I was asking what calculations and sources were used to arrive at the 20% figure, not what hypothetical situation would lead to it. I’m asking you to show your work and prove that claim.
Additionally, you seem to thing that 20% is a lot. It’s not. That’s still 80% that is not infringing, and that means the authors have no legal requirement to enforce copyright beyond DMCA notices for content that they host or link.
Furthermore, as I’ve said, there are some cases where it’s impossible to make a dent in the number of pirates without making software completely unusable, like text editors. Pirates aren’t that easily discouraged, and once one is successful, it becomes fairly trivial for everyone else.
Um, no. HTML and MS Word don’t require such things (I’ve never used either document templates or a “list of contributors” section in any documents I’ve created and never encountered problems because of it), it is not easy to distinguish noninfringing content from infringing content, and none of that applies to plain text editors, which don’t use any formatting or templates at all. MS Word is a word processor, not a text editor; it allows for formatting, templates, fonts, additional information, etc. HTML is a markup language used for formatting web pages; it is not a text editor or a word processor. You can certainly type using HTML in a text editor, but the text editor wouldn’t actually do any formatting or anything else with it; it gets treated like any other text and doesn’t get handled. (The same goes for LaTeX; all it does is tell some program how to format something; it isn’t a program itself at all, let alone a text editor, and text editors don’t treat it any differently from regular, unformatted text.) So in addition to the fact that those enforcement measures don’t actually exist, none of what you’re talking about actually involves text editors.
Also, compilers don’t check copyright info (I’ve checked) aside from licensing the compiler itself, so they have nothing to do with copyright enforcement. Quote marks predate copyright law by at least a few centuries, and even nowadays I’ve never encountered any program that checks them outside of making sure that I close every quote I open and formatting the quotation marks based on whether they open or close the quote, both of which can be ignored or even turned off entirely, so they clearly have nothing to do with enforcing copyright, either. In fact, quote marks have nothing to do with whether something is infringing or not, nor do citations or crediting authors/contributors (except for Creative Commons or similar copyleft licenses); that’s all regarding plagiarism, which is a completely separate topic.
And then there’s the fact that you once again ignore the possibilities of using original content and the ability to lie.
So you’ve discussed how non-text editors supposedly enforce against what you call copyright infringement but would actually be plagiarism, despite the fact that they don’t actually do what you claim, and also cited other measures (including one that also actually involves stopping plagiarism) that are actually not used to enforce or check copyright at all. Since we were talking about text editors and copyright enforcement or infringement in the real world, you’re getting pretty off-topic. As a reminder, a text editor would be a program like MS NotePad or Notepad++.
I’d like to know where that 20% figure comes from, but it’s not even all that relevant. No matter what countermeasures you put in place, there will always be a way to circumvent it. Studies have shown that stronger anti-piracy measures don’t cause much—if any—significant reduction in the prevalence of piracy in all but the very short term. Often, anti-piracy measures will actually lead to an increase in piracy if the measures inconvenience legitimate users too much.
You have also not provided any reason based on US copyright laws that would necessitate these countermeasures.
I also wouldn’t consider 20% to be that useful a figure without more context. If the vast majority of the infringing files are only accessed and accessible to a very small portion of internet users, then not much damage is actually being done since only a few are even using the pirated version to begin with. I also have no idea if we are talking about distinct files or files period.
There is no way for a text editor to know whether or not a given piece of text needs a citation, licensing information, etc., as opposed to being created from scratch. Plus, a lot of text editors don’t support any sort of formatting or markup; this is plain text we’re dealing with, after all. And what LaTeX does cannot be extended to filtering out infringing material for the basic reason that it cannot know what material is infringing, created completely new, or in the public domain. There is also no way for any text editor or LaTeX compiler to know that any citations or licensing info or such are accurate or honest.
Also, LaTeX isn’t a plain-text editor like we’ve been discussing. It is a method of formatting text.
But seriously, you don’t seem to understand that not everything that can be used in a text editor needs to be cited or licensed, that people can lie, that text editors (and any other software or program) cannot tell content that needs to be cited or licensed from content that doesn’t, nor can it tell truth from lies, that copyright law has way more nuance than you seem to realize, or that no text editor has such features like you proscribe and yet none have been sued.
The arguments in that area didn’t fail. You just don’t seem to grasp that audio players, video editors, and text editors do not fit within the scheme you envision, so this AC decided to go with something more tangible and easier to understand. Also, if I can do it with pencil and paper, then I can also do it with a text editor or basic drawing software, so if you can’t refute the pencil-and-paper argument, then it can also apply to the text editors discussed previously.
No, it’s because you cannot stop every instance of infringement using any computer service. You are expecting things that are fundamentally impossible on the basis that not doing so creates liability in some alternate reality where copyright laws exceed the wildest dreams of copyright maximalists and are divorced from any semblance of reality, reasonableness, fairness, equity, justice, or common sense, and where computers are magical devices capable of, among other things, reading minds, predicting the future, and making complex decisions that involve a tremendous amount of nuance and subjectivity that our real-world computers simply cannot do with anything approaching accuracy or consistency. I also don’t think that copyright law is infallible and free of abuse, nor is it strictly necessary for people to innovate or create new works (even if it can encourage it).
