are you and your parent referring to me by "they" (as a gender-neutral term)?
What I meant with my comment is that a pretty clear example of copyright would be, for example, hosting and including the copyrighted content. (If the content is literally on the hosting server - posting full text is obviously an example of this. Hosting full images is another example.)
A less clear example would be hotlinking. (So that the pictures are loaded and shown by the browser, and it appears to be part of the article, but is in fact an offsite image anchor.)
An even less clear example would be a URL link. That is what we're reading about. But What if it's not clickable? (hxxp:// whatever(dot) whatever - replace hxxp with http and (dot) with . -- what then?)
An even less clear example is telling you explicitly what Google search to search for, and how you can know that you've found it. (e.g. words like "Search Google for leaked playboy pictures from 2011, and click on the first link, which should be a site named after a fish." - I'm making this up.)
But a less clear example still would be "It's easy to find. Just search for [vague reference but one that is clear enough]"
So you want to use the standard of "mens rea."
How can we REALLY judge what someone's reason might be?
For example, it could be that the real reason to report on something is so that interested readers might find it.
Example: "The Pirate Bay is now hosting the entire (name something)". It could be that the primary reason to say that is that it provides people information that they can immediately use to start infringing the copyright of (something).
But what if it's couched in any other report?
"What the fact that the pirate bay is hosting (something) says about democracy and our copyright laws"? Should that be an illegal post to make?
You understand what I'm saying. It's an extremely slippery slope.
But one very, very clear line is: "are you ACTUALLY yourself hosting the content"? Because if not, then there's an actual target to shut down.
I guess it's like the difference between selling drugs, and saying "you know you can just ask the kids hanging out on the corner of 6th and 8th streets, they'll hook you up." Whether that latter shows criminal conspiracy or whatever, it doesn't really matter - you can actually just shut down the kids, you don't have to shut down the free speech around it or judge mens rea.. . .
Personally, I think not having mens rea as a standard is killing any possibility of user-generated content, since any such site could be convicted if any of its users posted an infringing work. The Safe Harbour provision is one of the few good parts of the DMCA, but it requires judging mens rea, and once you have to judge that, adding linking doesn't have bring any further issues.
In Brilliant v. W.B. Productions Inc., the court ruled that the phrase "I may not be totally perfect, but parts of me are excellent" was copyrighted. Under your black-and-white standard, without judging intention, HN would now be guilty of infringement. How could it continue to exist with this threat?
Mens rea might be hard to prove (and presumption of innocence should be applied), but strict liability becomes absurd.
I'm outside of my league with this mens rea discussion (didn't look into the details) but obviously the fact that you've performed what amounts to copyright infringement through quoting the phrase you discussed, is quite a different problem from this infringement link.
Let's make it explicit. The Pirate Bay is a common site for piracy, so I went there to get you this link:
What I did was go to the site, then I clicked "top 100" in the header, then I clicked "video | movies" and it was the second link, called "Captain America: Civil War (2016) English BrRip 1080p x264".
Actually you can also find it by googling "Captain America: Civil War (2016) English BrRip 1080p x264" and adding "site:thepiratebay.org" to your query.
Okay, now let's dissect what just happened.
Level1: Firstly, under traditional interpretations of copyright law, the entirety of the present comment (the whole of this comment you're reading) is not infringing on any kind of copyright. I didn't even quote your purposefully short problematic phrase, which you chose because it has been found to be worthy of copyright protection despite its brevity (i.e. similarly protected as a longer work, such as a novel or article). There's nothing copyrighted in this comment, I just authored it out of thin air. I didn't reproduce anything, or include the phrase you held to be protected. I typed it all as a new work.
Level2: Next: I've actually included a link to infringing materials, though. Now am I guilty of some kind of accessory to copyright infringement? My link is actually similar to the article we're discussing. This "level 2" infringement is occurring in the present comment, but if I were to remove the line that starts with an asterisk it would no longer be level 2 infringement. There would no longer be any URL in this comment.
Level3: But, thirdly: what if you remove my link? I've still given you enough information to get to it exactly. The line immediately after the asterisked line tells you exactly how to get there. It just adds 15-45 seconds of inconvenience versus a simple click, and maybe a 20-50% chance that you fail to follow my instructions if you choose to try to do so.
In fact, other than the level-1 line in the sand (which this comment doesn't cross, since I'm not reproducing anything including the short problematic protected phrase you quoted) the rest of the lines in this comment are completely and utterly murky.
Okay, so you've given a tangential example where your comment actually crosses the level-1 line, due to reproducing the phrase "I may ...excellent". Obviously that is an extreme example, but we don't really need to discuss it. Because this present comment (that I'm writing) does not cross that standard. It does, however, cross the level 2 and level 3 standard.
And those lines are murky as hell. There is just nothing there to draw the line at: "THIS is what you're allowed to write; THIS is what you're not."
It has nothing to do with reproducing content - it's about reference to where copyrighted works are available.
I welcome your thoughts as you do know more about this than I do however.
>I don't think it's murky - according to the court, all of those levels would be infringing.
You're saying that if I were to say "it's easy to find a blue ray rip of Captain America" (this is the whole of my reference, exactly in these words) then I would be guilty of copyright infringement? Because that is one of the lines in the sand. I don't see it. But telling you what to Google is nearly that.
