EU Court Of Justice Says Embedding Is Not Infringing: Could Mean Streaming Sites Are Legal
from the well-that's-interesting... dept
Way back in 2006 -- not all that long after video sites like YouTube and DailyMotion began -- we raised the simple question: is embedding infringing content infringing itself? We noted how problematic it was to argue that embedding was infringing, while also noting that it was far from a settled issue. Over the years since then, the issue has come up many, many times. Viacom raised it against YouTube. Bloggers got accused of infringement just for embedding a YouTube video. The MPAA went after sites for embedding videos. And, more recently, with the rise of "streaming" sites, many sites targeted for takedowns or domain seizures don't host any content at all, but merely embed from other sites. But still, that legal question has been in limbo: is it really infringing to merely embed some content that is hosted elsewhere? Two years ago, in the 7th Circuit appeals court, Judge Richard Posner somewhat vehemently rejected the idea that embedding was infringing in the Flava Works case (though, for slightly odd legal reasons). Around the same time, there was a court case in the Netherlands that went the other way, saying that embedding could be infringing.TorrentFreak, however, now lets us know that in an important ruling from the EU Court of Justice (responding to a request from a German court), it has been declared that, under EU law, embedding is not infringing.
The Court argues that embedding a file or video is not a breach of creator’s copyrights under European law, as long as it’s not altered or communicated to a new public. In the current case, the video was already available on YouTube so embedding it is not seen as a new communication.This raises an awful lot of questions about the efforts by law enforcement to completely shut down streaming sites, most of which don't host content of their own at all. Considering how many of the "rogue" sites that the industry loves to attack as being evil and insists must be shut down do nothing more than embed, it will be interesting to see what comes next. If I had to guess, industry folks and the City of London Police will keep taking down those sites, and many won't bother fighting back. But it seems like if a few sites really fought back there could be some interesting legal rulings in response.
“The embedding in a website of a protected work which is publicly accessible on another website by means of a link using the framing technology … does not by itself constitute communication to the public within the meaning of [the EU Copyright directive] to the extent that the relevant work is neither communicated to a new public nor by using a specific technical means different from that used for the original communication,” the Court’s verdict reads.
Update: Still waiting for an English translation of the ruling to come out, but IPKat has a good post noting that it's somewhat unclear if this ruling includes the embedding of infringing works, or only authorized works. It sounds like that particular issue was avoided by the court -- even though there are claims that the video in question in this lawsuit was uploaded without authorization in the first place:
In the national proceedings in BestWater, the claimant has been claiming that its film [a 2-minute long commercial] was uploaded onto Youtube “without its permission”. If and to which extent the work had been communicated by the right owner itself on any other website is not clear by reading the decisions of the Bundesgerichtshof or the CJEU, and neither is the issue of whether the work was subsequently uploaded onto Youtube with the permission of the copyright owner. So the facts of the case remain vague in this respect. The CJEU’s reasoning that there is “in particular” no “communication to the public” if the work is made available “with permission”… (para 16. See to this effect Svensson, paras 25 - 28) does not really help solving these uncertainties.In short, the court ruling is not entirely clear on the embedding of infringing videos, meaning that there will likely need to be another case before this question is really answered.
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, eu, eu court of justice, europe, streaming sites
Reader Comments
Subscribe: RSS
View by: Time | Thread
but only for as long as it takes the entertainment industries to think up some 'Super Deal' to give to the judges, then it will all go back to being shit-shapped agin!!
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
A new public, other than that intended by the copyright holder
Embedding is not "communication to the public", if it is not presenting the work to a new public other than that intended by the copyright holder.
If the copyright holder has already made the content freely available to all-comers on the internet, then embedding is not to be considered communication to a new public.
However, if the copyright holder has not already made the content freely available to all-comers on the internet, but only to subscribers or some other particular group, then embedding that content -- whether from YouTube, or anywhere else that some third party has posted it -- is infringing.
The summary seems to have missed this point.
[ link to this | view in chronology ]
Re: A new public, other than that intended by the copyright holder
If a holder has it on Youtube or Vimeo (etc) , but has locked down access, then any framed streaming of that Youtube file will also be locked down. If they've published it without any restrictions, then anyone should be free to link to whatever code starts the streaming in the frame.
