If this latest ruling from the 7th Circuit hadn't come forth, I wonder if Google would be embedding YouTube videos that members make comments on in the members' Google+ feeds.
Thursday, April 10, 2014
Embeds and copyright: revisiting some litigation in 2011-2012
Earlier today, I posted a review of a PBS Nova show
(on the TV blog) and an embed of the show from YouTube that appeared to have
been posted by PBS. Pubic Television sometimes posts videos of its programs for
free viewing, although it generally tries to sell DVD’s of them (or rent them
to subscribers as through Netflix) in order to earn some revenue. When I checked this evening, I found that the
embed didn’t work and that YouTube had already removed the user for “commercial
deception” so apparently the particular account had been set up to impersonate
PBS.
I have noticed that some embeds stop working after
some time. Sometimes a user has been
removed for multiple complaints of copyright infringement. Sometimes the video has been taken private
(which may mean that the owner wants to sell it on Amazon or Netflix or iTunes
soon) or sometimes it says that the video does not exist. I haven’t seen a notice that a user was
removed for spam or “commercial deception” before.
Generally, I don’t embed a video that looks like it
is likely to be infringing. But if the
origin is depicted as the content owner and it is fraudulent, there is no way
for a blogger to know. Of course, if
YouTube (or similar provider like Vimeo) takes the original video down, then
the embed cannot play it, and any theoretical secondary infringement could no
longer happen. I’ve never heard of a
DMCA takedown for an embed.
In April 2012, Timothy B Lee (now with Vox Media)
has posted a story about litigation brought by the MPAA to remove the legal
distinction between hosting infringing content and embedding it, on Ars
Technica, ("MPAA: You can infringe just by embedding a video") detailed explanation here. The original opinion had supported this
idea, in the case Flava Wors v. myVidster, Salsaindy, Voxel et al., in
Illinois, decision in July 2011, link here.
Alyssa Rosenberg has an article in ThinkProgress in
April 2012, “The lawsuit that could change video embedding as we know it:, link
here.
Apparently the Seventh Circuit ruled rather quickly,
with a decision on Aug. 2, 2012, reproduced in Techdirt (here), that embedding could
not contribute to copyright or even “performance” infringement, although the
ruling seems to leave open other somewhat vague theories under which a
bad-faith or deliberate embedder might be pursued. “Viewing” copyrighted materials illegally
might be theft and prosecutable in some kinds of situations, but doing so does
not constitute copyright infringement itself. I have not heard of any more developments on this issue since the summer of 2012. Remember there have been rare cases of litigation for other torts associated with hyperlinks, including libel.
If this latest ruling from the 7th Circuit hadn't come forth, I wonder if Google would be embedding YouTube videos that members make comments on in the members' Google+ feeds.
If this latest ruling from the 7th Circuit hadn't come forth, I wonder if Google would be embedding YouTube videos that members make comments on in the members' Google+ feeds.
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