Homeland Security Domain Seizures Raise More Questions: Is Embedding A Video Criminal Infringement?

from the seems-like-a-stretch dept

Just as with last time Homeland Security's Immigrations & Customs Enforcement (ICE) group seized a bunch of domain names, the deeper you look into what sites were targeted, the more questions are raised about how ICE seems to interpret the law in its own unique manner. Lots of people do this, but usually they're not the federal government with the ability to simply seize property with no adversarial hearing and no concern for either due process or the First Amendment.

For example, it appears that a bunch of the domains seized this week were focused on sports streaming. Of course, this all seemed to come down on Super Bowl week, so we're almost surprised that ICE didn't announce the seizures from the NFL's headquarters, like they did at Disney's headquarters last summer. Among the other sites seized (beyond the ones we mentioned yesterday) are Channelsurfing.net, Firstrow.net, Atdhe.net and Ilemi.com. At this point, we've now seen Homeland Security seize .com, .org and .net domain names.

I'll be looking into more detail on all of these sites (many of which have already set up shop under different domain names) to get a better understanding, but after my initial review of Channelsurfing.net, a Swedish site, there are really serious questions raised. That's because Channelsurfing -- a site based in Sweden -- does not appear to host any content, nor link to any downloadable content. Instead, it was built entirely of embeds of streaming video offerings from elsewhere on the internet (and the site was known to obey takedown requests). Nearly four years ago, we questioned whether merely embedding videos could be copyright infringement.

While we haven't yet seen the affidavit ICE used this time around, if the affidavit used last time is any indication, ICE agents claim that these sites are involved in direct infringement of copyright for criminal purposes. We've already noted that there is no such thing as criminal contributory infringement right now, so "direct" infringement is the only real option for ICE.

And that's a big problem for ICE.

That's because embedding a video from another site is almost certainly not direct infringement. The case that gets the most attention on this is Perfect 10 v. Google in the 9th Circuit, which discussed Google's in-line linking of images hosted elsewhere. As the court ruled:
Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects... in which a work is fixed... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.
As the Citizen Media Law Project at Harvard notes on this issue:
The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user's computer screen because the HTML instructions merely convey an address to the user's browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability.
Now, a few caveats on this. This ruling still only really matters in the 9th Circuit, and it's doubtful that the domain seizures ran through the 9th Circuit. However, this ruling has been relied on elsewhere, so it's a bit presumptuous to assume that it absolutely does not apply elsewhere. There are also separate questions about whether or not knowingly including infringing embeds changes the equation, but the point is it's certainly not a black-and-white legal question. That's why little things like due process and adversarial hearings on these things matter. The law is anything but clear cut on this particular issue, and seizing a domain name without even letting a court hear the arguments on the other side is immensely troubling. That Homeland Security has continued to do this despite the serious questions raised about their last round of seizures suggests it's an organization that is not interested in the rule of law, due process or the First Amendment at all, but is on some sort of odd quixotic quest to please entertainment industry partners. This is not how our government is supposed to act.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    icon
    rw (profile), Feb 2nd, 2011 @ 11:44am

    Freedom?

    This is exactly how a police state is supposed to work.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Hephaestus (profile), Feb 2nd, 2011 @ 12:30pm

      Re: Freedom?

      From a history book circa 2025 -

      "The content industry inadvertantly lead to a police state in the United States."

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        :Lobo Santo (profile), Feb 2nd, 2011 @ 12:55pm

        Re: Re: Freedom?

        Yeah, that was the start of what was referred to as the "stupid ages". A sad time in history where the percent of ignorant uneducated populace is rivaled only by the "dark ages".

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Hephaestus (profile), Feb 2nd, 2011 @ 3:20pm

          Re: Re: Re: Freedom?

          I thought that now was refered to as the stupid ages. Followed by the age of politicians impaled on large wooden Pikes. And when they looked around and saw the final politician was gone, the Age of brutal sodomy of lawyers and their pets.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous, Feb 2nd, 2011 @ 12:50pm

    "Any rebroadcast, reproduction, or other use of the pictures and accounts of this game without the express written consent of the National Football League is strictly prohibited."

    Sorry Mike. Try again.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Mike Masnick (profile), Feb 2nd, 2011 @ 12:56pm

      Re:

      "Any rebroadcast, reproduction, or other use of the pictures and accounts of this game without the express written consent of the National Football League is strictly prohibited."

      Since you position yourself as an expert on the law, surely you know that just because the NFL says it, that does not mean it's true:

      http://www.techdirt.com/articles/20070214/154327.shtml

      But, more importantly, a site that embeds a video from another site is not rebroadcasting or reproducing the video. The whole "other use" is way too broad and nothing in copyright law addresses some random broad "other use."

      I find it amusing that you completely ignore the Perfect 10 ruling, and simply assume that what the NFL says trumps what the court says.

      I would suggest coming more prepared next time.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Jose_X, Feb 2nd, 2011 @ 1:50pm

        Re: Re:

        Please allow me this opportunity to explain a bit how the web works.

        Who might be primary infringers?

        If TD "embeds" a copyrighted video or picture, the one violating the law -- if anyone -- would be the person who is looking at it on their home PC -- you. [and this is if you want to ignore fair use and ignore the implied license to view the images that perhaps exists when the copyright owner gives you the information over the Internet]

        You, the user, goes and calls up the copyright owner and asks for the image. They say yes and send it over. I really don't see how you would be infringing, but if anyone, it would be you.

