- From: Wendy Seltzer <wseltzer@w3.org>
- Date: Mon, 06 Aug 2012 17:22:45 -0400
- 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. --Wendy > > 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