Should Websites Be Penalized for Embedding a Copyrighted Video Hosted Illegally by Another Site?
- Posted on April 11, 2012 at 10:00pm by
Liz Klimas
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The Seventh Circuit Court of Appeals is hearing a case involving a porn site that has big names such as Google, Facebook and the Motion Picture Association of America weighing in in favor of and against its far reaching implications.
Ars Technica explains in July 2011, a federal judge ruled in Flava Works Inc. vs. Gunter that simply embedding copyrighted videos is considered an infringement and therefore illegal — even if the embedder did not upload the copyrighted material to the Internet in the first place. A website called MyVidster, owned by Marques Gunter, began embedding videos from the adult content company Flava Works, to which the latter issued takedown notices. Ars Technica reports MyVidster was not hosting the embedded videos, third-party sites were, but was still asked to remove them anyway. MyVidster says it complied with this request but Flava Works still took them to court for copyright violation.
The initial ruling that found Gunter in violation for not ”[warning ] his users about copyright infringement” and taking action to terminate accounts of repeat uploaders of copyrighted content.
Unless the entity who posted the video on YouTube has disabled the function, you can embed the content elsewhere on other sites.
As this case now makes its way through appeals court, MPAA is asking that the original ruling be upheld, while Google and Facebook brought to the court’s attention late last year that previous cases have maintained a legal distinction between embedding and hosting videos online. A portion of their statement said:
“In order to be liable as a direct infringer of the exclusive right of public performance, one must transmit or otherwise communicate the copyrighted work in question.”
Google, Facebook and other advocates for a free Internet stated it was the third-party sites communicating with the copyrighted work, not MyVidster.
The Guardian clarifies the crux of the issue is how much responsibility should lie with sites like MyVidster, which are just embedding content they found elsewhere:
Should they merely act when notified of copyright infringements, or should they take a more proactive role in policing their websites?
Here’s what MPAA had to say (via Ars Technica):
“Although there is nothing inherently insidious about embedded links, this technique is very commonly used to operate infringing internet video sites,” the organization writes. “Pirate sites can offer extensive libraries of popular copyrighted content without any hosting costs to store content, bandwidth costs to deliver the content, and of course licensing costs to legitimately acquire the content.” The MPAA also notes that embedding can enable sites to monetize infringing content by surrounding it with ads.
[...]
In the MPAA’s view, then, anyone who serves a website with an embedded link to infringing content “displays” that content to users, directly infringing copyright in the process.
With regard to terminating repeat offenders, in Nov. 2011 the Electronic Freedom Frontier and Public Knowledge told the court in a brief that the Digital Millennium Copyright Act, in which Gunter sought his defense, does not specify when or how the provider should terminate “repeat infringers.” Torrent Freak also points out that the law does not define exactly what a “repeat infringer’ is. With DMCA as his defense, Gunter had said ”most of the content are embeds which are hosted on external websites, [and] I would suggest contacting the websites that are hosting your content to help stop the future bookmarking of it on myVidster.” He also told the court he would warn and eventually terminate repeat offenders.
If the appeals court does not overturn the decision, here is what Ars Technica foresees as further reaching implications:
Numerous websites embed content from third parties they have not personally inspected. Under the theory articulated by Grady, and supported by the MPAA, these websites would be responsible for this content, exactly as if they had stored it on their own servers. This could create a serious disincentive for sites to allow users to post embedded content, hampering the convenience and user-friendliness of the Web.
Of course, as Google and Facebook stress in their brief, sites like myVidster could still be liable under the secondary infringement rules that felled Napster and Grokster. So the argument that myVidster‘s users are not a direct infringer isn’t an argument that “link sites” that profit from infringement should get a free pass.
Secondary infringement is more difficult to prove than direct infringement, however, and the penalties are lower. That’s as it should be. Sites that host content should bear greater responsibility for that content than sites that merely link to content hosted by third parties.
Torrent Freak reports that Flava Works is going to the third-party host sites and suing them as well for failing to remove the copyrighted content after several notices.
