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A few examples:

  1. Bob wrote a blog post and uses a plagiarism checker. The checker didn’t find any plagiarism. Does that protect Bob from copyright infringement claims?

  2. Bob uses AI to generate a blog post and passed the plagiarism checker. The AI company that provides the software has marketed to provide plagiarism free copies. Does that protect Bob from copyright infringement claims?

  3. Bob wants to register a trademark and uses the trademark search tool. The search tool didn't find any similar trademarks. Does that protect Bob from trademark infringement claims?

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    If I may note a slight inaccuracy in the question: when someone uses plagiarism check software, what it finds (or doesn't find) is not exactly plagiarism. It looks for long runs of similar content between the work being checked and other works in its database. If a suspiciously high degree of similarity is found, that can be used as evidence to support an accusation of plagiarism - or, more relevant for this site, an accusation of copyright infringement (which is something different from plagiarism, although they often occur together).
    – David Z
    Commented Dec 20, 2022 at 19:10
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    Are you aware that you're relying on proving a negative which is notoriously difficult, if not impossible? How could this possibly absolve you of responsibility? That's like me saying "Whelp, no one in my neighborhood is named MonkeyZeus so that means I'm the only one in existence".
    – MonkeyZeus
    Commented Dec 20, 2022 at 21:07
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    – feetwet
    Commented Dec 22, 2022 at 19:49

4 Answers 4

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None of the methods suggested protect Bob from a copyright or trademark infringement claim.

These methods may protect Bob from a claim that Bob is an intentional infringing party, as opposed to being an "innocent infringer". But, an innocent infringer is not immune to liability for copyright and trademark infringement.

Instead, an innocent infringer is simply subject to less potent penalties and remedies than an intentional infringer of the copyright or trademark owner's rights.

Also, innocent infringer status ceases when Bob receives a cease and desist letter if Bob continues the infringing conduct.

This said, in the first case, if Bob independently writes the blog post without copying anyone else's work, Bob has not infringed any copyright. This is true even if someone else had already written exactly the same thing.

Copyright infringement, unlike patent infringement and trademark infringement, requires that the infringing work actually be derived from the work claimed to be infringed and independent invention of a work is a full defense to copyright infringement.

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  • So it might actually help Bob if Bob had used an AI, and kept the files to document that?
    – o.m.
    Commented Dec 20, 2022 at 7:07
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    @o.m. Perhaps. But AI's are driven by source sets which might include copyrighted materials.
    – ohwilleke
    Commented Dec 20, 2022 at 8:11
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    @o.m. There's also at least some limited precedent that AI-authored works in the U.S. and some other countries can't be copyrighted. So if Bob doesn't want people copying his (or, rather, the AI's) work, he might have to make sure there's a sufficient level of "human authorship" involved anyway. But this is still new and changing legal territory.
    – anjama
    Commented Dec 20, 2022 at 13:31
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    The very nature of AI just completely messes with IP rights. Is putting an AI layer on top of the IP protected material enough to somehow "remove" the copyright? I highly doubt it, but AIs are still too much of a black box right now (circa. 2022). XAI (Explainable AI) is gaining traction so hopefully this problem gets solved sooner than later.
    – Nelson
    Commented Dec 21, 2022 at 3:27
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    If Bob bought the text from a company which claimed the text was copyright-free, but it isn't: The company may be liable for the damages Bob has from the infringement. At the very least Bob can get his money back. Essentially the company asserts that the text is fit for a particular purpose (namely publishing), which it isn't. Commented Dec 22, 2022 at 12:18
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A plagiarism checker runs into a problem: If my code is protected by copyright, and the plagiarism checker has no license to use my code, how can it check if you plagiarised my code?

A plagiarism checker will generally check against easily and legally available materials. For example materials in academia that are available to the public. Those would be the ones that would be involved in plagiarism. It is extremely unlikely that your thesis would contain my companies proprietary software. And unlikely that a plagiarism checker would find out if it did. Materials that you cannot copy legally are unlikely to be found by a plagiarism checker.

Now obviously if you copied my software illegally, there is the question how do you get it? If you copied it knowingly, then the plagiarism checker won't give you the slightest bit of an excuse.

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In addition to the considerations in the other answer, it depends tremendously what kind of intellectual property we're talking about. Patent and copyright infringement tend to shake out very differently in most cases, for example -- copyrights are subject to fair use exceptions while patents are not, to give the most obvious example.

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    – Community Bot
    Commented Dec 20, 2022 at 17:18
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    The question asks only about copyright and trademark liability, it doesn't ask about patent liability or trade secret liability, for example.
    – ohwilleke
    Commented Dec 21, 2022 at 1:30
  • “fair use” only exists in america and maybe a few other locations, but not e.g. in the EU anyway
    – mirabilos
    Commented Dec 21, 2022 at 19:56
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    I don't see what fair use has to do with this question. Commented Dec 22, 2022 at 3:09
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There is nothing protecting Bob from someone making a CLAIM against him. There MIGHT be enough to protect him from someone SUCCESSFULLY making such a claim.

And even the latter is doubtful. The software does not PROVE there is no infringement, only that it cannot find infringement using its database of texts and sources. A source document that is being infringed may simply not be in that database.

What it does do is give Bob (or whomever is using the tool) a reasonably high degree of confidence that no infringement is happening, or at least no deliberate infringement is happening. But that doesn't protect anyone against from discovering that "hey, this looks suspiciously like my work from last year that's pretty obscure but so is Bob's and he's done his graduation work in the same department where I did my work and left a copy of my report in the department library".

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