Would a user of the Stack Exchange API be liable for re-publishing copyright infringing data?

Question

Data obtained from the Stack Exchange API is cc-wiki licensed.

This license explicitly encourages the user of the API to copy, redistribute, remix and transform the data obtained from the API for any purpose, provided that appropriate credit is given and that the cc-wiki license remains.

If data obtained via the API was used to build a new website that displays tens of thousands of unaltered questions and answers reformatted for easier browsing, and if one of those questions contains a link to a copyrighted image, then would the user of the API be liable for displaying that image link on the new website?

To be clear, the data obtained from the API contains just a link to an image hosted on stack.imgur.com. The image was uploaded there by a Stack Overflow user who did not have a license to do so. That user is clearly liable; I'm asking whether the user of the API is liable. The data that they obtained via the API may contain hundreds of thousands of image links, any of which may violate copyright, and this places a burden on them to verify all image links for potential copyright violations before sharing and remixing the data.

In light of the top answer below, I've discovered a way to make easy money. Behold!

Copyright Infringing Poem

If the following poem is republished anywhere other than on law.stackexchange.com then I will demand $1000 in damages.

The Sausage
by Jason Hutchens
Oh mighty sausage, how juicy and sweet
The delicious smell of your sizzling meat

The license conditions of the poem are quite unclear. I have a hard time seeing how you could actually litigate any offenders. (But I guess it's just to drive home a point.) — tripleee, Nov 24 '23 at 06:00
@tripleee Assuming that kranzky is the copyright holder for the poem, the license is quite clear and is still CC BY-SA 4.0. The combination of the Terms of Service and CC BY-SA licenses are quite clear that the CC BY-SA license is granted by posting and the license doesn't permit adding additional terms such as what is stated here. The copyright holder could add an additional complete license, which readers would then be able to choose to use instead of CC BY-SA, but the OP can't add terms to the CC BY-SA license, for multiple reasons. — Makyen, Nov 24 '23 at 06:35
The reason real licenses are longer than this is that they have conditions which are precise and well-defined so that they can be successfully pursued in a court of law. This says nothing about the jurisdiction, for example; as the OP is apparently in Australia, the first question is really whether Australian law even supports this sort of thing. (US law is rather peculiar in that it actually permits this sort of "shrink-wrap" license; but as written, I don't think this could fly in the US, either.) Obviously, IANAL. — tripleee, Nov 24 '23 at 06:39
Yes @tripleee I'm making the point that the poem itself is copyrighted to me, so if somebody were to pull data from the Stack Exchange API (which is cc-wiki licensed) and publish the unaltered results on their website, then I could hold them liable for copyright infringement and demand that they pay me compensation. All I have to do is periodically search google for my poem and send letters of infringement wherever it shows up. — kranzky, Nov 24 '23 at 10:37
@kranzky Not really, given that poem is copyrighted to you, you have full rights to license that as CC BY-SA 4.0. When you posted it here you did publish it under that license, so people could republish it as long as they meet the requirements for CC BY-SA 4.0. Your statement there does not even look like a license to me, it is just a statement that you "will demand $1000 in damages" You could replace that with something like "will eat cake" and you can see how that does not put anyone (except you?) under any legal obligation. — Abdul Aziz Barkat, Nov 24 '23 at 11:47
@AbdulAzizBarkat right, because the poem is copyrighted to me and because I posted it then it was re-licensed so that users of the API can re-publish it without fear of me pursuing them for damages, but if I posted a poem copyrighted to somebody else without their consent then a user of the API that re-published that poem would be liable for copyright infringement, and the author of that poem could pursue a claim against them? — kranzky, Nov 24 '23 at 15:41
@kranzky Unless you can realistically argue that you could sell a license to that poem at $1000, I don't think you can just claim that as damages. (I also think you were too hasty to accept an answer; it's conventional to wait at least 48 hours. This is not a trivial topic.) — wizzwizz4, Nov 24 '23 at 18:56
@wizzwizz4 what I could do is send a letter to the person who republished the poem asking them for $1000 in compensation and advising them to consult a lawyer, knowing that they may just pay me instead, which is precisely what PicRights did to me, asking for $970 because I republished data from the stack exchange api that included an image URL to an unlicensed image. hiring a lawyer to defend my right to republish will cost me more than the compensation they are demanding. — kranzky, Nov 25 '23 at 04:06
By posting it here, I think you give SE an irrevokable license under Creative Commons so others may be able to repost it - and you can grant that license since you are the copyright owner of the poem (assuming you own copyright over it) — dan1st might be happy again, Nov 25 '23 at 16:03
@dan1st yes, hence see my earlier comment that "if I posted a poem copyrighted to somebody else without their consent then a user of the API that re-published that poem would be liable for copyright infringement, and the author of that poem could pursue a claim against them" — kranzky, Nov 26 '23 at 07:43

score 11 · Accepted Answer · edited Nov 25 '23 at 23:13

11

Yes, he's liable.

