Is Linking Or Embedding Infringing Content Illegal?
from the the-next-legal-minefield dept
There was an article in Forbes the other day about the recent growth in video hosting site DailyMotion.com. There are hundreds of video hosting sites these days, but apparently DailyMotion has caught on due to the fact that, unlike YouTube, they don't seem all that eager to take down infringing content. This may put the company in hot water at some point, but so far it's getting them a lot of traffic that used to go to YouTube. That, by itself, isn't all that interesting. Later on in the article, though, it discusses how a variety of sites are springing up building "portals" around certain TV shows. Since all of these video hosting sites let you embed videos onto other sites, it's quite easy to embed these videos onto any other site even though you're not hosting them. In fact, some of these sites are making a fair amount of money by putting ads on their sites.This opens up quite a question about legal liability. The sites claim that they're not liable at all, since they're not hosting any infringing content at all. In fact, embedding a video is just sticking some code on your site that points to another server -- so you can make a reasonable argument that they're not actually infringing on copyright. The article quotes someone who disagrees, though he doesn't explain why. It's likely that he means that under the Grokster decision, they could be found guilty of "inducing" infringement, which does seem likely. However, things get even trickier if you take it one step further. At the end of the article, they mention a site called QuicksilverScreen, that doesn't embed videos, but simply links to DailyMotion, Google Video or YouTube, depending on who's hosting the content they want to provide (basically episodes of lots of TV shows). Soon after the article came out, it appears that Fox sent off a cease & desist letter to QuicksilverScreen (found via Digg). At this point, the legal situation becomes even fuzzier. QuicksilverScreen isn't hosting the videos. They're not even embedding the videos in their site. They're simply linking to them. You would think that shouldn't be illegal at all, but again, you have the possibility of the new standard of "inducing infringement" coming into play. There's also famous 2600 case that suggested there are situations where linking to illegal content would also be illegal.
This is worrisome for a variety of reasons. First of all, you have no control over the content you've linked to. You often have no idea of the legality of that content and it's possible that the destination content could change at any time. You would hope that courts would take that into account, but it certainly seems like a risk. However, if you take this to a logical extreme, it gets ridiculous. If it's illegal to link to illegal content, then you've effectively said that Google is illegal. And where is the limit? Above, I link to the QuicksilverScreen site, to their posting of the cease & desist from Fox. From that page, you can easily click through to videos of lots of TV shows hosted on other sites. Have we broken the law by linking to them as well? Has Forbes broken the law, since they linked to QuicksilverScreen in their article as well? It opens up a pretty dangerous can of worms when you outlaw linking to any type of content, rather than focus on those who actually have uploaded the content.
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Craziness...
It would seem reasonable, that embedding infringing content would (or could at least) be illegal simple because of the fact that from the stand point of the end user they can view same and they are pretty oblivious as to WHERE it originates (ie it appears you are actually providing it).
But, the idea that linking to any such content is in anyway infringing on something, or violates a copyright or trademark is TOTAL bull****.
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New development...
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New Espionage...
Google image search for Marvel Comics
In that example, we have google hosting thumbnails of copy protected images (which the legality of is still in question), we have google INTENTIONALY providing links to the full blown image (with a warning that it might be copyrighted), and also we have a third party who allows anonymous posting who now has a link to this on their site.
Still not convinced theres a problem here? How about if if I add in the fact that I am pretexting myself to be yahoo's CFO? What if it really was yahoo that was trying to get google shut down, so they hired people to anonymously link to copyrighted images on googles servers? Imagine how quickly websites could be shut down by competitors.
Still not convinced? How about instead of writing this law in the name of copyright protection we wrote it in the name of saving the children.
Google image search for Kiddie Porn
Can techdirt now be taken down in order to save the children?
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Real life tactics?
If linking to someone hosting copyrighted matierial is illegal then perhaps saying to a friend of mine "Hey, I saw some guy on the corner of North St and Common St selling pirated copies of Superman Returns." should also be illegal, since I am pointing my friend in the direction of someone who is breaking the law. Am I confused? Overgeneralizing? Ruggedly handsome?
