Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites
from the time-for-a-wake-up-call dept
We recently wrote about the (somewhat surprising) ruling by Judge Posner in the 7th Circuit appeals court's Flava Works vs. myVidster case, in which Posner pointed out that a site providing links to infringing content is not infringing. He actually ruled that just watching the videos or embedding them are not direct infringement either. As we noted that seemed to have direct bearing on a number of other cases out there, including the criminal charges against Rojadirecta (and against TVShack's Richard O'Dwyer). It appears that Rojadirecta's lawyers wasted little time in letting the judge in their cases know about the ruling. While Rojadirecta's fight is in the 2nd Circuit, hopefully this helps the courts to recognize how ridiculous the governments' charges are. Even if they don't quite agree with Posners' ruling, just the fact that there are significant questions over whether or not linking/embedding are legal, should raise significant questions about the "willfulness" needed to show criminal copyright infringement.
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, criminal, liabiity, linking, rojadirecta
Companies: flava works, puerto 80
Reader Comments
Subscribe: RSS
View by: Time | Thread
Key
This, because, if you don't think every human being has the right to knowledge and to spread knowledge, then you are, willingly or not, withholding the most powerful tool from humanity as a whole. Sciences, math, arts, philosophies... all knowledge that should be shared, explored, copied, learned and used to progress.
It is sad, that many of our current laws are not in place for humanity.
[ link to this | view in thread ]
I run a remix site that does host the material. I feel that it's above board, the band is remix friendly, etc etc.... Yet for the last few years I've been thinking about taking it down because lately I feel I'm directly in the crosshairs of f-ing EVERYONE!!
I provide a legit service to the many remixers/mashup artists who remix this bands songs. I host their songs, I promote the site, I pay for ads, and I make ZERO money in return. Site has no ads and does nothing to help me pay the bills. (I work an 8-6 like everyone else) I do it because I love the community we've built.
In all the years I've run the site, I haven't had a single takedown request, warning, or contact with the band. Although, through Google Analytics, I can show that the label has visited numerous times, and at least one member of the band has visited a few times.
It would kill me to have to take it down, but who really wants to go to jail for running a godamn fan site that helped promote the band in many ways. Not me.
Until people stop being paid off, until length of copyright returns to a more sane amount of time, until there's reform, there are a LOT of sites and ideas that will never see the light of day.
I dream of the day when everything isn't a f-ing grey area of the law open to interpretation of someone who's been paid off. I want black and white rules, almost to the point that I don't care if the rules are against me. It would just be refreshing to finally know the rules.
I know the law isn't always black/white but WTF...
RIAA, stop f-ing with fans, get involved with them, if I can do it for the very small amount of time and money that I have at my disposal, you wouldn't feel it AT ALL... And when I say very small amount, I mean it. You just to have a passion, which I feel you are lacking now. Hire fans to run fansites, street teams, people love to do stuff for the bands who make the music they love.
MPAA, see Mike's many reason to buy speeches.
I don't know why this particular post got to me, I guess I'm just sick of all the b.s. and needed to vent. Thanks!
Thanks Sonny and Walt..
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
World Victimization!
[ link to this | view in thread ]
Re:
The rest of your paragraph any court would state as a ratio to be the absolute definition of specious though. Maybe you should submit it to some governmental committee since you read like you have been on a few (I will leave it to the reader to understand what a govt committee is full of).
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Domain name seizures and criminal charges must stop
The grey area is where the US Govt. isn't held accountable for its actions. The grey area is where its "ICE" steals domain names and websites and revenue. The grey area is where this is perfectly ok and nobody dares comment on it.
The rabid elephant in the room is the US Govt and its ICE goon squad. They, and their puppet masters the MPAA and RIAA need to be taken out front and shot and left for dead. That's why they're working hard to eliminate the 2nd Amendment... so they won't have to deal with any threats to their holy mission to stamp out anything Hollywood didn't decide was how things are done 60 years ago.