        Why would you go and ask them for the images? Because TD told you where you could find it, and you (via your computer hardware) asked your ISP to go fetch you that information. Your ISP obliged if the copyright holder agreed to send the information over. Your computer then presented that information through the display screen in a way where you get to savor the actual image.

        So all that is happening is that someone is giving you information on someone's address. At no point is the website (TD) even copying the pixels of anything (at least this is a standard embed/hyperlink can work). All the copying is happening only on Internet router computers when the actual copyright holder hosting server sends that information over to you, and then by your PC (and display screen) when it draws the pixel color values onto the display based on the coded information bit stream it received on its network card. Your computer voluntarily displays the images alongside the content of the other website (TD) because the website (TD) stated a presentation scheme desired and you agree to display things that same way.

        Thus, at most, TD would have secondary contributory infringement if it would be so simply to tell you where to find copyrighted digital images offered for public use and how it thinks you should organize it on your display screen. At no point did anyone but the user browsing actually copy the information and display it anywhere. AND this was all only able to happen because the copyright holder (via their server computers) gave away that information when asked.

        Copyright holders can easily not give their digital works to anyone except through an encrypted stream (https) and only after the person asking authenticates as a legitimate subscriber (or after agreeing to contract terms). If they give it away to whomever asks, presumably that is an implied limited license, and there would be no contributory infringement at all by anyone.

        Note, that going to the copyright holder's place of business, asking them for digital copies of their work, and having them give those to you is exactly what is happening here after you browse to the (TD) embedding website except that the transaction costs are much lower when everything is automated via the web browser Internet interface. The owners should be thanking you for going via the automated route rather than wasting their time on the phone or with a personal visit.

        No primary infringement by TD. Doubtful secondary infringement.

        Case dismissed.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Ed C., Feb 2nd, 2011 @ 11:02pm

          Re: Re: Re:

          There's a slight snag in your argument...whether or not the user is the one to initiate the stream. (This of course is assuming the stream is hosted by the actual copyright owner, and it is otherwise obvious to the user that the site embedding it doesn't belong to or represent the copyright owner, or have otherwise rights to stream.) Up to this point, no copyrighted information has been transferred. Now, does the user have to click a button to start the stream, or does the site embedding the stream have it set to start automatically? If it starts automatically, then how can you say it was the users fault by just opening a webpage? Of course, if the user had to start the stream, then there really isn't much of a question about it, as long as it was clear that was what the user was going to receive.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Jose_X, Feb 3rd, 2011 @ 4:18am

            Re: Re: Re: Re:

            >> If it starts automatically, then how can you say it was the users fault by just opening a webpage?

            It is still the user. In other words, it would be the user's browser (computer, etc) that decided to start streaming automatically. The website only gives text information. It is up to the browser to act upon it by contacting a different website and asking for the stream.

            But even here, I'll repeat, the one that ships the stream is the one that is sending it out voluntarily. I can ask you for one million dollars without duress or deception, and if you give it to me, you can't turn around and call me a thief. [not that copyright infringement is stealing, but you get the idea.] So I think there is at least an implied license protecting the user if the one sending it out is licensed to do so.

            [Other comments below cover the case of the stream being send out without permission from copyright owner. Essentially, it would be very damaging to progress if we have to assume everything sent over to us is illegal rather than legal. And no one can really even know since we don't know the copyright holder nor all the people they have as licensees. And there is also the fair use question, eg, using copyrighted works for research, teaching, commentary, parodies, etc).]

             

            reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous, Feb 2nd, 2011 @ 2:13pm

        Re: Re:

        The example of a short clip you gave was fair use; are you trying to say that streaming full games is fair use, Mike?

        Bringing up the Perfect 10 case is silly. Are you seriously trying to compare a thumbnail with a full live video stream?

        The whole "other use" is way too broad and nothing in copyright law addresses some random broad "other use."

        Says legal expert Mike Masnick, LOL.

        Well, you're not a judge Mike, and I'd say embedding streams of full games without consent is going to fall into the "other use" category.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          The eejit (profile), Feb 2nd, 2011 @ 2:29pm

          Re: Re: Re:

          So if I took your TV out of your house without your consent because, say, Samsung didn't like what you were watching on it, that's okay?

          Sweet!

           

          reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Feb 2nd, 2011 @ 2:35pm

          Re: Re: Re:

          But "other use" doesn't fall into a legally enforceable category. Just because the NFL says so doesn't make it true.

          And the comparison isn't between thumbnail images and full streams, its between embedding and...embedding. The Perfect 10 ruling said embedding doesn't have anything to do with copyright. Therefore embedding anything cannot be copyright infringement.

           

          reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Feb 2nd, 2011 @ 2:35pm

          Re: Re: Re:

          >> I'd say embedding streams of full games without consent

          What streaming are you talking about?

          Do you mean if TD gives you the Internet address of a computer owned by someone who streams their own videos upon request?

          TD would not be streaming. TD would give you the information about TD's webpage layout and give you the Internet address of someone who is streaming something. You don't have to put the streaming video over the TD page on your computer screen as the TD webpage layout suggests. If you commingle those two (because that is how browsers work when they implement the web standards), then that is your business.

