Embedding Can Be Copyright Infringement

[Barry-xlovecam]

NO. 11-3190
United States Court Of Appeals For The Seventh Circuit
Flava Works, Inc., V. Marques Rondale Gunter d/b/a/myVIDSTER.com and SalsaIndy, LLC

http://www.scribd.com/FlavaWorks/d/7...-Appellants-Ma

[T]he Motion Picture Association of America is squaring off against a coalition of Internet giants and public interest groups over the key question of whether it's possible to directly infringe copyright by embedding an image or video hosted by a third party.

A federal judge took that position last July, prompting a chorus of criticism. Two briefs—one by Google and Facebook, the other by the Electronic Frontier Foundation and Public Knowledge—attacked the decision as contrary to past precedents and potentially disruptive to the Internet economy. They asked the Seventh Circuit Court of Appeals to overturn it.

Last week, the MPAA joined the fray with a brief in support of Illinois federal judge John F. Grady's ruling. It urged the Seventh Circuit not to draw a legal distinction between hosting content and embedding it. In the MPAA's view, both actions should carry the risk of liability for direct copyright infringement. ...

http://ia600506.us.archive.org/3/ite...48465.77.0.pdf

http://arstechnica.com/tech-policy/n...ng-a-video.ars

http://torrentfreak.com/mpaa-joins-g...battle-120409/

I think it will center on this finding;

p 24 (1: )
[i]t should Moreover, the second sentence is unnecessary be understood from this opinion that, in plaintiff’s words, the “fact that a video is available publicly on the [i]nternet shall not be reason for [Gunter’s] abdication of [his] responsibility to make a determination as to whether or not a video is copyrighted.” ... 10-6517.112-JCD July 27, 2011

» The thinking that a copyrighted material that has become in general public domain unlawfully does not relieve the publisher of responsibility for embedding copyright material even if the material is hosted on a remote server.

Depending on the ruling of the US Appeals Court, with the MPAA, Google, Facebook and the EFF all filing briefs, this has the appearance of being a major ruling but it should be pointed out that only USA entities or entities with USA hosting will be affected in whatever outcome of this US Appellant case.

Read the links -- this is a complex issue ...

I see this possibly applying to the USA entity or hosted (or some USA controlled gTLD name space [.com .net etc.]) "feeder tubes" embedding the "mother ship tubes'" copyright infringing content.

Covered in the case are the responsibilities under the DMCA to assert safe harbor so this may become an important ruling ...

[d-null]

very interesting, thanks for posting this

also should be a heads up for those that scrape and embed

[halfpint]

oooh uhh there goes GFY

[19teenporn]

Great, no more embedding from redtube and xvideos!




Wait.....

[raymor]

Where people tend to get overly excited about this stuff, and where they get confused about law in general, is that they forget prosecutors, judges, and others involved with the law are humans and have brains. So if the ruling stands that only means that embedding doesn't AUTOMATICALLY exempt you. A judge can still tell the difference between stolenvideos.com embedding your content from hackers.com versus howto.com embedding a youtube video.

In the megaupload case we've read about emails where the officers of the company explicitly said they wanted to get more thieves to upload more stolen stuff. Prosecutors needed those emails because it matters - the law, and judges applying the law, pay attention to that stuff.

[d-null]

Originally Posted by raymor

... A judge can still tell the difference between stolenvideos.com embedding your content from hackers.com versus howto.com embedding a youtube video.

....

I'm confused by this, can you explain the difference?

[Coup]

Gideon Gallery in 3... 2..

[$5 submissions]

Originally Posted by Coup

Gideon Gallery in 3... 2..

[kane]

Originally Posted by Coup

Gideon Gallery in 3... 2..

I was going to say that I was just impressed that there was a copyright thread that someone other than Gideon started.

[porno jew]

plenty of people have been prosecuted for running sites that just linked to pirated material can't see who embedding would be any different.

[Barry-xlovecam]

[W]hen a user bookmarks or posts a video on myVidster, he essentially directs myVidster to ?embed? a video clip on its site. When a user submits a video to be posted on myVidster, myVidster ?crawls? the website that hosts the video, gets information about that video file, and creates a thumbnail image of the video if one is not already available.5 MyVidster then ?embeds? the video on its site, allowing it to be displayed there. MyVidster does not simply link to video files displayed on another site; it embeds the files on its own site at the direction of users.

