Austrian Collection Society Pushing Members To Support Collecting Fees For Every Embedded Video

from the the-front-rent-and-the-back-rent dept

The EU Commission has just extended its deadline for comment on its copyright review/reform for an extra 30 days. Those possibly affected by any changes routed through this would do well to add their input, especially as a couple of the issues being considered would turn normal internet sharing into copyright infringement.

Jakob Kucharczyk at Project DisCo (Disruptive Competition) points out two particularly troubling questions under consideration.

How about this question:

“Should the provision of a hyperlink leading to a work or other subject matter protected under copyright, either in general or under specific circumstances, be subject to the authorization of the rightholder?”

A similarly pivotal one:

“Should the viewing of a web-page where this implies the temporary reproduction of a work protected under copyright on the screen and in the cache memory of the user’s computer be subject to the authorization of the rightholder?”

One could simply paraphrase these questions into: would you like to break the Internet as we know it and criminalize Internet users for viewing a web-page? These questions are not theoretical; they are currently in front of the Court of Justice of the EU (CJEU).

If these are codified, embedding a video on a third-party site would trigger a licensing fee. This isn't just a concern for bloggers or others who operate websites. This would affect everyone. Post a link or a video via Facebook or Twitter? That's infringement. Sure, larger sites would probably be covered by blanket licenses, but that's of very little comfort. Throwing permission/licenses into the third-party mix would create problems everywhere.

The second question is even worse. Now, even those simply viewing the posts of others would be infringing simply because a temporary cache copy has been created for the duration of the viewing.

To any reasonable person, both questions are patently ridiculous. For one thing, attempting to extract fees for embedding or linking to content is double-dipping. YouTube and others already pay licensing fees for content hosted at their sites. Attempting to add a layer of "permission" on top of third-party postings not only creates a legal nightmare for social media services, but also creates the very real possibility of encouraging copyright trolling. Anyone posting a link/embedding a video or simply viewing copyrighted content becomes a potential lawsuit target.

Neither of these questions should be answered "yes," not even by the most diehard copyright maximalist. But that's exactly what an Austrian collection society (AKM) is pushing for, according to this report sent in by Techflaws.

AKM has sent a letter to its 20,000 members, asking for them to comment on the EU Commission's copyright reforms. All well and good, except that AKM seriously wants the first of these considerations to become EU law and has apparently altered the EU Commission's questionnaire in hopes of adding 20,000 supporters' "voices" to the collected comments.

The original questionnaire looks like this:


According to FutureZone, AKM sent this out, but removed everything but the "Yes" option from this question. It also added some canned wording in the explanation area, suggesting "reasonable compensation" for the embedding of music videos.

AKM fortunately didn't make up its members' minds on cached copies, but it still assumes an embedded video should be subject to double-dipping -- once from the original host and once more from anyone embedding it.

AKM's statement on its site (posted Feb. 5th) expresses its displeasure with the EU Directive, which it obviously feels offers inadequate compensation.

The EU Directive does not create a fair, level playing field and does not match Austrian standards.

"Fair and level" isn't really what AKM is looking for. That much is apparent in its alteration of the original EU Commission questionnaire.

AKM's stance is being embraced by perhaps the most infamous of collection societies, GEMA. Spokeswoman Ursula Goebel said GEMA was aligned with AKM. Hyperlinks and cached copies aren't necessarily an issue (or at least one neither collection society feels it can safely approach at this time) but embedded videos are. According to Goebel, embedded videos should be licensed because the end user isn't aware of where the videos originate. In other words, those embedding videos should pay a fee because viewers might think the blog, etc. is the originating source. Taxing one person for someone else's ignorance hardly sounds like a logical reason for adding licensing fees to embeds. The article goes on to question how GEMA hopes to avoid double-dipping on licensing fees (it doesn't -- see below) while noting that this is perfectly in line with GEMA's business model, which is predicated on the assumption that any sharing of content should be subject to licensing fees. (A hearty thank you to Jakob Kucharzyk for his translation help.)

GEMA isn't shy about its double-dipping aspirations and has been fighting YouTube for a higher fees for several years now. To date, the end result has been little more than the endless aggravation of German YouTube viewers, who are greeted with the quizzical "Sorry" faces at a disproportionately higher rate than any other nation in the world.

