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Piracy The Courts The Internet

Embedding of Copyright Infringing Video Not (Necessarily) a Crime 45

Posted by Soulskill
from the not-that-the-industry-will-take-the-judge's-word-on-it dept.
Social bookmarking site myVidster was the target of a copyright infringement case because it allowed its users to embed videos from other sites on its pages. Some of the videos infringed upon various copyrights, and the plaintiff in the case was granted a preliminary injunction against myVidster in 2011. Now, the Seventh Circuit Court of Appeals has overturned the injunction, saying that merely embedding copyright-infringing videos hosted elsewhere does not necessarily contribute to the infringement. Judge Posner wrote in the opinion (PDF), "myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not 'transmitting or communicating' them. ... Is myVidster doing anything different? ... myVidster doesn't touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster." However, the door is not shut on this issue: "Flava may be entitled to additional preliminary injunctive relief as well, if it can show, as it has not shown yet, that myVidster’s service really does contribute significantly to infringement of Flava’s copyrights." If myVidster was actively encouraging the sharing, hosting the videos itself, or profiting from their showing, the ruling likely would have been different.
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Embedding of Copyright Infringing Video Not (Necessarily) a Crime

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  • by Banichi (1255242) on Saturday August 04, 2012 @03:09PM (#40879251)

    >By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not 'transmitting or communicating' them.

    Now, if we can only get the Judge to see the same about torrents.

    • The problem with torrents is usually the payload they carry. Copyright infringement is a crime, no matter the way of committing it.
      Or were you referring to torrent sites like Piratebay? Because based on this reasoning, such sites are innocent, provided they're not hosting the infringing torrents (which Piratebay, at the very least, doesn't).

      • by Anonymous Coward

        provided they're not hosting the infringing torrents

        Since when are torrents themselves infringing?

      • by Anonymous Coward

        Torrent sites host torrents, unless they use magnet links. Torrent files are small files containing pointers to the actual material. Thus you are incorrect, it's not about the payload they carry, it's about the fact that the torrent itself is only a pointer file, and should be recognized as such. Of course now that sites are moving to magnet links this is a moot point.

      • Re: (Score:3, Insightful)

        by rohan972 (880586)

        Copyright infringement is a crime, no matter the way of committing it.

        In most cases of non-commercial infringement this is incorrect. Most non-commercial copyright infringement is a breach of civil law, not criminal law. If caught you may be sued, you will not be arrested, you will not be charged with a crime, you will not be convicted of a crime, you will not have a criminal record. You could be stripped of assets to pay for any judgements against you.

      • by grahammm (9083)

        Both links and torrents are essentially equivalent to bibliographical references in paper books. The only difference is the mechanism used to follow the reference. With a reference in a printed book you go to the library index to determine on which stack/shelf the work is located, with links and torrents your software does a DNS lookup get to get the IP address of the server holding the work, In both cases you (or your software) visit the location and read the referenced work.

      • Your statement "Copyright infringement is a crime, no matter the way of committing it" is invalid.

        To the contrary, in the USA, all exercises of "fair use" rights are in fact copyright infringement, and as "rights" these are of course permitted by law. As a matter of legal procedure, it is typically necessary to note that an infringement has occurred before one may argue that the infringement was in fact of the type permitted by law. Doing something that can reasonably be considered fair use rights is not

        • Thanks for the exhaustive correction. I admit that Fair Use slipped my mind, given that based on what I see/read on the internet (my only forum for getting appraised of US law, given that I'm from Europe), certain organisations are doing everything they can to abolish it.
          Then again, is doing something that is expressly permitted a form of infringement? I'd say not, fair use is fair use, which is not an infringement, but ripping a DVD to HDD and marketing it is. In Hungary, though, such rips are legal as lon

          • Your point that it is inappropriate to associate fair use with infringement is well taken. The legal procedure that seems to be followed in these matters in the USA -- i.e. that one must admit infringement to argue fair use -- has never made much sense to me. I agree entirely that a word that implies (or could potentially imply) wrongdoing should never have to be used as a precursor to assert a right.

            I am pleased to hear that Hungary has sensible policies with respect to making reasonable copies: hopefull

  • by Anonymous Coward

    Of course, a link isn't a form of media so they will abuse this sort of stupidity in the courts.

    Even though they may have won in this, they will continue.
    They took down Megaupload illegally, after all. What makes you think they will care about this site? Especially if it gets big.
    They'll just crush it or wreck the owners life, or both.

  • Tort, not crime (Score:4, Insightful)

    by ShanghaiBill (739463) on Saturday August 04, 2012 @03:36PM (#40879427)

    Copyright infringement is not normally considered a crime. It is a tort. People that don't understand the difference between criminal and civil law probably should not be writing headlines for stories about the legal system.