[ link to this | view in chronology ]
Re: A new public, other than that intended by the copyright holder
Yes, it probably exculpates the embedder from direct responsibility for infringement from a third party site, which is a very important victory against third party liability. On the other hand, it makes a distinction between embedding content from youtube and content from Netflix, which seems fair.
[ link to this | view in chronology ]
Hip, hip... nevermind
[ link to this | view in chronology ]
A key part of the judgement intentionally ignored
That's a stretch even for you Mike.
Do people really buy into the bullshit you post?
[ link to this | view in chronology ]
Re: A key part of the judgement intentionally ignored
When the only objections to the articles tend to be baseless personal attacks rather than attempt to explain why he's wrong or address the clear logic on which the claim is based?
I bet they do. If only someone would post intelligent, measured, factual rebuttals in these threads then that might change (assuming there's merit in the opposing argument to begin with, of course). Alas...
[ link to this | view in chronology ]
Re: Re: A key part of the judgement intentionally ignored
The ruling made clear that the content *must* be uploaded by the rightful owner(s) and that the link or embedding must be legal by any and all 3rd parties.
A streaming site that makes public Uses of copyright protected works can only (legally) stream what the rightful owner up loaded in the first place. It's very unlikely that the large production companies have made their full length feature film publicly accessible in order for a link to be considered legal.
[ link to this | view in chronology ]
Re: Re: Re: A key part of the judgement intentionally ignored
The ruling made clear that the content *must* be uploaded by the rightful owner(s) and that the link or embedding must be legal by any and all 3rd parties.
A streaming site that makes public Uses of copyright protected works can only (legally) stream what the rightful owner up loaded in the first place. It's very unlikely that the large production companies have made their full length feature film publicly accessible in order for a link to be considered legal.
Thanks for the explanation. Is there an English version of this opinion out yet?
[ link to this | view in chronology ]
Re: Re: Re: A key part of the judgement intentionally ignored
[ link to this | view in chronology ]
Re: Re: Re: A key part of the judgement intentionally ignored
Well, there we go. I might not agree with everything you say (and I don't), but an attempt to address the arguments rather than calling the author of the article names will always get you further. Kudos for engaging with some actual points.
"A streaming site that makes public Uses of copyright protected works can only (legally) stream what the rightful owner up loaded in the first place."
That's not how I read the judgement as described:
"as long as it’s not altered or communicated to a new public"
If a site is embedding the link as provided to the same authorised audience and in the same form as supplied, why the hell should they be liable for its content? They have no way of knowing for sure - even copyrighted content can have its legality changed depending on agreements with the site hosting the stream. The logical extension of the ruling is that a streaming site is not responsible for screening every link it provides - and that therefore they are legal. You've failed to explain why this is wrong, other than the fact you apparently don't like the writer of the article.
If a link is embedded and the content is illegal, the supplier of that content should be the one prosecuted. That not only ensures that the actual offenders are shut down, but has the effect of shutting down every stream they supply, not just the ones on the site being attacked. I fail to see the issue with this.
"It's very unlikely that the large production companies have made their full length feature film publicly accessible in order for a link to be considered legal."
...and it's very telling that the only kind of streaming site you can envisage is one 100% dedicated to content from "large production companies". Independents do this all the time, as do sites completely dedicated no CC or copyrighted works. Again, that's the problem here. Perfectly legal services aimed at other kinds of content are being made illegal or too expensive to even launch because of threats from the major studios "protecting" their content (in completely ineffective and unworkable ways, but that's a different conversation).
A streaming site should be legal, and there's nothing I'm seeing that means that this kind of ruling cannot lead there. Feel free to continue explaining why this is wrong, but I'm not seeing it - unless you're the kind of fool who can only consider recent works by major corporations as the only valid content, in which case we may as well stop now.
[ link to this | view in chronology ]
Re: A key part of the judgement intentionally ignored
[ link to this | view in chronology ]
Re: Re: A key part of the judgement intentionally ignored
It wasn't me, my paranoid friend. I look forward to the day you add something of value to the conversation.
[ link to this | view in chronology ]
Re: Re: Re: A key part of the judgement intentionally ignored
[ link to this | view in chronology ]
The "efforts" perhaps, but not the reality. Nothing has changed there. They just need to direct their attention to the actual source of the streamed video, not the nearest convenient target. Sites that consist of nothing but links and embeds to third parties suddenly stop getting so many visitors when none of those links work...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
This is why they just go after Google rather than thousands of sites that actually host infringing content. Google tells them where it is so they attack Google.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Sorry?