          TD didn't force you to do anything or give you any data that was copyrighted by someone else.

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          Gabriel Tane (profile), Feb 2nd, 2011 @ 7:23pm

          Re: Re: Re:

          Well, you're not a judge Mike, and I'd say embedding streams of full games without consent is going to fall into the "other use" category.


          And why is your opinion on the matter any more relevant than Mike's?

          But guess what... as has been pointed out, the NFL doesn't create the law. They can say "or any other use" all they want... just like the carwash down the street can say "we're not responsible for damage to your car or antenna"... but guess what, they are.

          So, while I'm sure your reality is a fun place full of cupcakes and joy, here in the real world, just saying something doesn't make it so.

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          techflaws.org (profile), Feb 3rd, 2011 @ 1:36am

          Re: Re: Re:

          I'd say embedding streams of full games without consent is
          going to fall into the "other use" category.


          And who cares about what you'd say?

           

          reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Feb 2nd, 2011 @ 1:23pm

      Re:

      "Any viewing, reading, or other use of this comment without paying its author $50 billion dollars is strictly prohibited."

       

      reply to this | link to this | view in chronology ]

    •  
      icon
      bosconet (profile), Feb 2nd, 2011 @ 1:40pm

      Re:

      Ummmm, just because the NFL says that doesn't mean it is legally true.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Ed C., Feb 2nd, 2011 @ 10:27pm

      Re:

      The issues with these blanket "licenses" have already been addressed before. Sorry Anny. Better luck next time.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Feb 2nd, 2011 @ 12:53pm

    If you know that the content isn't legal, you are pretty much on the hook for it.

    Let's go for the extreme example. You run a website that features child pr0n. But you don't host the videos, the videos are somewhere else (say in the nethelands or spain, they seem to have lax laws right now). Your cp site is like a blog with the videos embedded.

    Is that site legal or illegal? Would your opinion change if 50% of the site was tips on gardening or how to cook dinner?

    So now, back to the case at hand. If you have a site that is streaming the Superbowl, but you know nobody has those rights (and certainly doesn't have the rights in your country), and you embed the video in your site, you are aiding / assisting and possibly profiting from illegal content.

    Obviously there will be grey area "I am not sure" cases, but if UFC is only on PPV, and you find a stream on some off brand site, any sane and normal person would know that the feed is illegal. If you choose to embed it in your site, you have certainly crossed a line.

    It's not really difficult to figure out, unless you try to FUD it.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      average_joe (profile), Feb 2nd, 2011 @ 1:01pm

      Re:

      If you know that the content isn't legal, you are pretty much on the hook for it.

      Let's go for the extreme example. You run a website that features child pr0n. But you don't host the videos, the videos are somewhere else (say in the nethelands or spain, they seem to have lax laws right now). Your cp site is like a blog with the videos embedded.

      Is that site legal or illegal? Would your opinion change if 50% of the site was tips on gardening or how to cook dinner?

      So now, back to the case at hand. If you have a site that is streaming the Superbowl, but you know nobody has those rights (and certainly doesn't have the rights in your country), and you embed the video in your site, you are aiding / assisting and possibly profiting from illegal content.

      Obviously there will be grey area "I am not sure" cases, but if UFC is only on PPV, and you find a stream on some off brand site, any sane and normal person would know that the feed is illegal. If you choose to embed it in your site, you have certainly crossed a line.

      It's not really difficult to figure out, unless you try to FUD it.


      I think one who embeds the video is an aider and abettor, sure, but they're not the principal criminal. Perhaps the latest affidavits will be more clear than the one used for torrent-finder.com.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        fogbugzd (profile), Feb 2nd, 2011 @ 1:37pm

        Re: Re:

        >>It's not really difficult to figure out, unless you try to FUD it.

        Yes, it is often quite difficult. The Viacon vs Google suite proved that. The example you picked is obviously illegal, but once you move off the extremes it can get a lot more complicated.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Feb 2nd, 2011 @ 2:09pm

          Re: Re: Re:

          >> The example you picked is obviously illegal

          Straightforward giving out of information as simple as an Internet address is exercise of free speech. [This is the link/embed case.]

          Even going further and passing through a copy of a copyright work (ie, when hosting the digital bits on your server) might be fair use, at least if it is done as a service to aid in education and learning by others.

          "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright"

           

          reply to this | link to this | view in chronology ]

      •  
        identicon
        Jose_X, Feb 2nd, 2011 @ 2:02pm

        Re: Re:

        >> I think one who embeds the video is an aider and abettor

        First Amendment rights allows you to give out public information/facts.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          average_joe (profile), Feb 2nd, 2011 @ 2:28pm

          Re: Re: Re:

          First Amendment rights allows you to give out public information/facts.

          True. So what?

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Jose_X, Feb 2nd, 2011 @ 2:47pm

            Re: Re: Re: Re:

            >>True. So what?

            That is all embedding is.

            The illusion that TD is streaming content is an illusion created by your computer for your enjoyment.

            An embedding link is just a bit of information. You won't be able to access anything unless the hosting website decides to send you the information over when *you* ask for it to be sent over to your computer.

