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31 Colum. J.L. & Arts 617 (2007-2008)
Tolerated Use

handle is hein.journals/cjla31 and id is 625 raw text is: Tolerated Use Tim Wu* INTRODUCTION Tolerated use is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an opt-in system for copyright holders, that is in property terms a rare species of ex post notice or safety right. In addition, this paper proposes a different way to deal with tolerated use problems-the copyright no action policy. I. THE RISE OF TOLERATED USE Copyrighted works are today used in many ways they once were not. There is a giant grey zone in copyright, consisting of millions of usages that do not fall into a clear category but are often infringing. These usages run the gauntlet, from PowerPoint presentations, personal web sites, social networking sites, church services,1 and much of Wikipedia's content to well-known fan guides. Such casual and often harmless uses of works comprise the category of tolerated use, the discussion of which is the purpose of this first section. The critical aspect of this phenomenon are uses of works that are of a mass quantity and low value per transaction. Copyright's property structure, like most property systems, works best given relatively few significant uses of a given work that are each of high value. Today's world of mass low-value infringement is different. The magnitude of such casual infringement is naturally hard to measure. In a paper entitled Infringement Nation, performing what he calls a gedankenexperiment, Professor John Tehranian calculates the potential copyright * Professor, Columbia Law School. Copyright © Tim Wu 2008. I wish to thank members of Luis Villa, Douglas Lichtman, Rosa Castro, Jane Ginsburg, Scott Hemphill, the members of the Max Planck Workshop on Commons Theory, the Columbia IP colloquium, and the 10-10 workshop for comments. I also thank Andrew Cohen for helpful suggestions. 1. Brian D. Wassom, Copyright Infringement in Worship Services: Problems and Potential Solutions, 36 JOURNAL OF ARTS MANAGEMENT, LAW & SOCIETY 2, 127-160 (Summer 2006).

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