    • by tomhath (637240)
      Willfull infringement on a commercial scale is a criminal act. It will be hard for myVidster to claim they are doing anything else..
  • by cpu6502 (1960974) on Saturday August 04, 2012 @03:48PM (#40879519)

    By embedding someone else's video to Vidster, they are sucking someone else's bandwidth & increasing their hosting costs. I'm surprised the other host didn't just block vidster.com

    • by Osgeld (1900440)

      on the other side of the coin its free advertising if the content is worth it, they will go to the source, plus at the end of the video theres links to more of the source content

    • by ewanm89 (1052822) on Saturday August 04, 2012 @04:22PM (#40879799) Homepage

      Does the video use less bandwidth when embedded on YouTube.com vs. some other site? Or does the stream itself use identical bandwidth but the page load use less because its not loading all the rest of it like the logo and comments.

      Some video hosting services, youtube being the obvious example, actively encourage embedding as they still get the fees from the advertising embedded in the flash video player or video stream.

    • by toejam13 (958243)

      If you do not want your content to be accessed from other sites, there is a very simple way to fix it: simply configure your webserver to lock down the content using a whitelist of referrer domains. If a client attempts to fetch the resource from an unauthorized web page, they'll receive an HTTP 4xx error instead.

      Anyone who has visited a discussion forum that allows inline linking of images has probably seen an image or two that says "hot-linking not allowed" or "stop stealing my bandwidth" instead of the

  • by JDG1980 (2438906) on Saturday August 04, 2012 @04:02PM (#40879613)

    Posner's opinion seems to say that while someone uploading a video is guilty of copyright infringement, the viewers who merely streamed the video are not.

    But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright ownerâ(TM)s exclusive right, conferred by the Copyright Act, "to reproduce the copyrighted work in copiesâ and âoedistribute copies . . . of the copyrighted work to the public." 17 U.S.C. ÂÂ 106(1), (3). [...] The infringer is the customer of Flava who copied Flavaâ(TM)s copyrighted video by uploading it to the Internet.

    There is only one case I'm aware of where any company attempted to sue someone for simply watching a stream: the UFC lawsuit against Greenfeedz users [torrentfreak.com]. In this article, an attorney was skeptical that such claims would hold up, and Posner's judicial opinion seems to provide strong backing for throwing out those lawsuits.

    It is not clear to me whether downloading a video (as opposed to streaming it) would be considered making "a copy of the copyrighted video" under the Copyright Act. Has this ever been discussed in any other court case in the United States? Except for the UFC incident, I'm not aware of any lawsuits filed against end users for downloading alone.

    • by slazzy (864185)
      I have to say it kind of makes sense, since you could easily have a pop-under window start to stream a video behind your browser, you'd have no idea you were watching illegal content. Of course even if you did see the video, unless you have memorized every copyrighted work in the history of mankind, it would be impossible to know if you are breaking the law or not.
  • I'm certain I'm taking a less than popular position on this issue, but the example they gave, of the New Yorker publishing locations of performances, and comparing that to publishing a computer's IP address, isn't entirely a fair comparison.

    The New Yorker is publishing locations of those performances, true, but the performances and their venues don't generally infringe on copyright.

    Deliberately publishing locations where practically all content is essentially known to be infringing, and any non-infring

    • by sjames (1099)

      That's not what they're doing though. They host a bulletin board where individual users post pointers to videos stored on other sites.

      If I stick a note on your bulletin board telling my partner in crime which bank and when, does that make YOU a bank robber?

      • by Havenwar (867124)

        Excellent point!

        The answer of course is yes, it does make you a criminal... If your bulletin board specifically encourages bank robbers to use it for this purpose. You become an accessory, or you become guilty of inciting, or something of the kind, depending on jurisdiction and particulars.

        • by sjames (1099)

          And if it's just a bulletin board that says post funny stuff here?

          I took a look at the site in question. I didn't see any suggestion that copyright infringement was wanted.

          • by pepty (1976012)
            from OP:

            However, the door is not shut on this issue: "Flava may be entitled to additional preliminary injunctive relief as well, if it can show, as it has not shown yet, that myVidster’s service really does contribute significantly to infringement of Flava’s copyrights." If myVidster was actively encouraging the sharing, hosting the videos itself, or profiting from their showing, the ruling likely would have been different.

            So how has Sidereel.com survived? It's a website (based in CA) that lists legit links to shows but their traffic is driven by all of the links to pirated content that they let people add.

  • by Hentes (2461350)

    So embedding infringing content is fine, but linking to it is a capital offence?

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