Judge Posner: Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them
from the at-all dept
Recently we've seen a number of cases, both civil and criminal, brought against websites that involve either links or embeds of videos hosted elsewhere. UK student Richard O'Dwyer is facing extradition and criminal charges for hosting a site that did exactly that. But, as many of us have wondered in the past, how is such a site infringing at all? After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be.A few months ago, we wrote about how the MPAA had jumped into a copyright infringement appeal involving porn producer Flava Works against a video "bookmarking" site called MyVidster. The MPAA argued that links and embeds are infringing, in support of a questionable district court ruling against MyVidster.
The appeals court ruling has now come out, written by Judge Posner, and it's absolutely worth reading (embedded below). Posner goes into great detail about how MyVidster's linking and embedding features don't even come close to infringing. They're not infringement and they're not contributory infringement. He goes through a pretty accurate description of how embedding works, and why MyVidster is separate from the uploading/hosting/streaming. But then he notes that those watching the videos aren't even infringing, so there isn't even any infringement for MyVidster to contribute to:
Is myVidster therefore a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video? myVidster is not just adding a frame around the video screen that the visitor is watching. Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster’s visitor. But as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies . . . of the copyrighted work to the public.” 17 U.S.C. §§ 106(1), (3). His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.Got that? It's actually important. He's saying that those who are watching a video that someone else uploaded are not infringing on the reproduction right under copyright. Only the uploader has potentially violated that right. So there can't be a contributory infringement claim over that right.
Of course, copyright includes a few other rights beyond reproduction. There's also the "public performance" right. After running through a few different theories there, Posner again finds no clear case of infringement.
Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement.... An employee of Flava who embezzled corporate funds would be doing the same thing—reducing Flava’s income—but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.In other words, the person watching the video isn't doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it's not violating the public performance right either.
As we noted in our post about the original case, part of the ruling hinged on myVidster losing its DMCA safe harbor protections by not having a repeat infringer policy. But Posner notes that the DMCA safe harbor isn't even in question here because those viewing the videos have not infringed and thus there is no copyright infringement related to myVidster for showing the embeds:
myVidster received “takedown” notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor.This ruling makes it clear that watching embedded videos is not infringing and then neither is hosting the embed code. While limited to the 7th Circuit, this ruling could still be quite handy in a number of other cases, including O'Dwyer's and the Rojadirecta case, which also involves embedded videos. Eric Goldman is a bit more skeptical of the impact of the ruling, arguing that Posner reasoning isn't particularly clear (well, he calls it a "train wreck.") While I rarely disagree with Goldman, I'm not convinced that this is such a train wreck. While Posner's explanation is, at times, convoluted, he does clearly make the main point: if there's infringement, it's completely disconnected from the user watching the video and the site doing the embedding.
Either way, Posner vacates the lower courts ruling, and notes that there are a few other issues with the case (mainly having to do with some other aspects of myVidster's business), but the main fight shows no infringement. Oh yeah, and Posner doesn't even reference the MPAA's filing in the case, suggesting how compelling that argument was...
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: copyright, embedding, hosting, secondary liability, streaming, watching
Companies: flava works, mpaa, myvidster
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I only recall him saying patents are broken.
[ link to this | view in chronology ]
Re: Re:
http://bulk.resource.org/courts.gov/c/F2/847/847.F2d.412.87-2663.html
Basically imports a "teacher exception" from the 1909 Copyright Act into the modern Copyright Act 'cause he thinks it's a good idea, even though the Copyright Act has nothing suggesting such an exception.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
That's sort of the definition of an "activitist" judge: thinks something is a good idea and/or *ought* to be part of the law, therefore rules that it *is* part of the law.
[ link to this | view in chronology ]
Doublespeak
When you say, "imports a 'teacher exception' from the 1909 Copyright Act," what you imply is that the first law had a written exception and the same lack of the written exception in the new law decisively erases the old law.