The upside is that the comment period has been extended. The most hardline collection societies don't appear to be overly eager to shatter the web in search on income, but AKM's apparent "remix" of the EU Commission's questionnaire (and GEMA's thumbs-up) shows how far they're willing to go to "tax" a stream both coming and going.

Filed Under: austria, collection society, copyright, embedding, eu commission

Fair Use For Me, But Not For Thee

from the funny-how-that-works dept

Here's a wacky one. Blogger Mark Reinhardt, who blogs about Idaho, had written a blog post critical of local TV station KTVB and its news reporting. With it, he included a YouTube clip of the reporting in question, along with some of his own commentary about why the reporting was "one sided journalism." While the disclaimer he posted with it, which implied that he believed the use was fair use, was legally meaningless (and slightly incorrect), using a news clip and commenting on it is still a classic form of fair use. Either way, KTVB claimed the video and had YouTube take it down, saying it was infringing. Whether or not it was actually infringing is actually not a huge part of the issue, because what happened next was interesting.

Mark Reinhardt remembered that, last year, KTVB had used one of his videos to illustrate a story. Amazingly, they didn't even credit it to him, but generally to "YouTube." So, he went tit for tat, and sent KTVB an email demanding that they remove his video (or, that they properly credit him). There are, of course, a number of legal problems with his particular notice. It does not meet the requirements of a proper DMCA takedown notice (not even close). Also, while he's emailing KTVB, he only provides them with a YouTube link, rather than the link of the story. If he wants the video taken down from YouTube (unlikely, since it's his video), then he needs to alert YouTube. If he wants it off of KTVB's site, then he needs to file a compliant DMCA notice pointing to the KTVB story. Of course, KTVB would have a number of reasonable defenses (including fair use and implied license, given that the video was on YouTube with embedding enabled).

Either way, it does seem rather interesting that the news channel issued a takedown on his use of their video, when it had no problems running one of his videos without credit.

Filed Under: copyright, embedding, fair use, idaho, ktvb, mark reinhardt, videos

Embedding And Linking Deemed Infringing In The Netherlands; Downloading... Not So Much

from the odd-choices dept

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

Filed Under: downloading, embedding, infringement, linking, netherlands

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...

Filed Under: copyright, embedding, hosting, secondary liability, streaming, watching
Companies: flava works, mpaa, myvidster

MPAA Just Won't Quit: Jumps Into Legal Dispute To Argue Links & Embeds Are Infringing

from the what-happens-when-you-have-no-one-technological-on-staff dept

It appears that the MPAA has jumped into a legal dispute that hits on a few different points, all of which are interesting, but the really crazy point is the fact that the crux of their argument is that merely embedding or linking (technically, the same thing) to infringing videos is infringement itself -- and someone setting up a site that lets people embed or link should also be guilty of infringement. This is, to put it mildly, crazy talk from an organization that still seems to have an institutional cluelessness about how the internet works. To be sure, there are a few different issues related to this case, which was really about porn company Flava Works suing the site MyVidster and its owner, Marques Gunter. MyVidster lets people link or embed videos from other sites. It did not host any of the content itself. In accordance with the DMCA's notice and takedown provisions, Gunter would take down any embeds or links when he received a notice. However, the judge said that the site lost its DMCA safe harbor provisions because he did not take any further action: specifically because he did not cut off repeat infringers:

“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”

Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively "investigate" content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don't quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed -- and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That's ridiculous, but that's how the law is set up.

Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense "server test." Basically, it's this: is the content distributed from your server? No? Then you're not the one guilty of direct infringement. This makes sense because it's correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that's what Google and Facebook explained to the appeals court.

So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it's the folks who think the server test is reasonable who are out to lunch:

"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."

I realize that the MPAA isn't known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They're linking to someone else's server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That's it. When merely pointing someone to another server is seen as direct infringement of a performance right, we've got serious problems.

And it doesn't end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:

... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.

Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is "willfully blinding." That's wrong. It's obnoxiously wrong. It's the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it'll find a clueless court to agree.

This is what's so pitiful about the MPAA. When they lose, they don't realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they've lost this argument in court over and over again.