As I’ve said several times, very fundamental features that are not infringing can still be used to infringe. Like typing text using a keyboard into a text editor and then printing or uploading the resulting file.
Actually, those “killer features” were things like listening to a prerecorded or user-recorded sound file, recording and/or editing a home video, copy/pasting your own work, printing and/or uploading text or photos you created, and the very basic function of typing on a keyboard to record words, numbers, sentences, code, etc. into a text-based file. Y’know, pretty basic features that are in common use and are generally used for noninfringing purposes but that can be used for infringing purposes no matter what countermeasures are implemented. It’s unavoidable.
The URL still wouldn’t be infringing on copyright. There have been cases about this.
But really, my point was that you keep talking about infringing URLs, and that makes no sense, particularly in any of the cases that have been mentioned.
how it normally happens is that the service is full of pirated content and the end users need to filter out the pirated material to find legal content. Then when they fail to do that, they will be liable for the copyright infringement.
That wasn’t what you said before. You said that by simply using a service deemed to be unlawful due to contributory/vicarious infringing, even if that specific use doesn’t involve doing anything that would infringe on copyright directly or using pirated material, the end user is still liable for copyright infringement. That is, since the service itself indirectly infringes, everyone who uses that service at all is also infringing.
This is the reason why it's dangerous to use piracy services -- you simply cannot be careful enough in the copyright filtering when 50% or more of the available material is pirated.
Well, that is the nature of “piracy services” (i.e. services specifically designed for the specific purpose of committing and/or facilitating piracy, not ones that can incidentally be used to commit or facilitate piracy); since the whole point of the service is to pirate, you kinda have to expect that you will end up committing piracy. That said, that doesn’t actually address anything I said. I was talking about end users using a service without engaging in piracy themselves or encouraging others to do so.
When copyright owners are suing the pirates, they always start with some end users and make them examples of the infringements, then when that succeeds, they sue the authors of the services.
I can tell you right now that that often is not the case. They will often sue authors of the services before or together with the end users. Additionally, the lawsuits against the authors of the services are rarely successful. For all of its faults, the DMCA does a pretty decent job of protecting intermediary services and the like from liability, as does the rest of copyright law.
Once that succeeds, they can sue all users of the service, because successful lawsuit of the service itself will indicate that users should have known the illegality of the service.
First, again, such lawsuits of the service itself rarely succeed. Usually, the best case scenario for the plaintiffs of such lawsuits is a settlement (often without admitting any wrongdoing), and you generally can’t use a settlement as proof that the service is unlawful.
Second, that argument would only even remotely reasonably apply to users who continue or begin using the service after the success of the lawsuit against the service has been made public. It wouldn’t apply to users who only used the service before or during the lawsuit.
Third, I have never heard of anyone actually suing every user of a service under such a theory. Not only are successful copyright lawsuits against services pretty rare, but I don’t know of any lawsuit that argued that the user should have known that the service was unlawful.
Fourth, if the users weren’t themselves directly infringing, I cannot think of any existing liability that they would be exposed to for using that service. Neither contributory nor vicarious liability for infringement use such a standard. For one thing, those both would require particular knowledge of, clear encouragement of, or direct involvement with direct infringement. Liability for infringement doesn’t really exist for such a tenuous connection as one between two different users with no connection other than that they both used this one service, and a user cannot be found liable for anything that the developer did, either.
Fifth, for direct liability, you’d still have to prove that each of the individual users themselves actually committed direct infringement of copyright that you own. The previous lawsuit against the services may be evidence that the user was likely to have committed direct infringement of somebody’s copyright, or that any infringement was willful when calculating damages, but that’s not enough to prove that you, personally, (or the client you represent) have standing to sue each individual user for direct infringement, even if each one has committed direct infringement of someone’s copyright at some point. You have to prove that not only did they directly infringe on someone’s copyright, you also have to prove that you have standing to enforce the specific copyright that was allegedly infringed upon by these specific plaintiffs. Even if some other user was found to have directly infringed on your copyright, the service itself was found contributorily and/or vicariously liable for infringement, and the defendant did, in fact, use that particular service at some point after that lawsuit was resolved to infringe on a different person/entity’s copyright on some other material that you have no copyright ownership of or exclusive license for (or copyright of unknown ownership or an unknown/unidentified copyright on some unidentified material), that is not enough to find that this user has direct liability for infringement on your copyright. As noted in my fourth point, it’s not even enough to make them contributorily or vicariously liable for infringement on your copyright. That’s not how liability and standing work in any aspect of law.
Look, there has to be something that the defendent(s) personally did that specifically and adversely affected the plaintiff(s) personally and that was unlawful, or the defendant(s) must have materially contributed to someone else who personally did something that specifically and adversely affected the plaintiff(s) personally and that was unlawful. (There’re also cases involving a duty of care, but that doesn’t really make sense here; there is no duty of care owed by a user of a service to a copyright holder involving copyright at all.) None of that really applies in this scenario involving someone suing someone else solely because they used a service that was found liable (directly, contributorily, and/or vicariously) for infringement of the plaintiff’s copyright (even if they prove that the defendant used that service to infringe on yet another person’s copyright after the service was found liable). There needs to be more than that for the plaintiff to have a case against that defendant.