The truth is the exception wasn't written in originally, but was adjudged in repeated case law and established as good judicial practice in deciding in these situations. It's then up for judicial consideration whether the same jurisprudence applies from the original exception to the original law as seen in the form of the new law.
When you say, "cause he thinks it's a good idea" you imply that he's simply legislating from the bench.
What really happened is that he considered the same jurisprudence applied in the earlier case law and carefully weighed whether the conditions where the same and decided that with no applicable difference in the two laws as to the case at hand, that stare decisis should rule and the earlier jurisprudence still applies.
You want us to believe that the current law intentionally changed the practice as to the issue at hand, even though the Copyright Act has no material difference from earlier law as regards this exception.
If anything Posner's ruling is one of conservatism rather than activism.
[ link to this | view in chronology ]
Re: Doublespeak
A good summary of the law here, which rejects the 7th Circuit's indulgence of this teacher exception, is in Morales-Cruz v. Univ. of P.R., 792 F. Supp. 2d 205
(D.P.R. 2011). Unfortunately a quick Google couldn't find a link, but maybe you can find it.
Anyway, you can point to any basis in the 1976 Copyright Act for an exception to the explicit work-made-for-hire framework, I'm interested.
I think Posner himself actually sums it up nicely, when discussing the text of the 1976 Copyright Act (before departing to carry forth an exception with no basis in the text of the Act): "Section 201(b) of the Copyright Act provides that "in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author ... and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." Since one of the definitions of "work made for hire" is "a work prepared by an employee within the scope of his or her employment," 17 U.S.C. Sec. 101; since the plaintiffs were employees of the school district; and since there is no signed (or other) writing that purports to entitle them to copyright a work for hire, the conclusion may seem inescapable that their manual was a work for hire and the copyright was therefore owned by the school district."
Stare decisis has no place here, because he was interpreting a new law, where
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Flava is just pissed others are doodling their shit in his area of work.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Summary: the uploader/host is liable
In particular, I love the line about sneaking into a movie theater is not copyright infringement. It makes perfect sense.
[ link to this | view in chronology ]
Re: Summary: the uploader/host is liable
[ link to this | view in chronology ]
Re: Re: Summary: the uploader/host is liable
Good job with the half truth, idiot.
[ link to this | view in chronology ]
Re: Re: Summary: the uploader/host is liable
[ link to this | view in chronology ]
Re: Re: Re: Summary: the uploader/host is liable
I think the argument should be on fair use or something else. If you went into the theater and put a camcorder in front of your eyeballs, you'd be creating a copy. In this case with the Internet+computer, the copy is necessary to even see it in the first place (as perhaps your brain+eyeballs might possibly be creating a "copy"), but it's still copying. I think the reasoning will need to be adjusted.
[ link to this | view in chronology ]
See! Making a copy is theft...
So let's prosecute them for theft and quit dancing around the idea that somehow this isn't the same as shoplifting or carjacking or smashing a jewelery store window.
Let me say it again: theft, theft, theft!
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
Please can't someone think of the poor crazy crackheads!
:)
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
The IP address is better evidence than we used to convict many of the folks on death row.
So I think we'll be able to get beyond a reasonable doubt to prosecute these folks for "stealing".
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
Do you know that the defendant actually confessed in 80% of the cases when people are exonerated by DNA. - citation boBBy boy.
"The IP address is better evidence than we used to convict many of the folks on death row." - So you agree the judicial system is fucked.
"So I think we'll be able to get beyond a reasonable doubt to prosecute these folks for "stealing"."
I think
appears
most likely
may be
I love to use those terms when I have no clue. I think It appears you do too, and most likely it may be your lack of rational thinking.
Yeah ok boB.
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
IP spoofing.
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
YOU. ARE. RETARDED.
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
Go back and parse.
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
Citations needed, idiot.
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
Now where's your citation for calling me an "idiot"?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
I'll say it. You are an idiot, bob.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
But of course there's a 98.583% chance you pulled that statistic out of your ass, so whatever.
