W3C home > Mailing lists > Public > www-tag@w3.org > August 2012

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

From: Wendy Seltzer <wseltzer@w3.org>
Date: Mon, 06 Aug 2012 17:22:45 -0400
Message-ID: <502035A5.2090608@w3.org>
To: "Martin J. Dürst" <duerst@it.aoyama.ac.jp>
CC: www-tag@w3.org
On 08/06/2012 06:36 AM, "Martin J. Dürst" wrote:
> 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.

This is a decision of the 7th Circuit Court of Appeals, which makes law
for the 7th Cir (Illinois and surrounding states) unless overruled by
the Supreme Court; it can also be persuasive to courts in other circuits.

 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.

That's right. It was a decision on a preliminary injunction, meaning it
took only the facts as alleged in the complaint, and the particular
circumstances of MyVidster's practice: allowing users to "bookmark"
videos and automatically embedding those videos the users select. So
MyVidster argued that *it* wasn't responsible for the choice of videos
some of which might be infringing, but was providing general-purpose
video bookmarking tools.

The secondary infringement analysis under U.S. law (particularly
contributory and inducement liability, post-Grokster) can depend on
knowledge and intent, not just the visible elements of the page, so
MyVidster, which provides a tool that automatically embeds user-chosen
links, might get different treatment from a site that actively chose
infringing materials to embed or one that encouraged people to "fight
the entertainment business."

>From a technical architecture perspective, I think it's worth supporting
that distinction between the tool and the person who uses it,
recognizing that many Web users "publish" through third-party tools on
remotely hosted sites rather than hosting on their own servers. By
protecting general-purpose tools, we can help people to have freedom to
publish without requiring that they have the technical capacity to do it
all on their own.


> 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

Wendy Seltzer -- wseltzer@w3.org +1.617.715.4883 (office)
http://wendy.seltzer.org/        +1.617.863.0613 (mobile)
Received on Monday, 6 August 2012 21:22:48 UTC

This archive was generated by hypermail 2.4.0 : Friday, 17 January 2020 22:56:46 UTC