Is Linking Or Embedding Infringing Content Illegal?

from the the-next-legal-minefield dept

There was an article in Forbes the other day about the recent growth in video hosting site DailyMotion.com. There are hundreds of video hosting sites these days, but apparently DailyMotion has caught on due to the fact that, unlike YouTube, they don't seem all that eager to take down infringing content. This may put the company in hot water at some point, but so far it's getting them a lot of traffic that used to go to YouTube. That, by itself, isn't all that interesting. Later on in the article, though, it discusses how a variety of sites are springing up building "portals" around certain TV shows. Since all of these video hosting sites let you embed videos onto other sites, it's quite easy to embed these videos onto any other site even though you're not hosting them. In fact, some of these sites are making a fair amount of money by putting ads on their sites.

This opens up quite a question about legal liability. The sites claim that they're not liable at all, since they're not hosting any infringing content at all. In fact, embedding a video is just sticking some code on your site that points to another server -- so you can make a reasonable argument that they're not actually infringing on copyright. The article quotes someone who disagrees, though he doesn't explain why. It's likely that he means that under the Grokster decision, they could be found guilty of "inducing" infringement, which does seem likely. However, things get even trickier if you take it one step further. At the end of the article, they mention a site called QuicksilverScreen, that doesn't embed videos, but simply links to DailyMotion, Google Video or YouTube, depending on who's hosting the content they want to provide (basically episodes of lots of TV shows). Soon after the article came out, it appears that Fox sent off a cease & desist letter to QuicksilverScreen (found via Digg). At this point, the legal situation becomes even fuzzier. QuicksilverScreen isn't hosting the videos. They're not even embedding the videos in their site. They're simply linking to them. You would think that shouldn't be illegal at all, but again, you have the possibility of the new standard of "inducing infringement" coming into play. There's also famous 2600 case that suggested there are situations where linking to illegal content would also be illegal.

This is worrisome for a variety of reasons. First of all, you have no control over the content you've linked to. You often have no idea of the legality of that content and it's possible that the destination content could change at any time. You would hope that courts would take that into account, but it certainly seems like a risk. However, if you take this to a logical extreme, it gets ridiculous. If it's illegal to link to illegal content, then you've effectively said that Google is illegal. And where is the limit? Above, I link to the QuicksilverScreen site, to their posting of the cease & desist from Fox. From that page, you can easily click through to videos of lots of TV shows hosted on other sites. Have we broken the law by linking to them as well? Has Forbes broken the law, since they linked to QuicksilverScreen in their article as well? It opens up a pretty dangerous can of worms when you outlaw linking to any type of content, rather than focus on those who actually have uploaded the content.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    James, Dec 1st, 2006 @ 10:43am

    Craziness...

    I'm always amazed at how folks who don't understand the internet seem to think they do.

    It would seem reasonable, that embedding infringing content would (or could at least) be illegal simple because of the fact that from the stand point of the end user they can view same and they are pretty oblivious as to WHERE it originates (ie it appears you are actually providing it).

    But, the idea that linking to any such content is in anyway infringing on something, or violates a copyright or trademark is TOTAL bull****.

     

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  2.  
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    Mark, Dec 1st, 2006 @ 10:57am

    New development...

    QuicksilverScreen has taken down all their links to copyrighted content and replaced them with text boxes that contain the url of the old links. They say they are keeping the urls for "historical reasons" and that you should not copy and past them into your address bar.

     

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  3.  
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    Yahoo's CFO, Dec 1st, 2006 @ 11:09am

    New Espionage...

    In an effort to prove this is INCREDIBLY dangerous ground, I shall combine multiple concepts.

    Google image search for Marvel Comics

    In that example, we have google hosting thumbnails of copy protected images (which the legality of is still in question), we have google INTENTIONALY providing links to the full blown image (with a warning that it might be copyrighted), and also we have a third party who allows anonymous posting who now has a link to this on their site.

    Still not convinced theres a problem here? How about if if I add in the fact that I am pretexting myself to be yahoo's CFO? What if it really was yahoo that was trying to get google shut down, so they hired people to anonymously link to copyrighted images on googles servers? Imagine how quickly websites could be shut down by competitors.

    Still not convinced? How about instead of writing this law in the name of copyright protection we wrote it in the name of saving the children.

    Google image search for Kiddie Porn

    Can techdirt now be taken down in order to save the children?

     

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  4.  
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    The infamous Joe, Dec 1st, 2006 @ 11:56am

    Real life tactics?

    I always seem to have a problem with comparing silly internet rules to what they would be if applied to real life.

    If linking to someone hosting copyrighted matierial is illegal then perhaps saying to a friend of mine "Hey, I saw some guy on the corner of North St and Common St selling pirated copies of Superman Returns." should also be illegal, since I am pointing my friend in the direction of someone who is breaking the law. Am I confused? Overgeneralizing? Ruggedly handsome?

     

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  5.  
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    Sanguine Dream, Dec 1st, 2006 @ 12:17pm

    The problem is...


    It opens up a pretty dangerous can of worms when you outlaw linking to any type of content, rather than focus on those who actually have uploaded the content.


    The reason that very dangerous can of worms is being opened is because it is being opened by corporations and lawyers that thinnk they play it to their advantage (advantage = money and/or political power).

    Imagine if the Kiddie Porn link in comment #3's post was real and some two-bit politician whose election time was around the corner found it. There is a good chance that they would try to parlay it into a "think of children" campaign.