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
No! No! No!
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
The fact is that very, very few people are even prosecuted under the criminal laws because the cops look the other way. But now that we've got a Federal Appealate judge saying that it's "stealing", we might have more luck.
I'm happy with Jamie Thomas getting the same amount of time as some shoplifter who takes 1000 CDs.
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
You truly need classes to improve your reading comprehension.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
"His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. "
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
Even if we agree that bypassing a paywall is now equivalent to theft...what about cases where you don't know? I can click on Youtube and watch as many videos as I want, and most of the time, I don't know if they're "legal". More and more people are deliberately putting up their own work. There are full movies to be found there, uploaded by the studios. How is the average person supposed to know that the movie they're viewing at Link A is infringement? Remember when Universal sued Youtube over videos it had itself uploaded deliberately?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
I do think Posner's analogy is flawed, however. Nothing is taken, or stolen. It's more like reading a photocopy of a book in a bookstore, and then leaving it there when you are finished. It seems like a minor ethical dilemma for those that know that the photocopy is unauthorized. But you wouldn't jail someone over it.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
Do you get permission from me to read this? If not, you are a thief.
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
IT IS NOT.
Also...just explain to me bob, why it is you're so happy with the fact Jammie Thomas may end up in economic servitude to the RIAA for what may be the rest of her life for simply sharing a few songs. What has made you so bitter of a person that sharing a few mp3's means you should be punished for the rest of your life?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
And remember that Posner's opinion on infringement only applies to the person who downloaded Thomas's songs. The person who made them available was guilty of infringement.
So choose your poison: infringement or theft.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
I'm sorry (no I'm not actually) bob, but your brain cells must have imploded, or at least I hope they did after writing that piece of shit sentence. There are people in JAIL? For LIFE? on 3 strikes laws? You do know that the proposed 3 strikes (which by the way aren't laws, but supposedly voluntary agreements between ISPs and the copyright cartel, and thus, you can't be arrested over them) have the end result of you losing your net access.
Not of going to JAIL. Despite what's happening to Richard O'Dwyer.
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
24 songs, bob. No jail time. Sorry if that makes you not so "happy with Jamie Thomas getting the same amount of time as some shoplifter who takes 1000 CDs."
[ link to this | view in chronology ]
Re: Okay, call it theft. I downloaded and watched a movie that I could have bought for $20. What's my penalty? $150,000? $100? What's fair?
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
http://www.logicalfallacies.info/relevance/appeals/appeal-to-authority/
http://yourlogic alfallacyis.com/appeal-to-authority
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
But hey, you can feel secure because some Harvard Law Professor agrees with you. Not that you would be appealing to authority then.
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
b b b boB is the word
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
http://pjmedia.com/tatler/2012/07/06/competent-judge-throws-convicted-felon-bre tt-kimberlins-peace-order-out/
Cause, you know, the judge is ALSO ruled by law.
Not what he feels like. Or what boB feels like.
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
I think the problem with this conclusion is you can't prove who stole it or whether it was stolen at all! Theft is a criminal offense and you must prove it beyond a reasonable doubt.
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
Basically it's saying "I steal something, put it on display, you go to jail for reading it, and the company that makes your eyeglasses goes to jail for helping you."
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
What if my friend downloaded the movie, and I came to his house the night he was showing it. Would I be stealing?
Thanks for playing.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
No, that would be called trespassing
|What if my friend downloaded the movie, and I came to his house the night he was showing it. Would I be stealing?
Do you regularly steal from your friends when they invite you over to watch a movie?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
I know you're pulling our leg, Bob, but just for the record, here is what the judge actually said:
"His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it."
He says point blank that it's the EQUIVALENT to theft - in other words, it's not legally theft but it's morally just as wrong.
I agree that hacking PPV streams is wrong and I don't do it, although comparing that to a physical attack on property is too rich for my blood.
