, there’s no easy answer.

That’s not a bad example, and you can probably think of others yourself. The producers of the Sci-Fi Channel’s “re-imagined” Battlestar Galactica TV series came to adopt a notably tolerant attitude towards fans sharing episodes of the series over P2P networks after it became clear that the activity, although undeniably infringing, was boosting ratings for the show. Lesser-known musical artists have found an audience online from the exchange of infringing copies of their works, and even big-name acts have discovered the advantages of free digital distribution. We might say that big media companies have discovered the benefits of allowing some infringing conduct to occur in hopes of spurring future sales even at the cost of current sales; less charitably, I suppose, we might say that they’ve just found a way to crowdsource their own marketing budgets.

As Wu sees it, copyright holders’ newfound awareness of the possible business advantages they may gain from conduct that is, technically, illegal, is leading them to adopt a more benign, accommodating attitude towards some varieties of infringing activity online. Lawsuits and cease-and-desist letters are still available to discipline the worst offenders, but for many others, there’s a new “gray area” where infringing conduct is tolerated or even encouraged. As he puts it:

But in the late 2000s, media companies seem to be changing their tune. Mass, industry-threatening piracy is still never tolerated. But the tough-guy act typified by the music industry of the early 2000s, and recently in the case of the $222,000 fine imposed on Jammie Thomas, may be going out of fashion. Instead, media companies—particularly in television and film—are at least sometimes practicing a mellower concept called “tolerated use.” They watch and see whether infringements are actually harmful or not before sending out their copyright pit bulls.

Now, the evidence for an evolution in copyright holder attitudes towards increasing tolerance for unauthorized uses of content is pretty equivocal; there’s at least as much (and probably more) evidence for the proposition that the “old” scorched-earth tactics are alive and well right here in “the late 2000s.” (I expect to have more to say in this space about the new UGC Principles, which could be cited as a counterexample, or perhaps not; but I haven’t yet fully digested them.) But let’s assume Wu is right that the hearts of at least some big-media rights holders have grown three sizes recently. Is this good news?

Larry Lessig, for one, doesn’t think so, as Wu discusses in his article:

His point: If you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? …

Lessig has a point. It is hard to see how anyone could endorse a system that declares many inoffensive activities illegal, with the tacit understanding that the law will usually not be enforced, leaving sanctions hanging overhead like copyright’s own Sword of Damocles. The symbolic legal message is preposterous: “Remember, copyright is important, and you’re breaking the law and you may face massive fines. But on the other hand, your site is totally great, so keep going!”

Wu’s answer to all that is that it’s better to have some gray area for “tolerated uses” rather than leaving it to Congress or the courts to draw brighter lines, because we certainly won’t like where the lines would be drawn. As a matter of Beltway realpolitik, that’s surely true. But that doesn’t, it seems to me, meet the force of Lessig’s objection, which I think goes not only to the odd incentives of a “tolerated use” regime, but to the nature of what gets created under such a system.

The effect of “tolerated use” is to channel subsequent creativity in directions that tend to increase the marketability of the underlying copyrighted works — towards uses that build “buzz,” in other words. What are the odds that a particularly nasty parody will get the same benign treatment from the owner of the original work as an adoring bit of fan fiction? What are the odds of a copyright holder looking tolerantly upon uses that tend to depress, rather than expand, the market for its own work? The examples cited in Wu’s own article provide the answers: slim to none. Under “tolerated use,” the fear of strict liability and statutory damages can’t help but provide subsequent creators with a very strong “push” to avoid offending the sensibilities of the big media companies whose products have inspired their own creative work.

A “tolerated use” regime makes a poor substitute for a rational copyright system that includes robust protections for fair use, noncommercial use, and the like, because “tolerated use” will necessarily tend to foster a comparatively impoverished family of follow-on works. That’s why, at the end of the day, “tolerated use” has much less going for it than Wu seems to think.

One Response to “What Gets Created Under a “Tolerated Use” Regime?”

  1. I tend to agree that a system that just “looks the other way” when there are infringing uses that are beneficial to the market for the copyright holder’s work is broken in many ways. My largest objection is that the system is “supposed” to provide the means to marketability for copyrighted works, and consequently the incentive to create them. However, as in the fair use context, if there is no collective understanding of what uses a copyrighted work (or parts of that work) may be put to, the market is far from optimal. And yes, the big problem with “tolerated use” is that it only tends to foster those types of follow-on works that the original copyright holder is likely to smile upon. (Because we are all ever so good at reading the minds of copyright holders)

    It will be interesting to see what direction this debate takes. I would be hard pressed to see how there will not always be some degree of “looking the other way” for beneficial uses. Yet, it is in everyone’s best interests to figure out some way to more clearly articulate and define when fair is really fair. Personally, I would much rather have some sort of organized govermental body (perhaps LOC?) given the authority to issue binding opinions to questions posed about whether a given use is fair than a willy nilly roll the dice and await cease and decist approach.