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Sunday, August 19, 2012

Embedding Illegal Video is Legal

Appeals judge Richard Posner handed down a ruling saying that MyVidster, a social video bookmarking website sued by Flava Works, did not encourage swapping and did not encourage copyright infringement. In other words, the court ruled that embedding a copyright-infringing video wasn’t against the law.

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Judge Richard Posner ruled that a social video bookmarking website didn’t violate the copyright of the adult movie porn production company by embedding its copyright-infringing content from the 3rd-party sites. This ruling overturned a preliminary injunction from last year, imposed by a lower court after the porn company filed a lawsuit against MyVidster two years ago.

The Appeals Court ruling says that MyVidster does not touch the data stream and therefore does not actually host the infringing video, but rather the links to the work hosted elsewhere on the Internet. In fact, MyVidster provides Internet users addresses where they can find entertainment. You can compare this to listing plays and giving the name and address of the theatres where they are being performed, which isn’t the same as performing them.

The court pointed out that to call the provision of contact data “transmission” or “communication” and thus make the service a direct infringer would blur the distinction between direct and contributory infringement. In other words, this will wrongly make the provider of such data an infringer even if they did not know that the work to which he was directing a site user to his website was illegal.

In the meantime, Google and Facebook filed documents in support of MyVidster, arguing that websites like theirs should be considered as intermediaries only, and therefore not held liable in case someone uploads illegal content to their servers, claiming DMCA safe harbour. The EFF also filed an amicus brief in support of the service. Of course, the MPAA sided with an adult movie production company, filing a brief urging the appeals court to uphold the lower court’s ruling.

It is still unclear how this decision will affect other cases. For example, 23-year-old Richard O’Dwyer, responsible for operating the TVShack website, is to be extradited from the United Kingdom to the United States to face copyright violation charges. However, his website also only offered links to other services hosting uploaded copyrighted TV shows and movies, but didn’t host the content itself.

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