DecryptedTech

Wednesday07 December 2022

Judge Rules That Embedded Videos and Links Do Not Encourage Copyright Infringement.


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We have said this before and we will say it again; we Love Judge Richard Posner. It is not just his no-nonsense behavior in the courtroom or his disgust with the way companies are abusing the patent system; it is for the fact that he actually uses common sense and good judgment. We have seen far too many judges that either do not have, or do not use, sound judgment in their findings. Far too often they seem to feel that they need to side with the big corporations. This time Poser’s ruling may have massive and far-reaching effects as it becomes precedent.

Oh, we should probably let you know what we are talking about here. Well the ruling was part of the Flava Works V myVidster case in which Flava Works (a porn company) filed suit against MmVidster for embedding videos that were copyright infringing from third party websites. myVidster is a social video bookmarking site and has been under a preliminary injunction since 2011. Poser’s ruling overturned that finding and will set the precedent that embedding a video in a site does not encourage infringement.

What is very interesting is that the arguments that defeated Flava Works and the MPAA are the same ones that The Pirate Bay tried to use and failed (mostly due to blatant corruption). Posner stated quite plainly:

“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.”

This was the same thing that The Pirate Bay was doing. They hosted no material at all, but provided links to the material. Using Posner’s example the MPAA should want to shut down Fandango and almost every movie site on the web for telling people how to see their movies.

Google, Facebook, and the EFF all came out in support for myVidster making statements that claimed the site is protected under the safe harbor provisions in the DMCA (Digital Millennium Copyright Act). Which is not surprising for Google and the EFF, but we were surprised that Facebook got involved. This ruling also will be important in another case; Megaupload.

Although the US will argue that Megaupload encouraged criminal copyright infringement and profited by it, they might not be able to get around the fact that the safe harbor provisions of the DMCA should protect Megaupload from prosecution as long as they responded to requests for takedown of infringing material. The fact that they built a custom system that allowed copyright holders to take down material on their own as well as responded to requests should cover that nagging little detail.

However, as we have noted, common sense is not that big with every judge and certainly appears to be short supply with the people that are involved in the US side of the case.  We have a feeling they will completely ignore this as they have the laws of search and seizure, service, jurisdiction, evidence handling and so much more.

For what it is worth, this might actually be the straw that breaks the case against Megaupload, Kim Dotcom, and the other Megaupload managers, but we also know that the Copyright cartels seriously want this to send a message. They do not care about right, wrong, the law or anything but bankrupting Megaupload and Kim Dotcom. With pressure from them we might see the DoJ try and hold on to all Megaupload and Kim Dotcom assets for as long as they can to further harm everyone involved, including Carpathia hosting. All they really have to do is continue their siege until they bleed everyone dry. Too bad this message will only create a new and angrier brand of pirate. It will not stop piracy at all, but will close down a valid outlet for artists of all kinds to present their works to the public… oh wait, that is also what the Copyright owners want …

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Last modified on Friday, 03 August 2012 15:26

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