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Imagine that some person X is running a website where they provide access to some creative work and claim that it is in the public domain, or under a permissive copyright license.

Imagine that Y retrieves the work and makes use of it in a way which is permitted by the license and would not be permitted otherwise. For instance, Y redistributes the work, sells it, translates it, etc.

Now, imagine that the work is actually not at all under this permissive license, and X's claim to that effect was wrong. Now, the actual copyright owner on the work, Z, notices Y's illegal use of their work, and sues them for copyright violation.

  • Can Y defend themselves by pointing out that they thought their use was permitted because of X's claim? Or are they fully responsible for their use of the work?
  • Could Y attack X for their false claim about the license of the work? If yes, to what extent would X be responsible?
  • Would it make a difference whether X was acting in good faith or not? E.g., maybe X really thought the work was under that license and were wrong, for instance because they had copied it from some other source with a wrong license claim. Or maybe X had not really made any effort to check the origin of the work, and they should have known that the license was not as indicated.
  • In the shoes of X, is there a way to distribute some creative work under a free license without promising that you have checked its copyright status carefully? E.g., say that you are allowing its use under a free license as far as you are concerned, but you don't promise that other parties like Z may not have a claim to it?

This last question is motivated by situations where a creator X takes a copyrighted work by Z, makes some derivative of it with an unclear copyright status (e.g., a mashup, parody, etc.), and wants to distribute it and say "I'd like to put it under a free license but I don't promise that Z doesn't have a valid copyright claim against reuse of the work." This is important because in many cases Z will leave X alone (e.g., because they are distributing the derivative work noncommercially) but could pursue some third-party Y if they started selling the derivative work by X.

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Can Y defend themselves by pointing out that they thought their use was permitted because of X's claim?

No

Or are they fully responsible for their use of the work?

Yes

Could Y attack X for their false claim about the license of the work?

Yes, the torts of deceit and negligence spring to mind as do statutory prohibitions on deceptive and misleading conduct.

If yes, to what extent would X be responsible?

If they were guilty of deceit they would be liable for all of Y's losses. If they were negligent they would be responsible for all of Y's foreseeable losses.

Would it make a difference whether X was acting in good faith or not?

No

In the shoes of X, is there a way to distribute some creative work under a free license without promising that you have checked its copyright status carefully?

No. If X cannot verify that they have the right to offer a licence then they should not offer a licence.

  • Thanks! Does X have a way to avoid being guilty of deceit or negligence, etc., i.e., waiving all liability about their claim about the license of the work? Essentially I'm looking for a way for X to say "I'm not making any copyright claims about the work myself and as far as I'm concerned you can use it under the terms of this license, but I'm not making any promises about copyright interests that may be held by someone else." – a3nm Feb 7 at 8:17
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    @a3nm If you aren't willing to make any claim about the license of someone else's work, you almost certainly should not be redistributing it. – Brandin Feb 9 at 8:49
  • @Brandin: The idea is when you are distributing work which is based on someone else's, and you're not sure about the status of the original work or whether the right holders still have rights. Say I do a cover of a copyrighted song, or some art based on images found on the Internet with unclear copyright status, etc. I'd like to be able to say "my work is under license X as far as I'm concerned, but I don't know the legal situation about the original works I used". (Of course, if redistributing someone else's work verbatim, I agree with you.) – a3nm Feb 11 at 19:07
  • @a3nm if you don't know the copyright status then you cannot republish because you don't know if you are breaching copyright. – Dale M Feb 11 at 22:55

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