Well, with text editors, humans have these things called eyeballs, which they can use to read copyrighted text. Then, using their hands on the keyboard you mentioned, they can then copy, word-for-word, the entirety of the copyrighted text. Bam! They just used a text editor to create copy of a copyrighted book. And you can always print or upload any text file that you create, they can then publish that copy, thus clearly committing copyright infringement. There is no way to prevent this from happening, either.
With audio players, first of all, the idea is to play sound files which could potentially be purchased in the form of a CD or downloadable file. Of course, if user-created files can be created and played as well, one could simply record music from a CD or downloaded file and then play it. A music player can’t know the difference. (Also, Skype isn’t technically an audio player.) But let’s stick with the fundamental feature of an audio player (not a sound editor or recorder). Even so, unless the music file itself has some sort of DRM that the audio player looks for (which can be spoofed, BTW), audio players can’t tell the difference between an authentic, legally obtained file and a pirated copy. It also cannot tell how or where it’s being used, so I could just plug my computer to a speaker and play a legally obtained copy of a song for many to hear, which I’m pretty sure could be a public performance and thus infringing on copyright. Again, there is no way for the makers of the software to stop or prevent this from happening without removing every single feature from the audio player that makes it work at all.
Video editing falls in the same trap. There is nothing preventing me from using that camera to record a live performance or a prerecorded video and then editing or viewing it in the video editor. Video editors can’t tell whether I recorded something I made or something made in Hollywood. As for preventing Hollywood’s movie content from being transferred, in addition to the very easy workaround I mentioned earlier, that isn’t something the makers of the video editor can do. It would be incumbent on the makers of the movie to include some form of DRM to distinguish it from user-created video files. (Also, outside of keyboard shortcuts, typing things like file names, and macros, keyboards aren’t really used to edit videos, so that stuff about keyboard inputs makes no sense.)
Everything I’ve mentioned is easy to do, BTW.
Basically only the keyboard input can be ensured to be legal content.
Keyboard input can’t be ensured to be legal content. In addition to the aforementioned method for text editors, there are many programs that can be used to tell the computer that it has received input from a keyboard without actually tapping the corresponding key on the actual keyboard. It’s very trivial, and it can be used to automate typing. It wouldn’t be that difficult to create a script that triggers keyboard and mouse inputs in such a way that it uses some piece of software to create an infringing file. And there really isn’t a way to prevent this, either. Of course, the earlier example I gave works, too, and is completely impossible to detect, prevent, or stop.
well, I haven't created that kind of application yet, so I can't know all the legal tricks they need to use to make their activity legal.
Oo! Oo! I know! [inhales] None. They don’t use any legal tricks. Or, at least, most don’t. The vast majority of audio players, video editors/players, and text editors contain no restrictions to prevent, stop, or punish infringing uses, especially text editors. And even for the measures that do exist, they are really easy to circumvent, and it’s fundamentally impossible to prevent that.
The law doesn’t require them to do so, anyways, and failing to do so doesn’t open them up to liability. What measures do exist aren’t strictly necessary for the software itself to remain legal.
But in general, you just need to restrict the software enough that pirated use cases are not happening any longer. Every time you find people using your software for piracy, its time to redesign it until the usage becomes impossible.
Copyright law does not require, encourage, suggest, or incentivize developers to do so. It’s also futile, unnecessary, and harmful to creativity in general, and it punishes lawful uses and users more than it does infringers (since infringers will often find a way around such obstacles very quickly). (See, for example, DRM.)
At some point you might need to stop releasing the software completely, when the market matures enough that legal usage is no longer possible.
Well, then it’s a good thing that market maturity doesn’t change whether or not a particular piece of software is capable of being used legally and lawfully for legal, lawful purposes. No matter how many particular instances of infringing uses exist or are possible, that doesn’t change whether or not legal usage is possible. For example, every text editor can be used to create a new text file from scratch without copying anything you yourself did not create, every audio player can be used to listen to legally obtained sound/music files, every video player can be used to watch legally obtained video files, and every video editor can be used to legally edit video files you created yourself from scratch. There is no question that each and every one of those uses is legal, lawful, and noninfringing, and these are fundamental uses for those programs. Again, neither the number of pirated files available that can be accessed with the software nor the number of pirated files created using the software are relevant to whether or not legal usage is possible.
Uhhh, no. The default is that all content available on the internet is both usable and legal. The plaintiff has to first identify and prove copying or possibly infringing use as well as the material allegedly infringed upon, then the defendant can respond by asserting (and proving as necessary) that no copying occurred, that the copying/use was authorized/licensed by someone authorized to grant such a thing, the plaintiff doesn’t have a valid copyright in the copied/used material, or the copying/use is not infringing, whether it’s because it is de minimus, a case of scénes a faire, “fair use”, or a case involving the First-Sale Doctrine. Alternatively, the defendant may be able to prove copyright misuse and thus invalidate the copyright. Then the plaintiff has to refute the defendant’s claims. Regardless of the end result, the fact is that until a copyright holder identifies something has potentially infringing, it is presumed that everything is not infringing until proven otherwise.
Copyright law doesn’t say that using any of those things is illegal or unlawful. No court has ever ruled that any of them are and not been overturned on appeal.
