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Comment by marsdepinski | Hacker News Reader

Isn't that public performance and doesn't that require the police dept to pay royalties?

> Isn't that public performance and doesn't that require the police dept to pay royalties?

Yes, but under current law, states can ignore the royalty requirement with impunity: "[C]opyright owners suffering infringement by state entities cannot seek the remedies provided by the Copyright Act." [0]

Police departments are almost certain to be held to be state entities, I'd think, and therefore immune from individual personal liability for copyright infringement liability.

And the doctrine of "qualified immunity" might shield the police officer from personal liability for infringement as well.

But I haven't looked into this specific issue.

(Usual disclaimer: I'm an IP lawyer but not your lawyer.)

[0] https://www.copyright.gov/policy/state-sovereign-immunity/

I thought a state entity referred to the State government. Police departments are run by the local city or county government.

> I thought a state entity referred to the State government. Police departments are run by the local city or county government.

For this purpose, city- and county governments and their various departments are regarded as subdivisions of the state.

In this case the definition of state that applies is "a politically organized body of people usually occupying a definite territory". In other words, any government generally.

From the point of view of federal Constitutional law (except provisions designating powers or obligations to particular state bodies, of course) all elements and administrative subdivisions of states are part of the state government, even though each has its own separate legal personality.

I know the purpose of this is really to avoid the clip going viral but I’m curious whether there have been any cases addressing whether this situation could fall under fair use with respect to the person recording? Videos like this are usually newsworthy (and not made for commercial purposes) and the copyrighted material is incidental to the purpose of the recording.

I suppose I’m wondering whether this is an actual potential legal issue for the people making/posting these videos or whether the only issue is the headache of YouTube’s takedown process? If someone posts a video like this how likely is it they’ve infringed on someone else’s copyright? Being careful not solicit legal advice maybe a better question is, what factors would be relevant to weighing whether or not the video infringes on the copyright?

I guess it’s difficult for me to wrap my head around how there could be infringement without the (intentional?) misappropriation of the work.

> whether this situation could fall under fair use with respect to the person recording?

IMHO the person posting the YouTube video with the Taylor Swift song in background would have an excellent shot at a fair-use defense against any claim of infringement of the copyright in the song or the recording (which could be two different things). See, e.g., https://fairuse.stanford.edu/overview/fair-use/four-factors/

I also strongly suspect that the owner of the copyright(s) in question would think very hard before making an infringement claim in the first place, for fear of the adverse publicity.

> I also strongly suspect that the owner of the copyright(s) in question would think very hard before making an infringement claim in the first place, for fear of the adverse publicity.

Except the entity that would make an infringement claim is an algorithm, not a person

> what factors would be relevant to weighing whether or not the video infringes on the copyright?

"As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner." https://www.copyright.gov/help/faq/faq-definitions.html

See also a useful FAQ-style article, especially Myth #4: https://www.americanbar.org/groups/intellectual_property_law...

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> I guess it’s difficult for me to wrap my head around how there could be infringement without the (intentional?) misappropriation of the work.

Intent isn't a factor in determining whether infringement exists (as opposed to whether a fair-use defense is available). "The U.S. Copyright Act is a strict liability statute. In other words, following a “rule” that you believe to be true but which turns out to be a myth will not excuse you from liability for infringement. Under certain circumstances, it is possible to plead “innocent infringement,” but even that only serves to reduce the amount of damages you may owe and does not excuse your infringement." (From the ABA "Myths" article cited above.)

I don't want to argue the case on the video, but I am curious. If I have legally obtained copy of a song and I play it so that people I do not know hear it is it considered illegal.

Some scenarios:

A) like here, I just play on my phone. Idea is that it is for myself, say I left my earphones at home, but I just need my tunes.

B) I have my open headphones on, so the music is clearly audible to anyone near by me

C) I have earbuds (no sound for people near by), but they get disconnected and my phone goes on speaker

Intent matters in these cases.

I guess there hasn't been a court decision on "playing music publicly with intention of blocking someone from uploading to Youtube"

Could the copyright owner, like Taylor Swift, also waive the usage of her song?

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