The Guardian reports constitutional law professor Lawrence Tribe from Harvard as saying in an email, ”Legal regimes imposing obligations on bookmarking sites to police the content they host threaten to chill free speech to a dangerous degree. They ought to be subject to very strict standards of constitutional review, lest the open character of the internet as a platform advancing the freedom of speech be unduly compromised.”
Gizmodo simplifies this further, pondering if in 5, 15, 20 years, such a ruling being upheld, would mean we “forbidden from embedding old music videos and awesome movie clips?”
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babylonvi
Posted on April 12, 2012 at 4:16pmThis is criminal, they are not taking the data, only pointing you where you can get it. This would effectively shut the internet down……wait a minute…..maybe that’s the whole idea.
Report Post »ExSophus
Posted on April 12, 2012 at 3:12pmInstead of making the argument…
“This could create a serious disincentive for sites to allow users to post embedded content, hampering the convenience and user-friendliness of the Web.”
…they MUST start arguing that embedding content improves the EDUCATIONAL capability and capacity of the internet AND benefits our society and the human condition as a whole…FUNDAMENTAL reasons “Fair Use” was put in place in the first place.
Those who provide the tools to provide access to “content” must not be confused with those actually do the infringing.
Libraries were critical to the USA’s development as an emerging nation over the last two and a half centuries, making “content” available to the masses no matter the person’s economic status. Plus, with “book lending” between libraries it was possible to share limited physical “content” (copyrighted books) over a large geographic area…and those are things at which the internet EXCELS.
It must also be kept in mind that “Fair Use” explicitly allows using copyrighted material WITHOUT the owner’s permission, as long as certain conditions are met…including certain uses for educational, news, discussion, etc. Research “Fair Use” on Wikipedia. JUST because someone provides access to copyrighted “content” does NOT mean they are infringing a copyright. What part(s) of the “content” is used and most importantly, HOW the “content” is ultimately used, makes a HUGE difference.
Report Post »kaydeebeau
Posted on April 12, 2012 at 8:52amIsn’t this like holding the copier company / supplier responsible for my copying pages from a copyrighted book on their copier?
Report Post »EqualJustice
Posted on April 12, 2012 at 10:46amHAHAHAHA Yup!
Report Post »Tolkayn
Posted on April 12, 2012 at 7:31amWho said they’d never control the internet ..LMAO! This just get’s better everyday.
Report Post »The cause is our Fiat monetary driven, socio-economic system, until we get rid of it, nothing will change. Want a real solution? Check out The Venus Project, if you have questions see the FAQ page.
FreedomsFury
Posted on April 12, 2012 at 2:45amGOD is starting to open eyes buy removing the veil of this fallen fleshly world and they think they can stop it by not allowing any copyrighted material to be used, even though there is a law that completely allows you to use copyrighted material for educational purposes. The amount of YouTube videos I am coming acrossed now (especially videos about CHRIST and end times and exposing satan and his little minions disgusting plans for world domination, corrupting human dna, and depopulation) is startling how many are now popping that screen up. Come and listen and I will tell you secret you cant stop the HOLY SPIRIT and JESUS CHRIST, HIS Holy Angels, and HIS Saints win, we already have the Victory, Confess Your sins To JESUS CHRIST With Your Mouth, And Believe In Your Heart That JESUS CHRIST Is LORD, The Only Begotten SON Of The MOST HIGH One True Living GOD And Live With HIM For Eternity. For GOD The FATHER Sent CHRIST HIS SON For HE So Loved The World, So That All That Believe In HIM Will Have Everlasting Life, For GOD Did Not Send HIS SON To The World To Condemn The World But That The World Through HIM Might Be Saved.
Report Post »Kankokage
Posted on April 12, 2012 at 12:25amThis is yet another case of guilty until proven guilty. Third-party hosting sites were off the hook due to a presumption of innocence regarding the intentions and legality of the server host. If this is upheld, the precedent will be set to assume all third party hosting sites are guilty. The question is, though, will and how often would this ruling be enforced?