5/ In other words, The thumbnail image is hosted on myVidster?s servers. (June Tr. 66.)
Case: 1:10-cv-06517 Document #: 77 Filed: 07/27/11 Page 4 of 26 PageID #:1394 - 4 -


when a visitor to myVidster clicks on a video that is posted there, the video plays directly on myVidster, and the visitor remains on the myVidster site; he or she is not taken to the site that hosts the video file. ...

Now I haven't had the opportunity to read the brief filed by Google but by this part of the TSO it was not motivated by the embedding of the errant youtube user posting ... There are parallels to Google Images here ... Facebook's issue should be obvious.

Trusting a Court to make common sense rulings I have found from experience often to be wishful thinking -- especially the lower courts.

This whole subject caught my own interest as we have just launched a mainstream social media mobile video sharing website. I would like to find the Facebook "friend of the court" brief as it might be somewhat relevant to our situation -- notwithstanding our domicile and the location of our servers (not in USA Territory). However, a US Court ruling might influence the Dutch Court's opinion on these matters and that would be of concern to us.

[Dirty Dane]

Originally Posted by raymor

Where people tend to get overly excited about this stuff, and where they get confused about law in general, is that they forget prosecutors, judges, and others involved with the law are humans and have brains. So if the ruling stands that only means that embedding doesn't AUTOMATICALLY exempt you. A judge can still tell the difference between stolenvideos.com embedding your content from hackers.com versus howto.com embedding a youtube video.

Why would content hosted on youtube.com servers be different from hosted on hackers.com?

If the content is the same and re-distributed the same way, the law and judges shouldn't distinguish between the two. Because this is about embedding, not placement.

[Nautilus]

Originally Posted by Dirty Dane

Why would content hosted on youtube.com servers be different from hosted on hackers.com?

If the content is the same and re-distributed the same way, the law and judges shouldn't distinguish between the two. Because this is about embedding, not placement.

It's different because youtube has DFP implemented and they also have repeat infringer policy, that's why if you're a copyright holder you're in complete control of what's happening on youtube your copyrighted content wise (if you care of course). Hackers (illegal tube) will most likely implement nothing of the above, and their uploaders will just keep posting your video no matter how many times it was removed by you.

It is also a huge difference between a mostly non-infringing site where an occasional copyrighted clip slips through every now and then, and get's dealt with quickly. And some mostly infringing site where an occasional non-infringing clip slips through - that's pretty much different story, and courts are usually perfectly capable of telling one type of sites from another.

For the second type of sites tubes like youtube are not really suitable as a source of embeds, because copyright holders will just block all of their clips there probably without even bothering of trying to contant the site itself. They'll have nothing to post in no time because YT will not allow them to reupload. But an illegal tube, that doesn't block anything and doesn't ban anyone, well, that's a good source of embeds for those who intend to infringe of a regular basic.

[Jakez]

^to be fair, youtube hosts far far far more copyrighted material than any other site. Material that ISN'T removed.

[Nautilus]

Originally Posted by Jakez

^to be fair, youtube hosts far far far more copyrighted material than any other site. Material that ISN'T removed.

That's true. It even hosts lots of our copyrighted clips - usually softcore videos or softcore parts of hardcore videos, so I kinda know that first hand I'd gladly put a promo page for our network on youtube with those same softcore clips, but you know, porn is OK only when it is stolen. Save God legit producer will go on and try to post his clips on youtube, or sell them through paypal etc. When it is stolen it is fine because it's "user submitted", but when you're trying to work with any of those big companies yourself to promote your clips directly, it's "porn OMG! ban ban ban".

However, I have to admit that it is certainly possible to remove all of our clips from youtube and make sure they never appear again there. I'm not doing it for various reasons (mostly because youtube is not the prime target since they do not allow hardcore, and also because on some of those clips they even display our network logo so we get at least some exposure from youtube), but that's certainly possible. If some tubes will appear that will start embedding our stolen clips en masse, I'll definitely put other matters aside and contact youtube to get this sorted out.