            When you click on a "play" button, whether via flash or an html link or embed, your computer asks that other website for the digital content and your computer will only be able to display the movie if that other website hands it over to you.

            If they don't want the public getting access, they should not be hosting or else use an encrypted connection with proper authentication. [If they did the latter, then you might need a special plugin to view the content as you normally are used to viewing it.. of course, they can provide such a plugin and hope you are willing to install it.]

            Copyright obsessed firms are putting things online using the open protocols developed by a sharing community (who write software and share with others voluntarily) and then complaining when they can't control their content as they wish.. well, create another Internet (or client endpoint for your customers to use)!!! Oh, wait, I think Apple has answered that call to some degree. What are people complaining about then? ...They give the stuff up freely and then claim foul. No. Just use Ipods and things like that. Bye, bye. Don't let the door hit you on your ....

             

            reply to this | link to this | view in chronology ]

    •  
      identicon
      Jose_X, Feb 2nd, 2011 @ 1:59pm

      Re:

      Read the comment I wrote above.

      I, as a non-expert in copyright law, don't see how linking by providing the Internet address where someone else's computer is shipping out those digital bits to whomever asks could be copyright infringement (at least not primary) by the party giving the address.

      There might be another law in the books that prevents the publishing of such information (but in the US I think such a law would violates the First Amendment).

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous, Feb 2nd, 2011 @ 2:27pm

        Re: Re:

        I, as a non-expert in copyright law

        How utterly shocking.

        Go read the Napster, Grokster, Limewire and Isohunt decisions.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Bruce Ediger (profile), Feb 2nd, 2011 @ 2:47pm

          Re: Re: Re:

          Again with the implication that one must consult "a lawyer" (the only experts in copyright law) to decide if something is legal or not.

          First, lawyers don't decide, a court decides.

          Second, the Napster, Grokster, Limewire and Isonhunt decisions were deeply flawed.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous, Feb 2nd, 2011 @ 3:07pm

            Re: Re: Re: Re:

            the Napster, Grokster, Limewire and Isonhunt decisions were deeply flawed.

            No they weren't.

            Amazing how much disrespect pirates and freetards have for the law and judcial decisions.

             

            reply to this | link to this | view in chronology ]

            •  
              icon
              Richard (profile), Feb 2nd, 2011 @ 3:18pm

              Re: Re: Re: Re: Re:

              Probably less than the disrespect shown to the public by those who bought the laws!

               

              reply to this | link to this | view in chronology ]

            •  
              identicon
              Jose_X, Feb 2nd, 2011 @ 3:41pm

              Re: Re: Re: Re: Re:

              >> No they weren't.

              Well, if you want state the precise legal point on which they lost their case and then I can try to compare it to the examples I was giving (again, based on my layperson's understanding).

              I'm almost sure there are differences (if only in the degree of possible secondary infringement.. which is an important point when we look at fair use). [nevertheless, even with differences, I may very well agree some of those decisions were bad ones]

              Also, did those go to the SCOTUS? Though I am almost certain corporations are not people, I tend to trust SCOTUS more than lower courts.

               

              reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Feb 2nd, 2011 @ 2:50pm

          Re: Re: Re:

          I have much more confidence in my view than in yours.. oops, you didn't provide a view. How sad for you.

          Why don't you object to something first before asking me to read a bunch of long material I have no desire to read for enjoyment.

          So what is your objection exactly?

           

          reply to this | link to this | view in chronology ]

    •  
      icon
      Chris Rhodes (profile), Feb 2nd, 2011 @ 2:12pm

      Re:

      If you choose to embed it in your site, you have certainly crossed a line.

      Perhaps, but that line would be contributory infringement (since you are facilitating the acquisition of illicit materials), not direct infringement (since you aren't distributing them nor storing them).

      The problem for the government here is that there is no such thing as criminal contributory infringement, only civil, so they had a choice to make:

      (1) Ignore the law and call it criminal direct infringement so they can seize the domain immediately.

      (2) Follow the law and call it contributory infringement, which would require the original rights holder of the content in question to submit a lawsuit (and injunction, most likely) to a court.

      Lawsuits of this sort are expensive, annoying, and drawn out, so our corporate overlords pressed their government employees to go for option 1 instead. Simple!

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous, Feb 2nd, 2011 @ 2:42pm

        Re: Re:

        not direct infringement (since you aren't distributing them nor storing them).

        So you don't consider embedding full streams distribution, huh?

        That's pretty funny.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Bruce Ediger (profile), Feb 2nd, 2011 @ 2:52pm

          Re: Re: Re:

          You should preface your remarks with "I am not a web developer, but..." just like the folks who put "I am not a copyright lawyer, but.." do. It's just good manners on your part, as you are very obviously ignorant and uneducated and possibly ill-informed about how "embedding" works.

          Here's a tip: an "embedded" stream comes from the same source as an "unembedded" stream. "Embedding" a video only makes it appear to you, the ill-informed Internet Explorer user, that the video comes from the same source as the web page it appears on.

          The only connection between the web page it appears on, and the stream of video is a small chunk of text in HTML format that makes your computer go to the video site and download it.

          If the video stream infringes, it's the video site, not the embedding site that infringes. Saying anything else is illogical and demonstrably wrong. Repeating anything else after having had it explained to you makes you a liar. Don't become a liar, please, I beg you!

