Comment by zenoprax | Hacker News Reader

Comment by zenoprax | Hacker News Reader

> If a company, or group of companies, won’t offer a piece of work for sale, can’t be bothered to understand what they own of it, if anything, and have no plans to figure any of that out… then how can this be copyright infringement?

The answer to the question in the quote is: "It's not until someone wins a lawsuit."

The federal government recognizes, and will protect through legal enforcement, an exclusive right of the intellectual property holder to control its distribution.

Copyright infringement only occurs when a court rules that it has because that is the only mechanism through which intellectual property holders can claim a legal right. It is not a "natural right".

Streaming from a "piracy" site is effectively legal for the viewer because they are not infringing on any distribution or resell rights (but the hoster is). If Netflix is mistakenly giving access to all seasons of a show when it only paid for the latest one, how could anyone call the unknowing viewer who is watching Season 1 a pirate?

"Abandonware" pushes this idea even further: as long as there is no reasonable expectation of a successful infringement case being brought against anyone then distribution is also without consequence. Perhaps there is a statue of limitations that might definitive codify this or a "defend or lose it" stipulation as exists with trademarks.

If none of the company has any document to prove ownership, because according to the article they lost them, how could they win a lawsuit?

That is the gap in the argument of the parent. At least in the US already the threat to sue for copyright infringement has almost such a strong impact as a won lawsuit. You can also see that with things like the DMCA. This is often adhered to, even in ridiculous cases.

It isn’t that they don’t have the documents, it’s that they don’t know if they have the documents and they’re not going to bother to look until there’s a reason to. If someone made the game, presumably they’d call up Iron Mountain and start digging.

Making a game is enough of an investment that you wouldn’t do it if you knew you had a high likelihood of being sued by legitimate rights holders as soon as you started making the news. Digging through paper records from decades ago is enough of an investment that you wouldn’t do it unless you had a reason to also.

Classic stalemate.

A "defend or lose it" rule would have bad consequences, I suspect, except for certain types of lawyer who might benefit enormously.

I think it might be better if the recipient of such vague threats were able to themselves initiate a court case to clarify the matter. The party making vague threats might be ordered by the court to either produce their evidence within six months or give up their claim by granting a public licence or whatever.

But it's hard to see all the consequences of rules like that and there are plenty of lobbyists able and willing to provide bad advice to legislators.

You already can do this. It’s called a declaratory judgment.

You say “unknowing” as if that’s a defense, but last I check you could still be charged with a crime even without being aware of it before hand. The punishment would likely be more lenient if you can convince the judge effectively that you had no knowledge, but you’re still going to court if caught.

The reason the viewer in your example is not liable though is because there is no reasonable expectation that viewers should (or even could) verify that Netflix held the rights to season 1. The license that the viewer has to access any media is between them and Netflix, not between them and each individual media rights-holding company.

Sorry for the tangent.

Not a tangent – this is exactly the point I was trying to make but perhaps did not do so as clearly as you did. The infringement is always about distribution, not consumption.

"It's not stealing if you refuse to sell it to me" is a pretty sketchy line of thinking in my opinion

Who is stealing what? Who is losing what because it was taken away? Am I stealing the Mona Lisa because I took a photo of it?

It's not stealing if you make a copy and no-one is deprived of their copy. I hate the way the copyright holders have pushed the "copying is theft" narrative so much that people have internalised it.

"It's not illegal copying if you refuse to sell me a copy" doesn't really sound any better to me.

It is though, because no one is a victim in that transaction. Nobody lost anything and nobody suffered any loss of potential profit because they actively refused said profit.

I'm not fussed about how it sounds (or whether it appeals to your sense of justice), but it's a case of using the correct words. Stealing/theft involves intentionally depriving someone of the object and that's clearly not what happens when someone makes a copy.

Personally, I am not a fan of "intellectual property" laws such as copyrights and patents as their original intention doesn't seem relevant anymore and instead they've become a tool of corporations to increase their profits (often at the expense of the creative people that actually produce the works). Copyright only works properly when the creative works get released into the public domain and that is not going to happen with NOLF (and a lot of computer games) and so the public are being denied their side of the copyright deal.

"It's not copyright infringement if it's never going to be released into the public domain in a usable form" would be a better statement of my thinking.

I normally agree, but in this case the three companies in question aren't refusing to sell, they're threatening to sue if someone does anything with something that they have no idea if they even have rights to.

If nobody has the de facto rights, them there's nobody to steal it from.

"Not knowing if you own the IP" doesn't mean "you don't own the IP." Doesn't change the theft. But does make a argument that companies, with no interest in selling a media, should think about giving it away.

No one has the right to someone else's IP. If Disney decides to pull all their shows and shut down then there could be no legal way to watch it other than pre-existing DVDs/BluRay.

The issue at hand is the absence of a legal owner. It should fall into a commons for public use until someone can prove ownership. Eg. abandonware.

Sooo if you don't defend it, you lose it

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