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
Copyright infringement, on the other hand no! That's when, after sharing a few songs, I may have to sell my house and all my worldly possessions to pay the fine.
[ link to this | view in chronology ]
Re: Re: Re: Re: See! Making a copy is theft...
Bob, the concept you might actually be reaching for, or brushing past, is justice. Not this stuffing of square peg of someone's temper tantrum induced desires into z round hole of a just penalty.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: See! Making a copy is theft...
I can say that according to everything bob has written here in the comments on this site, he's never done such a thing in his life.
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
Says that theft is: "the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property"
The electronic ones and zeros that make up the movie are not property.
Copying them does not deprive the rightful owner of said property.
The Judge is wrong in his analogy.
Watching the streaming movie is more like going to the bookstore and reading the book at the store but not purchasing it.
Maybe they could have you arrested for loitering but that would be about the only crime that took place and that does not translate to "on the Internet" because one can not be arrested for loitering in the comfort of their own home.......
[ link to this | view in chronology ]
Re: Re: See! Making a copy is theft...
In my defense, I don't feel that what I did was wrong. There is a clear difference between reading the book once and putting it back, versus paying for it and bringing it home. I don't have those graphic novels to hand, to re-read as many times as I want. The graphic novel is more than the story within: its the ink, the pages, the fact its a physical object. I chose not to pay the price and thus I didn't get to keep this physical object.
[ link to this | view in chronology ]
Re: Re: Re: See! Making a copy is theft...
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
You may as well try and take his "sneak in to a film" analogy and claim that he means that copyright is the same as trespassing. After all it's actually a term that makes far more sense if we are going to take the stupid step of equating "intellectual property" (A term used to describe a set of disparate laws, not actually a legally defined term in it's self as far as I know) to physical property. Given that the "property" remains both with the owner and the person who copied it then using the term "theft" is illogical but implying the copier is "trespassing" on property we have something closer (if still stupidly wrong) to describe the action.
But I doubt we'll see "trespassing" gain as much traction as "theft" because it's not as good a term of manufacturing moral outrage via legacy industry PR campaigns.
[ link to this | view in chronology ]
Re: See! Making a copy is theft...
The last time I was in there, the store manager came over and thanked me for coming in. When he saw the book I was reading, he suggested another I might like. He had read it during his breaks over the last two weeks and was really thinking of buying it.
[ link to this | view in chronology ]
You can't take an outfit that claims imaginary losses based on numbers that would make a full iPod worth 8 billion dollars seriously. But if I were the judge I'd give the MPAA a pony.
[ link to this | view in chronology ]
this just in...
Supreme Court Put On Notice!
Copyright Infringers Ranks Thin Overnight!
Will common sense prevail?
Will crimes be defined in reality?
Do judges purrfer cats? Can dogs fling poo?
Stay tuned for the next riveting episode of... Internets of Our Lives
[ link to this | view in chronology ]
1000 Cd's ?
1k cd's hmm.... an estimate for a cd case + plus cd is around 2 oz. do the math - you get about 125lbs.
Hard to run from the po po carying that much weight.
/sarc
[ link to this | view in chronology ]
Copyright infringement though, as has been noted and pointed out repeatedly is NOT theft. It's just not. No amount of saying otherwise will make it so.
[ link to this | view in chronology ]
Re:
Which is nonsense. Not surprisingly, people are happy to latch on the Posner's nonsense they agree with, while averting their eyes from the nonsense they don't agree with.
[ link to this | view in chronology ]
Re: Re:
Theoretically it could be theft of service or defrauding an innkeeper (though Defrauding an Innkeeper usually only works for walking out on a bill at a restaurant or at a hotel.)
It is nonsense, since it is not equivalent to either these things...since, as noted by others, it is more like walking into a bookstore or library, reading a book, and then walking out without paying for the book. Even walking into a movie theater and watching a movie without paying can be perfectly legal in some cases, and when it isn't, it is usually charged as trespass (for example, CA PC 602(m)), not theft.
