Intellectual Property Law

Tim Wu on Intellectual Property, Internet Filtering

By Cynthia Brumfield

These days it's hard to miss the prolific writings of Columbia Law School Professor Tim Wu, who seems to never need sleep or appears to never suffer from writer's block. No sooner had I finished catching up on Wu's three-part debate with NBC-U's Rick Cotton that appeared on NYT's Bits Blog this week than I read his most recent contribution to Slate, which was published today.

Taking the Slate piece first, Wu is agog that AT&T might even consider filtering Internet content on behalf of the studios, as AT&T exec Jim Cicconi suggested at CES it might do. Aside from the Orwellian implications of a private sector censorship regime, Wu asks whether AT&T "has lost its mind."

The Digital Millennium Copyright Act exempts ISPs such as AT&T from copyright infringement liabilities to the extent they are passive conduits of information. The instant AT&T starts to proactively filter traffic based on its content, the telco might as well give it up as a going-concern, Wu argues. That's because "AT&T would immediately become the world's largest target for copyright infringement lawsuits." It would suddenly be liable for infringement lawsuits once it gives up the passive carrier protection.

This switch would expose it to so much potential liability that "adopting it would arguably violate AT&T's fiduciary duty to its shareholders." In other words, someone, somewhere inside AT&T's executive suite hasn't really thought through the wisdom of ISP content filtering.

In terms of the three-day back-and-forth on the Bits blog, Wu pretty much disagrees with NBC-U's Cotton straight down the line, although he does so in a very logical and not ideological way. In particular, Wu offers the more reasonable approach to "fair use."

Towing the Hollywood line, in the last part of the debate, which focuses on video mash-ups, Cotton advocates for a more narrow definition of what constitutes fair use under the copyright laws, which permits use of copyrighted works under certain circumstances. He says fair use should be redefined as "something that truly injects some degree of original contribution [emphasis added] from the maker other than just the assembly of unchanged copies of different copyrighted works."

Wu says that fair use should be defined as "work that adds to the value of the original, as opposed to substituting for the original." Protecting the value of the original work is really what copyright law is about and rejiggering the law to require "original" content would suppress a lot of intellectual advancement, which is what fair use is all about. To see why this is the case, Slate V, the new video service of the online publication, offers a relevant example.

Appearing on Slate V is a very funny video that mixes footage from Paramount's film "Election" with news footage of Democratic Presidential candidate Hillary Clinton, highlighting Clinton's inner "Tracy Flick." (Read Tom Perrotta's book or see the film to understand why this is funny.) Nothing in this video is "original" although the video itself is without a doubt a work of originality and creativity. It also brilliantly makes a political point.

It quite literally fits Cotton's idea of what wouldn't be considered fair use under a redefinition. Wu's definition, however, would permit this video under fair use because nothing about it is a substitute for the original "Election" film. It also, I would argue, enhances the film's value for those who have not seen it. (And even for those who have. It reminded me again of what a great film "Election" was.)

Whatever the case may be, there's no arguing that Tim Wu is a tireless guy.

Full post as published by IP Democracy on January 17, 2008 (boomark / email).