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous, Feb 2nd, 2011 @ 3:12pm

            Re: Re: Re: Re:

            How else is the video distributed on the web if it isn't embedded on sites?

             

            reply to this | link to this | view in chronology ]

            •  
              identicon
              Jose_X, Feb 2nd, 2011 @ 3:33pm

              Re: Re: Re: Re: Re:

              TD does not have to touch the video file at all when their webpage "embeds" a video. They might host the video if they want, but the web protocols make it easy for a webpage author to simply state the "web address" of the movie being hosted by someone else.

              This means for example that if the person hosting the material takes it offline, then you won't see it when you hit the "play" button.

              A related example: Google offers links in their searches, but sometimes you visit the links and the page does not resemble what the search stated. This is because the page's creator changed it (or took it offline) between the time Google's computers looked at that page (and likely made a copy to some degree for use by their search algorithms) and the time you clicked on the link. Google's servers told you what they had seen when they last checked, but they are not giving you the actual page. .. Anyway, an embed is even more innocent because the person "embedding" doesn't have to touch that material at all (though possibly they did in order to see it and write up the article).

               

              reply to this | link to this | view in chronology ]

            •  
              icon
              Hephaestus (profile), Feb 2nd, 2011 @ 3:38pm

              Re: Re: Re: Re: Re:

              Since I can't do hand signs and speak loudly to you. I will make this simple. Embedding isn't what you think.

              YouTube has video's on its site.

              Mike puts a link pointing (embeds a link) (or maybe this will work) to that video on TD. The video is never on his servers, its on YouTube, TD just points to it.

               

              reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Feb 2nd, 2011 @ 3:45pm

              Re: Re: Re: Re: Re:

              I can give you the address to a video and you can type it into your address bar, and your browser will start playing it.

              You don't need a web page or a (secondary) site to view said video

              i.e. "embedding" is merely a convenience.
              The only criminal in this entire chain is the site actually hosting the infringing file.

               

              reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Feb 3rd, 2011 @ 2:16am

              Re: Re: Re: Re: Re:

              In the case of Youtube and other video websites they have their own servers serving those videos, any data needs a source to transfer it, links are not sources you ignorant fool.

               

              reply to this | link to this | view in chronology ]

          •  
            identicon
            Jose_X, Feb 2nd, 2011 @ 3:25pm

            Re: Re: Re: Re:

            >> that makes your computer go to the video site and download it.

            Before someone complains about this, let me clarify.

            The little bit of text on a webpage directing you to the computer that hosts the material does not "make your computer" do anything.

            The person's computer goes and knock knocks to that Internet address asking for the video because the computer the person uses at home is very likely programmed to behave that way.

            If "you" feel nervous about knock knocking, then don't browse, don't click, or change your software so that you don't accidentally do any of these things. You can even get a "proxy" that will sabotage all such attempts for you for your own safety. You can even try to return your computer and tell the vendor (who likely supports copyright very much) you don't want a computer that "knock knocks" (according to web protocol standards) when you click on a link or visit a webpage.

            Truly, the copyright people want the "best" of all worlds and are using their money and noisy behavior to try to get the government to support them (likely against the best interests of most citizens) despite the foolishness and indecency of it all. .. Granted there is confusion over the technology, so I hope it will all eventually get sorted out in a fair manner to most We the People.

             

            reply to this | link to this | view in chronology ]

        •  
          icon
          Richard (profile), Feb 2nd, 2011 @ 3:21pm

          Re: Re: Re:

          So you don't consider embedding full streams distribution, huh?
          Because it isn't - it is publicity.

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          Mike C. (profile), Feb 2nd, 2011 @ 6:48pm

          Re: Re: Re:

          Let's put this in physical terms so that you have a point of comparison.

          Say we meet outside a cybercafe. You tell me you'd like a DVD copy of the movie Red w/ Bruce Willis. I say sure and hand you a custom made DVD case with a hand drawn label that I created myself and say "you can get a copy of the movie in there". You then go into the cybercafe, download a torrent of the movie, burn it to DVD and place it inside the box. You then go outside and tell me "Thanks for the movie". At no point did I tell you whether or not obtaining the movie was legal in your current jurisdiction, I just told you a location where you COULD get it.

          This is almost the same as embedding. The sites that are getting seized are doing nothing more than providing a created wrapper. You, the user, via your computer and web browser are actually contacting a SECOND site and making a copy of the content from the SECOND site. The first site (the one getting seized) is doing nothing more than telling YOU where to go so that YOU can perform the infringement.

          /programmer for 25+ years

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Jose_X, Feb 3rd, 2011 @ 4:46am

            Re: Re: Re: Re:

            >> where to go so that YOU can perform the infringement.

            And even there, how are you (as someone browsing the web) supposed to know which of all the content/information being handed out on the Internet is unauthorized?

            First, do most people even know copyright law? Doesn't intuition tell you that most people give out information for free (don't you?) except perhaps the first time when it's a certain type of professional attending to your particular problem? Don't we get music and movies for free on radio/tv? It's not as if we are buying anything material or taking up space in anyone else's business (like a movie theater).

            Assuming we know about copyright law, how are we supposed to know what is licensed or not? Where can we find this information?

            And assuming everything is illegal is impractical and clearly stifling and would likely make such use of copyright law unconstitutional.