[ link to this | view in chronology ]
@jupiterkansas
[ link to this | view in chronology ]
Re: @jupiterkansas
[ link to this | view in chronology ]
Re: @jupiterkansas
[ link to this | view in chronology ]
Re: @jupiterkansas
[ link to this | view in chronology ]
Re: Re: @jupiterkansas
Thanks for that, but I don't think I'll need it.
This was my first and last visit to techdirt.
Mike, you have absolutely lived up to your reputation, I just had to know for myself.
[ link to this | view in chronology ]
Re: Re: Re: @jupiterkansas
My name is Paul not Mike, and I'm a reader located several thousand miles from the author of this article (I believe, anyway). Why should anyone take you seriously when you not only start with a childish personal attack, but then can't identify who you're talking to?
Typical of people who try to attack others here. No facts, no maturity, no evidence and run, run away when challenged. Pathetic. Why is it so hard to get an actual conversation from the maximalists?
[ link to this | view in chronology ]
@jupiterkansas
I know many content owners who remove links only to find the same content up loaded minutes later to the same site.
Whack-a-mole?, is what I believe it's called.
I have a feeling Youtube is going to be very busy over the next few weeks due to this ruling, and without a doubt a few more changes to their policy(s) are right around the corner.
So enjoy while you can jupiterkansas, but it appears the walls are finally caving in on the we-want-everything-now-and-free movement.
[ link to this | view in chronology ]
Re: @jupiterkansas
Youtube doesn't stream content. It actually hosts the content. This ruling has absolutely nothing to do with Youtube.
[ link to this | view in chronology ]
Re: Re: @jupiterkansas
[ link to this | view in chronology ]
Re: @jupiterkansas
Whack-a-mole?, is what I believe it's called."
Which is exactly why the people originating the content should be prosecuted, not someone who embeds the link. You go after the source of the infringement, not the person who shows you where it is. If they qualify for jail time, you even shut down their operation and every mirror they supply, not a single source that's irrelevant to the whole in size or scope.
Why is this a problem? I mean, it's true that this won't address the entire problem (for example, cutting off illegal supply won't increase revenue is legal supplies aren't available, and it doesn't address the mess of a copyright system that makes it hard for service providers to identify ownership), but it goes a lot further than going after sites that merely collect links that go to other places which remain online.
"I have a feeling Youtube is going to be very busy over the next few weeks due to this ruling"
Why, specifically?
"the walls are finally caving in on the we-want-everything-now-and-free movement."
Which is a fantastic fictional strawman that ignores most of the real points actually raised and the legal demands of the market, but it makes an easy target, right? If you're unable to identify the actual problems, you won't identify the right solutions.
[ link to this | view in chronology ]
Re: @jupiterkansas
[ link to this | view in chronology ]
Re: @jupiterkansas
Going after the sites that are actually hosting the video instead of the sites that are embedding it reduces the amount of what-a-mole that has to be played. When you take down the source of the video, all of the embeds that point to that source stop working simultaneously.
It's a much more efficient way of going about things.
[ link to this | view in chronology ]
Here, the work being linked to was the original work, and the court (rightly) determined that there was no infringement.
The Ninth Circuit did that way back in Perfect 10 v. Amazon (2007), though.
In Grokster, the issue was liability for linking to an infringing work, and this decision doesn't appear to address that at all.
In other words,
Linking to Marvel's version of the Avengers 2 trailer on Youtube?
*not infringement in the EU according to this decision
*not infringement in the 9th according to Perfect 10 v. Amazon.
*not infringement in the 7th according to Flava Works, Inc v. Gunter
Linking to some random person's copy of the Avengers 2 trailer?
*Might still be infringing in the EU
*Might be infringing in the 9th under Grokster
*Not infringing in the 7th.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
This EU case doesn't address the question of embedding infringing content as TD suggests. The case was about embedding an original work, not an infringing copy.
TorrentFreak's article says "In addition, it may also protect streaming sites who use third-party services to embed videos, even if the source is an infringing copy."
Techdirt says "Way back in 2006 -- not all that long after video sites like YouTube and DailyMotion began -- we raised the simple question: is embedding infringing content infringing itself?" and "This raises an awful lot of questions about the efforts by law enforcement to completely shut down streaming sites, most of which don't host content of their own at all."