    Imagine if Marvel had some high priced lawyers that want more money than they already have. With the jacked up legal system could you really put it passed them to try a lawsuit?

     

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  6.  
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    C. J., Dec 1st, 2006 @ 12:48pm

    RE: Embedding Legality

    How could embedded videos not fall under the same illegality that all other pirated videos fall under? I am unsure that many users online know how easy it is to transfer embedded material (i.e. streamed videos) directly to your harddrive. Firefox makes it very simple - ever heard of unplug?

    Piracy is piracy, and yes, it is illegal. If you are flaunting stolen videos in the mainstays, such as myspace, youtube, etc, you should be, by law - and we all know how well that has worked in the past - to remove it. First by request, and then sinking deeper into the abyss of law - fines, etc.

    How can people parade efforts for piracy? - Granted, i don't believe that is what is really going on here, though it seems to be where it might be headed.

    I will concede this: lawyers have been stalking companies such as youtube for cash payouts. So far, it has been the consumer's wonderland vs the producers scrooge, and the trot to the middle ground - as proven thus far - is a clash of titans. Which makes me wonder, where will all of this be in ten years?

     

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  7.  
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    Lucas, Dec 1st, 2006 @ 12:57pm

    I linked to the Ricky Gervais Microsoft video.

    So within "this post I linked to the Ricky Gervais faux Microsoft training video (which, if you haven't watched it, is absolutely hilarious).

    I know this video got removed from YouTube as per Microsoft's request (I guess it was never supposed to be public). Now let's pretend this was something worse (like I don't know, DeCSS from the 2600 case).

    My question is: what if I linked to something illegal, and then the link was thereafter removed? Am I still at fault for creating the link to the offending content which no longer exists at that location? Or what about the other way around? This, as does the 2600 case, seems to revolve mostly around proving the offending link-creator's motive.

    Motive's always tough to prove in court.

     

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  8.  
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    Lucas, Dec 1st, 2006 @ 12:59pm

    Re: I linked to the Ricky Gervais Microsoft video.

    Sorry, the post I was referring to was this one.

     

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  9.  
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    pat, Dec 2nd, 2006 @ 1:03am

    i think what the lawyers are concerned about is intent here. google simply indexes whatever it finds. sure, you can find tv episodes and all kinds of stuff on there, but it's agnostic as to what it finds. it also finds plenty of public domain stuff and etc etc etc. when people set up a portal which deliberately links to pirated tv and movie content, that's when the lawyers get ansty and think they have a case. do they? probably not, because you just yell at dailymotion long enough and they take stuff down - which they do, they just take their time about it. even though they're french, they still have copyright laws....

     

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  10.  
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    Andy Breene, Dec 10th, 2006 @ 7:06am

    Linking is Illegal

     

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  11.  
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    Hitokiri Ace, Oct 22nd, 2007 @ 3:40pm

    Linking is Legal

    the communist government is saying you can't tell your friends about what you saw, you can't link them to something illegal thus making you guilty when you didn't do anything but say, "Hey Jim! Go to www.google.com/theUSAiscommunist oh wait.. sorry, i'm going to jail, sorry free speech and my rights, apparently i'm just a lowly person who isn't allowed to inform others of cool things. so this guy told me jim sells pot.. instead of getting jim.. let's find that guy who told me!!! YA!!! arrest that wrongdoer!!....... stupid gov.

     

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  12.  
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    Elton1, Oct 25th, 2007 @ 11:36pm

    Support, Discuss & Save Tv-Links.co.uk

    Please check out this site I have made:
    http://www.save-tv-links.co.uk

    The idea behind the site is to create a publicly accessible resource of accurate information on the tv-links case and create a discussion forum around it. It also exists to offer what ever support is possible to give to the innocent.

    Anyone who can contribute or has any ideas that would make this site more functional please get in touch; the aim is too get as much information in one place as possible.

    Elton1

     

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  13.  
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    Quimby, Oct 27th, 2007 @ 7:24am

    Linking is legal and should be kept that way!

    I have to say that I am disturbed by the comment that the first poster James made. He claims that if we link to illegal content then we are hosting the material. And he claims that anyone who disagrees with that assertion doesn't understand the Internet. Well I beg to differ and would like to suggest that anyone who believes that doesn't understand the Internet. The Internet was designed to share information and to have redundancy in case of nuclear war (see ARPANET). Now that the Cold War is over and nuclear war seems to have less of a chance of harming our big corporations, these corporations want to hamper the average citizen's access to information. Sometimes out of so much bad, we get good: Cold War and Nukes bad. Internet good.

     

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  14.  
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    rangersko, Mar 20th, 2010 @ 3:22am

    replying to most peoples comment

    Real life tactics?
    by The infamous Joe
    I always seem to have a problem with comparing silly internet rules to what they would be if applied to real life.

    If linking to someone hosting copyrighted matierial is illegal then perhaps saying to a friend of mine "Hey, I saw some guy on the corner of North St and Common St selling pirated copies of Superman Returns." should also be illegal, since I am pointing my friend in the direction of someone who is breaking the law. Am I confused? Overgeneralizing? Ruggedly handsome?

    i like the way he said it, he is quite right to say that linking = good and law = wrong in differnt sort of ways

    internet is a sharing source inwhich why are there rules to sharing for internet when it clearly says its a sharing source "The Internet was designed to share information" by quimby

    and i do recon its not illigel to post links and to post embed inwhich you dont own!

    law states differnt alwayz in the negative but just to get the cash.

    thanks
    rangersko@hotmail.co.uk

     

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