And if you were right, that would only show how unworkable copyright law actually is. Under your claims and reason, the entire internet is completely unusable until every copyright holder in the world has examined everything on it and agreed it’s not infringing. That’s not at all how it works, there is no reason to believe that’s how it should work, and trying to make it work that way would be completely unreasonable and unrealistic.
Problem: software/a feature that by itself does not infringe can still be used to infringe. Additionally, many very basic and fundamental features are impossible to implement without creating the possibility of infringing uses, and those features are frequently used for perfectly reasonable, noninfringing, legal, lawful, ethical, and moral activities, even without getting into fair use, and are in very high demand.
Additionally, as any developer can tell you, the fact that two parts do not infringe/are not capable of being used to infringe by themselves doesn’t necessarily mean that combining the two will not create the ability to infringe. Sometimes, it’s not infringing to do one or the other, but doing both is. Other times, having both features may combine in such a way that may create unintended capabilities. Bugs do exist, and there’s a reason people have to not only test individual parts of a program for bugs but also entire program as a whole.
liability for infringement also falls on the developers
Assuming you mean developers of software that is capable of being used for copyright infringement (as opposed to developers of software that itself directly infringes on someone’s copyright), then no, liability for infringement generally does not fall on the developers. There are exceptions to that, where the devs clearly solicit or encourage infringement of others’ copyright, the software lacks any substantial capability for noninfringing use, or the developers had actual, specific knowledge of particular instances of infringement, already had the capability of doing something reasonable about it, and then did nothing at all, but those rarely happen nowadays and don’t really apply to software like Notepad++. So, as a general rule, developers of software capable of being used to commit or facilitate infringing activity are not liable for any infringement done using their software.
How copyright laws resolve this is that copyright holder can empty your wallet whenever they find copyright infringement of copyright holder's work.
That doesn’t exactly “resolve” anything. Setting aside the fact that points 1 and 2 don’t have any apparent contradictions between them, that doesn’t really address or explain how point 1 gets resolved.
Stephen wasn’t talking about the general knowledge that someone could use the software to infringe or the general knowledge that people have and continue to do so. He isn’t even talking about having specific knowledge of a particular instance of infringement that has already happened. He’s talking about having (or lacking) the specific knowledge that a particular (potential or current) user is or will at some point in the future commit an infringing act using the software before, during, or shortly after the act itself has already happened.
Whether the app can be used that way and whether the makers of the app are generally aware of that is immaterial. That doesn’t change the question of liability for copyright infringement, which requires having specific knowledge of the particular infringement/infringer and its infringing nature. And it’s worth noting that no court has ruled that simply having a copy/paste feature triggers liability if the makers don’t include any sort of countermeasures against infringers.
The makers of Notepad++ have no way to refuse to give anyone in particular a copy of their software.
They have no way of knowing beforehand who will or won’t use Notepad++ for infringing activities.
They have no way of tracking the activity of end users at all, let alone detecting any illegal or unlawful activity.
It’s generally impossible to know what software is used to modify pure-text files like those created with Notepad++ as opposed to essentially any other text editor.
There is no way for them to disable anyone’s copy of Notepad++.
Some of the reasons for those problems include:
Notepad++ is a free download and is open-source, so the makers have no way to control who downloads it.
Many sites that offer downloads for Notepad++ (and there is more than one thanks to reason 1) don’t keep records for who visits.
Notepad++ contains no tracking software at all.
Notepad++ doesn’t connect to the internet at all outside of looking for global updates or submitting bug reports if the software crashes, if that.
It’s fundamentally impossible to know beforehand who will or won’t infringe on copyright(s) by any means or use some software for other illegal or unlawful purpose(s)
It should also be noted that there is no legal requirement or legal incentive for makers of text editors to include such features for the purpose of stopping or preventing copyright infringement. If someone gets assaulted with a baseball bat, they can’t successfully sue the makers of the baseball bat over making the tool used in the assault, and the same would go for criminal liability.
And even assuming it’s possible to implement those features in Notepad++ that you suggested, that would not change the fact: they currently don’t implement any of them, there is no law saying they should, and no one has ever successfully sued the makers of Notepad++ (or any other text editor, really) for contributory infringement. This is all despite the fact that the software can and has been used for copyright infringement and yet neither the software nor the makers do anything to reduce or mitigate that, and even assuming that it is possible for them to do so.
Additionally, you actually say something that supports the idea that what you’re suggesting is completely ridiculous:
then you need to go to some other app if you want to continue your infringing activities.
Basically, no matter what the makers of Notepad++ do, there will always be some other app that infringers can turn to to continue their infringing activities. Trying to sue the makers of text editors (or pretty much any other software that can be used for infringement) for providing a software that can and probably has been used to commit some illegal or unlawful act (especially where the software is capable of lawful, legal acts, which is clearly the case with text editors) is like playing Whack-a-Mole: other options will pop up, and the amount of infringing content created will not go down. It’s a complete waste of time and money to even bother, and the people you’re suing didn’t actually do anything wrong.