E
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Key
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
Next time you feel compelled to make an insulting comment, try actually reading a decision to ascertain its holding before launching off on your all too predictable retorts.
And, by the way, even if his dicta did carry any weight, which it does not, I believe you will find it does not stand for the proposition(s) you ascribe to it.
[ link to this | view in thread ]
So let it be done.
(Auto all caps, huh? I didn't know lolcatz were so loud!)
[ link to this | view in thread ]
Re: So let it be done.
Thanks dude.
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
But, Mike, Posner's opinion actually doesn't say what you (and others) keep saying it holds. Posner does conclude that linking to streams of infringing content hosted by somebody else isn't direct infringement of the copyright in that work. But Posner did not find (as you and others keep suggesting) that linking to infringing streams can't result in liability for infringement. (Posner does take one of characteristic detours into saying that "direct infringement" should just be called "infringement," so in a technical sense "Posner finds linking to streams is not infringement might be correct" might be true, but only for the narrow meaning of "infringement" Posner adopted for purposes of this opinion.)
[ link to this | view in thread ]
Sovereign Imunity.... who knew Obama was King???
[ link to this | view in thread ]
Re: Re: Re:
I never said that it *can't*. He is clear in the ruling that it can, depending on various other factors. But the mere act of hosting such links is not. And that's important.
[ link to this | view in thread ]
Re: Re: Re:
Importantly, though I do view some of Posner's comments as dicta, you are, of course, correct that some of them may strike a responsive chord with the 2nd Circuit. He is a respected jurist, and doubtless is not dismissed by other jurists with the wave of a hand.
We both agree that Posner does not hold the view that linking to a video hosted on an unrelated, third party server is not direct infringement. However, secondary liability is not forclosed, depending upon whatever evidence may be presented at trial.
I will ommit comment of reproduction, distribution and public performance because they do not admit to a simple analysis. Let me just say that I believe some of Posner's analysis I found wanting, with one that immediately comes to mind being the reproduction right. Perhaps there is caselaw of which I am unaware, but to my knowledge it is a defensible position to argue that the downloading of a stream, even if each segment of a video resides in memory for only a transitory period, comprises a reproduction.
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
That's not correct. He said that merely providing links might be direct infringement. But since there was no evidence that myVidster encouraged the linkers to post the links, it could not be held liable as a contributory infringer for the linking. Judge Posner did not say that linking is not direct infringement. He said that linking might be direct infringement. He did not decide the issue either way since even if it were infringement, under the facts of the case myVidster wouldn't be liable for contributing to it.
Contrast Flava Works to Rojadirecta or TVShack (which did knowingly encourage linking to infringing content), and you'll see that Rojadirecta and TVShack are still liable for encouraging infringement. Neither can claim to not have played a part in the infringement like myVidster could. As long as Rojadirecta's or TVShack's domain names facilitated or were intended to facilitate infringement, they are seizable as contraband. And the operators themselves are potentially liable for criminal infringement to boot, as is already in the works.
[ link to this | view in thread ]
Re: Re: Re: Re:
That's not correct. He said that merely providing links might be direct infringement. But since there was no evidence that myVidster encouraged the linkers to post the links, it could not be held liable as a contributory infringer for the linking. Judge Posner did not say that linking is not direct infringement. He said that linking might be direct infringement. He did not decide the issue either way since even if it were infringement, under the facts of the case myVidster wouldn't be liable for contributing to it.
Contrast Flava Works to Rojadirecta or TVShack (which did knowingly encourage linking to infringing content), and you'll see that Rojadirecta and TVShack are still liable for encouraging infringement. Neither can claim to not have played a part in the infringement like myVidster could. As long as Rojadirecta's or TVShack's domain names facilitated or were intended to facilitate infringement, they are seizable as contraband. And the operators themselves are potentially liable for criminal infringement to boot, as is already in the works.
