In a U.S. lawsuit on the embedding and bookmarking of videos between myVidster and Flava Works, Judge Richard Posner of the Seventh Circuit Court of Appeal has issued a remarkable ruling.  The Court ruled that embedding a video on a website is not the same as ‘transmitting or communicating’ it to others. If the video streaming platform myVidster does nothing more then giving web surfers addresses where they can find the entertainment, they do not actually engage in any copyright infringing activities themselves, according to the Court. myVidster Argued that the data-stream goes directly from third-party servers to the users computer. The plaintiff in this case, gay porn producer Flava Works, argued that myVidster should be held liable for secondary copyright infringement. By providing a connection to websites containing copyright-infringing materials, myVidster enables, or at least facilitates, its users in their infringements. Flava further contends that myVidsters activities reduce their income because of the circumvention of Flava’s pay wall. 

Even though it sounds obvious that this last argument is probably why users visit myVidster, legally, this does not lead to any copyright infringements as such, so the Court says. As long as users do not copy the data, myVidster does nothing to increase the amount of infringements. The uploading is not done by myVidster, nor on their website, therefore this does not result in copyright infringements by myVidster themselves. According to Judge Posner there is only one act of copyright infringement in this case: the original uploading of the copyright protected video on the third-party website. 

The judge elaborated on the liability of myVidster’s subscribers as well; is a subscriber who watches streaming videos of copyright violating materials guilty of copyright infringement? No, the judge says; As long as the [myVidster] 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.” 

This means that users are allowed to watch streaming videos, but not make copies of them. 

This ruling is very interesting and takes a clear stand on video-embedding and streaming in regard to copyright. However, it should be noted that modern streaming technology often caches a video while streaming, saving it on the users computer as long as the browser window is open and thereby enabling the user to re-watch the video as often as he wants. Judge Posner did not elaborate on this form of ‘copying’. 

In the Netherlands, embedding videos from other websites has been regarded as a ‘new form of publishing’ since 2009, and is now a service website-hosters have to pay for. Whether this recent development in the U.S. proves to be an isolated case, or created substantive precedent remains to be seen.  

Read more about embedding on Future of Copyright: 

• Embedding of radiostreams leads to copyright questions in Dutch parliament

Sources: Ars Technica, Bright

By: Nathalie Falot