             

            reply to this | link to this | view in chronology ]

    •  
      icon
      Atkray (profile), Feb 2nd, 2011 @ 2:19pm

      Re:

      " if UFC is only on PPV, and you find a stream on some off brand site, any sane and normal person would know that the feed is illegal."

      I think you are giving sane and normal people too much credit.

      My experience in doing tech support for homeowners/ families is that many of them really don't understand at all how computers or the internet work. Most of them figure that whatever antivirus they have will protect them from all the evil on the internet and if something gets through it it must be ok.

      The kids of these families are tech savvy but don't often don't let on because if they show they know more that the parents they lose access because the adults feel like they have lost control, Kinda like certain elements of the entertainment industry and our government.

      Anyway I think a lot of people feel if they google UFC LIVE and it gives them a link then it is ok because someone just paid for it and put it online.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Jose_X, Feb 2nd, 2011 @ 3:03pm

        Re: Re:

        >> Anyway I think a lot of people feel if they google UFC LIVE and it gives them a link then it is ok because someone just paid for it and put it online.

        And also.. to attack the user for copyright infringement is to assume that the person who is giving them that video is not the legit owner or doesn't have a license.

        But say you (the feds) know the other person is not legit. How is a person using the Internet supposed to know? It is rather expensive to try and find out who is the copyright owner of anything you see online and to have that entity confirm it and then talk about all their licensing arrangements.

        And.. The person at home likely has never enforced copyright on anyone else and can reasonably consider that they aren't the only soul on the planet who would share with someone else without demanding money.

        In short, it would be unreasonable to go after the person given how hard it is for them to figure out the truth.. It would be chilling and wrong to have everyone assume everything they see online is illegal. Why have an Internet?

        On this note, there is a bunch of material online that is perfectly legal. For a quick short animation video (about dragons), check out sintel on youtube (by blender.org, which maintains an impressive 3d model, game, and animation software created for public use for $0). ..Then consider watching sitasingsthebluesif you have some time to spare. [There is much more stuff, but these come to mind.]

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Feb 2nd, 2011 @ 4:42pm

          Re: Re: Re:

          >> On this note, there is a bunch of material online that is perfectly legal.

          Well, what I mean is that you can use that material almost without limitation.

          Obviously, if someone puts something on the Internet accessible to anyone that simply asks for the information, it's reasonable to assume they have given at least an implied license to see the material while you browse (and "fair use" would allow some more uses).

           

          reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Feb 2nd, 2011 @ 3:19pm

        Re: Re:

        yes, but those people aren't making websites, they are visiting them.

        Now, if they go to techdirt.com and there is an embedded stream of the super bowl, would they not assume (because they don't really understand this stuff) that it is in fact techdirt presenting it?

        Embedding a video into a page is like a stamp of approval. It is to me the same as publishing a picture or text that someone else has written on your site. You are the publisher, you and you alone chose to add it to your site. The person streaming can no more add the video to your site than they cna part the red sea (the can do it if they are mythical diety, otherwise they are sol).

        The question of embedding isn't difficult to understand. There is a whole bunch of FUD, smoke and mirrors, and every other distraction applied to it. But in the end, the site owner and the site owner alone made the choice to publish the video as part of their site, and as such should bear at least responsibility for distribution.

        See, another issue comes up. Many sites try to skirt the laws by running the videos from one site, and embedding it into another site. The sites pushing the videos are disposible (and easily replaced) and they embedding site is what they promote to the public. So the video feeds get taken down and replaced without issue, the copyright holders playing whack a mole on them, but never actually getting the site that embeds and plays them. It's a neat trick, playing on the fringes of legality.

        When people are willing to go to those sorts of limits to do things, you have to wonder.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Feb 2nd, 2011 @ 4:08pm

          Re: Re: Re:

          >> But in the end, the site owner and the site owner alone made the choice to publish the video as part of their site, and as such should bear at least responsibility for distribution.

          Wouldn't that be a violation of the First Amendment?

          Let's assume I know a hosting site does not have permission from whoever is the copyright owner (and explain to me how I am supposed to know this), why would I not be able to tell that to someone who asks?

          "Yeah, there are people behind that window over there that are having sexual escapes deemed illegal by our laws."

          You want to make it illegal for me to tell you that? Wouldn't that violate the First Amendment?

          And, besides the free speech question and the fact I don't know if the people are actually violating any laws, how about the fact that I have no idea what you are doing with that information I sent you? You might be compiling information for legal research or to eventually engage in fair use or licensed use? However, even this should not matter because I am not giving you anything. You still have to ask those people, and I have no idea if they will actually share with you (illegally or otherwise).

          Basically, it's First Amendment rights to state information. Maybe it could be qualified by website terms of service saying "I am not asking anyone to engage in illegal activities and cannot know if what you do with that information is legal or not." But perhaps that should be implied.

          >> The sites pushing the videos are disposable (and easily replaced) and they embedding site is what they promote to the public.

          One approach is to change copyright law and even recognize that "infringement" actually helps the authors in many cases.

          Another approach (and not saying this is just or smart) would be to try to send the person to the electric chair or at least to prison once yo find out who was hosting.