Finally, you keep saying “illegal” activities/content as if infringing on copyright is a criminal act. However, outside of some rare circumstances, copyright infringement isn’t necessarily illegal; it’s unlawful, sure, but not illegal. (“Illegal” refers to criminal acts, whereas “unlawful” focuses more on civil liability. There is obviously a lot of overlap between the two, but copyright infringement is rarely a criminal act.) Also, both “illegal” and “unlawful” are extremely broad, whereas this discussion is narrowly focused on copyright, copyright infringement, liability for copyright infringement, and technology capable of being used for such purposes.
I mean, that’s great and all, but it has absolutely nothing to do with anything in this discussion. And WTF is “artificial quality improvement”, anyway?
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I was asking what calculations and sources were used to arrive at the 20% figure, not what hypothetical situation would lead to it. I’m asking you to show your work and prove that claim.
Additionally, you seem to thing that 20% is a lot. It’s not. That’s still 80% that is not infringing, and that means the authors have no legal requirement to enforce copyright beyond DMCA notices for content that they host or link.
Furthermore, as I’ve said, there are some cases where it’s impossible to make a dent in the number of pirates without making software completely unusable, like text editors. Pirates aren’t that easily discouraged, and once one is successful, it becomes fairly trivial for everyone else.
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Look, URLs are just addresses. That they may point to something illegal doesn’t make them illegal.
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Um, no. HTML and MS Word don’t require such things (I’ve never used either document templates or a “list of contributors” section in any documents I’ve created and never encountered problems because of it), it is not easy to distinguish noninfringing content from infringing content, and none of that applies to plain text editors, which don’t use any formatting or templates at all. MS Word is a word processor, not a text editor; it allows for formatting, templates, fonts, additional information, etc. HTML is a markup language used for formatting web pages; it is not a text editor or a word processor. You can certainly type using HTML in a text editor, but the text editor wouldn’t actually do any formatting or anything else with it; it gets treated like any other text and doesn’t get handled. (The same goes for LaTeX; all it does is tell some program how to format something; it isn’t a program itself at all, let alone a text editor, and text editors don’t treat it any differently from regular, unformatted text.) So in addition to the fact that those enforcement measures don’t actually exist, none of what you’re talking about actually involves text editors.
Also, compilers don’t check copyright info (I’ve checked) aside from licensing the compiler itself, so they have nothing to do with copyright enforcement. Quote marks predate copyright law by at least a few centuries, and even nowadays I’ve never encountered any program that checks them outside of making sure that I close every quote I open and formatting the quotation marks based on whether they open or close the quote, both of which can be ignored or even turned off entirely, so they clearly have nothing to do with enforcing copyright, either. In fact, quote marks have nothing to do with whether something is infringing or not, nor do citations or crediting authors/contributors (except for Creative Commons or similar copyleft licenses); that’s all regarding plagiarism, which is a completely separate topic.
And then there’s the fact that you once again ignore the possibilities of using original content and the ability to lie.
So you’ve discussed how non-text editors supposedly enforce against what you call copyright infringement but would actually be plagiarism, despite the fact that they don’t actually do what you claim, and also cited other measures (including one that also actually involves stopping plagiarism) that are actually not used to enforce or check copyright at all. Since we were talking about text editors and copyright enforcement or infringement in the real world, you’re getting pretty off-topic. As a reminder, a text editor would be a program like MS NotePad or Notepad++.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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I’d like to know where that 20% figure comes from, but it’s not even all that relevant. No matter what countermeasures you put in place, there will always be a way to circumvent it. Studies have shown that stronger anti-piracy measures don’t cause much—if any—significant reduction in the prevalence of piracy in all but the very short term. Often, anti-piracy measures will actually lead to an increase in piracy if the measures inconvenience legitimate users too much.
You have also not provided any reason based on US copyright laws that would necessitate these countermeasures.
I also wouldn’t consider 20% to be that useful a figure without more context. If the vast majority of the infringing files are only accessed and accessible to a very small portion of internet users, then not much damage is actually being done since only a few are even using the pirated version to begin with. I also have no idea if we are talking about distinct files or files period.
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There is no way for a text editor to know whether or not a given piece of text needs a citation, licensing information, etc., as opposed to being created from scratch. Plus, a lot of text editors don’t support any sort of formatting or markup; this is plain text we’re dealing with, after all. And what LaTeX does cannot be extended to filtering out infringing material for the basic reason that it cannot know what material is infringing, created completely new, or in the public domain. There is also no way for any text editor or LaTeX compiler to know that any citations or licensing info or such are accurate or honest.
Also, LaTeX isn’t a plain-text editor like we’ve been discussing. It is a method of formatting text.
But seriously, you don’t seem to understand that not everything that can be used in a text editor needs to be cited or licensed, that people can lie, that text editors (and any other software or program) cannot tell content that needs to be cited or licensed from content that doesn’t, nor can it tell truth from lies, that copyright law has way more nuance than you seem to realize, or that no text editor has such features like you proscribe and yet none have been sued.
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The arguments in that area didn’t fail. You just don’t seem to grasp that audio players, video editors, and text editors do not fit within the scheme you envision, so this AC decided to go with something more tangible and easier to understand. Also, if I can do it with pencil and paper, then I can also do it with a text editor or basic drawing software, so if you can’t refute the pencil-and-paper argument, then it can also apply to the text editors discussed previously.