If you make it, instead of trying to screw everyone, find a way to take advantage of the internet and the free flow of information. Seriously, grow with the technology, not against it.
Report Post »BlessedONE333
Posted on April 11, 2012 at 11:59pmlol if this becomes a law that will be enforced then the ‘blaze’ will be taken down in a hot little minute – I mean since you use a boat load of youtube vids on this site
hehe – the NWO is just trying to censor us – duh
Report Post »Chet Hempstead
Posted on April 12, 2012 at 1:04amIt may not be that far-reaching. News clips might still fall under a fair use exception even if copyrighted entertainment materials would not.
Report Post »lukerw
Posted on April 11, 2012 at 11:54pmAll information… should be Free… but, depending upon the Form that one chooses to view it, there maybe fees & charges!
Report Post »marybethelizabeth
Posted on April 11, 2012 at 10:37pmI wonder whether permission was obtained from Google to use their image to illustrate an article about property rights infringement.
The illustration is inappropriate in this case anyway since it would not be the user removing the content but the rights holder.
Another poor theblaze article.
Report Post »joe conservative
Posted on April 11, 2012 at 11:04pmIt’s only a matter of time before the government comes in to “save the day” when it comes to the internet. Especially with information like this http://www.youtube.com/watch?v=BhpXDNIocJw that they don’t want the American people to see.
Report Post »Kankokage
Posted on April 11, 2012 at 11:52pmNitpicking idiocy, MBE. You’re really grasping for straws there.
Report Post »marybethelizabeth
Posted on April 12, 2012 at 10:41amMr. Kankokage, How am I grasping at straws when pointing out that theblaze has low standards.
Report Post »I think I made my point.
Celeste.Christi
Posted on April 11, 2012 at 10:35pmThe Chicago Way.
Report Post »Can’t pass a law – pass a regulation. Welcome to Omerica!
MAMMY_NUNN
Posted on April 11, 2012 at 11:56pmGoes along with if there ain’t a Tax create one.
Report Post »william.wadsworth
Posted on April 11, 2012 at 10:21pmUnder the current law, only that website that physically hosts the video can be penalized. As long as a website does not actually host the video, any number of links can be posted without problem.
Report Post »Baddoggy
Posted on April 11, 2012 at 10:10pmThe Guardian reports constitutional law professor Lawrence Tribe from Harvard as saying in an email, ”Legal regimes imposing obligations on bookmarking sites to police the content they host threaten to chill free speech to a dangerous degree. They ought to be subject to very strict standards of constitutional review, lest the open character of the internet as a platform advancing the freedom of speech be unduly compromised.”
_________________________________________________________________________________
Yea…we know how you idiotic Harvard Lawyers think. You dont know the Constitution from a pile of poop….Dont lecture us on the Constitution you FOOL!
Report Post »marybethelizabeth
Posted on April 11, 2012 at 10:30pmMr, Baddoggy,
You wrote, “Don’t lecture us”.
The law professor wrote an e-mail to a British newspaper. Why do you think he was addressing you?
What did you find objectionable about his opinion?
Report Post »moreoilplease
Posted on April 12, 2012 at 4:20amYour a little “off” aren’t you Mary. Your posts are mostly babel, which in this case means a confused mixture of sounds and voices or a scene of noise and confusion. Although, you seem to find the right balance of non-sense and rhetoric with regularity that even the dullest among us wouldn’t be able to do. At some point even a dullard will make a proper argument which begs the question: why put that much effort into crafting posts that are utter non-sense?
Report Post »Baddoggy
Posted on April 12, 2012 at 5:09amMary…I hope you oversleep on electon day or are too lazy to go vote for Obama
Report Post »marybethelizabeth
Posted on April 12, 2012 at 10:36amMr. Baddoggy.
I didn’t vote for President Obama in the last election.
He has been the disaster I predicted he would be.
I certainly won’t vote for him This time either.
But you still haven‘t expressed what to object to in the excerpt from the professor’s e-mail.
Report Post »