[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?

[fc417fc802]

> just the key principles that underpinned other judgements.

The issue I take with such an analysis is the numbers game, the lack of intent that brings with it, and the lack of damages for very minor violations deep in an archive. It doesn't apply to the author of the linked article but at least in the US large archives of content generated by third parties would presumably fall under the DMCA takedown provisions.

> it’s worth noting in your example that folks are investing heavily in avoiding incidental copyright infringement

I think that's what you might call "reasonable precautions". If the technology is widely known about and cheaply available and yet you choose not to use it you risk taking on the appearance of any infringement being intentional.

> 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

I think that's a natural consequence of automated draconian enforcement of corporate policies that are arguably quite user hostile. Certainly the system is actively abused by trolls of various sorts. Even things that are clearly fair use can potentially get your channel demonetized or even banned. Granted, the platform is also rife with users who blatantly and repeatedly violate copyright. The entire place is a cesspool in that regard.

Which is to say that I don't think it's an example of the current legal situation as much as a status quo imposed by corporate policy. (Granted at the behest of various lawyers.)