A federal appeals court has rejected a legal theory that would make it illegal to embed third-party videos on websites.
Judge Richard Posner of the Seventh Circuit Court of Appeals ruled that video bookmarking site myVidster is not liable for embedded copies of videos shared by users on its site.
“Judge Posner’s reasoning is interesting,” notes Ars Technica. “He argues that when you view an infringing video on a site such as YouTube, no one — not you, not YouTube, and not the guy who uploaded the infringing video — is violating copyright’s reproduction or distribution rights. And since simply viewing an infringing copy of a video isn’t copyright infringement, he says, myVidster can’t be secondarily liable for that infringement.”
There may be a violation regarding copyright’s public performance right, but the current law is murky in that area. “The judge called on Congress to help clarify exactly how copyright law should apply in the age of Internet video,” notes the article.
Judge Posner ruled that embedding is not direct copyright infringement. He also ruled that viewing (without copying) is not a violation, since the Copyright Act specifically protects against reproducing and distributing copies.
“In Posner’s view, no matter how many people view a video on a video sharing site, there’s only one violation of the reproduction and distribution right: the original uploading of the video,” reports Ars Technica.
Where it becomes murky is in the legal distinction between “downloading” and “streaming” a video. Additionally, the public performance definition within the Copyright Act is ambiguous and open to interpretation.
“Legislative clarification of the public-performance provision of the Copyright Act would be most welcome,” wrote Posner.
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