Wednesday, December 26, 2012
Not that this has ever happened to me
Major media outlet receives review copy; along with the
review, invites online readers to read an excerpt; it has permission to offer
an excerpt. Through inadvertence, though
the file is called “excerpt.pdf,” it is in fact the entire book. (Assume the inadvertence is on the part of
the major media outlet, not the publisher, though it could easily be the latter,
especially if the publisher was given the choice of what excerpt it wanted to
share.) The media outlet posts its
review online, with the not-excerpt hosted on its servers; now the book is out
in the open. Given strict liability, is
the media outlet liable for copyright infringement? What happens to the reader who only wanted to
read an excerpt in order to decide whether to purchase the full book but
downloaded what turned out to be the full book—is she an infringer? Ignorance is no excuse, and the download was
volitional, but how about mistake of fact?
Can we distinguish between “I mistakenly think my conduct is authorized”
(whether by operation of law or by a license) and “I mistakenly think my
conduct will result in a different copy than it does”? Separately: If the publisher is at least
partly responsible, does the author have a cause of action against the
publisher for something like waste?
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