A Partial Copy of a Fair Use is not necessarily Fair Use

Content that is used with Fair Use on Stack Exchange isn't necessarily used with Fair Use in the website that uses the data from SE. If, for example, someone discusses a poem, that is Fair use. But ripping the poem to another page and ditching the discussion no longer discusses the poem and thus is no longer covered under Fair Use.

You can't license what you don't own.

If someone includes a work that they have no rights to use in their answer or question, that does not transfer any rights into Creative Commons. In fact, you can't put a license on anything that you don't have rights to. Copying any content that someone else published as a copyright infringer doesn't make it ok - you just become a copyright infringer too!

edited Nov 25 '23 at 23:13

jwodder

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answered Nov 23 '23 at 14:12

Trish

39,097
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I'm talking about the case where the content on Stack Exchange infringes copyright. For example, if I posted an unlicensed image in my question above, could the person who republished my question using data from the stack exchange API be held liable by the copyright holder of the image? – kranzky Nov 23 '23 at 14:25
2

Lower case then. You can't license what you down't own. Both infringe. – Trish Nov 23 '23 at 14:27
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Thanks for the clarification. Well, that's a tremendous disincentive from doing anything with CC licensed data, as checking first to see whether any of it infringes anyone's copyright is nigh on impossible. – kranzky Nov 23 '23 at 14:34
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"Copying any content that someone else published as a copyright infringer does make it ok..." I take it you mean "... doesn't* make it ok."* – T.J. Crowder Nov 23 '23 at 16:26
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@kranzky It's not specific to CC licensed data. It's anything licensed under any license. As the person exercising the license, you're responsible for verifying that the person purporting to give you the license has the right to do so. There is, potentially, more risk when not getting the license directly from the person claiming they hold the copyright, but the risk exists there too. For licenses which re-grant a license to anyone who receives a copy, then there is risk that someone in the chain from the copyright holder lost the license and/or never actually was able to grant a license. – Makyen Nov 23 '23 at 16:53
7

This analysis appears incomplete. It does not appear to take into account laws such as the DMCA, which, under specific conditions, provide a safe harbor for a service provider, which the entity described in the question could arguably be considered, and assuming that an agent for receiving DMCA takedown notices was appropriately designated as described in 17 USC § 512(c)(2). – Makyen Nov 23 '23 at 17:19
@Makyen to the servcice provider, which is Stack Exchange or the page the other user uploads it to, but not either the author of the SE post or the person copying verbatim. – Trish Nov 23 '23 at 21:29
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Stack Exchange is, obviously, the original service provider. It's unclear to me that the the entity described in the question wouldn't be considered a "service provider", under the definition used in the DMCA. The definition for "service provider" in the DMCA doesn't require that the service provider be the original service provider. Of note is that due to the CC BY-SA license, the user does have an explicit contractual relationship with the entity mentioned in the question (i.e., the license). I don't feel that it can be said without some precedent, that they are not a service provider. – Makyen Nov 23 '23 at 21:51
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IMO, it is consistent with the legislative intent for such an entity to be considered a "service provider" and afforded the safe harbor, as long as they comply with the minimum requirements in the code. My opinion is that you've made an assumption as to who you consider to be the service provider, rather than all those encompassed under the definition of "service provider" in 17 USC § 512(k)(1). – Makyen Nov 23 '23 at 21:51
1

Of further note, 17 USC § 512(d) is also likely to apply for the images described in the question, assuming that the links to the images (which are only links, even when the browser displays the image in the page) remain pointed to the i.stack.imgur.com location to which the author of the content uploaded them and were not copied to a separate location. – Makyen Nov 23 '23 at 21:51
@Makyen That seems to be enough for an answer. – wizzwizz4 Nov 24 '23 at 18:55
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@Trish Infringement doesn't equal liability. I think you're answering two slightly different questions to the one that was asked. – wizzwizz4 Nov 24 '23 at 18:59

score 7 · Answer 2 · answered Nov 23 '23 at 19:44

united-kingdom

Not necessarily.

The copyright in a work is infringed by a person who, without the licence of the copyright owner,
(a) possesses in the course of a business,
(b) sells or lets for hire, or offers or exposes for sale or hire,
(c) in the course of a business exhibits in public or distributes, or
(d) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
an article which is, and which he knows or has reason to believe is, an infringing copy of the work.

Subsection (d) would appear to apply to the circumstances described ("Copyright is infringed by distributing an infringing copy"), which means that if there is no reason to believe it is an infringing copy, that is an available defence.

That defence will probably only be rarely available, though.