Should We Tolerate Tolerated Use?

Although this article by Tim Wu came out a few days ago, I hadn't read it through until now; but I see that it's raising some fascinating questions about the *next* stage of the copyright battle, not least through Our Man in the Audience, Larry Lessig:

This spring, at the Max-Planck Institute in Bonn, Germany, I gave a talk on the phenomenon of tolerated use, and in the audience was Stanford professor Larry Lessig, a Thomas Jefferson figure in the information revolution. "So here's what I want to know," he asked. "Why should we tolerate tolerated use?" His point: If you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? Surely the right answer is to fight for reform of the copyright law: Have the law declare clearly that most noncommercial activities, like fan sites and remixes, are simply beyond the reach of the law.

In a sense, it's simple: laws that are ignored by hundreds of millions of people are, by definition, bad laws.

Update: If you enjoy Tim Wu's article, as I'm sure you will, why not give this rather meatier paper a whirl: it's a fascinating alternative history of copyright, and its "role in the regulation of competing disseminators."