Found it: https://www.nbcnews.com/tech/tech-news/federal-judge-rules-c...
> “That Anthropic later bought a copy of a book it earlier stole off the internet will not absolve it of liability for the theft,” [Judge] Alsup wrote, “but it may affect the extent of statutory damages.”
No, that doesn't undo the infringement. At most, that would mitigate actual damages, but actual damages aren't likely to be important, given that statutory damages are an alternative and are likely to dwarf actual damages. (It may also figure into how the court assigns statutory damages within the very large range available for those, but that range does not go down to $0.)
> They will have ceased and desisted.
"Cease and desist" is just to stop incurring additional liability. (A potential plaintiff may accept that as sufficient to not sue if a request is made and the potential defendant complies, because litigation is uncertain and expensive. But "cease and desist" doesn't undo wrongs and neutralize liability when they've already been sued over.)
For anyone else who wants to do the same thing though this is likely all they need to do.
Cutting up and scanning books is hard work and actually doing the same thing digitally to ebooks isn't labor free either, especially when they have to be downloaded from random sites and cleaned from different formats. Torrenting a bunch of epubs and paying for individual books is probably cheaper
Substitute infringement for theft.
Setting the penalty to what it would have cost to obey the law in the first place does the opposite.
If you give people a claim for damages which is an order of magnitude larger than their actual damages, it encourages litigiousness and becomes a vector for shakedowns because the excessive cost of losing pressures innocent defendants to settle even if there was a 90% chance they would have won.
Meanwhile both parties have the incentive to settle in civil cases when it's obvious who is going to win, because a settlement to pay the damages is cheaper than the cost of going to court and then having to pay the same damages anyway. Which also provides a deterrent to doing it to begin with, because even having to pay lawyers to negotiate a settlement is a cost you don't want to pay when it's clear that what you're doing is going to have that result.
And when the result isn't clear, penalizing the defendant in a case of first impression isn't just either, because it wasn't clear and punitive measures should be reserved for instances of unambiguous wrongdoing.
No it's not. And you ever heard of a publishing house? They don't need to negotiate with every single author individually. That's preposterous.
It's not the only reason fair use exists, but it's the thing that allows e.g. search engines to exist, and that seems pretty important.
> And you ever heard of a publishing house? They don't need to negotiate with every single author individually. That's preposterous.
There are thousands of publishing houses and millions of self-published authors on top of that. Many books are also out of print or have unclear rights ownership.
No, it kinda isn't. Show me anything that supports this idea beyond your own immediate conjecture right now.
>It's not the only reason fair use exists, but it's the thing that allows e.g. search engines to exist, and that seems pretty important.
No, that's the transformative element of what a search engine provides. Search engines are not legal because they can't contact each licensor, they are legal because they are considered hugely transformative features.
>There are thousands of publishing houses and millions of self-published authors on top of that. Many books are also out of print or have unclear rights ownership.
Okay, and? How many customers does Microsoft bill on a monthly basis?
https://copyright.gov/about/1790-copyright-act.html
Specified in dollars because dollars had been invented (in 1789), but in the amount of one half of one dollar, i.e. $0.50. That's 1790 dollars, of course, so a little under $20 today. (There was basically no inflation for the first 100+ years of that because the US dollar was still backed by precious metals then; a dollar was worth slightly more in 1900 than in 1790.)
That seems more like an attempt to codify some amount of plausible actual damages so people aren't arguing endlessly about valuations, rather than an attempt to impose punitive damages. Most notably because -- unlike the current method -- it scales with the number of sheets reproduced.
It's inherent in the nature of the test. The most important fair use factor is the effect on the market for the work, so if the use would be uneconomical without fair use then the effect on the market is negligible because the alternative would be that the use doesn't happen rather than that the author gets paid for it.
> No, that's the transformative element of what a search engine provides. Search engines are not legal because they can't contact each licensor, they are legal because they are considered hugely transformative features.
To make a search engine you have to do two things. One is to download a copy of the whole internet, the other is to create a search index. I'm talking about the first one, you're talking about the second one.
> Okay, and? How many customers does Microsoft bill on a monthly basis?
Microsoft does this with an automated system. There is no single automated system where you can get every book ever written, and separately interfacing with all of the many systems needed in order to do it is the source of the overhead.
Statutory damages were added to reduce the burden on plaintiffs. Which encourages people to stay in line. How well this worked out and what it means when some company nobody heard of 4 years ago downloads a billion copyrighted pages and raises $3.5 billion against a $60 billion valuation...
