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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: Tue, 07 Aug 2012 13:16:14 +0900
Message-ID: <5020968E.6030801@it.aoyama.ac.jp>
To: Wendy Seltzer <wseltzer@w3.org>
CC: www-tag@w3.org
Hello Wendy,

On 2012/08/07 6:22, Wendy Seltzer wrote:

> 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.

Oh, I see. I was overlooking that fact, thanks for pointing it out! But 
then the subject line (the CNET headline) is a bit over the top. 
Embedding copyright-infringing video could still be a crime (we don't 
know, because this court case is not about it), but providing a system 
that lets others (in this case the MyVidster users) embed 
copyright-infringing videos (together with other, 
non-copyright-infringing videos) isn't a crime. With that clarification, 
the court decision now makes sense to me.

> 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 fully agree. The relevant TAG document in the making should definitely 
also make this distinction, in addition to the (orthogonal) 
embedding/referential linking distinction.

Let me just quickly work out the combinations; the comments for the 
combinations are my personal opinions only:

                        |                    |
                        |  publisher         |  tool provider
                        |                    |
                        |                    |
                        |                    |
    embedding           |  (appearance of)   |  should be okay in order
                        |  appropriation of  |  to provide incentives for
                        |  contents created  |  freedom of speech and
                        |  and owned by      |  encourage tool
                        |  others,...;       |  innovation
                        |  should not be     |
                        |  allowed           |
                        |                    |
    (referential)       |  freedom to        |  never should be any
    linking             |  reference needs   |  problem
                        |  to be part of     |
                        |  freedom of speech |

Regards,    Martin.
Received on Tuesday, 7 August 2012 04:16:48 UTC

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