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No, it’s because you cannot stop every instance of infringement using any computer service. You are expecting things that are fundamentally impossible on the basis that not doing so creates liability in some alternate reality where copyright laws exceed the wildest dreams of copyright maximalists and are divorced from any semblance of reality, reasonableness, fairness, equity, justice, or common sense, and where computers are magical devices capable of, among other things, reading minds, predicting the future, and making complex decisions that involve a tremendous amount of nuance and subjectivity that our real-world computers simply cannot do with anything approaching accuracy or consistency. I also don’t think that copyright law is infallible and free of abuse, nor is it strictly necessary for people to innovate or create new works (even if it can encourage it).
Basically, I’m just being realistic.
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As I’ve said several times, very fundamental features that are not infringing can still be used to infringe. Like typing text using a keyboard into a text editor and then printing or uploading the resulting file.
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Actually, those “killer features” were things like listening to a prerecorded or user-recorded sound file, recording and/or editing a home video, copy/pasting your own work, printing and/or uploading text or photos you created, and the very basic function of typing on a keyboard to record words, numbers, sentences, code, etc. into a text-based file. Y’know, pretty basic features that are in common use and are generally used for noninfringing purposes but that can be used for infringing purposes no matter what countermeasures are implemented. It’s unavoidable.
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The URL still wouldn’t be infringing on copyright. There have been cases about this.
But really, my point was that you keep talking about infringing URLs, and that makes no sense, particularly in any of the cases that have been mentioned.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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That wasn’t what you said before. You said that by simply using a service deemed to be unlawful due to contributory/vicarious infringing, even if that specific use doesn’t involve doing anything that would infringe on copyright directly or using pirated material, the end user is still liable for copyright infringement. That is, since the service itself indirectly infringes, everyone who uses that service at all is also infringing.
Well, that is the nature of “piracy services” (i.e. services specifically designed for the specific purpose of committing and/or facilitating piracy, not ones that can incidentally be used to commit or facilitate piracy); since the whole point of the service is to pirate, you kinda have to expect that you will end up committing piracy. That said, that doesn’t actually address anything I said. I was talking about end users using a service without engaging in piracy themselves or encouraging others to do so.
I can tell you right now that that often is not the case. They will often sue authors of the services before or together with the end users. Additionally, the lawsuits against the authors of the services are rarely successful. For all of its faults, the DMCA does a pretty decent job of protecting intermediary services and the like from liability, as does the rest of copyright law.
First, again, such lawsuits of the service itself rarely succeed. Usually, the best case scenario for the plaintiffs of such lawsuits is a settlement (often without admitting any wrongdoing), and you generally can’t use a settlement as proof that the service is unlawful.
Second, that argument would only even remotely reasonably apply to users who continue or begin using the service after the success of the lawsuit against the service has been made public. It wouldn’t apply to users who only used the service before or during the lawsuit.
Third, I have never heard of anyone actually suing every user of a service under such a theory. Not only are successful copyright lawsuits against services pretty rare, but I don’t know of any lawsuit that argued that the user should have known that the service was unlawful.
Fourth, if the users weren’t themselves directly infringing, I cannot think of any existing liability that they would be exposed to for using that service. Neither contributory nor vicarious liability for infringement use such a standard. For one thing, those both would require particular knowledge of, clear encouragement of, or direct involvement with direct infringement. Liability for infringement doesn’t really exist for such a tenuous connection as one between two different users with no connection other than that they both used this one service, and a user cannot be found liable for anything that the developer did, either.
Fifth, for direct liability, you’d still have to prove that each of the individual users themselves actually committed direct infringement of copyright that you own. The previous lawsuit against the services may be evidence that the user was likely to have committed direct infringement of somebody’s copyright, or that any infringement was willful when calculating damages, but that’s not enough to prove that you, personally, (or the client you represent) have standing to sue each individual user for direct infringement, even if each one has committed direct infringement of someone’s copyright at some point. You have to prove that not only did they directly infringe on someone’s copyright, you also have to prove that you have standing to enforce the specific copyright that was allegedly infringed upon by these specific plaintiffs. Even if some other user was found to have directly infringed on your copyright, the service itself was found contributorily and/or vicariously liable for infringement, and the defendant did, in fact, use that particular service at some point after that lawsuit was resolved to infringe on a different person/entity’s copyright on some other material that you have no copyright ownership of or exclusive license for (or copyright of unknown ownership or an unknown/unidentified copyright on some unidentified material), that is not enough to find that this user has direct liability for infringement on your copyright. As noted in my fourth point, it’s not even enough to make them contributorily or vicariously liable for infringement on your copyright. That’s not how liability and standing work in any aspect of law.
Look, there has to be something that the defendent(s) personally did that specifically and adversely affected the plaintiff(s) personally and that was unlawful, or the defendant(s) must have materially contributed to someone else who personally did something that specifically and adversely affected the plaintiff(s) personally and that was unlawful. (There’re also cases involving a duty of care, but that doesn’t really make sense here; there is no duty of care owed by a user of a service to a copyright holder involving copyright at all.) None of that really applies in this scenario involving someone suing someone else solely because they used a service that was found liable (directly, contributorily, and/or vicariously) for infringement of the plaintiff’s copyright (even if they prove that the defendant used that service to infringe on yet another person’s copyright after the service was found liable). There needs to be more than that for the plaintiff to have a case against that defendant.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Well, with text editors, humans have these things called eyeballs, which they can use to read copyrighted text. Then, using their hands on the keyboard you mentioned, they can then copy, word-for-word, the entirety of the copyrighted text. Bam! They just used a text editor to create copy of a copyrighted book. And you can always print or upload any text file that you create, they can then publish that copy, thus clearly committing copyright infringement. There is no way to prevent this from happening, either.