[ link to this | view in chronology ]
Re: Re:
"His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it."
His point is that crime, in this case theft, is not reading the reading of the book but how it was taken. He goes on to say that watching the uploaded video is not the copyright infringement, taking it and uploading it was.
While I think he could have phrased it better given the way the legacy industry insists on the false use of "theft" while framing this debate it's clear he wasn't saying "copyright infringement = theft". Unless you are attempting to read in to it something that isn't there of course.
[ link to this | view in chronology ]
Re: Re: Re:
Ok, but in his "avoiding the paywall" scenario, nothing is taken, which makes the analogy bad, and the use of "equivalent" flat out wrong.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Which Posner covers in his comment. Streaming(*) is not downloading, and so long as the person does not make a copy of it locally, they are not committing copyright infringement.
(*) - which does include copying bits into a temporary buffer in order to display on the screen, but does not keep an entire copy of the work.
[ link to this | view in chronology ]
Re: Re: Re:
Then again, I was reading the opinion rather quickly.
[ link to this | view in chronology ]
Re: Re:
From a copyright perspective, a “copy” —like a “work”— is a term of art.
With a copyright perspective, we are speaking in the context of a limited, statutory monopoly: The important definitions are creatures of the law.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
It is, of course, no surprise that Mike would disagree with Goldman in this case, since Mike is a results-oriented guy. Posner is too. But judges don't get to make up the law the way they think it ought to be, when the statute and the long history of case law contradicts that result.
The opinion glosses over the most critical point by saying "as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner's exclusive right [of reproduction.]" Yet, most other opinions dealing with this issue go into detail to explain that, when you view a web page, you DO make a temporary copy, therefore putting the right of reproduction in play.
Posner simply ignores this temporary copy aspect. If the record shows no temporary copy is made in this case, explain that! If the record doesn't show one way or another, then reverse or remand on those grounds. Don't just ASSUME the facts that every (or nearly every) other court bases their opinions on aren't applicable here.
A couple other minor points:
A copyright license is not necessarily "just a type of contract" since it requires no consideration, or even agreement between parties (this is probably immaterial to the result, but not a strong start to this opinion).
Additionally, bypassing a paywall is only somewhat like, but is not "equivalent to stealing a copyrighted book from a bookstore and reading it." This much should be uncontroversial to Techdirt aficionados.
[ link to this | view in chronology ]
Re:
"Results-oriented" is the nice way of saying that he works backwards. He doesn't care if the reasoning is sound so long as the conclusion is "right."
Funny how Mike doesn't mention that Posner actually says that myVidster could be a contributory infringer for the embeds. Funny too how Posner says myVidster is directly liable for the backups, but Mike doesn't mention that.
Not only does he work backwards, he ignores all the parts he doesn't like. Nothing dishonest about that.
[ link to this | view in chronology ]
Re: Re:
Well, yes. I'm more of a process/principles oriented guy myself.
[ link to this | view in chronology ]
The courts have actually been doing this since the dawn of digital media.
If this were not the case, then playing a legitimately purchased DVD, even in my legitimately purchased DVD player, would be copyright infringement. All streaming would be infringement. Digital media, let alone all digital computing requires copies, and nowhere on the media you purchase will you find authorization for those copies.
In fact, you find an FBI warning telling you that all copying is infringement, subject to a scary big fine.
It would sure be nice if those critters in Washington would finally get their act together and allow copyright and, you know, digital computing, to coexist in a functional and legal fashion.
While I generally dislike judges ignoring the law or writing new law via precedent not supported by the text of the law, sometimes it's required in order to allow basic things to work because Congress does not work. Checks and balances and all.
So until Congress figures out they have no clue, starts including the technology sector in the discussion, and corrects the laws so that things can, you know, work. I'm afraid I would rather judges allow a wide range of unauthorized copying rather than enforce the infringement that occurs when I play the DVD I bought in the DVD player that I bought, neither of which I have modified.