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
That is exactly the opposite of what he said:
Things become more convoluted when the "public performance" aspect kicks in. But even here, myVidster would not be a direct infringer, but a contributory infringer:
So, you're absolutely wrong. In no case could merely providing links to content ever be considered direct infringement. Under Posner's "performance by uploading" interpretation, merely providing a link to streaming content is not infringement at all. (Incidentally, that is the interpretation that is controlling in both the Ninth and Second Circuits.)
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
Judge Posner gives two interpretations of what constitutes a public performance:
(1) public performance = upload + link
(2) public performance = upload + link + stream
myVidster was not liable for (1) since there was no evidence that it had encourage anyone to provide the links. myVidster was not liable for (2) since there was no evidence that anyone streamed a video using a link.
Yes, myVidster could only be liable as a contributory or vicarious infringer (assuming it was third parties providing the links or doing the streaming). I never said myVidster would be a direct infringer of the public performance right.
Your first long quote only concerns the reproduction and distribution rights, so it is irrelevant to the point I was making about the public performance right.
Your second long quote only proves my point.
You said: "Under Posner's "performance by uploading" interpretation, merely providing a link to streaming content is not infringement at all."
That is not correct. Posner says that uploading + link is a public performance under the "performance by uploading" interpretation.
Regardless, do you agree that the myVidster situation is quite different from the Rojadirecta or TVShack cases (where there was encouragement)?
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
You said merely providing links could be considered direct infringement by Posner. You were wrong.
Judge Posner gives two interpretations of what constitutes a public performance:
(1) public performance = upload + link
(2) public performance = upload + link + stream
That's not what Posner said.
The question was whether the "performance" happened:
(1) when someone uploaded the video to the third-party site, or
(2) when (a different) someone actually viewed the stream uploaded to the third-party site.
In both cases, the uploader is the only (direct) infringer; the question is at what point the original uploader would be infringing. In neither case is the person viewing the video infringing.
myVidster could only be liable for secondary infringement, if:
(1) myVidster itself materially contributed to the original upload to the third-party site (in which case the links themselves are immaterial), or
(2) myVidster's links materially contributed to the viewing of the stream at the third-party site (in which case myVidster could avail itself of the DMCA safe harbors).
The question in (2) is not whether someone actually viewed the video using myVidster's link; it's whether that link, by itself, was "conduct that encourages or assists" the broadcast itself - whether the viewer wouldn't have streamed the content if that link wasn't there.
Your first long quote only concerns the reproduction and distribution rights, so it is irrelevant to the point I was making about the public performance right.
But it is relevant to a criminal case, like Rojadirecta or TVShack. Unless the direct infringement (by the uploader) was committed "for purposes of commercial advantage or private financial gain," criminal infringement only covers "reproduction or distribution," and not public performance. Even if it was committed for financial gain, infringement of the "public performance" rights is at most a misdemeanor. See 18 USC 2319(f)(2). And Posner said explicitly that "myVidster is neither a direct nor a contributory infringer - at least of Flava’s exclusive right to copy and distribute copies of its copyrighted videos."
It's also worth noting that "contributory infringement" is found nowhere in the copyright statutes. It is, as Posner reiterated, a legal construct arising out of civil law. The only way Rojadirecta or TVShack would be criminally guilty is under the "aiding and abetting" statutes - but those are completely different than contributory infringement in civil cases, and raise a far higher bar to clear.
So, to sum up: the most Rojadirecta or TVShack could possibly be guilty of, is aiding and abetting a misdemeanor. And that's only if the original uploaders were doing it for financial gain; and only if Rojadirecta or TVShack could have been shown to aid and abett those original uploaders.
Regardless, do you agree that the myVidster situation is quite different from the Rojadirecta or TVShack cases (where there was encouragement)?
Even if we pretend Rojadirecta or TVShack are civil cases, I do not see much difference, since the government did not show such "encouragement."
