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Re:Major book publishers sue Amazon’s Audible over new speec... by gamblor956 on Monday August 26, 2019 @06:33PM (#20804411)
To be clear, you're still processing the same file. You're just not processing all of it for the sake of efficiency. If you want to get into the very technical details, then it depends very heavily on what type of codec you're using since some codecs interleave video and audio data, while modern codecs generally don't (and in fact require separate audio and video codecs).

Consider this another way: is a web browser infringing a website's copyright when it makes a "derivative work" of the page by blocking the ads on it?

Yes, under copyright law, since the article and the page are separate copyrightable works. The question is does a fair use exception apply? (For something like reader mode, the answer is likely yes, but it gets more complicated for an ad-blocker that just removes ads while retaining other elements of the page.)

Or, hopefully even clearer: is a CD player infringing the CD's copyright when it applies an EQ preset to the audio as it plays it?

No, the CD player isn't a person and isn't infringing anything. The user of the CD player is creating a derivative work by applying an EQ. An analogous case (several actually) discusses this point with respect to running computer software. Courts ruled that the copy was necessary for a user to "enjoy" (make use of) their license. And with respect to the EQ, a fair use exception would apply. And even if it didn't, then a compulsory license would apply (in the US at least), and you would owe the song creator a fraction of a fraction of a penny for every performance.

There's a very fine point I'm trying to gesture at here—the point where something goes from being "the creation of an infringing derivative work" to "the way that a device which reproduces the work for the purpose of consumption, chooses to do that reproduction."

No, it's actually a very bright line. Either you're working with the original, or you're working with a derivative work. The question is whether your use of the derivative work you've created is covered by the license, or by fair use.

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