[A2k] Zack Whittaker: Embedding a copyright-infringing video on another website is not illegal, a court ruled a court on Thursday.

Manon Ress manon.ress at keionline.org
Fri Aug 3 04:03:21 PDT 2012


A court has ruled that embedding a copyright-infringing video is not
infringement in itself, and therefore not a crime.

by Zack Whittaker
August 3, 2012 2:45 AM PDT

Embedding a copyright-infringing video on another website is not
illegal, a court ruled a court on Thursday.

Judge Richard Posner ruled at the 7th Circuit Court of Appeals that
myVidster, a social video bookmarking site, did not infringe the
copyright of Flava Works, a porn production company, when it embedded
copyright-infringing versions of Flava Works content from third-party
Web sites.

The decision overturned a preliminary injunction from 2011, imposed by
a lower court after Flava Works filed suit against myVidster in 2010.

According to the Appeals Court ruling, myVidster "doesn't touch the
data stream" and therefore doesn't host the infringing video, but
links to versions hosted elsewhere on the Web.

myVidster was "not encouraging swapping, which in turn encourages
infringement," the ruling said:

    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.

    Is myVidster doing anything different? To call the provision of
contact information transmission or communication and thus make
myVidster a direct infringer would blur the distinction between direct
and contributory infringement and by doing so make the provider of
such information an infringer even if he didn't know that the work to
which he was directing a visitor to his website was copyrighted.

Both Google and Facebook filed papers in support of myVidster. They
argued that sites such as theirs should be seen as intermediaries
only, and that they should not be held liable if someone uploads
copyrighted material to their servers, claiming Digital Millennium
Copyright Act (DMCA) safe harbor. The Electronic Frontier Foundation
(EFF) also filed an amicus brief in support of myVidster.

The Motion Picture Association of America (MPAA) sided with Flava
Works, filing a brief urging the appeals court to uphold the lower
court's injunction.

How this will affect other cases remains unseen. 23-year-old Richard
O'Dwyer, who operated the TV-Shack website, is to be extradited from
the U.K. to the U.S. to face copyright infringement charges. His site
offered links to other websites that hosted uploaded copyrighted
television shows and films, but did not host the material itself.

Manon Anne Ress
Knowledge Ecology International
1621 Connecticut Ave, NW, Suite 500
Washington, DC 20009 USA
manon.ress at keionline.org

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