Even if they did, Rojadirecta and TVShack would be guilty of contributory infringement. In no case could they be guilty of direct infringement.
[ link to this | view in thread ]
There's no criminal charges in Rojadirecta, so the only issue is whether the domain names were used or intended to be used to commit criminal infringement.
Posner said there are two different interpretations of what constitutes a public performance:So he said exactly what I said he said.
A public performance is either:
(1) public performance = upload + link (what he says is the first interpretation: "uploading plus bookmarking a video is a public performance")
(2) public performance = upload + link + stream (what he says is the second interpretation: "the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer")
Seems clear enough to me; you even quoted that part yourself. Posner doesn't decide which interpretation is correct since under either one there was not enough evidence (yet) to find myVidster liable.
Posner did not say that only the uploader is the violator of the public performance right. Can you point me to the part that you think says that?
At one point, he says:So he says it's an unauthorized performance by visitors to myVidster.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
That is not correct. Posner says that uploading + link is a public performance under the "performance by uploading" interpretation.
Upon re-reading your comment, I think I understand better what you're saying.
I was talking about myVidster providing a link to infringing content. In that situation, you are wrong: in no case is myVidster a direct infringer.
You may have been saying, however, that a user (not myVidster) who merely provides a link (and doesn't upload the video) may be guilty of infringement.
In fact, Posner does not say this. He says that uploading AND providing a link would be direct infringement. But the opinion does not even contemplate the liability of a user who does not upload the video, but does provide a link to that video to myVidster.
Regardless, the ruling makes clear that liability for direct infringement is limited solely to the uploader:
So, a user who merely provides a link cannot be guilty of direct infringement. But whether or not they can be guilty of contributory infringement is not contemplated in this ruling. So I was wrong to say they are not infringement at all.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
The sixth quote only says that the uploader is the sender while the viewer determines when the stream begins. Thus, the viewer determines when the infringement of the public performance occurs under the second interpretation.
The seventh quote says that myVidster is not the party directly causing the infringement of the public performance right. I never said otherwise.
The eighth quote refers again to the reproduction and distribution rights, and not the public performance right.
I don't really see how anything you're saying disproves what I said, and at this point, nor do I care. Adios.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
The sixth quote only says that the uploader is the sender while the viewer determines when the stream begins. Thus, the viewer determines when the infringement of the public performance occurs under the second interpretation.
The seventh quote says that myVidster is not the party directly causing the infringement of the public performance right. I never said otherwise.
The eighth quote refers again to the reproduction and distribution rights, and not the public performance right.
I don't really see how anything you're saying disproves what I said, and at this point, nor do I really care. Adios.
[ link to this | view in thread ]
Re:
He's being charged with a lot of things, but that doesn't mean the charges have merit.
To be honest, though, I haven't been able to track down the actual indictment, just the seizure order. The charges in the seizure order certainly wouldn't support anything more than aiding and abetting a misdemeanor. If you have a link to the full indictment, I'd love to read it.
Anyway, this story is about Rojadirecta, and I have read every document in that case (that I know about).
There's no criminal charges in Rojadirecta, so the only issue is whether the domain names were used or intended to be used to commit criminal infringement.
The government has changed its story with every court filing. That Rojadirecta was a direct infringer was the basis for the seizure order.
It's also worth noting that the government has not identified a single instance of criminal infringement that occurred anywhere - neither on Rojadirecta's site, nor on any site linked to from Rojadirecta.
And, once again, Rojadirecta only linked to streaming content, so the only criminal activity they possibly could have linked to would only be a misdemeanor under U.S. law.
(1) public performance = upload + link (what he says is the first interpretation: "uploading plus bookmarking a video is a public performance")
Yes, but he was only contemplating situations where it is the uploader who provided a link to myVidster. It's clear that what constitutes (direct) infringement is the uploading, not the linking. I provided numerous quotes in my previous comment.
