Re: New ways to evade copyright law (was Re: Vicarious liblity (was: KDE not in Debian?))
Raul Miller writes:
> Apparently, some people think that the introduction of some new
> distribution mechanism will confuse the people who enforce copyright
> law think that distribution isn't happening.
>
> So, let's say that I come up with a new way of distributing text:
>
> I'll send all the vowels in one file (it will be downloaded from the
> web), I'll send all the consonants in a set of different files (one per
> consonant -- they will be emailed), and I'll send the punctuation in a
> third file (it will be posted as news).
>
> And, let's say that I include enough meta-information in these files
> such that they will just happen to combine themselves to create the
> original text. No one file, taken individually, could be mistaken for
> a copyrighted work -- only by taking the files as a group which would be
> pieced together by individual effort could I be said to be distributing
> a copyrighted work.
>
> Do people think that would be legal?
>
> If not, why not?
No, because the law concerns itself with judging intent.
If you distribute random data which _truly accidentally_ could be
interpreted to violate some law, then that's no problem; but if you
had the intent to violate copyright law by a _series of related
actions_ -- no one of which violated a copyright -- then it might
easily be established that the overall design and pattern of your
activity was a deliberate violation.
Someone could argue in court about the probability that it was just
an accident. In most cases in which you actually violated a
copyright on purpose, it's not very likely that it would end up
looking like a plausible accident (if you intended for some other
person to be able to reconstruct the original information, then a
court can probably reconstruct it, too, especially given any
instructions that you or someone in concert with you happened to
give out).
Using statistical arguments to estimate probabilities that copyright
violations are accidental is not a new idea. In fact, the whole point
of digital watermarking is simply to make that easier, and make it
dramatically less likely that you can realistically claim that a certain
similarity is merely co-incidental.
So, what about the situation in which 5,000 people distribute something
which they would otherwise not be allowed to distribute by taking
random excerpts? E.g. I say "At offset 8354, value 0x98c4076d", and
post that in some public place. Well, if some of these people actually
intended that the result of their joint activity would be the
effective transmission of whatever they were not allowed to transmit,
they could be accused of conspiracy.
--
Seth David Schoen <schoen@loyalty.org> | And do not say, I will study when I
Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will
down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5
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