MPAA: Embedding Videos Is Copyright Infringement

[-Robin-]

http://arstechnica.com/tech-policy/news/2012/04/mpaa-you-can-infringe-copyright-just-by-embedding-a-video.ars

The Motion Picture Association of America is squaring off against a coalition of Internet giants and public interest groups over the key question of whether it's possible to directly infringe copyright by embedding an image or video hosted by a third party.

A federal judge took that position last July, prompting a chorus of criticism. Two briefs—one by Google and Facebook, the other by the Electronic Frontier Foundation and Public Knowledge—attacked the decision as contrary to past precedents and potentially disruptive to the Internet economy. They asked the Seventh Circuit Court of Appeals to overturn it.

Last week, the MPAA joined the fray with a brief in support of Illinois federal judge John F. Grady's ruling. It urged the Seventh Circuit not to draw a legal distinction between hosting content and embedding it. In the MPAA's view, both actions should carry the risk of liability for direct copyright infringement.

The case arose from a dispute over Internet pornography. MyVidster is a video bookmarking site that allows users to save links to their favorite videos and share them with others. The site supports embedding, so bookmarked videos can be viewed on a myVidster page surrounded by myVidster ads.

A porn company called Flava Works discovered numerous myVidster pages with embedded Flava videos. MyVidster did not host the videos—they were streamed by third-party hosting sites such as RedTube—but Flava sent myVidster DMCA takedown notices anyway. MyVidster claims it complied with these takedown notices, but evidently its response didn't satisfy Flava, which eventually sued for copyright infringement.

Hosting vs. embedding

The case has been plagued by confusion over the difference between hosting a video and embedding a video hosted by someone else. MyVidster's owner, Marques Gunter, failed to clearly explain the distinction in his testimony, and Flava's lawyers exploited Gunter's poor communications skills to make him look evasive and indifferent to following the law.

For example, a key issue in the case is whether myVidster qualifies for a safe harbor under the Digital Millennium Copyright Act (DMCA). To qualify for the safe harbor, a service provider is required to have a policy of terminating the accounts of repeat copyright infringers. Gunter apparently interpreted the DMCA as only requiring him to terminate users who directly infringe copyright, and he believes that bookmarking (and, consequently, embedding) a video does not qualify as direct infringement. Hence, he didn't terminate users who bookmarked publicly available videos, even if those videos infringed copyright.

Reasonable people can dispute Gunter's interpretations of copyright law (indeed, the MPAA does just that) but it's not clear that Judge Grady even understood Gunter's position. Gunter testified that he would warn, and eventually terminate, the accounts of users who "use myVidster to publish links/embeds of videos that would otherwise not be accessible by the public. For example, if a user is uploading videos to a file server and using myVidster as a way and means to distribute the content."

However, Gunter said that "most of the content are embeds which are hosted on external websites, [and] I would suggest contacting the websites that are hosting your content to help stop the future bookmarking of it on myVidster."

Judge Grady characterizes this as "the epitome of willful blindness," writing that Gunter "pointed a finger at other websites while failing to acknowledge that his own website is perpetuating copyright infringement." But Gunter's point wasn't that infringement on other sites excused the infringement of his own users. It was that embedding an infringing video wasn't copyright infringement for purposes of the DMCA's "repeat infringer" rule.

Grady wasn't impressed with this distinction—indeed, he seemed to regard it as so obviously wrong that he doesn't even bother to analyze it in any depth. Instead, he ruled that because the infringing videos appeared "on myVidster," myVidster was responsible for them regardless of the technical details of how they were delivered to the user's computer.

But as Google and Facebook pointed out in a November brief, previous precedents have found the distinction between hosting and embedding legally relevant. The 2007 decision of Perfect 10 v. Amazon is a key precedent. The Ninth Circuit Court of Appeals held in that case that only the server that hosts infringing content, not other servers that may provide links to infringing content, are guilty of direct copyright infringement. The Perfect 10 decision is a strong precedent because it dealt with the closely analogous case of Google's image search engine embedding copies of infringing images hosted on third-party servers.

Grady also ruled that Gunter's failure to take proactive steps to discourage infringement by myVidster's users undermined his claim to the safe harbor. Grady complained about Gunter's "mechanical response" to takedown notices, faulting him for failing to "warn his users about copyright infringement," to prevent previously blocked videos from being uploaded again, or to terminate users who have posted infringing videos "on two or more occasions."

The MPAA weighs in

Judge Grady's decision was music to the ears of the MPAA, which has long downplayed the distinction between websites that host content and websites that merely link or embed content hosted elsewhere. Last Wednesday, the MPAA filed an amicus brief urging the Seventh Circuit to uphold key parts of Judge Grady's decision.

"Although there is nothing inherently insidious about embedded links, this technique is very commonly used to operate infringing internet video sites," the organization writes. "Pirate sites can offer extensive libraries of popular copyrighted content without any hosting costs to store content, bandwidth costs to deliver the content, and of course licensing costs to legitimately acquire the content." The MPAA also notes that embedding can enable sites to monetize infringing content by surrounding it with ads.

The MPAA argues that "myVidster users who posted links to infringing videos and images participated in the process by which those videos were streamed and shown to the public," making them direct infringers. It calls the "server test" articulated by the Ninth Circuit in the Perfect 10 case "novel," arguing that it "conflicts with the language and legislative history of the Copyright Act, which affords copyright owners a broad and technologically neutral display right."

