The road to copyright court is paved with good intentions
It's the act of copying that's the crime, not the idea
Published 10:11, 30 January 12
As I pointed out in my last post, intention is irrelevant when determining whether someone is infringing copyright (assuming that the Temple Island case I mentioned is appealed, and the Court of Appeal does the right thing*).
I mentioned George Harrison's case: he was sued for infringement as Harrison's "My Sweet Lord" has a very similar riff to the Chiffon's "He's So Fine". "He's So Fine" was a well known song, and although the court accepted that although he had heard the song, Harrison hadn't consciously copied it, unconsciously he may well have done (or to meet the civil standard of proof, it was more likely than not he had done). Copying had occurred, and Harrison was liable, irrespective of whether it was conscious or unconscious.
Now let's try a thought experiment.
You legally download a bunch of (non-copy protected) MP3s onto your computer from a legitimate source like Amazon or iTunes or 7digital. The licence allows you to use and copy the MP3s for the personal use of yourself and your family, but does not allow you to share them with third parties. You buy a new computer, and decide you are going to sell your old computer to a mate, so being a law-abiding sort of bod, you dutifully delete all the MP3s (having copied them to your new computer, as allowed by the licence) and then give the computer to your mate.
Your mate runs an undelete utility, and suddenly has access to your MP3 library. Wahey! Of course, your mate won't have a licence to these works, so her use will be infringing, but that's not the point here.
The question is, are you breaching your licence to the MP3s as soon as you pass the old computer on to your mate? That breach may have the effect of terminating your own licence to use the MP3s. It would seem pretty unreasonable that you were in breach if you thought you'd deleted them. What if you did know that the delete was likely to be reversible, but didn't think your mate had the technical prowess to undelete them? What if you did you know your mate had that prowess? Was likely to undelete? What if you told your mate (nudge nudge) that the files had been deleted, but not wiped? There's a pretty clear scale of culpability here, but the traditional view is that in all cases, you would be in breach of your licence.
Pedants may notice that this analogy is imperfect - that the intention is not in relation to breach of copyright per se, but to infringement of the licence which attaches to it, and the copyright infringement only occurs as a secondary consequence of the licence infringement. Fair enough. There may be a distinction there. It's possible to create a similar scenario where we are looking directly at copyright infringement, but as the facts are likely to look a little more strained, the analogy is not as immediately resonant.
Let's look at our original scenario. You mate receives your old PC from you, and knows nothing about its previous content, and doesn't care to run an undelete utility on it. Nonetheless, she's a bit of a resilience freak and decides to install another hard disk and mirror it (RAID1). The controller dutifully copies the content of the old drive to the new one on a sector by sector basis, including the infringing MP3s. Is she liable for infringement of the copyright works being copied during the mirroring process, even though she's unaware even of the existence of those works? It would seem pretty unreasonable if she was, yet traditional copyright law suggests she should be.
How about the firmware of the old hard drive detecting that a sector is about to become bad, and moves it. The old sector happened to be part of an infringing MP3. It's copied in breach of copyright law. Is she liable for infringement now, even though she not only was unaware of any infringing files on the system, she also did not initiate any action (like kicking off a disk mirroring process) which involves a copying process?
It's not too fanciful to see that these sort of events (okay, possibly not the HDD self-healing routine one) might be part of a chain of occurrences which results in the release of very high value information (such as a digital file containing an as-yet unreleased major feature film, or the source code to Excel). In that case, should the unknowing perpetrator be liable for the infringement? Or will the courts change the law to avoid clear injustice?
* In case you think my statement in the first sentence about the Court of Appeal "doing the right thing" is inconsistent with the rest of the piece: the Court of Appeal should rule to make it clear that intention to emulate should not render infringing that which would not otherwise have been infringing. The argument in the rest of the piece is that if the infringer has no knowledge of the copying taking place, that should not amount to infringement.