These comments from both sites are trying to apply a decision about embedding an original work toward embedding an infringing work, and I don't believe that leap can be made.
[ link to this | view in chronology ]
Re: Re: Re:
It doesn't get to the relevant topic until the second paragraph, where it never mentions that this particular case has anything to do with streaming infringing content, but merely legal content that is publicly available.
The article is extremely clear.
[ link to this | view in chronology ]
Re: Re: Re: Re:
I'll just have to wait for an English version of the decision to come out.
[ link to this | view in chronology ]
Re: Re: Re:
That makes more sense than what Mike said. Have you seen an English version? Got a link? Thanks.
[ link to this | view in chronology ]
@PaulT
You - "That's not how I read the judgement as described:
"as long as it’s not altered or communicated to a new public""
is exactly what I said, just different wording.
As for this: "unless you're the kind of fool who can only consider recent works by major corporations as the only valid content"
I'm not the fool who penned that, you did.
There is an English version of the ruling that's clear and detailed; but why bother reading the order from the court when you can reply on the ever colorful interpretations of Mike Masnick.
So, enjoy!
[ link to this | view in chronology ]
Re: @PaulT
Do you have a link to the English version? Thanks.
but why bother reading the order from the court when you can reply on the ever colorful interpretations of Mike Masnick.
I'd be shocked if Mike got this one right. Seems like one of many posts where he doesn't have the primary documents and instead just copies what TorrentFreak said.
[ link to this | view in chronology ]
Re: Re: @PaulT
In that case, it should be easy to debunk. Simply point to the primary documents that disagree with what he says, and explain why he's wrong.
But, it's astonishingly rare that people even attempt this - even in articles where the primary sources are linked from either the TD article or the article being quoted.
I wonder why that is?
[ link to this | view in chronology ]
Re: Re: Re: @PaulT
[ link to this | view in chronology ]
Re: Re: Re: Re: @PaulT
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: @PaulT
Hopefully, since it's been claimed that a decent English translation already exists, the people making that claim will be able to supply it. Then perhaps explain why they believe it contradicts the article they're commenting on.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: @PaulT
[ link to this | view in chronology ]
Re: @PaulT
That's part of the truth, for sure. Not all of it, and it's in those areas where things get problematic.
"is exactly what I said, just different wording."
So, why are you disagreeing with the idea that as long as the embedding site did no such thing, then it should be the source and not the embedding party that's attacked?
"I'm not the fool who penned that, you did."
No, you penned this:
"It's very unlikely that the large production companies have made their full length feature film publicly accessible in order for a link to be considered legal."
Why only address the needs of large production companies if that's not what you're talking about? Surely, you realise there's more to the definition of a "streaming site" than those that stream only illegal content, and these laws negatively affect the legal ones as well as the shadier sites?
"There is an English version of the ruling that's clear and detailed"
But, of course, you won't link to it here nor provide any details on where it differs from other interpretations written here or elsewhere. You certainly won't engage in discussion about how even your preferred interpretation might pan out. No, calling the author of this article names is all you need!
[ link to this | view in chronology ]
@PaulT
Run away from what exactly? A stupid back and forth with some random stranger that's eager to be spoon fed?
You guys need new material, the tactics used here are tired and old. You can discredit me all you want, do you really think I give a shit about what some random person on the net thinks? I didn't attack Mike, I pointed out the obvious, he tried to spin this thinking his flock would follow, and he's right, you assholes ate it all up!
And I'm the joke? :)
[ link to this | view in chronology ]
Re: @PaulT
"If you had something of value to say I would have listened, but your logic is flawed, your interpretation of existing laws lacks merit"
But you certainly won't provide any reasons why, or links to the legal basis you claim I don't understand. No, as ever with you people, I have to accept your words at face value even as you reject my equally valid opinion.
"do you really think I give a shit about what some random person on the net thinks?"
You certainly seem interested in at least such 2 people on this thread alone, and so intent on attacking at least one of them that you start addressing him in the middle of a response to me.
"I didn't attack Mike"
I'm sorry if I misinterpreted it. You certainly didn't provide anything of substance and ended up with name calling, so I only work with what I can read.
[ link to this | view in chronology ]
Re: Re: @PaulT
Sad, just sad.