Filed Under: dmca, embedding, linking
Companies: facebook, flava works, google, mpaa, myvidster

UPDATE: Brazilian Performance Rights Agency Demands Blogger Pay $204 A Month To Embed Videos

from the you-can-only-take-my-money-for-so-long-before-you-take-it-all dept

Well, you can never say that performance rights organizations are unwilling to explore every option when attempting to snag a bit more income, ostensibly for their roster artists. American PROs (ASCAP, BMI, etc.) have attempted to collect from Girl Scouts, every cell phone owner with a ringtone and argued that a single person listening to their own music via the cloud is a "public performance." British PROs (PRS, mainly) have levied fees against pretty much any small business that has the audacity to play radios at an audible volume, as well as succeeding in collecting fees for "public performances" from hotels/motels who provide in-room radios for their guests. SABAM, Belgium's PRO arm, has managed to out-thug the rest of the world's PROs, demanding fees from truck drivers for listening to the radio in their cabs ("workplace") as well as collecting for bands that don't even exist.

There's a lot of competition out there in the dog-eat-dog world of performance rights double and triple-dipping, but it appears that Brazil's PRO, ECAD (Central Office of Collection and Distribution) is ready to play in the big leagues. Its strategy? Collect royalties from bloggers who embed videos. (As you may recall, ASCAP tried this a few years back to no avail, but Brazil's relationship with copyright could safely be described as "incomprehensibly inconsistent.")

(The following quotes come from a translated page, so they have been copied verbatim.) [UPDATE: Eduardo, the author of the original post, has sent over a better translation of the quotations.)

The saga of unusual collections of the Central Office of Collection and Distribution (ECAD) has added another chapter last week. The boys from the blog Caligraffiti received last Tuesday in an email warning that the collecting society would have to pay royalties for videos from YouTube and Vimeo that appeared on the site.

The saga of unusual collections from the Central Office of Collection and Distribution (ECAD) gained another chapter last week. The boys from the blog Caligraffiti received last Tuesday an email from the collecting society warning that they would have to pay royalties for videos from YouTube and Vimeo embedded on the site.

This is surprising. ECAD already collects performance royalties from Youtube Brasil for its artists. In fact, it collects quite a bit from Youtube.

YouTube Brasil will have to pay 2.5% of its gross revenue per exhibition of songs protected by Ecad (Bureau of Revenue Distribution) in the country. If the amount of the stipulated percentage does not reach BRL 258,000 (US $146,250) in a year, the site must pay the value as "minimum annual fee".

Not only does Youtube Brasil pay a minimum mandatory fee yearly but ECAD has also hit the site with a BRL 645,000 (US $366,000) "subscription fee." The PRO collected roughly BRL 510,000 (US $289,000) in 2011. With Youtube already on the hook for the performance royalties, how does ECAD arrive at the conclusion that embedded video (just a link back to Youtube for all intents and purposes) should subject bloggers to performance royalty payments?

Well, according to ECAD, Youtube is the "transmitter" and of course, has to pay. But blogs embedding videos are "relays" and are also subject to these fees. Basically, ECAD has found a loophole in the existing law and is looking to exploit it. ECAD's spokesman:

[UPDATE: Translation via Eduardo, along with this splendid note -- "This second one has a very bad wording in portuguese as well, written by lawyers in their own language."]:

The right of public performance in digital mode is through the concept of transmission exists in law and in this art. 5 of section II of Law 9.610/98, which issue is the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

The rights of public performance in digital media happen through the concept of transmission found in the article 5, section II of the law 9.610/98, in wich transmission or emission are the diffusion of sounds or images through radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

ECAD also argues that the "transmitter" and the "relay" are completely different forms of use and as such, do not represent "double recovery." This is, roughly translated, complete horseshit. But it gets even worse. Bloggers are being charged a flat-rate based on a designation that ECAD itself decides. The cheapest option, most likely, is to be declared a "non-profit." But even that designation saddles the blog with crippling fees.

To blog [as] a nonprofit, the amount charged by Ecad is nothing lightweight: R $ 352.59 (US $204) monthly.

Caligraffiti is a niche blog dedicated to design and technology, with a hit count of 1,000-1,500 hits per day and is not profitable. Every contributor does something other than blogging for income. Despite this, ECAD has designated the blog as a "webcasting or broadcasting program originating from the internet," a category that is sure to increase the amount levied against it.