With audio players, first of all, the idea is to play sound files which could potentially be purchased in the form of a CD or downloadable file. Of course, if user-created files can be created and played as well, one could simply record music from a CD or downloaded file and then play it. A music player can’t know the difference. (Also, Skype isn’t technically an audio player.) But let’s stick with the fundamental feature of an audio player (not a sound editor or recorder). Even so, unless the music file itself has some sort of DRM that the audio player looks for (which can be spoofed, BTW), audio players can’t tell the difference between an authentic, legally obtained file and a pirated copy. It also cannot tell how or where it’s being used, so I could just plug my computer to a speaker and play a legally obtained copy of a song for many to hear, which I’m pretty sure could be a public performance and thus infringing on copyright. Again, there is no way for the makers of the software to stop or prevent this from happening without removing every single feature from the audio player that makes it work at all.
Video editing falls in the same trap. There is nothing preventing me from using that camera to record a live performance or a prerecorded video and then editing or viewing it in the video editor. Video editors can’t tell whether I recorded something I made or something made in Hollywood. As for preventing Hollywood’s movie content from being transferred, in addition to the very easy workaround I mentioned earlier, that isn’t something the makers of the video editor can do. It would be incumbent on the makers of the movie to include some form of DRM to distinguish it from user-created video files. (Also, outside of keyboard shortcuts, typing things like file names, and macros, keyboards aren’t really used to edit videos, so that stuff about keyboard inputs makes no sense.)
Everything I’ve mentioned is easy to do, BTW.
Keyboard input can’t be ensured to be legal content. In addition to the aforementioned method for text editors, there are many programs that can be used to tell the computer that it has received input from a keyboard without actually tapping the corresponding key on the actual keyboard. It’s very trivial, and it can be used to automate typing. It wouldn’t be that difficult to create a script that triggers keyboard and mouse inputs in such a way that it uses some piece of software to create an infringing file. And there really isn’t a way to prevent this, either. Of course, the earlier example I gave works, too, and is completely impossible to detect, prevent, or stop.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Oo! Oo! I know! [inhales] None. They don’t use any legal tricks. Or, at least, most don’t. The vast majority of audio players, video editors/players, and text editors contain no restrictions to prevent, stop, or punish infringing uses, especially text editors. And even for the measures that do exist, they are really easy to circumvent, and it’s fundamentally impossible to prevent that.
The law doesn’t require them to do so, anyways, and failing to do so doesn’t open them up to liability. What measures do exist aren’t strictly necessary for the software itself to remain legal.
Copyright law does not require, encourage, suggest, or incentivize developers to do so. It’s also futile, unnecessary, and harmful to creativity in general, and it punishes lawful uses and users more than it does infringers (since infringers will often find a way around such obstacles very quickly). (See, for example, DRM.)
Well, then it’s a good thing that market maturity doesn’t change whether or not a particular piece of software is capable of being used legally and lawfully for legal, lawful purposes. No matter how many particular instances of infringing uses exist or are possible, that doesn’t change whether or not legal usage is possible. For example, every text editor can be used to create a new text file from scratch without copying anything you yourself did not create, every audio player can be used to listen to legally obtained sound/music files, every video player can be used to watch legally obtained video files, and every video editor can be used to legally edit video files you created yourself from scratch. There is no question that each and every one of those uses is legal, lawful, and noninfringing, and these are fundamental uses for those programs. Again, neither the number of pirated files available that can be accessed with the software nor the number of pirated files created using the software are relevant to whether or not legal usage is possible.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Uhhh, no. The default is that all content available on the internet is both usable and legal. The plaintiff has to first identify and prove copying or possibly infringing use as well as the material allegedly infringed upon, then the defendant can respond by asserting (and proving as necessary) that no copying occurred, that the copying/use was authorized/licensed by someone authorized to grant such a thing, the plaintiff doesn’t have a valid copyright in the copied/used material, or the copying/use is not infringing, whether it’s because it is de minimus, a case of scénes a faire, “fair use”, or a case involving the First-Sale Doctrine. Alternatively, the defendant may be able to prove copyright misuse and thus invalidate the copyright. Then the plaintiff has to refute the defendant’s claims. Regardless of the end result, the fact is that until a copyright holder identifies something has potentially infringing, it is presumed that everything is not infringing until proven otherwise.
Copyright law doesn’t say that using any of those things is illegal or unlawful. No court has ever ruled that any of them are and not been overturned on appeal.
And if you were right, that would only show how unworkable copyright law actually is. Under your claims and reason, the entire internet is completely unusable until every copyright holder in the world has examined everything on it and agreed it’s not infringing. That’s not at all how it works, there is no reason to believe that’s how it should work, and trying to make it work that way would be completely unreasonable and unrealistic.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Problem: software/a feature that by itself does not infringe can still be used to infringe. Additionally, many very basic and fundamental features are impossible to implement without creating the possibility of infringing uses, and those features are frequently used for perfectly reasonable, noninfringing, legal, lawful, ethical, and moral activities, even without getting into fair use, and are in very high demand.
