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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