Comment by mock-possum
9 months ago
If Robin Hood sees a nice painting hanging in the castle, then commands a genie to create an exact brush-stroke-by-brush-stroke replica that is identical to the original in every way, then gives the replica to his neighbor as a birthday gift, has any crime even occurred?
In this situation, the noble does not own the painting, so much as they possess it and have only been granted a license to privately view it, not a license to show it to others, and further license only to reproduce it for their own personal archival purposes - Robin Hood did not have license to view the painting, and the genie did not have license to reproduce it
but now that the reproduction exists, does it carry the same license with it, and should the neighbor be held responsible for the original violation of the license, when all they’ve done is receive an illegally produced copy?
Should the owner if the original painting be held responsible for failing to prevent it from being illegally viewed and copied?
>In this situation, the noble does not own the painting, so much as they possess it and have only been granted a license to privately view it, not a license to show it to others, and further license only to reproduce it for their own personal archival purposes
What is the point of making such an "analogy"? Might as well say the noble has a copy of Die Hard in their DVD collection.
> an exact brush-stroke-by-brush-stroke replica that is identical to the original in every way
Yes, forgery is a crime in many jurisdictions, and in some it does not matter whether or not you are transparent about it being such -- specifically for copyright/trademark reasons.
Forgery would require trying to pass off the copy as an original. As long as it is not pretending to be something it isn't, it is just a replica, not a forgery.
Thsis was my impression at first too, but legal experts in my jurisdiction have taught me they're not always so cleanly separable.
Without taking a stand on whether this _should_ be illegal or not, but whether it _is_, I could imagine that a legal system might want to give the painter a way to get income for a limited time by distributing copies of the painting, and that copying it in this way would infringe upon those rights. In this case though, I'd argue that the modern analogue of this would be Robin Hood getting invited over to watch a movie with the noble (which would be allowed!) and then secretly burning a copy of the DVD when the noble went to the bathroom. Our current legal system doesn't consider "I didn't know what I was doing was illegal" to be a valid defense, so Robin Hood would still be committing a crime by sharing the DVD further after he's copied it. (Since we don't have genies in real life, I don't know how the law would consider them culpable, but based on my very limited knowledge of genie lore, my guess is that the amount of free will they have in this situation is about the same as the DVD burner, so they probably would be okay from the perspective of the law?)
Interestingly, I think that the more direct analog to what we have today would be if the noble themself had the genie copy the painting and gift it to their friend Robin Hood. I do think the same logic I gave above ultimately applies to whether our current legal system would allow the artist to enforce exclusivity, but I find it a lot more compelling as an argument about whether it _should_ be allowed or not compared to the hypothetical you gave. In your version of it, it doesn't feel like allowing what Robin Hood did is particularly beneficial to society, but in the version where the noble is an enthusiastic participant in the copying, it seems a lot more like outlawing it would lead to some harmful dynamics (like you mention about whether the noble bears responsibility for protecting access to the painting based on obtaining it). In other words, having a system where the artist is allowed to enforce his exclusive distribution rights universally actually seems _less_ problematic to me at first glance than one that only applies to those who sign an agreement when purchasing the paintings.
To put this in terms of torrenting, my naive understanding is that right now, it's definitively considered illegal to seed protected content, and the question is whether it's legal to download it without seeding or not. I actually think that it would be worse to allowing downloading without allowing seeding as well, so the system that Meta is arguing for would be worse than if what they did is also illegal. However, I'm honestly not sure if they're actually right or not about what the law says, and that's why I brought up the hypotheticals I did. I also honestly don't feel confident in my feelings on whether I'd prefer to ban both seeding and downloading protected content or to eliminate the legal protections entirely and allow both, but it doesn't seem like that's actually the legal question at the heart of the current matter.