[d1sxeyes]

> Only within reason. The archive was published in bulk. I don't think there's any expectation every single post in an archive is checked prior to publication.

Why? Just because it’s onerous doesn’t mean you don’t have a duty to do it.

If the guy had copy and pasted the whole news article and republished it himself, I doubt many people would try to argue that he hadn’t infringed the copyright of the newspaper. So that thought experiment covers the idea that something can be published legally without automatically granting a licence to reproduce the content.

The question here hinges on whether using opengraph tags on an article implicitly sublicenses the image for reproduction. There’s a solid argument that it does, but the author chose not to test that so we don’t know.

If the answer is yes, then it’s the newspaper who are liable for the infringement by sublicensing the image in a way that’s not compatible with their original licence (I assume! At this stage, we don’t know if the newspaper DID actually have the right to relicense the image for reproduction or not).

If the answer is no, then the author has well-meaningly but incorrectly used the image that the newspaper published. Normally this would probably not be heavily punished by the courts, but the author opted to instead pay the fee, which seems a reasonable approach to take given his uncertainty about the legal grounds by which the image was licensed for use (again, I assume. I doubt it, but it is theoretically possible that X/Twitter were in some kind of relationship with the newspaper that made their usage lawful).

Either way, I imagine neither party I think wanted this to be tested in court. The author clearly didn’t, and the fact that (we are not aware of) the company did not go after X/Twitter despite likely bigger payouts for multiple infringements suggests they also did not, as X/Twitter were more likely to litigate the case.

If the legal system isn’t given an opportunity to weigh in, it can’t do so.

[fc417fc802]

> Just because it’s onerous doesn’t mean you don’t have a duty to do it.

That depends heavily on context. Anyway you're refuting a claim that I never made.

A thought experiment. You are publishing an archive containing billions of items and expect that 0.01% will infringe copyright or be libelous or what have you. Can you legally publish that archive without manually checking every single item?

What if you believe that exactly 1 of a total 1 billion posts will be infringing? Are you required to hunt down the single needle in the haystack prior to publication?

I am quite confident that in the vast majority of jurisdictions the answer in both of those cases is that regardless of what the written law says you will not be found liable in practice so long as you take reasonable precautions prior to publication and respond promptly upon learning of any specific infringing items.

> Normally this would probably not be heavily punished by the courts

Or at all? Does IP law not require intent as a necessary precondition of breaking it?

> If the legal system isn’t given an opportunity to weigh in, it can’t do so.

I never claimed it did, only that the outcome appears obvious to me. This looks like a typical troll case.

[d1sxeyes]

> That depends heavily on context. Anyway you're refuting a claim that I never made.

You asserted that you don’t think “there is any expectation every single post […] is checked”. I think my answer was completely responsive to that point.

> [You] expect that 0.01% will infringe copyright

This means you either knowingly or negligently publish material you do not have reason to be non-infringing. The 99.99% of non-infringing posts in the article are a red herring, only that 0.01% matters for this discussion.

The test is pretty simple: did you believe the material was not infringing, or did you have reason to believe it was not infringing. In this case, you expect (your word) some content to be infringing. You might get some leeway from the courts, but you would still likely be found liable for unlawful infringement.

> Or at all? Does IP law not require intent as a necessary precondition of breaking it?

The courts may decide to go easy on you, but intent is not required in civil cases (unless it’s a criminal case). See the law itself: 17 U.S. Code § 501(a), and case law regarding intentionality: Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) (https://supreme.justia.com/cases/federal/us/283/191/#:~:text...).

> This looks like a typical troll case.

Disagreeing with you doesn’t make me a troll.

[fc417fc802]

I didn't call you a troll, rather I suggested that the complainant in this case is acting like an IP troll.

> intent is not required in civil cases

Fair enough.

> You might get some leeway from the courts, but you would still likely be found liable for unlawful infringement.

I guess we'll have to agree to disagree. Unless you can cite precedent? To be clear, I'm not disputing the law as written but rather as practiced.

[d1sxeyes]

> I didn't call you a troll, rather I suggested that the complainant in this case is acting like an IP troll

Ah sorry, I misunderstood.

This example perhaps? https://en.m.wikipedia.org/wiki/Sheldon_v._Metro-Goldwyn_Pic....

https://law.justia.com/cases/federal/appellate-courts/F2/81/...

[fc417fc802]

But they used material from a play published 2 years earlier?

> the plaintiffs discredit this denial because of the negotiations between the parties for the purchase of rights in the play, and because the similarities between the two are too specific and detailed to have resulted from chance.

For a movie an analogous scenario to publishing an archive with infringing material might be unknowingly capturing a copyrighted piece of art in the background of one of your shots and then being sued for it. Except in that case you're profiting from the movie (at least presumably). To make it analogous to publishing archives it would have to be something that isn't profitable, perhaps uploading an amateur short to youtube.

Actually this provides a perfect example. If you shoot enough documentary footage in the city you are almost guaranteed to inadvertently catch something that's copyrighted at some point. Unfortunately the scenario breaks down because unlike the internet you can't easily retroactively edit all distributed copies of your video. Unless perhaps it's only available via streaming services? But then we're back to profiting again.

[d1sxeyes]

I don’t think I’ll find a perfect example I’m afraid, just the key principles that underpinned other judgements.

With regards to the documentary example, I think that would come under “fair use” for the following reasons:

1. Transformative use (similar to news reporting)

2. Minimal impact on the market for resale/licensing.

However it’s worth noting in your example that folks are investing heavily in avoiding incidental copyright infringement (see for example dashcam footage on YouTube where songs on the radio are being either cut or pitched up/down or monetised to the rights holder rather than the publisher), which implies that folks cleverer than me, and probably with law degrees, at least see a risk of losing lawsuits over this kind of incidental infringement.

I appreciate that I pointed out that I can’t find a perfect example and then picked apart your imperfect example.

Maybe it’s best for everyone that there is no fully litigated perfect example of this?