Friday, March 27, 2009

Blogs and embedded vidoes: what are the "risks"?

The Citizen Media Law Project has an important discussion by Sam Bayard, dated July 10, 2007, on “Embedded Video and Copyright Infringement”, link here.

There are a couple things going on here. Many media sites, but not all, offer embed code to invite bloggers to embed their videos on amateur blogs. We know that there have been issues with “framed” deep links, those that do not make it clear that the displayed content did not come from the displaying author. But in these cases, media outlets are inviting the “framing” (of their “property”) because they have decided that there is a business advantage for allowing their content to be seen “free” (without the usual sponsors) elsewhere on the web, in that it is likely to draw viewers to their programs and improve ratings. NBC Saturday Night Live offers many clips for embedding. The Weather Channel has offered animations for blog embedding before hurricanes and tornado outbreaks.

There is an article (July 16, 2008) by Christopher Heng from “The Wizard”, “Is it Okay to post YouTube videos on my website?” that warns of one problem. Some amateur creators allow the embed option (in YouTube) to stay open but then say they didn’t want their videos embedded without permission. Heng says that such persons violated common sense, but it is completely clear what courts would do. (I think they would agree with Heng.) So one should use some discretion on embedding such videos, particularly if they seem very sensitive or controversial (as in a religious matter) in such a manner that the poster would resent it being on one’s site. “Mainstream” content videos would seem much less likely to raise such concerns.

The real controversy (getting back to the CMLP article) comes with the risk of embedding a link that is itself infringing. That risk could occur with YouTube. In a practical sense, the embed may just fail to work one day. But it is possible that bloggers could be liable for “contributory infringement” according to this article if they knew or suspected that the embedded item itself infringes. In a sense, an individual blogger could be more exposed to liability than a large company.

It is true that the courts (the Ninth Circuit, with PDF link to Perfect 10 v Google given in the article above) have ruled that embeds are still bibliographic links for purposes of copyright law, since they the referring blog doesn’t actually contain the images, just the links.

EFF suggests that bloggers only embed videos that they are reasonably sure don’t infringe (such as those from mainstream media sites that offer embedding code, or videos authored by the bloggers themselves, or YouTube videos where the circumstances strongly support legitimacy – an amateur video of a tornado in progress is likely to be legitimate), and take down any on complaint of infringement. Bloggers may be able (ironically) to use the DMCA safe harbor provision, but they have to “hire” agents and go through some notification of users and other complicated steps outlined in the article.

Visitors may want to peruse the idea of a watermark to identify copyright owners of video that can be embedded, here.

I have posted a few of my own simple videos on my blogs, and I may do work that is much more substantive in the future. And it will be mine.

There could be unknown risks with embedding other video content that is otherwise illegal (like obscenity or child pornography), or “infected” (a problem associated with “news spam” discussed on my Internet Safety blog Jan. 3, 2009.

Picture: from a bike trail near Sparta, WI; still from a video on a private DVD (not yet available publicly), but mine!

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