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Re: FW: Embedding copyright-infringing video is not a crime, court rules - CNET Mobile

From: Martin J. Dürst <duerst@it.aoyama.ac.jp>
Date: Mon, 06 Aug 2012 19:36:14 +0900
Message-ID: <501F9E1E.4010702@it.aoyama.ac.jp>
To: ashok.malhotra@oracle.com
CC: www-tag@w3.org
On 2012/08/04 8:40, Ashok Malhotra wrote:
> Thanks, Wendy, that's very helpful.
>
> Although we have decided to stick to just technical exposition in the P&L,
> I"m tempted to add a paragraph like the following:
> **In some situations and in some jurisdictions legal opinion distinguishes
> between linking and embedding. For example in
>
> <http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=11-3190_002.pdf>
>
>
> Judge Posner makes an analogy between embedding a foreign site's video
> and giving the
> address of a bookstore (from which someone might steal a book; not an
> infringement of
> copyright) or a theater (in which the play is performed.) The listing
> isn't doing the public performance.

Yes indeed. But the analogy is flawed in the sense that if I (as the end 
user) get an address of a bookstore, I have to make a conscious decision 
and carry it out to go there and steal something, and in the case of a 
theater, I have to make a conscious decision and carry it out to go 
there and sneak in without paying. To me at least, that seems to be 
quite different to the browser case, where I (as the end user) don't 
make any such decision at all, the browser does it for me. And why does 
the browser do it for me? Because it is instructed so by the code from 
the site in question.

Anyway, IANAL and such, but as far as I understand the US system, a 
decision doesn't yet make law. Also, it is a preliminary decision, and 
one aspect of it is special in that it's not addressing the main 
question of whether embedding copyrighted content is a-priori legal or 
illegal, it's just about whether embedding from an already 
copyright-infringing site is contributory copyright infringement. 
Whereas we technical people would probably see both as one and the same, 
that's not so sure with these lawyers and judges.

I also have the impression that these days for sites such as YouTube, 
embedding videos is actively promoted (see e.g. 
http://support.google.com/youtube/bin/answer.py?hl=en&answer=171780). 
Although it's specific to YouTube's business model (they may put 
advertisement at the start of the video or put in a transparent 
logo,...), it may be that this influences the way general people and 
judges think about video embedding.

Regards,   Martin.

> **
> All the best, Ashok
>
> On 8/3/2012 2:14 PM, Wendy Seltzer wrote:
>> On 08/03/2012 12:14 PM, Noah Mendelsohn wrote:
>>> Wow, thanks! Unfortunately, the link [1] provided for the actual court
>>> ruling doesn't resolve just now,
>> A better link is
>> <http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=11-3190_002.pdf>
>>
>>
>> The case is Flava Works, Inc v. Marques Rondale
>>
>> The full decision is a readable 20 pages, showing a better technical
>> understanding than many courts. Posner makes analogies between embedding
>> a foreign site's video and giving the address of a bookstore (from which
>> someone might steal a book; not an infringement of copyright) or a
>> theater (in which the play is performed; the directory isn't doing the
>> public performance).
>>
>> --Wendy
>>
>> but accepting as correct the quote in
>>> the CNET article that the court has ruled:
>>>
>>> "MyVidster 'doesn't touch the data stream' and therefore doesn't host
>>> the infringing video, but links to versions hosted elsewhere on the
>>> Web.",
>>>
>>> it seems to me that the court has done a pretty good job of noticing the
>>> sorts of technical distinctions that the TAG is hoping to clarify in its
>>> finding.
>>>
>>> FWIW, a quick look at myvidster.com suggests that what they are doing
>>> is:
>>>
>>> * Indexing videos from other sites.
>>>
>>> * When you select one, they give you a single Myvidster page for the
>>> video that roughly resembles a Youtube page.
>>>
>>> * The video is embedded, I.e. you can play the video in place on the
>>> myvidster page, but the video is indeed sourced directly from another
>>> site like dailymotion.
>>>
>>> So, in my personal opinion, terms like embedding are being used by the
>>> court in pretty much the same sense that we use the same terms in the
>>> W3C community. Just one data point, but an interesting one.
>>>
>>> Noah
>>>
>>>
>>>
>>> [1] http://www.ca7.uscourts.gov/tmp/KC1FFHD5.pdf
>>>
>>> On 8/3/2012 10:42 AM, Wendy Seltzer wrote:
>>>> Relevant to your linking and publishing discussion, the 7th Circuit
>>>> says
>>>> embedding infringing video is not copyright infringement.
>>>>
>>>> http://m.cnet.com/news/embedding-copyright-infringing-video-is-not-a-crime-court-rules/57485976
>>>>
>>>>
>>>>
>>>> --Wendy
>>>> --
>>>> Wendy Seltzer, wseltzer@w3.org -- +1.617.863.0613
>>
>
>
Received on Monday, 6 August 2012 10:36:46 UTC

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