myvidster – Techdirt (original) (raw)

from the at-all dept

Recently we’ve seen a number of cases, both civil and criminal, brought against websites that involve either links or embeds of videos hosted elsewhere. UK student Richard O’Dwyer is facing extradition and criminal charges for hosting a site that did exactly that. But, as many of us have wondered in the past, how is such a site infringing at all? After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be.

A few months ago, we wrote about how the MPAA had jumped into a copyright infringement appeal involving porn producer Flava Works against a video “bookmarking” site called MyVidster. The MPAA argued that links and embeds are infringing, in support of a questionable district court ruling against MyVidster.

The appeals court ruling has now come out, written by Judge Posner, and it’s absolutely worth reading (embedded below). Posner goes into great detail about how MyVidster’s linking and embedding features don’t even come close to infringing. They’re not infringement and they’re not contributory infringement. He goes through a pretty accurate description of how embedding works, and why MyVidster is separate from the uploading/hosting/streaming. But then he notes that those watching the videos aren’t even infringing, so there isn’t even any infringement for MyVidster to contribute to:

Is myVidster therefore a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video? myVidster is not just adding a frame around the video screen that the visitor is watching. Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster’s visitor. But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies . . . of the copyrighted work to the public.” 17 U.S.C. §§ 106(1), (3). His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.

Got that? It’s actually important. He’s saying that those who are watching a video that someone else uploaded are not infringing on the reproduction right under copyright. Only the uploader has potentially violated that right. So there can’t be a contributory infringement claim over that right.

Of course, copyright includes a few other rights beyond reproduction. There’s also the “public performance” right. After running through a few different theories there, Posner again finds no clear case of infringement.

Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement…. An employee of Flava who embezzled corporate funds would be doing the same thing—reducing Flava’s income—but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.

In other words, the person watching the video isn’t doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it’s not violating the public performance right either.

As we noted in our post about the original case, part of the ruling hinged on myVidster losing its DMCA safe harbor protections by not having a repeat infringer policy. But Posner notes that the DMCA safe harbor isn’t even in question here because those viewing the videos have not infringed and thus there is no copyright infringement related to myVidster for showing the embeds:

myVidster received “takedown” notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor.

This ruling makes it clear that watching embedded videos is not infringing and then neither is hosting the embed code. While limited to the 7th Circuit, this ruling could still be quite handy in a number of other cases, including O’Dwyer’s and the Rojadirecta case, which also involves embedded videos. Eric Goldman is a bit more skeptical of the impact of the ruling, arguing that Posner reasoning isn’t particularly clear (well, he calls it a “train wreck.”) While I rarely disagree with Goldman, I’m not convinced that this is such a train wreck. While Posner’s explanation is, at times, convoluted, he does clearly make the main point: if there’s infringement, it’s completely disconnected from the user watching the video and the site doing the embedding.

Either way, Posner vacates the lower courts ruling, and notes that there are a few other issues with the case (mainly having to do with some other aspects of myVidster’s business), but the main fight shows no infringement. Oh yeah, and Posner doesn’t even reference the MPAA’s filing in the case, suggesting how compelling that argument was…

Filed Under: copyright, embedding, hosting, secondary liability, streaming, watching
Companies: flava works, mpaa, myvidster

MPAA Just Won't Quit: Jumps Into Legal Dispute To Argue Links & Embeds Are Infringing

from the what-happens-when-you-have-no-one-technological-on-staff dept

It appears that the MPAA has jumped into a legal dispute that hits on a few different points, all of which are interesting, but the really crazy point is the fact that the crux of their argument is that merely embedding or linking (technically, the same thing) to infringing videos is infringement itself — and someone setting up a site that lets people embed or link should also be guilty of infringement. This is, to put it mildly, crazy talk from an organization that still seems to have an institutional cluelessness about how the internet works. To be sure, there are a few different issues related to this case, which was really about porn company Flava Works suing the site MyVidster and its owner, Marques Gunter. MyVidster lets people link or embed videos from other sites. It did not host any of the content itself. In accordance with the DMCA’s notice and takedown provisions, Gunter would take down any embeds or links when he received a notice. However, the judge said that the site lost its DMCA safe harbor provisions because he did not take any further action: specifically because he did not cut off repeat infringers:

“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”

Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively “investigate” content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don’t quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed — and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That’s ridiculous, but that’s how the law is set up.

Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense “server test.” Basically, it’s this: is the content distributed from your server? No? Then you’re not the one guilty of direct infringement. This makes sense because it’s correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that’s what Google and Facebook explained to the appeals court.

So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it’s the folks who think the server test is reasonable who are out to lunch:

“Even assuming that Amazon.com’s novel ‘server test’ applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work.”

I realize that the MPAA isn’t known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They’re linking to someone else’s server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That’s it. When merely pointing someone to another server is seen as direct infringement of a performance right, we’ve got serious problems.

And it doesn’t end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:

… willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.

Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is “willfully blinding.” That’s wrong. It’s obnoxiously wrong. It’s the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it’ll find a clueless court to agree.

This is what’s so pitiful about the MPAA. When they lose, they don’t realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they’ve lost this argument in court over and over again.

Filed Under: dmca, embedding, linking
Companies: facebook, flava works, google, mpaa, myvidster