18 ms·

> What I don’t know is if him having original thought versus attempting to copy matters. If I publish a poem, and then you try to publish the same words even if

by hansvm 5y ago

> What I don’t know is if him having original thought versus attempting to copy matters. If I publish a poem, and then you try to publish the same words even if you didn’t intend it to be a copy, then you’re still committing a copyright violation regardless of intent. That's the case for, e.g., patents, but it is explicitly not how copyright works. Clean-room reproductions are valid defenses.

after_care 5y ago
I'm unsure "clean-room defense" can apply to a melody from a top 10 song.
- hansvm 5y ago
  The court just has to weigh all the evidence. A lot of people have heard top-10 songs, so it would be hard to prove true independence. At an extreme though, if you could prove that somebody was perfectly isolated (e.g., if they had video evidence of not being exposed since that top-10 song was produced), a clean-room implementation from that individual would satisfy copyright law (mostly, give or take the as-of-yet mostly legally untouched minefield of deep-fakes). The only real question is where courts would draw a line between that kind of conclusive evidence and some random Joe pinky-swearing they produced the latest Taylor Swift hit in their garage and that it's accidentally kind of similar.
otterley 5y ago
> Clean-room reproductions are valid defenses No such defense exists. If you tried making your own Mickey Mouse cartoon, Disney would pursue a copyright infringement case against you and would almost certainly prevail. (There are some fair-use defenses permitted like parody, but mere “clean room reproduction” is not one of them.) (IAAL but this is not legal advice. Consult a licensed attorney if you want legal advice - most definitely NOT HN.)
- hansvm 5y ago
  Which isn't to say that clean-room isn't a valid defense, but rather that it's unlikely that somebody would (or could) independently produce something very similar to Mickey Mouse -- especially since nearly everyone had seen Mickey Mouse, so such an implementation would probably be tainted. If you can prove that you independently created that idea then it's still a valid _copyright_ defense (not a lawyer, yada yada).
  - otterley 5y ago
    There's a lot of necessary legal analysis missing here, and independent creation of an idea plays no part in it. Copyright protects creative expressions (i.e., artistic works), not mere ideas. I think what you’re trying to say is that independent creation would be a basis to deny a prima facie copyright infringement claim: there is no infringement because no copy has occurred. But that’s a different thing than an affirmative defense. A defense is something you raise after admitting the truth of the claim: you’re basically saying, “yes, I did it, but I’m justified because XYZ.”

by hansvm 5y ago

after_care 5y ago

I'm unsure "clean-room defense" can apply to a melody from a top 10 song.

hansvm 5y ago
The court just has to weigh all the evidence. A lot of people have heard top-10 songs, so it would be hard to prove true independence. At an extreme though, if you could prove that somebody was perfectly isolated (e.g., if they had video evidence of not being exposed since that top-10 song was produced), a clean-room implementation from that individual would satisfy copyright law (mostly, give or take the as-of-yet mostly legally untouched minefield of deep-fakes). The only real question is where courts would draw a line between that kind of conclusive evidence and some random Joe pinky-swearing they produced the latest Taylor Swift hit in their garage and that it's accidentally kind of similar.

otterley 5y ago

> Clean-room reproductions are valid defenses No such defense exists. If you tried making your own Mickey Mouse cartoon, Disney would pursue a copyright infringement case against you and would almost certainly prevail. (There are some fair-use defenses permitted like parody, but mere “clean room reproduction” is not one of them.) (IAAL but this is not legal advice. Consult a licensed attorney if you want legal advice - most definitely NOT HN.)

hansvm 5y ago
Which isn't to say that clean-room isn't a valid defense, but rather that it's unlikely that somebody would (or could) independently produce something very similar to Mickey Mouse -- especially since nearly everyone had seen Mickey Mouse, so such an implementation would probably be tainted. If you can prove that you independently created that idea then it's still a valid _copyright_ defense (not a lawyer, yada yada).
- otterley 5y ago
  There's a lot of necessary legal analysis missing here, and independent creation of an idea plays no part in it. Copyright protects creative expressions (i.e., artistic works), not mere ideas. I think what you’re trying to say is that independent creation would be a basis to deny a prima facie copyright infringement claim: there is no infringement because no copy has occurred. But that’s a different thing than an affirmative defense. A defense is something you raise after admitting the truth of the claim: you’re basically saying, “yes, I did it, but I’m justified because XYZ.”