[ link to this | view in chronology ]
Re:
The pre-existing law of implied license —which predates VCRs— covers the case of licensed DVDs in DVD players. Now you could argue that implying a license in this situation required an extension of the law, because some early opinions held that implied license only covered the relationship between author and publisher—but it's not a large jump.
Alternatively, in a world where judges had a little bit of engineering imagination about technological details, 17 USC 117 could be extended to cover the microprocessor(s) in your DVD player.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
What's to expound? In the absence of an explicit license, when the law would appear to require a license, the courts will infer a license from conduct. That's straight-forward, and not really controversial.
I was just recently reminded of that while researching § 204(a) caselaw. However, implied licenses are peripheral to signed writings, so...
Dude.
The **AAs try to push the law in all kinds of crazy directions.
[ link to this | view in chronology ]
Re:
Yeah, that's just not true. Not all copying = infringement.
But Posner's opinion should explain why one type of copying (by someone watching the video) isn't infringement, rather than just assuming that it doesn't happen.
I'm not a fan of Posner's results-oriented jurisprudence, regardless of whether the results make sense.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
That may include some undesirable results, which you are going to get no matter what, because nobody agrees with Congress 100% of the time.
Courts interpreting acts according to their text have been the motivation for Congress to clarify their meaning. I'd rather Congress not slap some crappy language together and figure "eh, the courts will figure it out if we screwed up."
[ link to this | view in chronology ]
Nice
What also comes to mind is a certain movie streaming site I know that streams infringing movies hosted on other servers and what I considered to be a prime MPAA target. Well what do you know when based on this ruling neither their linked streaming nor the visitor viewing is actual infringement when only the original uploader and server owner could be.
[ link to this | view in chronology ]
Re: Nice
This decision by the United States Court of Appeals for the Seventh Circuit was the decision on appeal: The Seventh Circuit vacated the preliminary injunction entered earlier by the United States District Court for the Northern District of Illinois, Eastern Division.
Seventh Circuit is the appellate court. District is the trial court.
The chances that the Supreme Court will grant certiorari range between the proverbial slim, none, and less than zero.
[ link to this | view in chronology ]
Remember DVD X Copy?
Anyway, Judge Posner's ruling applies to an ephemeral copy of a work that is held temporarily in a buffer. No copyright infringement on the part of the viewer here. Somewhat like borrowing a DVD from a public library and watching it, or like the old Borland software license (install on as many computers as you want, but you can only use it on one ccomputer at a time).
This isn't that hard, people.
[ link to this | view in chronology ]
Finally some good news
[ link to this | view in chronology ]
Oh Mike--
That section you quoted from pp. 8-9 of the opinion is NOT where Posner addresses the public performance right. There, he's clearly talking about the reproduction and distribution right. He says that "myVidster isn't increasing the amount of infringement" because no one's making a copy. That has nothing to do with the public performance right.
More yellow journalism?
In other words, the person watching the video isn't doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it's not violating the public performance right either.
Nope. Not what he said. He's not even talking about the public performance right in that quote. If you read the actual part of the opinion that does in fact address the public performance right, you'd see that Posner says that myVidster might be liable for contributory infringement--if in fact users used myVidster to watch Flava Works's works:Had the record actually shown that people were using the links, the outcome would likely have been different. So keep dreaming of there being no liability for people that knowingly provide links to infringing works.
[ link to this | view in chronology ]
Re:
The outcome may likely have been different if the record actually shown that people were using the links. The record didn't actually show that people were using the links and until then and shown otherwise the verdict by this judge stands. It will have to be proved that people were using the links and that is something that the plantiff will have to prove if they still wish to continue or bring a case against the defendant.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
overly simple interpretation
I may weigh in on my own blog upon giving the case a more thorough read.
[ link to this | view in chronology ]