In the MPAA's view, then, anyone who serves a website with an embedded link to infringing content "displays" that content to users, directly infringing copyright in the process. The MPAA also backs Grady's narrow conception of the DMCA's safe harbor. It argues that "the safe harbors only apply to 'innocent' service providers." And myVidster, in the MPAA's view, doesn't make the cut.

Far-reaching implications

If the Seventh Circuit adopts Judge Grady's—and the MPAA's—expansive interpretation of copyright liability, implications for the Internet economy could be far-reaching.

Numerous websites embed content from third parties they have not personally inspected. Under the theory articulated by Grady, and supported by the MPAA, these websites would be responsible for this content, exactly as if they had stored it on their own servers. This could create a serious disincentive for sites to allow users to post embedded content, hampering the convenience and user-friendliness of the Web.

Of course, as Google and Facebook stress in their brief, sites like myVidster could still be liable under the secondary infringement rules that felled Napster and Grokster. So the argument that myVidster's users are not a direct infringer isn't an argument that "link sites" that profit from infringement should get a free pass.

Secondary infringement is more difficult to prove than direct infringement, however, and the penalties are lower. That's as it should be. Sites that host content should bear greater responsibility for that content than sites that merely link to content hosted by third parties.

A lot of sites, including this one, have embedded videos everywhere, and some organizations and journalists rely on embedding videos in order to bring out news in an easy and elegant fashion. Some corporations actually encourage embedding if only to spread word of their products through commercials, movie trailers, and so on. So this lawsuit is a big issue in internet workings, and could prove detrimental if MPAA wins the suit.

[Silencer226]

Paying to go see a movie legit will be a form of copyright infringement next.

MPAA: You didn't pay enough to see this shitty film, INFRINGEMENT!

Edited April 12, 2012 by Silencer(Tsundere Edition)

[Nepenthe]

Embedding a video is now copyright infringement? I can understand arguments against websites that host the content, but people merely linking to it are liable for suit?

I kind of wish the folks responsible for this in the MPAA would just die off faster.

[Tornado]

Say HBO has a movie in their rotation (host). I have a big, shiny HDTV and am an HBO subscriber (embed). Someone comes to my house and watches that movie at my house.

OH FUCK, I'M GONNA GET SUED!

[Nepenthe]

I was just thinking about that, but they'd probably argue there's a difference between private and public viewings or whatever. Still retarded, however.

[Sami]

This just in: Watching a movie is now copyright infringement. If you want to keep everything legal, you should go to the theatre/video store, pay for the movie, and then exit; you now have the right to use your imagination.

[Komodin]

You know, if I didn't know any better, I'd assume the MPAA has an honest-to-God vendetta against the Internet...

[Velotix von Skruviktorrius]

I am legitimately questioning why the American public hasn't rioted against the onslaught of bullshit they seem to face every day now. Just how long are they going to stand around and take this?!

[Silencer226]

I am legitimately questioning why the American public hasn't rioted against the onslaught of bullshit they seem to face every day now. Just how long are they going to stand around and take this?!

Because everyone cares more about Snookie (or whoever that chick is) and her pregnancy to worry about their rights and freedom of speech being violated.

[Jeffhog]

I'll just say what's on everyone's minds.

The MPAA is a fucking cancer and has to die.

[Emperor Robrainiac]

... You're kidding me right?

Is it safe to say that the MPAA have lost their minds if nobody's said it before? I know they've been so hellbent on killing the internet, but now this is just pathetic.

[Mono]

Maybe if they made good movies, they wouldn't be this desperate.

[SonikkuForever]

Because everyone cares more about Snookie (or whoever that chick is) and her pregnancy to worry about their rights and freedom of speech being violated.

Plus, we know that a law this mind-bogglingly stupid and unrealistic can't possibly pass....can it?

[Old dead account]

If anonymous ever wanted a target to go at full force, MPAA is the one. Seriously, I really hope their financial situation gets so bad that they crumble and die before any of this gets through. Ponies ruined the interet you say? No, not even close. This shit is gonna destroy, massacre and shit on its virtual corpse right before MPAA bosses make a bonfire out of it.

[Silencer226]

Plus, we know that a law this mind-bogglingly stupid and unrealistic can't possibly pass....can it?

It's the entertainment industry talking to a bunch of old farts who barely know how to use a keyboard.

[PSI Wind]

So, if I embed a home movie from Youtube, I can be sued for my own stuff? COPYRIGHTCEPTION! Seriously though, MPAA, just go die in a fire.

[Balding Spider]

Jesus could the MPAA please make that target on their backs a little larger?

Plus, we know that a law this mind-bogglingly stupid and unrealistic can't possibly pass....can it?

Edited April 13, 2012 by Balding Spider

[goku262002]

~"This is stupid." says internet. "No this is smart and the only way!" says bill leaders.

~It fails. Internet rejoices, Bill leaders bitch and whine.

~Time passes, We move on to another hot button bill.

~Rinse and Repeat.

These "Doomsday" bills have been going on as long as I have been on. In the end, common sense finally kicks in and they know that to piss us off with something like this is extremely stupid and it backs off or dies down or fails or gets shelved or somefuckingotherreason.

By now, these things don't scare me anymore. sure still show support whenever you can but just don't let it get to you, just sign some official online petition and carry on.

Edited April 13, 2012 by goku262002