[ link to this | view in chronology ]
Re: Re: Re: @PaulT
Indeed. One of these days we'll have someone who, despite disagreeing with the things said here, is capable of having an adult discussion and explaining their reasoning without resorting to name-calling, misdirection and strawmen. Perhaps even willing and able to back their arguments with constructive criticism rather than wild proclamations that we're meant to believe because they said so.
It's very sad that there is no such person willing to defend opposing viewpoints in such a way. They must exist, surely?
[ link to this | view in chronology ]
Update
[ link to this | view in chronology ]
Re: Update
[ link to this | view in chronology ]
Re: Re: Update
Which is disappointing. The biggest problem with this issue is that the person embedding or linking to a video has no idea whether or not it was uploaded with permission. Hell, YouTube themselves only have limited ways to tell, and the major labels have proven inept at even knowing themselves, so how the hell is someone else meant to know?
It should be simple - regardless of how it was created, and embedded video originates from another site. The legality of the stream should lie with the site that hosts it, and the illegal action was taken by the uploader, not the hosting service or the embedder. Other than the person infringing by the upload, everyone else is an innocent 3rd party so should be deemed innocent unless they are found guilty of collusion or some specific type of obstruction. Until the law reflects reality, it's going to be problematic.
[ link to this | view in chronology ]
Re: Re: Re: Update
While I believe it should be a burden of the rightsholder to prove in court that the embedder knew the material was infringing, there are certainly cases where it's far easier to prove than others. For example, it's pretty reasonable to conclude that the gorillavid copy of the latest Hollywood blockbuster (just came out in theaters!) that a site owner is about to embed on their site is infringing, and they should know better. However, that's not so clear if you're embedding something like a testimonial video from a local plumber on Dailymotion.
That said, there are also sites where the site owner isn't doing the embedding; their users are, whether through forum posts or some other form of user-accessible script. In those cases, liability is even less clear since the site owner may not even be aware a particular video has been embedded on their site. They wouldn't be protected in the US under CDA 230, and they'd only get protection under the DMCA if they go through the process of setting up a registered agent and whatnot.
They could argue their unawareness, but I can see rightsholders going after some type of tertiary liability argument (I think they have already tried that, actually).
[ link to this | view in chronology ]
Re: Re: Re: Re: Update
The problem is the mindset of these people. They either can't imagine content other than the former being valuable, or consider the former being so valuable that it overrides the rights and profits of anyone else. Most of these arguments devolve into mocking YouTube as being nothing but ca videos without piracy, or try arguing that the considerations of a $250+ million blockbuster are the only side to consider.
"In those cases, liability is even less clear since the site owner may not even be aware a particular video has been embedded on their site"
It shouldn't be any less clear. Did the owner of the site host the originating video or post the embedding code? No? Then they should not be liable, at least any more than they would be for a link or a comment, preferably less so.
"They wouldn't be protected in the US under CDA 230"
Out of curiosity, why not? Why would they not be eligible for the same protections for a user posting some embed HTML code as they would be for a person typing text or an HTML link? I'm no expert, but wouldn't it have at least the same eligibility as someone hotlinking an image?
"They could argue their unawareness, but I can see rightsholders going after some type of tertiary liability argument (I think they have already tried that, actually)."
Oh, they will try, but they won't come up with anything that is convincing to someone who knows how the technology works. Alas, we all know how many people in charge of the laws and courts understand these things, especially when one side has the richer lobbyists...
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Update
CDA 230(e)(2). "Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property."
CDA 230 doesn't cover this, the DMCA does. Since protection under the DMCA is possible, CDA 230 doesn't apply.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Update
[ link to this | view in chronology ]
Re: Update
This would indicate to me that the video being infringing or not infringing was unimportant to the ruling regardless when all embedding is lawful.
After all had the ECJ believed embedding an infringing video was unlawful then they would have said guilty from the moment they heard that the video was uploaded to YouTube without the approval of the owner. The fact that the video was already made public elsewhere seems unimportant when there is only infringing and not infringing where an unofficial YouTube upload is certainly infringing.
Still I do much await the English version to see clearly what these Judges said and what we can reasonably assume from what they did not say.
[ link to this | view in chronology ]
Legal or not?
I will be very grateful for a reply, thanks for your time!
Tommy
[ link to this | view in chronology ]