Court rules embedding or watching copyrighted videos is not copyright infringement

Ever watch a copyrighted video (movie, TV episode, etc.) on an online streaming website, such as Youtube? Maybe you have watched those videos on websites that exist for the sole purpose of embedding copyrighted videos from online streaming websites, or maybe you have embedded copyrighted videos on a website yourself. In both cases, the United States Judiciary has your back.

myVidster, a “social video bookmarking service”, was sued in 2010 by Flava Works (an “entertainment” company — let’s leave it at that). In 2011 Flava Works convinced a lower court to issue an injunction against myVidster. myVidster, of course, appealed the decision and now a  Seventh Circuit Court of Appeals has ruled in favor of myVidster.

On Thursday Judge Richard Posner of the Appeals Court overturned the ruling of the lower court, effectively stating that embedding copyrighted videos is not copyright infringement in and of itself because the website which has the embedded video does not touch the data stream:

“myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the New Yorker is not performing them. It is not “transmitting or communicating” them… myVidster doesn’t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster.

Aside from handing victory to all video embedders everywhere (in the USA), Judge Posner also issued a statement in favor of the average Joe, ruling that watching copyrighted videos is not copyright infringement:

“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… 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.”

It should be mentioned that while both situations, embedding copyrighted videos and viewing copyrighted videos, have been declared to be non-infringing, that does not necessarily make both actions “legal”. Judge Posner states embedding or viewing of copyrighted streaming videos is not copyright infringement — he doesn’t explicitly declare it legal, which leaves the door open for the potential repercussions under other laws (whatever they may be).

Unless this ruling is overturned by a higher court (i.e. Supreme Court), this is what can be considered a landmark judgment in the age of Internet 2.0; it will obviously set a precedent for future copyright infringement cases and may change how people pirate movies and TV shows — torrenting vs streaming. Of course this will also put further pressure on video streaming websites, such as Youtube, to cut down on copyrighted videos which may result in more stringent uploading rules. Who knows, let’s see what happens.

[via GigaOm | Image credit: shane_d_k]

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  • Silver Dragon Sys


    The judge was probably looking beyond just the “technical” operation of how a browser uses a temp folder for all incoming and outgoing requests and instead looked at the intent that some have about copying videos, or any copyrighted material for that matter. As with all technology, there are ways to bypass any protections placed on online media including but not limited to intercepting the video stream from content sites like Hulu and of course YouTube, these bypasses if you will, are used to make illegal copies of copyrighted material and you have to intentionally start these programs/scripts/etc.

    Temporary files on the other hand expire after a certain amount of time and/or are removed when the browser is shut down, the system is restarted, etc., hence the term temporary.

    As an artist myself I support ways to legally get my work in front of a large group and the internet helps with that to a very large extent, but common sense plays a much bigger role. I know that there is a chance that someone will “take” my work without paying for it and there is also a chance that someone will not only take my work but try to claim it as their own, hence common sense tells me to include every way possible to protect my copyrighted works yet at the same time not punish those who legitimately obtain my works. I also realize that where there is a will there is a way and no matter what type of protection I use, or rules I make, someone will probably find a way to bypass it if they really want to.

    I’m glad to see this ruling because I am one of those people that likes embedding video clips of my favorite movies so my friends can see if its something they too might like, as well as embed entire movies that I own on my private site so I can access them no matter where I am in the world and not have to carry DVD/CD cases, external HDDs, or fill up my laptop’s HDD and suffer loss of performance on it.

  • sgrams

    @Bruce: s

    This isn’t money in a cash register, you must be a liberal trying to make that analogy. Its art(?) and because of that its out there and without viewing or listening who cares. Hopefully with enough interest the artist can earn some money some day.

  • Bruce

    That’s like saying if there is open access to some money in a store’s cash register, that it is ok to steal it if the clerk isn’t around to stop you.

  • sl0j0n

    Hello, all.
    Once again, it seems that a ruling has come ‘down from on high’,
    where the ruling authority apparently does *not* know how these things work.
    Ashraf here quotes the judge’s ruling;
    “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”.
    The way a browser works is that the browser transmits a request for a file to a server;
    if the server has the file, and its not restricted, then the server transmits a *COPY* of the file to the browser;
    the browser then displays the file.
    Obviously, we who own our own computers, use the browser to ‘request’ certain files,
    just as I, by clicking on the link in the email, requested a *COPY* of this page,
    which then is transmitted back to my browser [on my computer] which then displays this page.
    Now I type in my browser, which transmits the file [the content of this post] back to the dottech page,
    which then displays my post.

    So, there actually is a *COPY* made of the file, and stored in a temporary content folder, on my computer.
    My question is;
    Does this make the judge wrong?
    He apparently does *not* know how this technology works,
    so how can he make valid decisions based on his lack of technical knowledge?
    Does that lack of technical knowledge have an effect on the legality of Judge Posner’s ruling?
    While I agree that, according to the ‘fair use’ principle, the ruling is correct,
    I can’t help wondering about the fact that so many rulings from the judiciary
    seemingly ignore the technical aspects of this situation.
    Maybe this where we don’t want to look the gift horse in the mouth.

    Have a GREAT day, neighbors!

  • mukhi

    “His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it.”

    still BS. an open media is an open media is an open media. no matter who put it, where/when/how it is put, if one has free access to it, one is eligible to watch it. period.

  • david roper

    Good ruling. I hope it sticks/stays.