[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.)