Well suddenly $20/page still sounds about right.
Do you mean:
A) It's not a criminal offence?
B) The copyright owner cannot file a civil suit for damages?
C) Something else?
> Statutory damages were added to reduce the burden on plaintiffs. Which encourages people to stay in line.
It encourages people to not spend a lot of resources speculating about damages. That doesn't mean you need the amount to be punitive rather than compensatory.
No, that's not the most important factor. The transformative factor is the most important. Effect on market for the work doesn't even support your argument anyway. Your argument is about the cost of making the end product, which is totally distinct from the market effects on the copyright holder when the infringer makes and releases the infringing product.
>To make a search engine you have to do two things. One is to download a copy of the whole internet, the other is to create a search index. I'm talking about the first one, you're talking about the second one.
So? That doesn't make you right. Go read the opinions, dude. This isn't something that's actually up for debate. Search engines are fair uses because of their transformative effect, not because they are really expensive otherwise. Your argument doesn't even make sense. By that logic, anything that's expensive becomes a fair use. It's facially ridiculous. Them being expensive is neither sufficient nor necessary for them to be a fair use. Their transformative nature is both sufficient and necessary to be found a fair use. Full stop.
>Microsoft does this with an automated system. There is no single automated system where you can get every book ever written, and separately interfacing with all of the many systems needed in order to do it is the source of the overhead.
Okay, and? They don't need to get every single book ever written. The libraries they pirated do not consist of "every single book ever written". It's hard to take this argument in good faith because you're being so ridiculous.
In the UK it's a criminal offense if you distribute a copyrighted work with the intent to make gain or with the expectation that the owner will make a loss.
Gain and loss are only financial in this context.
Meaning that in both countries the copyright owner can sue you for copyright infringement.
We will have a trial on the pirated copies used to create Anthropic’s central library and the resulting damages, actual or statutory (including for willfulness).Four factor test seems to be working, even in this case. Don't love it (it goes against my values and what I need to do in my job) but I get it.
Edit: we've triggered HN's patience for this discussion and it's now blocking replies. You do seem a bit long on Google and short on practical experience here. How else would you propose these types of disagreements get sorted? ("Anyone can be sued for anything" notwithstanding.)
There are explicltly no punitive damages in US Copyright law. And the "willful" provision in practice means demonstrating ongoing disregard, after being informed. It's a long walk to the end of that plank.
It's a four factor test because all of the factors are relevant, but if the use has negligible effect on the market for the work then it's pretty hard to get anywhere with the others. For example, for cases like classroom use, even making verbatim copies of the entire work is often still fair use. Buying a separate copy for each student to use for only a few minutes would make that use uneconomical.
> Effect on market for the work doesn't even support your argument anyway. You're argument is about the cost of making the end product, which is totally distinct from the market effects on the copyright holder when the infringer makes and releases the infringing product.
We're talking about the temporary copies they make during training. Those aren't being distributed to anyone else.
> So? That doesn't make you right.
Making a copy of everything on the internet is a prerequisite to making a search engine. It's something you have to do as a step to making the index, which is the transformative step. Are you suggesting that doing the first step is illegal or what do you propose justifies it?
> By that logic, anything that's expensive becomes a fair use. It's facially ridiculous.
Anything with unreasonably high transaction costs. Why is that ridiculous? It doesn't exempt any of the normal stuff like an individual person buying an individual book.
> They don't need to get every single book ever written.
They need to get as many books as possible, with the platonic ideal being every book. Whether or not the ideal is feasible in practice, the question is whether it's socially beneficial to impose a situation with excessively high transaction costs in order to require something with only trivial benefit to authors (potentially selling one extra copy).
You did anything which it's not clear whether it's fair use or not. Willfulness is whether you knew you were doing it, not whether you knew whether it was fair use, which in many cases nobody knows until a court decides it, hence the problem.
You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?
I think the distinction between civil and criminal trials is smaller in my home country. The fact that there is a trial at all implies that someone commited a ‘crime’.
This conversation becomes incredibly unenjoyable when you pull rhetorical techniques like completely ignoring the entirety of what I wrote.
All four factors are not equally relevant which is something described in pretty much every single fair use opinion. Educational uses are educational uses and considered fair because of their educational purpose (purpose is one of the factors), again, not because it's expensive. Maybe next time try googling or using ChatGPT "fair use educational".
>We're talking about the temporary copies they make during training. Those aren't being distributed to anyone else.
It's your argument. Not mine. You do not understand the market harm factor and it has nothing to do with Anthropic's transaction costs. That's just fully outright absolutely incorrect application of law.