(2) public performance = upload + link + stream (what he says is the second interpretation: "the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer")
You'll note that the word "link" is left out of this interpretation. More accurately, it would be "(2) public performance = upload + stream." Neither the link, nor myVidster's site, are a direct part of the actual performance. The rest of the ruling is contemplating whether a link can be facilitating that performance.
Posner did not say that only the uploader is the violator of the public performance right. Can you point me to the part that you think says that?
The quotes are in the comment above. Most of them were taken from places where he was talking, specifically, about the public performance right.
At one point, he says:
But it is relevant to whether myVidster’s bookmarking service is actually contributing significantly to the unauthorized performance of Flava’s copyrighted works by visitors to myVidster’s website.
Here, he was using interpretation (2), which necessetates someone viewing the content for an infringement of the "public performance" right to take place. And he was specifically talking about the the role of pecuniary interest in secondary infringement. Here is the quote in context:
Putting it all in context, he's determining "whether myVidster’s bookmarking service is actually contributing significantly to the unauthorized performance of Flava’s copyrighted works by infringers who transmit copyrighted works to myVidster’s visitors."
Regardless, he explicitly said that "the video uploader is responsible for the transmitting." There is not one time where he says that users who merely provide a link to myVidster (without uploading) are directly infringing. (In fact, he says nothing about those kinds of users at all.)
Also notice how the determination is whether myVidster's link is "assisting," "facilitating," "providing support services," or "contributes to" the performance. These are all forms of secondary, not direct, infringement. There's no suggestion anywhere in the ruling that the link is actually part of the performance itself, or that a link could possibly be direct infringement; he says explicitly that the uploader is responsible.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re:
No. It says that "the provision of contact information" is not "transmission or communication." Thus, it is not infringing on the "public performance" right from 17 USC 106(4).
I also left out this quote:
By the way: regarding performance rights, it is a matter of statutory law that viewing a "public performance" is not an infringement of copyright. 17 USC 106(4) only grants the exclusive right "to transmit or otherwise communicate a performance of the work to the public" (in this context).
The only person who can possibly infringe on that right is the one who "transmits" the work. And, as Posner makes very clear, "the video uploader is responsible for the transmitting;" and not one who (only) provides "contact information," i.e. a link (from the quote above).
That's under the second interpretation. According to Posner, "The first interpretation is hopeless for Flava. For there is no evidence that myVidster is contributing to the decision of someone to upload a Flava video to the Internet[.]"
He's very clear on this point. The only direct infringer is the uploader.
[ link to this | view in thread ]
Re: Re:
Found the complaint:
http://www.scribd.com/doc/100259020/U-S-v-O-Dwyer-SDNY-1-Sealed-Complaint
As expected, the DOJ claims it is a "'linking' website," that links to "first-run and other movies for streaming." All the links were user-generated, and the actual content was stored on third-party sites.
I also recognize some of those third-party sites, and as far as I know, they don't do downloads, only streams. (This is important, since amazingly enough, the complaint does not differentiate between the two.)
So, it's almost exactly like myVidster.
[ link to this | view in thread ]
Re: Re:
Complaint: http://www.scribd.com/doc/100259020/U-S-v-O-Dwyer-SDNY-1-Sealed-Complaint
Affidavit: http://www.scribd.com/doc/100259042/U-S-v-O-Dwyer-SDNY-5-Affidavit-of-AUSA-Reh-ISO-Request-for-Extra dition
The government has changed its story with every court filing. That Rojadirecta was a direct infringer was the basis for the seizure order.
It's also worth noting that the government has not identified a single instance of criminal infringement that occurred anywhere - neither on Rojadirecta's site, nor on any site linked to from Rojadirecta.
And, once again, Rojadirecta only linked to streaming content, so the only criminal activity they possibly could have linked to would only be a misdemeanor under U.S. law.