Additionally, as any developer can tell you, the fact that two parts do not infringe/are not capable of being used to infringe by themselves doesn’t necessarily mean that combining the two will not create the ability to infringe. Sometimes, it’s not infringing to do one or the other, but doing both is. Other times, having both features may combine in such a way that may create unintended capabilities. Bugs do exist, and there’s a reason people have to not only test individual parts of a program for bugs but also entire program as a whole.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Assuming you mean developers of software that is capable of being used for copyright infringement (as opposed to developers of software that itself directly infringes on someone’s copyright), then no, liability for infringement generally does not fall on the developers. There are exceptions to that, where the devs clearly solicit or encourage infringement of others’ copyright, the software lacks any substantial capability for noninfringing use, or the developers had actual, specific knowledge of particular instances of infringement, already had the capability of doing something reasonable about it, and then did nothing at all, but those rarely happen nowadays and don’t really apply to software like Notepad++. So, as a general rule, developers of software capable of being used to commit or facilitate infringing activity are not liable for any infringement done using their software.
That doesn’t exactly “resolve” anything. Setting aside the fact that points 1 and 2 don’t have any apparent contradictions between them, that doesn’t really address or explain how point 1 gets resolved.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Stephen wasn’t talking about the general knowledge that someone could use the software to infringe or the general knowledge that people have and continue to do so. He isn’t even talking about having specific knowledge of a particular instance of infringement that has already happened. He’s talking about having (or lacking) the specific knowledge that a particular (potential or current) user is or will at some point in the future commit an infringing act using the software before, during, or shortly after the act itself has already happened.
Whether the app can be used that way and whether the makers of the app are generally aware of that is immaterial. That doesn’t change the question of liability for copyright infringement, which requires having specific knowledge of the particular infringement/infringer and its infringing nature. And it’s worth noting that no court has ruled that simply having a copy/paste feature triggers liability if the makers don’t include any sort of countermeasures against infringers.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Here are some of the problems with that:
The makers of Notepad++ have no way to refuse to give anyone in particular a copy of their software.
They have no way of knowing beforehand who will or won’t use Notepad++ for infringing activities.
They have no way of tracking the activity of end users at all, let alone detecting any illegal or unlawful activity.
It’s generally impossible to know what software is used to modify pure-text files like those created with Notepad++ as opposed to essentially any other text editor.
Some of the reasons for those problems include:
Notepad++ is a free download and is open-source, so the makers have no way to control who downloads it.
Many sites that offer downloads for Notepad++ (and there is more than one thanks to reason 1) don’t keep records for who visits.
Notepad++ contains no tracking software at all.
Notepad++ doesn’t connect to the internet at all outside of looking for global updates or submitting bug reports if the software crashes, if that.
It should also be noted that there is no legal requirement or legal incentive for makers of text editors to include such features for the purpose of stopping or preventing copyright infringement. If someone gets assaulted with a baseball bat, they can’t successfully sue the makers of the baseball bat over making the tool used in the assault, and the same would go for criminal liability.
And even assuming it’s possible to implement those features in Notepad++ that you suggested, that would not change the fact: they currently don’t implement any of them, there is no law saying they should, and no one has ever successfully sued the makers of Notepad++ (or any other text editor, really) for contributory infringement. This is all despite the fact that the software can and has been used for copyright infringement and yet neither the software nor the makers do anything to reduce or mitigate that, and even assuming that it is possible for them to do so.
Additionally, you actually say something that supports the idea that what you’re suggesting is completely ridiculous:
Basically, no matter what the makers of Notepad++ do, there will always be some other app that infringers can turn to to continue their infringing activities. Trying to sue the makers of text editors (or pretty much any other software that can be used for infringement) for providing a software that can and probably has been used to commit some illegal or unlawful act (especially where the software is capable of lawful, legal acts, which is clearly the case with text editors) is like playing Whack-a-Mole: other options will pop up, and the amount of infringing content created will not go down. It’s a complete waste of time and money to even bother, and the people you’re suing didn’t actually do anything wrong.
Finally, you keep saying “illegal” activities/content as if infringing on copyright is a criminal act. However, outside of some rare circumstances, copyright infringement isn’t necessarily illegal; it’s unlawful, sure, but not illegal. (“Illegal” refers to criminal acts, whereas “unlawful” focuses more on civil liability. There is obviously a lot of overlap between the two, but copyright infringement is rarely a criminal act.) Also, both “illegal” and “unlawful” are extremely broad, whereas this discussion is narrowly focused on copyright, copyright infringement, liability for copyright infringement, and technology capable of being used for such purposes.
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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I mean, that’s great and all, but it has absolutely nothing to do with anything in this discussion. And WTF is “artificial quality improvement”, anyway?
On the post: Copyright In The Modern Era: Fortnite Lets Players Mute Emote To Avoid Auto-Copyright Claims Against YouTubers
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Or the makers of any software that accepts or creates files in any of those formats.
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