>Making a copy of everything on the internet is a prerequisite to making a search engine. It's something you have to do as a step to making the index, which is the transformative step. Are you suggesting that doing the first step is illegal or what do you propose justifies it?
The transformative step is why it's a fair use, not the "market harm" (which you misunderstand) or the made up argument that it's "too expensive". In fact, I said this like every single turn in our conversation so it's a bit perplexing to me that you can now ask me "do you mean that it being transformative is what makes it legal" when that was my exact argument three times.
>Anything with unreasonably high transaction costs. Why is that ridiculous? It doesn't exempt any of the normal stuff like an individual person buying an individual book.
It's ridiculous because of the example I gave. Things being expensive is not a defense to copyright infringement and copyright law has no obligation to make expensive business models work. Copyright has an obligation to make transformative business models work because of the overall good they provide to society. Describing it as a "transaction cost" just kicks the can down the road even further and doesn't deal with the substance, either. They could have gone to the major publishers and licensed books from them. They didn't. That's generally who they are being sued by. When they are being sued by copyright owners in the fringe examples you pointed to, they will become relevant then.
>They need to get as many books as possible, with the platonic ideal being every book. Whether or not the ideal is feasible in practice, the question is whether it's socially beneficial to impose a situation with excessively high transaction costs in order to require something with only trivial benefit to authors (potentially selling one extra copy).
Lol dude, it was your example, not mine. They do not need every single book. They aren't being sued over every single book anyway, so it's totally besides the point.
They simply don't want to and think they can skirt the law while the judges catch up.
But if you tried to open a black market selling that media: you'd be hunted down to the ends of the earth. Or to China/North Korea, at least.
Having access to a camera doesn't permit you to take the footage home to review.The company still owns that footage, after all.
Now, if you had your own camera recording everything at your desk... I guess that falls into one or two party states.
Yeah they do. What do you think the employees of a publishing house do? They make deals, work with authors, and accept/reject pitches. They 100% need to make sure every work is under a negotiated contract.
Rhetorical question, we all know that me reading books is not "transformative" so it won't be considered fair use for me to yoink them (transformative as in transforming more damage to the society at large into more money for the already rich).
Why would you ever do that? Nobody would buy it. They'd just get it in the same place you did.
If the book is out of print, then tough luck. That's not a license to infringe on the publisher's copyright. If we're not ok with that, we have legislative means to change that. A judge shouldn't be rewriting law in that manner.
Everyone can out a disk in a DVD player; sailing the high seas is much trickier.
>You have to do it in order to get into court and find out of you're allowed to do it (a ridiculous prerequisite to begin with), and then if it goes against you, you have to pay punitive damages?
Nobody made you undertake the questionable fair use. If you're gonna fease, you better not malfease.
If your business model is not economically sustainable in the current legal landscape you operate in, the correct outcome is you go out of business.
There's lots and lots of potential businesses, infinite in fact, that fall into this understanding. They don't exist because they can't because we don't want them to, so you never see them. Which might give the impression of a right to scale, but no, it does not exist.
Every time some new technology or other change happens, things become possible that didn't used to be and then nobody knows what the law is going to be until a judge decides the case.
> Nobody made you undertake the questionable fair use. If you're gonna fease, you better not malfease.
But how are you supposed to know that before you get sued? If it's something you are allowed to do, but you don't know that yet for sure, what do you do to find out?
You need to stop positing hypotheticals and start stating examples. Yes, technology advances and everything from abortion to transportation needs to be reconsidered on an ongoing basis. Admittedly the process for doing so hasn't changed much since the 18th century, but do you have a proposal for improving it?
Between the four factor test, being able to petition the Librarian of Congress for exemptions, and compulsory licensing, in many cases copyright is in a better state than most.
Aside from Internet Archive who continued to do something 400,000 times despite being formally asked to stop three times (scanning old records), I'm unaware of any similar acts of stupidity. Can you provide any examples of recent problems in the space?
Do you have some great idea that you're afraid to try because of lack of specificity in copyright law? There's no shortage of VCs who will take the risk sorting it out; they've made lots of money doing this before.
And you can always ask for permission first. But I suppose where's the fun in that.
Think about it like sneaking into a movie theater and watch a movie without paying. The theater was going to play the movie anyway and, assuming it wasn't a packed theatre, I didn't deprive anyone else of their ability to watch. It's still theft because I'm getting something that costs money for free and depriving the theater of the money that they're owed.