Partitions and Tests

From the perspective of the curious, somewhat intelligent layperson (the kind I consider myself to be), the law sure seems replete with categorizations and tests. For instance, copyright infringement is decomposed in various ways. (See ARL Policy Notes.)

  1. Copyright infringement can be either of the direct or indirect kind. Direct infringement is, in the parlance of some copyright owners, “stealing” somebody’s intellectual property, whereas, indirect infringement is somehow making it possible for such thieves to ply their nefarious trade.
  2. If the infringement is indirect, otherwise known as secondary liability, then the liability can be classified as
    1. Vicarious liability: controlling and financially benefiting from a third party’s copyright infringement. Or
    2. Contributory liability: knowing and substantially participating in a third party’s infringement activities by, for example, inducing, causing, or contributing materially to the unlawful activities.
    3. Inducement of copyright infringment: this was raised in the MGM Studios, Inc. v. Grokster, Ltd. case. However, it remains unclear to me whether this is a third category of secondary liability, distinct from vicarious or contributory liability, or an aggravating factor that gets you convicted of one or the other, or both.

Similarly, privacy laws deal with four categories of violations. (See Anthony Lewis’s Freedom for the Thought that We Hate: A Biography of the First Amendment, Chapter 5, “Freedom and Privacy”.)

  1. Appropriation: using somebody’s likeness
  2. False light privacy: “putting somebody in a false light by, for example, fictionalizing a story about him”
  3. Intrusion: “invasion of a person’s personal space by means, for example, of an eavesdropping device”
  4. Publication of true, but embarrassing, facts: for example, see the case of Sipple v. Chronicle

For determining whether somebody is guilty of something or other, courts have devised various tests. In fact, the tests themselves can be classified in two ways

  1. Bright-line test: quantitatively determined “yay” or “nay”. In Bridgeport Music, Inc. v. Dimension Films, the US Court of Appeals for the Sixth Circuit handed down the bright-line rule “get a license or do not sample”. This means that even a one note, unrecognizable reuse of a music recording can be considered copyright infringement.
  2. Not so bright-line tests, or balancing interests standards: this means that the courts have to weigh several factors in deciding a case, with no explicit values set for each weight. It also refers to instances where a court uses language that is open to interpretation without elaborating on what it means.

The most famous test is perhaps the “clear and present danger” test promulgated by Justice Holmes. I don’t think I understand this standard, so I’ll just let that link to Wikipedia speak for me and note that Anthony Lewis contrasts the “clear and present danger” test with Judge Learned Hand‘s (his real name!) reformulation of the standard, “whether the gravity of the ‘evil’, discounted by its improbability, justifies such innovations of free speech as is necessary to avoid the danger”.

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