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Let's say I create a computer program that randomly chooses words and records them. Now, this generator spits out an exact word-for-word copy of a non-public-domain book.

If I publish this (without knowing it's a copy), would I be in violation of the original book's copyrights? What if I could reasonably prove that it was generated randomly?

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    Assume the book is fifty thousand words, drawn from a vocabulary of ten thousand words (and these are fairly low numbers). The chance of random duplication is 1 in a number expressed by a 1 with two hundred thousand zeros after it. I'm far more likely to find the winning lottery tickets on the sidewalk for every lottery for the rest of my life. In other words, this simply isn't going to happen, and any duplication will have been deliberate. – David Thornley May 31 '18 at 21:04
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Copyright infringement requires that you actually copy elements from an earlier work produced by a different author. If you created a similar, or even identical, work independently, it is not copyright infringement.

When considering whether or not infringement has occurred, the court is likely to consider whether the defendant could reasonably have had access to the plaintiff's work. If the court finds that they could have, then the defendant would be required to produce evidence of original authorship.

Consider the My Sweet Lord/He So Fine case, where the court found the defendant had subconsciously copied the plaintiff's song. Had Harrison been able to produce evidence of original authorship, the judgment could have been different.

In your example, it is unlikely that an suit in copyright infringement could be decided against you, as you've stated the text is generated randomly. However, more evidence of this randomness might be required to support your case.

Of course, whether a computer or automated process can produce works independently is still questionable; I'm not aware of cases that have tried this. The US Copyright Office has said that Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Of course, whether this has a bearing on your particular scenario is undecided, and I'm not sure how it would be decided.

It is almost certain that the worst case outcome would be an injunction requiring you to cease publicising the product, or perform reasonable checks prior to publication to ensure that the product of your program infringes on works; it would be unlikely that you would have costs ordered against you, especially if the program is truly random, and the random text was given as much, or more, publicity than the coherent text.

  • I disagree with this answer, because the end result of its application would produce absurd results. If two works are the same, then one is infringing...very likely the later one. The meat of the question really is, who would have to pay whom, and how much. That's where I DO agree with jimsug. – dwoz Aug 24 '15 at 14:29
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    But that's the point I guess.....the trier of fact would have to believe you because if it was truly random, the likelihood of recreating the results would be like hitting lotto twice in a month. But sure, if you could show to a certainty it was random, I guess you could prevail... Again it comes down to perception and whether the evidence is believable and if it is, by a preponderance of the evidence, shown to be more likely than an infringement. – gracey209 Aug 24 '15 at 15:59
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    It's also worth noting that generating a large number of random books, then sifting through them to find the one that happened to generate a title starting with "Harry Potter and the..." might well be considered "copying". You would have to commit to publishing whatever got spit out, or publish it with no idea that it was similar--a much less likely fact pattern. – chapka Sep 30 '15 at 1:01
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You can introduce it, but they would introduce experts who would say the odds are billions-to-one of generating an identical work is possible. In that case, the jury would probably find that it was more likely copied, than independently, yet identically, created. This would be on the magnitude of a matching but unrelated DNA....wth a 99.95% probability of this being impossible. There are no absolutes in a trial, so could you prevail....sure. But my money would be on the plaintiff!

  • Even if the defendant produces the other 99.95% of the output that was incomprehensible garbage? I mean, this is probably something unlikely to be tested in court, but... it's hard to imagine that you could be found to be infringing if you could demonstrate true randomness. – jimsug Aug 24 '15 at 13:57
  • The OP's question is still salient if you imagine that 3 pages of a book had been identically recreated, instead of the "silly" and improbable entire book. That much smaller amount of similarity would be adequate to bring an infringement action. – dwoz Aug 24 '15 at 14:16
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you would most certainly be in complete violation of the previous book copyright. The owner of that copyright would have no problem winning a judgement.

However, if you were able to prove that the random text generator had produced the book, you'd likely avoid damages, and merely have to remove your infringing "book" from circulation.

Your example is of course a "silly" one, but it could apply also to the far-less-silly situation where a substantial excerpt...a paragraph or so...matches up.

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    Can you provide any support for you first assertion? Given that it directly contradicts the other answer, and the other answerer has both legal training and an established reputation of providing correct answers, your answer faces a higher level of scrutiny. – feetwet Aug 23 '15 at 19:55
  • @feetwet-- here's a reference: copyright.gov/history/studies/study25.pdf The term of interest is "innocent infringement." from "law.uci.edu/faculty/full-time/reese/…": The 1976 Act continued the 1909 Act’s approach. Any unexcused violation of the copyright owner’s exclusive rights was a civil infringement, regardless of the mental state with which the act was committed, but in some circumstances the remedies available against an innocent infringer were limited. – dwoz Aug 23 '15 at 20:25
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    @dwoz AFAIK, innocent infringement does not mean independent recreation. It means actual copying by someone who didn't intend to infringe. For instance, it would cover someone who bought a license from a third party they reasonably thought had the copyright. This isn't a mental-state analysis; independent creation simply isn't an unauthorized violation of the exclusive rights. – cpast Aug 23 '15 at 23:49
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    @gracey Even if the defendant can prove the random generation? I agree it's unlikely to be accepted without some serious evidence, but is it actually impossible to introduce evidence of independent creation? – cpast Aug 24 '15 at 6:29
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    @dwoz that's just not true, though. The fact is, if someone who lived their entire life on an island (and could prove this), with no contact with civilisation or literature but was raised to speak English, produced the entire works of George RR Martin, they wouldn't have infringed copyright. Yes, whether the work came afterward is a strong factor, but whether the author arrived at it independently and/or had access to the plaintiff's work is the key criteria. – jimsug Aug 24 '15 at 14:44

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