It's enough that the property is intended to be used for crime, so they don't have to show that it was actually used for crime. And the case law is far from clear or complete that linking like that can only be a misdemeanor.
Yes, but he was only contemplating situations where it is the uploader who provided a link to myVidster. It's clear that what constitutes (direct) infringement is the uploading, not the linking. I provided numerous quotes in my previous comment.
He never says the uploader also provides the link. You have provided several quotes, but most apply to the reproduction/distribution rights, and not the public performance right. The uploader is liable for more than one infringement, so the confusion is understandable.
You'll note that the word "link" is left out of this interpretation. More accurately, it would be "(2) public performance = upload + stream." Neither the link, nor myVidster's site, are a direct part of the actual performance. The rest of the ruling is contemplating whether a link can be facilitating that performance.
Nope. The second interpretation is public performance = upload + link + stream, exactly as I said. Posner says:Just like I said.
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It can be infringing on that right indirectly, which was the point.
By the way: regarding performance rights, it is a matter of statutory law that viewing a "public performance" is not an infringement of copyright. 17 USC 106(4) only grants the exclusive right "to transmit or otherwise communicate a performance of the work to the public" (in this context).
But the party streaming is not merely a passive viewer. They are causing the infringing transmission to occur by clicking on the link.
[ link to this | view in thread ]
Re: Re: Re:
Thanks. Just read it. It is basically a restatement of the Complaint that you and I linked to.
Neither the Complaint nor the Affidavit actually say that anyone downloaded anything. They use the phrase "downloaded or streamed" (they do not differentiate). And the only evidence of infringement that the government lists in the Affidavit, is "video recordings of the TVShack websites and movies streamed from those websites."
Its description of the evidence is also inaccurate, because the Affidavit itself says that these were links to "cyberlockers." As a matter of law, the videos were not streamed from "the TVShack websites," but from the "cyberlockers."
So, even if the infringement is criminal, it is only an infringement of the public performance right. That is not unlawful at all unless the it was done for profit, and even then it can only be a misdemeanor. And since TVShack is not even alleged to have done anything other than link to infringing streams (willfully or not), the most it can be guilty of is aiding and abetting a misdemeanor.
It's enough that the property is intended to be used for crime, so they don't have to show that it was actually used for crime.
So they must prove a "substantial connection" between the domain name and the direct, willful infringement of the copying and distribution rights, for profit. That is:
Unless all these conditions are met, they can't show a substantial connection between the domain name and criminal infringement.
All that, and show that the ex parte takedown of an entire domain is not unconstitutional under the First Amendment. I'd say the DOJ has their work cut out for them.
You have provided several quotes, but most apply to the reproduction/distribution rights, and not the public performance right.
Posner began his analysis with the right to prevent copying, so it is apropos. Under his analysis, someone who watches or links to a stream does not infringe on the copying or distribution rights at all. That leaves the public performance right. And unless you are the "transmitter" of the stream, as defined in 17 USC 101, you are not performing the work publicly, so you are not infringing on the public performance right granted in 17 USC 106(4).
Nope. The second interpretation is public performance = upload + link + stream, exactly as I said. Posner says:
And here, you reproduce a Posner quote that explicitly says you're incorrect.
He says "the public performance is the transmission of the video when the visitor to myVidster’s website clicks on the video’s thumbnail (the second interpretation) and viewing begins." Shortened: "Public performance happens when viewing begins." That's almost exactly what he said earlier in the ruling: "The second interpretation - the performance occurs when the video is viewed..." And it's how he actually defined the second interpretation: "the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer - in other words when it is 'communicated to the public in a form in which the public can visually or aurally comprehend the work.'"
It only makes a difference because, prior to this point, the link played no role whatsoever in the transmission of the content. His first interpretation, that infringement happens after uploading but prior to anyone viewing the content, is "hopeless for Flava" - precisely because posting a link is not "contributing to the decision of someone to upload a Flava video to the Internet." He is clearly saying that the uploader (only) is the infringer under the first interpretation.