          You seem to be saying that the government should be able to get away with abridging everyone's protected rights just so that they can avoid doing detective work necessary to get the actual infringer to stop.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Feb 2nd, 2011 @ 9:16pm

            Re: Re: Re: Re:

            it's because you aren't just telling me where it is, you are including it as part of your site. What the public sees (without being html wizards) is a video playing on your site, not somewhere else.

            Put it another way: Free speech would be "Hey, go look next door for a video". Distribution would be "hey, look at this".

            A link off to another site is a very different animal from something that appears to be part of the site. Free speech doesn't enter into it, because it isn't the issue. You would clearly have the right to point to something in the distance and say "go check it out". When when you take the people and stick them in the house, it appears that you are in control.

            So you see, it isn't stating information, it's distributing a video. A website is a point of publishing, and the video is content that appears as part of the website. If you didn't want it as part of your website, don't embed - just link. Even then, linking may be enough, but that is a whole different argument.

             

            reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Feb 2nd, 2011 @ 10:38pm

              Re: Re: Re: Re: Re:

              Glad to see that your entire argument is based on the stupidity of ignorant people and not on actual reality.

               

              reply to this | link to this | view in chronology ]

            •  
              identicon
              Jose_X, Feb 3rd, 2011 @ 5:06am

              Re: Re: Re: Re: Re:

              >> If you didn't want it as part of your website, don't embed - just link.

              It's an illusion that an "embed" is actually being handed to you from the website where you are seeing it. Your own computer creates that illusion in order to make browsing a more pleasant experience. An embed is a "link" (a little bit of text indicating a web address) except that a piece of your computer (eg, the flash plugin part of your browser) calls that other site and fetches a frame to display. Also your browser puts that in the middle of the webpage you were watching.

              Essentially, your browser calls up a bunch of websites and puts everything together for you behind the scenes.

              When I create a webpage, I give information on how I would like the page to look, but it's up to you to deal with getting the component pieces and authority for using those pieces.

               

              reply to this | link to this | view in chronology ]

            •  
              icon
              Richard (profile), Feb 3rd, 2011 @ 4:32pm

              Re: Re: Re: Re: Re:

              A link off to another site is a very different animal from something that appears to be part of the site.

              Only to the ignorant and stupid.

               

              reply to this | link to this | view in chronology ]

            •  
              icon
              Richard (profile), Feb 3rd, 2011 @ 4:36pm

              Re: Re: Re: Re: Re:

              A link off to another site is a very different animal from something that appears to be part of the site.

              This argument seems to be valid now because so many people are still ignorant of how the internet works.

              In the future it will look as ridiculous as the belief that the people you see on your TV screen must be actually physically inside the box.

               

              reply to this | link to this | view in chronology ]

    •  
      icon
      Richard (profile), Feb 2nd, 2011 @ 2:31pm

      Re:

      You have to remember that sporting bodies have more or less invented the concept of "sporting rights". Actually, in law, these do not exist. There is no copyright in the live action of a sporting event. Any sporting authority that claims otherwise would lay itself open to charges of match fixing.
      Of course there is copyright in the actual pictures (by virtue of the artistic aspects of camerawork, editing and commentary.
      For example a video stream of a Cricket Test match at Trent Bridge in Nottingham taken from the neighbouring Rushcliffe Council building could be broadcast on the internet with impunity. There is nothing that Sky Sports or the Cricket authorities could do other than to build a physical barrier (which of course Rushcliffe council could block through the planning process!)

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonsp, Feb 2nd, 2011 @ 3:49pm

      Re:

      In Spain we don't have any "lax law" about hosting chil p0rn.
      Try to gather some real info before talking.

       

      reply to this | link to this | view in chronology ]

  •  
    icon
    average_joe (profile), Feb 2nd, 2011 @ 12:55pm

    I was getting all excited to yet again rip you a new one, but then you go and write an article that makes sense. (Except for the hippie stuff at the end, of course.) How embedding a video is direct infringement is a damned good question. :)

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      techflaws.org (profile), Feb 3rd, 2011 @ 1:42am

      Again? Don't be ridculous

      Funny since by your lousy reasoning you've not yet managed to rip anyone anything.

       

      reply to this | link to this | view in chronology ]

      •  
        icon
        average_joe (profile), Feb 3rd, 2011 @ 6:14am

        Re: Again? Don't be ridculous

        Funny since by your lousy reasoning you've not yet managed to rip anyone anything.

        That was supposed to be a funny joke. Guess the humor didn't come through...

         

        reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Feb 2nd, 2011 @ 1:49pm

    Anyone who breathes must pay me $100 per instance.

    It's just as legally binding as the NFL's claims. After all, I said it, therefor it is true.

    Now, Pay up TAM.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Robin Hoover (profile), Feb 2nd, 2011 @ 1:54pm

    ICE Press Release

    located here:

    http://www.ice.gov/news/releases/1102/110202newyork.htm

    take aways: filed in Southern District Court, says affadavit has been unsealed.

    ianal, nor am i going to sign up for pacer just to track this down. any takers out there?

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Angry Puppy (profile), Feb 2nd, 2011 @ 3:08pm

    This explains 9/11

    Federal law enforcement was so focused on tracking down the people responsible for the knockoff DVDs of 'All Dogs go to Heaven' and 'My Little Pony: The Princess Promenade' sold in Baltimore area flea markets they didn't have time to pay attention to field agent reports about a group of Saudi nationals holding valid US Customs student visas acting in a suspicious manner and taking pilot training.

