Embedding of Copyright Infringing Video Not (Necessarily) a Crime

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.

Another interesting aspect of the decision

[JDG1980]

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.