[badlibrarian]

Agree that a photo of a celebrity and a film containing that celebrity shouldn't have the same number. But a large punitive number in the context of willful infringement seems right to me. And in practice it's all negotiated down anyway, as evidenced by Internet Archive's fourth 30-day stay of its pending $600+ million lawsuit.

[AnthonyMouse]

"In practice it's negotiated down anyway" is precisely the issue. If they bring a questionable case against you and you think there's a significant chance you could win, but then there's a small chance you get bankrupted, there is unreasonable pressure for you to settle even if the plaintiffs are in the wrong.

[badlibrarian]

I'm not sure what a "questionable case" for willful copyright infringement might look like. Or an example where someone was clearly in the right and got screwed. It isn't the debtor's prison era.

Four factor test seems to be working, even in this case. Don't love it (it goes against my values and what I need to do in my job) but I get it.

Edit: we've triggered HN's patience for this discussion and it's now blocking replies. You do seem a bit long on Google and short on practical experience here. How else would you propose these types of disagreements get sorted? ("Anyone can be sued for anything" notwithstanding.)

There are explicltly no punitive damages in US Copyright law. And the "willful" provision in practice means demonstrating ongoing disregard, after being informed. It's a long walk to the end of that plank.

[AnthonyMouse]

> I'm not sure what a "questionable case" for willful copyright infringement might look like.

You did anything which it's not clear whether it's fair use or not. Willfulness is whether you knew you were doing it, not whether you knew whether it was fair use, which in many cases nobody knows until a court decides it, hence the problem.

You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?

[freejazz]

What sort of things do you think people do that it is often the case that there is a genuine question of whether or not the use was fair?

>You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?

Nobody made you undertake the questionable fair use. If you're gonna fease, you better not malfease.

[AnthonyMouse]

> What sort of things do you think people do that it is often the case that there is a genuine question of whether or not the use was fair

Every time some new technology or other change happens, things become possible that didn't used to be and then nobody knows what the law is going to be until a judge decides the case.

> Nobody made you undertake the questionable fair use. If you're gonna fease, you better not malfease.

But how are you supposed to know that before you get sued? If it's something you are allowed to do, but you don't know that yet for sure, what do you do to find out?

[badlibrarian]

You can be sued for anything and asked to defend your position for anything.

You need to stop positing hypotheticals and start stating examples. Yes, technology advances and everything from abortion to transportation needs to be reconsidered on an ongoing basis. Admittedly the process for doing so hasn't changed much since the 18th century, but do you have a proposal for improving it?

Between the four factor test, being able to petition the Librarian of Congress for exemptions, and compulsory licensing, in many cases copyright is in a better state than most.

Aside from Internet Archive who continued to do something 400,000 times despite being formally asked to stop three times (scanning old records), I'm unaware of any similar acts of stupidity. Can you provide any examples of recent problems in the space?

Do you have some great idea that you're afraid to try because of lack of specificity in copyright law? There's no shortage of VCs who will take the risk sorting it out; they've made lots of money doing this before.

And you can always ask for permission first. But I suppose where's the fun in that.