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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