In response to this collection attempt, Caligraffiti was briefly taken offline. After some legal consultation, the bloggers decided to re-open and fight ECAD head on, stating that this is clearly an attack on the internet itself, which was built on open sharing and dissemination of information.

ECAD is also sticking to its guns, stating that although it has no collection arm "dedicated" to collecting from bloggers, anyone who "publicly performs music" (read: "embeds video") on their site is subject to these fees. Of course, ECAD isn't doubling up on royalties just to be greedy. Its focus is on "the awareness and enlightenment on the need for payment copyright," without which its covered artists would be "disrespected" by callous bloggers and their embedding code.

 

Eduardo has also confirmed that ECAD has gone after weddings with DJs for performance royalties (as Ninja pointed out in the comments) and pointed out that the BRL $359 amounts to roughly half a month's wages at minimum wage.

Filed Under: brazil, embedding, fees, licenses, videos, youtube
Companies: ecad, google, youtube

The Web Is Saved: East Texas Jury Says Eolas Patents Are Invalid

from the that-was-fast! dept

Okay, that happened much faster than I expected. Just a few hours ago, we wrote about Tim Berners-Lee telling an East Texas jury just how insane patent troll Eolas' patents were, along with their claims that all sorts of core web technologies were covered by their patents. We thought it might take some time before anything really happened in that case, but the jury took just a short while before completely invalidating Eolas' patents. Damn! Apparently the jury recognized that when the inventor of the web talks about how obvious a technology was at the time, he probably knows what he's talking about.

I wonder just how silly the long list of companies who "settled" with Eolas before the trial started feel right now.

Of course, all of that settlement money means that Eolas still has a big bank account. That means it'll appeal this ruling, and the case may still go on for a few years. But it's going to have to clear a big hurdle, and in the meantime it won't be able to sue anyone else using these patents. Score one for obviousness and a jury that recognized a patent troll trying to put up an innovation toll booth to try to demand loads of cash it didn't deserve.

Filed Under: embedding, hyperlinking, obviousness, patents, tim berners-lee, web
Companies: eolas, google, yahoo

Tim Berners-Lee In Court To Try To Prevent Patent Troll Eolas From Patenting Key Web Concepts

from the not-this-again dept

Remember Eolas? We've written about this infamous patent troll many times, mostly focusing on its big patent fight with Microsoft over the idea of browser plugins -- a case it eventually settled. In 2009, however, Eolas came back and basically sued the web, claiming that all sorts of very basic web technologies were, in fact, infringing on a brand new, ridiculously broad patent (built on the earlier patent), 7,599,985.

However, that case has finally gone to trial, and Wired has sent Joe Mullin -- hands down the best reporter on all things concerning patents -- to cover the case. His initial report is worth reading. Unfortunately, he notes that many of the companies Eolas sued chose to settle, helping to fund Eolas' ability to take this to court. Eight companies remain fighting. Eolas is asking for $600 million from these companies -- including over $300 million from Google and Yahoo.

As he had done nearly a decade ago, web inventor Tim Berners-Lee was called to explain to the court that Eolas' claims are ridiculous and the patents should be tossed out due to tremendous amounts of prior art. Berners-Lee also pointed out that these patents "could be a serious threat to the future of the web." He didn't mince words, noting that all of this stuff was widely known in the community of technologists working on these issues well before Eolas ever came along.

Last summer there was tremendous attention paid to the problem of patents within the tech space, but much of that furor died down after the patent reform bill became law -- even though it addressed almost none of the actual complaints about how the patent system hinders innovation. Once fall came, a lot of focus shifted back to copyright issues around SOPA. But people should be very, very worried about the outcome of this case, because if it goes badly, it could lead to a massive tollbooth on internet innovation.

Filed Under: embedding, hyperlinking, obviousness, patents, tim berners-lee, web
Companies: eolas, google, yahoo

Homeland Security Domain Seizures Raise More Questions: Is Embedding A Video Criminal Infringement?

from the seems-like-a-stretch dept

Just as with last time Homeland Security's Immigrations & Customs Enforcement (ICE) group seized a bunch of domain names, the deeper you look into what sites were targeted, the more questions are raised about how ICE seems to interpret the law in its own unique manner. Lots of people do this, but usually they're not the federal government with the ability to simply seize property with no adversarial hearing and no concern for either due process or the First Amendment.

