Court: Embedding videos is not a crime

By Janko Roettgers

Embedding an infringing video doesn’t violate copyright laws, the 7th Circuit Court of Appeals ruled Thursday. The court sided with the video bookmarking site myVidster, which had been sued by the gay porn production company Flava Works in 2010. Flava Works obtained a preliminary injunction against myVidster with a lower court ruling in 2011, but 7th Court judge Richard Posner threw out that decision Thursday.


In his ruling (PDF, via Eric Goldman), Posner wrote:

“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.”

The video bookmarking site isn’t off the hook completely: Posner found that a previously offered caching feature could still make the site liable; apparently, myVidster used to allow paying members to store copies of videos on its own servers.

However, there are some good news for end users in this court decision as well. Posner found that merely watching a stream of an illegally uploaded video isn’t copyright infringement either:

“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.”

myVidster’s court case had gotten a lot of interest earlier this year when the Motion Picture Association of America (MPAA) sided with the porn studio, and Facebook and Google filed amicus letters for myVidster.

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