Copyright liability for encoded files?

Question

What are the details of copyright liability for an uploaded, encoded file?

For example, let's say there's a copyright video, then someone encodes the entire file by shifting each of the bytes (either by a static value or repeating string of bytes, like a password for a zip file), then let's say they divide all of the bytes into groups of 4 and map all of them to pixels in RGBA format, then write those pixels to an encoded picture file, and post it online as "abstract art."

Then makes, or gets someone else to make and publish, a program that is downloaded onto the end user's computer, which takes as in input the downloaded image that was encoded like above, and decodes it back into the copyright [video, or anything else] file.

The question is:

Who is liable?

The obvious answer may be the one uploading the image, since it contains the copyright material within it, but can that person make a legitimate argument in court that he just randomly generated the "abstract art" and the fact that it was compiled into a format that can later be decompiled and the bytes re-shifted with a separate program, offline, which contains copyright content, is not his liability?

And if so, is the person who wrote the program [which might even be him himself if the program was published in a different context] make the argument that the program isn't meant to specifically decode copyright material, just to decode anything in a specific format, whatever it is, and the fact that in this case the end user happened to use it to decode a file that happened to be encoded in such a way that it could be decoded into a copyright file, is not his liability?

Then if so, at least the end user should be liable, since at the end of the day he has decoded copyright content on his device, and once he realized it he should have deleted it.

But if so, would it then make a difference if the offline program decodes the file into system RAM only, and not to a file on disk?

Answer 1

Encoding is making an unlicensed derivate or copy

Let's say instead of a video file, we take a short story. For the sake of argument, let's take

For sale: baby shoes, never worn.

We can apply the Cesar-7 Chiffre and get

Mvy zhsl: ihif zovlz, ulcly dvyu.

Or we use the NVA's TAPIR pattern:

56644 83690 62182 90838 15005 07883 69596 41698 29183 81317 41483 76644 38289

That is obviously nonsense. But all these patterns are at least derivative of the original work. But in fact, they full encode the message, only in a different format, and are reversible. This means we don't just make a derivate, we made a copy, which can be read with the proper means.

It is the sole right of the author or rightsholder to license making copies, no matter how they are encoded.

Or to rephrase: If it is reversible, it is a copy. If it is not reversible, it is a derivative. Neither is allowed.

Subquestions

who is liable?

• The one encoding the file committed copyright infringement for making an unlicensed copy. Period. No way around.
• The one downloading the file committed copyright infringement by copying the unlicensed copy. No matter if they knew what it was or decoded it, they made a copy of an (encoded) unlicensed copy. Deleting the file btw does not make the copyright infringement go away.

can that person make a legitimate argument in court that he just randomly generated the "abstract art" [...] ?

That would be perjury. They chucked a whole work into an algorithm. Saying anything else but "I chucked the work into the algorithm" is perjury. Which incidentally can be easily proven if the algorithm is reversible - it will prove the input.

is the person who wrote the program [...] make the argument that the program isn't meant to specifically decode copyright material

They can, but they are not even on the hook for copyright infringement in the first place. They provide a tool with legitimate uses, such as transmitting messages in a secure way. Encoded files inside other images are for example used by journalists to get files out of oppressive regimes. The liability araises only at the user who uses it illegally.

But if so, would it then make a difference if the offline program decodes the file into system RAM only, and not to a file on disk?

No. Think about an ISO file. ISO files are 1:1 copies of how a CD is written. They can be burned 1:1 onto a CD without any extra preparation, which is their legitimate use: be easy to distribute and verify copies of for example installation files. ISO files can also be mounted in a virtual CD drive, which emulates a CD drive.

If you legitimately got the Windows ISO from Microsoft (or a licensed retailer) directly, you can mount it or burn it, or use it for all legitimate purposes. However, downloading the ISO for a game doesn't change that you made an illegal copy of the game, no matter that you need to mount or burn the ISO to actually access it.