For example, it appears that a bunch of the domains seized this week were focused on sports streaming. Of course, this all seemed to come down on Super Bowl week, so we're almost surprised that ICE didn't announce the seizures from the NFL's headquarters, like they did at Disney's headquarters last summer. Among the other sites seized (beyond the ones we mentioned yesterday) are Channelsurfing.net, Firstrow.net, Atdhe.net and Ilemi.com. At this point, we've now seen Homeland Security seize .com, .org and .net domain names.

I'll be looking into more detail on all of these sites (many of which have already set up shop under different domain names) to get a better understanding, but after my initial review of Channelsurfing.net, a Swedish site, there are really serious questions raised. That's because Channelsurfing -- a site based in Sweden -- does not appear to host any content, nor link to any downloadable content. Instead, it was built entirely of embeds of streaming video offerings from elsewhere on the internet (and the site was known to obey takedown requests). Nearly four years ago, we questioned whether merely embedding videos could be copyright infringement.

While we haven't yet seen the affidavit ICE used this time around, if the affidavit used last time is any indication, ICE agents claim that these sites are involved in direct infringement of copyright for criminal purposes. We've already noted that there is no such thing as criminal contributory infringement right now, so "direct" infringement is the only real option for ICE.

And that's a big problem for ICE.

That's because embedding a video from another site is almost certainly not direct infringement. The case that gets the most attention on this is Perfect 10 v. Google in the 9th Circuit, which discussed Google's in-line linking of images hosted elsewhere. As the court ruled:

Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects... in which a work is fixed... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.

As the Citizen Media Law Project at Harvard notes on this issue:

The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user's computer screen because the HTML instructions merely convey an address to the user's browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability.

Now, a few caveats on this. This ruling still only really matters in the 9th Circuit, and it's doubtful that the domain seizures ran through the 9th Circuit. However, this ruling has been relied on elsewhere, so it's a bit presumptuous to assume that it absolutely does not apply elsewhere. There are also separate questions about whether or not knowingly including infringing embeds changes the equation, but the point is it's certainly not a black-and-white legal question. That's why little things like due process and adversarial hearings on these things matter. The law is anything but clear cut on this particular issue, and seizing a domain name without even letting a court hear the arguments on the other side is immensely troubling. That Homeland Security has continued to do this despite the serious questions raised about their last round of seizures suggests it's an organization that is not interested in the rule of law, due process or the First Amendment at all, but is on some sort of odd quixotic quest to please entertainment industry partners. This is not how our government is supposed to act.

Filed Under: copyright, direct infringement, embedding, homeland security, ice
Companies: channelsurfing.net

The Guardian Makes It Super Simple For Blogs To Repost Its Content

from the contrarian-journalism dept

We've pointed out a few times that The Guardian newspaper in the UK is not just a believer in the value of keeping its content free online, but is also doing a lot of very interesting experiments. As we hear daily about newspapers and organizations like the Associated Press threatening to sue blogs that repost some of their content (even for commentary purposes), The Guardian is going in the completely opposite direction. As part of its Open Platform program, it has created a tool that lets any Wordpress-based blog repost any Guardian article for free. Yes, this is the complete opposite of what most publications are doing. Rather than whining about "freeloaders" and "copycats" and "aggregators," The Guardian has decided to embrace them and take advantage of the situation.

The only conditions are that you have to republish the full article in the exact format provided (including "text, links and images"). That's because The Guardian is also embedding ads with those syndicated stories. Assuming the ads are not particularly intrusive or annoying, then I would imagine that many blogs find this to be a perfectly reasonable deal. And, yes, if you were wondering, the site doing the syndication is free to include their own ads elsewhere on the page. However, according to The Guardian's explanation of this offering, you can add your own commentary -- it just needs to go above The Guardian's content.

Basically, the Guardian seems to be realizing what so many other newspapers have failed to grasp: that people republishing your stuff are helping to promote your work and spread your work in useful ways. Rather than breaking out the lawyers and the nastygrams, why not figure out a way to make everyone better off?

Filed Under: embedding, journalism, syndication
Companies: the guardian