updated 08:53 pm EDT, Fri August 3, 2012
Ruling: Embedding, viewing doesn't compound infringement
Judge Richard Posner of the Seventh Circuit Court of Appeals has refuted a legal theory promoted by industry groups that calls embedding of third-party-hosted video copyright infringement. In Thursday's decision, the judge ruled that the video link aggregator site myVidster was not liable to adult video producer Flava Works (link may be NSFW) for users linking copies of videos uploaded by others.
Despite some confusion, and a call for Congress to clean up and clarify the copyright laws that haven't been updated for the internet video age, Judge Posner has ruled that according to how the law stands now, a visitor to a video aggregator isn't violating the copyright owner's rights, as long as the user doesn't willfully make a copy of the video being watched. He points to the original purchaser of the video who uploaded it originally as being the infringer.
The video producer's contention that myVidster aggravates the infringement by linking to the video was likewise denied as well. While the judge agrees that Flava Works' income is reduced by myVidster hosting video links, the severity of the infringement isn't increased by them.
The technological aspects of video streaming weren't examined in any detail. The act of watching a video implies some level of downloading, and if a video is watched to completion, it can be argued an entire copy of the video has been made (though not easily accessible for most users), and potentially available for re-viewing if the browser window with the player is left open, or longer depending on user cache settings.
Posner had similar difficulty with the vagueness of the "public performance" portion of the copyright law -- also a common legal weapon for copyright holders. He argued that the public performance law could be applied to internet video in one of two ways.
First, Posner writes that "uploading plus bookmarking a video is a public performance because it enables a visitor to the website to receive (watch) the performance at will, and the fact that he will be watching it at a different time or in a different place from the other viewers does not affect its 'publicness.'"
A potential second interpretation is that the performance only exists when the video is actively transmitted to the viewer's computer. As a result of today's potentially groundbreaking ruling, video bookmarker myVidster will be allowed to continue operating until other issues in the trial are resolved.