Time to debunk IP in digital art and photography once and for all

Started Aug 21, 2013 | Discussions thread
57even Forum Pro • Posts: 10,991
Re: It's the judge ...

Mikhail Tal wrote:

Sante Patate wrote:

Mikhail Tal wrote:

Sante Patate wrote:

Independent creation is a defence to a claim of copyright infringement, and to establish copyright infringement it is essential to prove that there was actual copying. So, if the similarity was truly a coincidence you have not breached copyright.

The only way to actually prove that copying took place would be seize the device on which the copying took place and analyze its operational history. Otherwise all you have is circumstantial evidence which cannot solely constitute proof of copying.

No. Copyright breach requires copying. If you claim that my image breaches your copyright you have to show, at a minimum, that I could have copied your image, and that the similarity between yours and mine is so extreme that independent creation is unlikely. If you can't explain how I could have copied (because your image is unpublished and I have never been anywhere near your studio or your computer, eg), my claim of independent creation will prevail.

if the alternatives being "unlikely", in terms of theoretical probability, was enough to constitute proof, I could prove God doesn't exist, among other things. But obviously that's not the case. Proof is a specific term that applies to mathematics referring to a statement that is true "a priori", as in, by definition.

The law does this all the time: "reasonable care and skill", "reasonable belief", "due diligence", etc etc; if you don't like it, too bad.

"If you don't like it, too bad."

So in your opinion no law, even one that is completely illogical, should ever or will ever be modified or repealed? Nor should one ever advocate for said change on the medium of one's choosing, as I am doing here?

You are not trying to modify or repeal "a" law, you are trying to overthrow all the vast areas of law that depend on judgements about what is "reasonable under the circumstances". That standard has developed not because the law is an ass, but because that standard allows decision-making the sensitivity to circumstance on which justice depends.

It also renders legal justice entirely subjective, which makes it no more credible than vigilante justice or anything else outside the scope of the law. The only difference is that "legal" justice belongs to the people with the most eminent means of enforcing it.

Of course justice is partly subjective. That why we have juries who have to be convinced of the evidence and argument. In a civil case they only have to be convinced on the balance of evidence not on the grounds of beyond reasonable doubt.

If I use a source digital image then change every pixel randomly I get a mess. But if the result has a recognisable relationship to the original, then it's copying even if every pixel RGB value is different, just as transposing or writing variations on a musical theme is breach of copyright, even if NONE of the final notes are the same.

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