The next sentence says, explicitly, that "the video uploader is responsible for the transmitting." This means that under the second interpretation of "public performance," it is again the uploader who is the (direct) infringer. In contrast, myVidster's links could only be "assisting," "facilitating," or "contributing to" the infringement.
He is very clear (or at least as clear as Posner can get). In both cases, the uploader is the one infringing on the public performance right. myVidster's linking can only be secondary infringement at worst, and only if you accept the second interpretation of "public performance;" under the first interpretation, it is not infringement at all. There is absolutely no question about this.
In fact, the alternative is completely nonsensical. If he literally meant that "uploading plus bookmarking a video is a public performance," it would mean that some guy could upload Flava's videos to a streaming site, on which the video is publicly available, but he is not guilty of direct infringement until he posts a link to it.
The only question is whether an individual becomes an infringer of the public performance right, merely by posting a link on myVidster to a video uploaded by someone else. Posner does not address this question directly. But if the link poster can be an infringer, he can only be a secondary infringer. In no case can posting a link be a direct infringement of the public performance right, because only one who "transmits" the work can be an infringer. Posner says outright that a link cannot be considered a "transmission;" at worst, it can only facilitate a "transmission."
[ link to this | view in thread ]
Re: Re: Re: Re:
I think your definition of public performance is too narrow. From the House Report:HOUSE REPORT NO. 94-1476, H.R. REP. 94-1476, 63, 1976 U.S.C.C.A.N. 5659, 5676-77 (emphasis added).
I researching the public performance issue now, but I think the video booth cases are an almost perfect analogy. The linker, and the linking website if it has knowledge of the link, only authorize the streaming, thereby making them contributory infringers (at worst).
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
They are not. Re-read the Aveco ruling:
It does not apply to anyone who merely views the stream unless they view that stream "at a place open to the public." But even here, it is not the viewers who are violating copyright, it is the person who unlawfully "authorizes the performances" - in this case, Aveco.
So, this would apply to the original uploader; it might also apply to the site that hosts the video stream. But it does not apply to anyone (website or individual) who merely provides a link to that stream. The linkers do not "acquire a copy" (authorized or not) of the work. They do not "rent a copy" of the work (even by analogy). They do not "make available" any kind of performance, since they do not have any control over the availability of videos on the streaming host. They do not provide "viewing rooms," nor anything remotely like them (see Posner's distinction between myVidster and Aimster). They do not have the ability to "authorize" anything, lawfully or not.
I think your definition of public performance is too narrow.
Re-read the House report:
Merely providing a link is not "transmitting" the initial performance. Posner makes this very clear: "listing plays and giving the name and address of the theaters where they are being performed [...] is not 'transmitting or communicating' them. [...] To call the provision of contact information transmission or communication [...] would blur the distinction between direct and contributory infringement[.]"
I think we can both agree that providing is link is nothing like singing a song, so that leaves the person who "plays" the performance. Unless the person who "plays" "the initial performance" "by turning on a receiving set" "communicates the performance" "publicly," "it would not be actionable as an infringement." (It is pretty clear that they are talking about things like playing a TV in your bar.)
In this case, the person "turning on the receiving set" would be the person who actually initiated the playback of that performance, e.g. by following the link, then pressing the "play" icon on a Web player. In other words, the viewer of the stream. Unless that viewer is authorizing the transmission of the video stream to the public, he is not infringing on the public performance right - in which case, he is not committing copyright infringement at all.
So, someone who "encourages or assists" that viewer would not even be liable for contributory infringement, since no infringement occurs. The only time they could be liable for contributory infringement would be if they encouraged or assisted the person who authorized the stream - according to Posner, the original uploader.
This is exactly why myVidster was not liable for any kind of infringement, direct or otherwise.
[ link to this | view in thread ]