There has long been a question mark over whether linking to or embedding copyright-infringing videos is as illegal as actually hosting the videos on your own servers. The appeals court judge in the case of Flava Works vs. myVidster has given his views on the subject.
Video bookmarking site myVidster was sued by gay porn production company Flava Works in 2010 over the latter’s videos being shared on the former’s platform. The videos in question were of course infringing on Flava Works’ copyrights, but they were merely embedded on myVidster while being hosted elsewhere.
Flava Works won a preliminary injunction against myVidster last year, but the case made it to the 7th Circuit Court of Appeals where Judge Richard Posner overturned that earlier decision on the grounds that what myVidster was doing couldn’t be classes as copyright infringement.
Posner’s common sense position on the issue of embedding is spelled out thusly:
“myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not “transmitting or communicating” them… myVidster doesn’t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster.”
“But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right… His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement.”
That seems to me, as a total non-expert when it comes to copyright law, to be correct. MyVidster was nothing but a conduit by which people learned of the existence of a copyrighted video hosted elsewhere, and it’s the site that is doing the hosting that Flava Works should be concentrating on battling in court.
Some people may be hoping that this ruling sets a precedent that can be used in a wider context. But that doesn’t look like it will happen, with Santa Clara law professor Eric Goldman stating, “it’s a big win for myVidster and less helpful for everyone else.”
Certainly this doesn’t change anything beyond myVidster’s set-up. Torrent trackers are still classified as illegal for instance, even though it could be argued that they fall into the same camp, merely linking to copyright-infringing material rather than hosting it themselves.
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