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.  

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