Embedding Videos On Your Website Is Not Copyright Infringement
On August 2, 2012 the Seventh Circuit Court of Appeals ruled that a site that embeds copyrighted videos from another site is not committing copyright infringement. This was the lawsuit by Flava Works, Inc. versus Marques Gunter, the sole proprietor of myVidster.com.
The court ruled Thursday that embedding a video that infringes on copyrighted material is not a violation of copyright law and that simply viewing an infringing copy of a video is not copyright infringement, myVidster can not be held liable for that infringement.
“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….That is a bad thing to do….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.”
Embedding Is Not Infringement, Viewing Is Not Copying
In the case of myVidster, the data is actually being streamed directly from third-party servers to user computers. Hence neither myVidster nor its users are guilty of direct copyright infringement.
This means that as long as you do not make a copy of the copyrighted video or host a copy of the video on your website, there is no copyright infringement. This is good news for all users of the internet, where videos are shared on social sites such as Youtube and Facebook. Understandably, entities like The Motion Picture Association of America will probably not be pleased about this ruling.
The person who uploaded the video is in violation of the law, of course and I can understand this. Judge Richard Posner of the Seventh Circuit Court of Appeals goes on to say,
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.
Public Performance Of Copyright Work
Copyright holders also have the right to control public performances of their work but here the law is ambiguous, as ruled by Judge Posner:
The Copyright Act makes it unlawful “to perform the copyrighted work publicly,” defined, so far as relates to this case, as “to transmit or otherwise communicate a performance… of the work… to the public… whether the members of the public capable of receiving the performance… receive it in the same place or in separate places and at the same time or at different times.” One possible interpretation is 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,” as the statute makes clear… An alternative interpretation, however… is that the performance occurs only when the work (Flava’s video) is transmitted to the viewer’s computer.
According to Judge Posner’s ruling, when you view an infringing video on a site such as YouTube, no one else is violating copyright except for the personal who uploaded the video. Simply viewing an infringing copy of a video is not the same as copyright infringement and the website can not be held liable for that infringement.
What is useful to all of us who publish websites is that embedding a video is not copyright infringement. This is by no means the final word, Judge Posner has called on Congress to help clarify how copyright law should apply in Internet video sharing.
Technically, it can be argued that when you stream a video, you are actually downloading a copy of the video on to your computer. While this copy is not saved after viewing, it does depend on how the law is written. There is a difference between downloading and making a copy. Let’s hope those that write the law can tell the difference as this is how the internet works.
For a more detailed post, read this post – MPAA “embedding is infringement” theory rejected by court.