Tim Wu on Tolerated Use

[lunas_ceiling]

Columbia Law professor Tim Wu has posted an article that he intends to publish in a law review on tolerated use of secondary and derivative works that complement (without substituting) for the original. In my opinion, this article has clearly been inspired by the Lexicon trial. In his opening, Wu refers to fan websites as "marketing." that in

Comments

[rattlesnakeroot]

Thanks for posting this, lunas_ceiling.

This is my favorite quote from the article:

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.”Exactly. I don't like the Seinfeld case either, because it is saying that a Trivia Book is the same thing as watching the show, and that's just silly. If I want to laugh about Kramer or George, I watch the DVDs. I don't think "where is my infringing trivia book

[lunas_ceiling]

It is pretty clear why Posner referred to him as "the Genius Wu." The article is packed with information but I do love the portion you quoted. The Seinfeld case is a mess, which is exactly why the law should be clarified. I love the fact that he is specific in his attack on that ruling. What the court should have said is that works in different genres are simply not covered by the reproduction right." This is pretty much the basis for his suggested change to copyright law with respect to complementary works. The superbowl is not War and Peace, nor is the Lexicon the HP series, so why confuse matters by trying to make it so.

Also by taking these secondary works clearly out of the author's exclusive rights, the problem with Cease and Desist letters to any book about the series vanishes. Why should secondary books ever have to be run by the author for permission?

[rattlesnakeroot]

And you know - some of the books already in print do not have permission, and those publishers probably didn't think they needed permission as long as they put "Unauthorized" or "Unofficial" on the cover. JKR did not give "permission" for Galadriel Waters guides, nor the Mugglenet Fanbook, and yet I'm sure that Wizarding World Press thought they were completely covered legally by all the disclaimors on the cover an don the copyright page. Why shouldn't they be? No one would say those books are "exactly like" the HP books. It's just commmon sense.

No encyclopedia done by a fan is going to be "exactly" like JKR's own Scottish Book either. That's impossible even if the content overlaps a bit because JKR will have vastly more information than any fan lexicon could have.

[jezebel64]

"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:"

The sentence I highlighted is precisely what JKR is aiming at - banning a book because it would substitute for the potential encyclopedia she was going to create - though she hasn't created it yet and she may never get round to writing it. If JKR never writes this encyclopedia, would preventing someone else from writing one be seen to be fair? Were the owners of Seinfeld actually planning on creating a trivia game? Or did they just say they were, after getting the idea from the person who created the game? That's the problem with 'potential' creations - they don't actually exist.