Tolerated use

So far, we’ve discussed what copyright infringement is, exceptions to copyright infringement, and how a copyright owner can give you permission to do something that would otherwise be an infringement.

Perhaps you’ve noticed, though, that there’s a lot of content online which doesn’t seem to be permitted or under an exception. People share content all the time just for fun – photos on Pinterest or Instagram, memes on Tumblr, videos on Facebook or YouTube. Are these all unlawful? The scope of probable infringement seems, at times, huge.

Many of these actions are understood by copyright lawyers to be tolerated use. “Tolerated use” is a term coined by Tim Wu, a law professor at Columbia University in New York. It means, basically, uses which are technically infringing but which are tolerated by copyright owners for various reasons – sometimes because they don’t want to alienate their fan-base, but usually because it is too difficult and expensive to find the people committing copyright infringement and bring legal action against them.

Historically, many actions that we consider “normal” fell within a kind of “zone of tolerated use” because, though technically infringing, they were done within the privacy of our own homes and were not detectable by copyright owners. Things like: making a mix-tape for a crush or burning a CD for a friend. Taping movies off the television to build a home library or copying a picture to hang on your wall. All acts of copyright reproduction and technically infringing, but unlikely to attract the attention of a copyright owner.

These days, many of our copying and sharing activities have moved online and, consequently, the zone of tolerated use may be shrinking. Now, software makes it easier to digitally “lock” creative content to prevent copying, or to track where content ends up. Technology is starting to make it possible for copyright owners to know when people are copying and sharing, in ways they never did before. I don’t yet know what this means for the ways in which we use the internet, now or in the future, but I do think it’s useful to be aware of the reach and bounds of copyright, and which uses are permitted and which are merely tolerated.