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The problem is...
It opens up a pretty dangerous can of worms when you outlaw linking to any type of content, rather than focus on those who actually have uploaded the content.
The reason that very dangerous can of worms is being opened is because it is being opened by corporations and lawyers that thinnk they play it to their advantage (advantage = money and/or political power).
Imagine if the Kiddie Porn link in comment #3's post was real and some two-bit politician whose election time was around the corner found it. There is a good chance that they would try to parlay it into a "think of children" campaign.
Imagine if Marvel had some high priced lawyers that want more money than they already have. With the jacked up legal system could you really put it passed them to try a lawsuit?
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RE: Embedding Legality
Piracy is piracy, and yes, it is illegal. If you are flaunting stolen videos in the mainstays, such as myspace, youtube, etc, you should be, by law - and we all know how well that has worked in the past - to remove it. First by request, and then sinking deeper into the abyss of law - fines, etc.
How can people parade efforts for piracy? - Granted, i don't believe that is what is really going on here, though it seems to be where it might be headed.
I will concede this: lawyers have been stalking companies such as youtube for cash payouts. So far, it has been the consumer's wonderland vs the producers scrooge, and the trot to the middle ground - as proven thus far - is a clash of titans. Which makes me wonder, where will all of this be in ten years?
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I linked to the Ricky Gervais Microsoft video.
So within "this post I linked to the Ricky Gervais faux Microsoft training video (which, if you haven't watched it, is absolutely hilarious).
I know this video got removed from YouTube as per Microsoft's request (I guess it was never supposed to be public). Now let's pretend this was something worse (like I don't know, DeCSS from the 2600 case).
My question is: what if I linked to something illegal, and then the link was thereafter removed? Am I still at fault for creating the link to the offending content which no longer exists at that location? Or what about the other way around? This, as does the 2600 case, seems to revolve mostly around proving the offending link-creator's motive.
Motive's always tough to prove in court.
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Re: I linked to the Ricky Gervais Microsoft video.
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Linking is Illegal
It really does suck but linking is illegal.
Here is a full in depth report on why linking to copyrighted video is illegal and what can happen.
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Linking is Legal
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Support, Discuss & Save Tv-Links.co.uk
http://www.save-tv-links.co.uk
The idea behind the site is to create a publicly accessible resource of accurate information on the tv-links case and create a discussion forum around it. It also exists to offer what ever support is possible to give to the innocent.
Anyone who can contribute or has any ideas that would make this site more functional please get in touch; the aim is too get as much information in one place as possible.
Elton1
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Linking is legal and should be kept that way!
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replying to most peoples comment
by The infamous Joe
I always seem to have a problem with comparing silly internet rules to what they would be if applied to real life.
If linking to someone hosting copyrighted matierial is illegal then perhaps saying to a friend of mine "Hey, I saw some guy on the corner of North St and Common St selling pirated copies of Superman Returns." should also be illegal, since I am pointing my friend in the direction of someone who is breaking the law. Am I confused? Overgeneralizing? Ruggedly handsome?
i like the way he said it, he is quite right to say that linking = good and law = wrong in differnt sort of ways
internet is a sharing source inwhich why are there rules to sharing for internet when it clearly says its a sharing source "The Internet was designed to share information" by quimby
and i do recon its not illigel to post links and to post embed inwhich you dont own!
law states differnt alwayz in the negative but just to get the cash.
thanks
rangersko@hotmail.co.uk
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my 2 cents
I personally dont think a website like youtube or mega.co.nz should have any liability for what they host, they are simply a delivery device not unlike fedex.
The ones who are doing something illegal are the ones uploading and sharing illegal content.
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Exactly what I was looking for!
I personally do not think that anyone should be liable to what content they link to unless they purposely state that they know that the content on that link is illegal and they want to promote it. Because many times we have to link to illegal content for learning purposes, practice, examples, etc.
I was thinking of creating a blog post on my blog containing links to some deep web sites. After reading this article, I have got confidence and I will do it. :D
Thank you.
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