    Seriously:

    The USA has started what appears to be a never ending war against Muslims and is making noises about attacking Iran (which now, thanks to documents released by Wikileaks, seems to be the idea of Arab nations to get rid of Persians by having the USA fight a race war for them), is being destroyed from within by drugs, is having its economic base destroyed by a corrupt financial system, and is aggressively protecting a media that makes its fortunes glorifying drugs, stupidity, and violence (The Jersey Shore, Two and a half Men).

    With all of this needing to be addressed are they really throwing what appears to be substantial resources into battling offshore internet streaming of NFL games and pay per view UFC fights? It seems so.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Feb 2nd, 2011 @ 3:23pm

    the site was known to obey takedown requests

    the site was known to obey takedown requests

    let's touch on this one. This is where the whole process of DMCA or similar rules falls on it's face. Let's say this Swedish site streams the Superbowl. The NFL spots it, and a lawyer writes a takedown letter, sends it by courier from New York to Sweden, where the company running the site accepts it on their next business day, and 48 hours later disables the stream. You know, the stream that stopped being meaningful 3 days earlier?

    We end up with a situation where the speed of the internet is much faster than the speed of the real world, and there is no real legal repercussions for anyone streaming an event like this. Sure they can agree to take it down (it's only valid for a few hours), but the harm is done by the time they make the takedown.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      Zangetsu (profile), Feb 2nd, 2011 @ 3:36pm

      Re: the site was known to obey takedown requests

      So, because you say there is a problem with the law that means we should ignore the law all together? Ignore due process? Ignore "innocent until proven guilty"? Ignore what millions of Americans throughout the years have fought for? If the penalty for copyright infringement was death, would you let the MPAA and RIAA determine who lived and who died? Let's check your Visa and Mastercard statements and see who supported them the most for the past year. Top 10% get "accused" of copyright infringement and put to death. That will do wonders for their business model.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous, Feb 2nd, 2011 @ 6:17pm

        Re: Re: the site was known to obey takedown requests

        There was due process in every seizure ICE did. Yesterday, last Thanksgiving, last summer. Every one. Sorry.

         

        reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Feb 2nd, 2011 @ 3:54pm

      Re: the site was known to obey takedown requests

      Yeah Due Process is a bitch, eh? Back in the early days of copyright/patents/Trademarks it would take weeks to stop someone from selling something they shouldn't be.

      Adjust the courts to respond faster.

      But really it doesn't matter. It's whack a mole, and it's far easier just to open a new domain than to even fight it in the slow as molasses courts. Eventually DNS will be outdated by people that want content, and the U.S. government won't be able to fall back on seemingly random domain takedowns.


      The oddest part of this is that instead of working on a new business model[s] Hollywood is evolving piracy further and further along to make it harder and harder to track who is doing what. Good luck with that.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous, Feb 2nd, 2011 @ 6:18pm

        Re: Re: the site was known to obey takedown requests

        There was due process in every seizure ICE did. Yesterday, last Thanksgiving, last summer. Every one. Sorry.

        All law enforcement is whack a mole.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          TDR, Feb 2nd, 2011 @ 6:43pm

          Re: Re: Re: the site was known to obey takedown requests

          Prove it. Now. Or you're a liar. Exact quotations and documentation. Now. Or a complete retraction of everything you have ever said on this site. Now.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Feb 2nd, 2011 @ 3:38pm

    Mike - there is criminal contributory infringement. Sort of. It's called aiding and abetting. The elements are slightly different from civil, but it's the same idea.

    Here, that isn't the issue (yet, anyway). These were actions against property being used by someone to commit a crime. (Or that's the claim, anyway.)

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Jose_X, Feb 2nd, 2011 @ 4:37pm

      Re:

      aiding and abetting..

      US laws cannot contradict First Amendment, so I think the standard there would have to be a little higher than criminalizing the providing of factual information.

      It's also fair use to distribute copyrighted content itself to facilitate teaching, researching, creation of legal derivative works, etc. At least that is how I read 17 USC 107.

      Finally, we need to motivate people to pressure for change in copyright law (eg, it lasts way too long). Criminalizing ordinary behavior is one sure way to fire people up to action.

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous, Feb 2nd, 2011 @ 6:29pm

        Re: Re:

        Copyright is in the Constitution, Article 1.

        The First Amendment didn't even arrive until a few years later, so no, it doesn't trump Copyright Law.

        While you quoted the definition of fair use, you seem to not understand that basically none of the piracy cases we discuss on this blog are examples of fair use.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Bruce Ediger (profile), Feb 2nd, 2011 @ 7:02pm

          Re: Re: Re:

          > The First Amendment didn't even arrive until a few years later, so no, it doesn't trump Copyright Law.

          You must be kidding. Seriously, how can anyone say that? Freedom of speech is *vastly* more important, morally, philosophically and constituionally than copyright.

          So: citations, please, and plenty of them, from the best sources. Oliver Wendell Holmes, Judge Learned Hand, Joe Dimaggio, anybody. But a lot of them. Really magnificent far-reaching claims demand a whole lot of proof.

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          Gabriel Tane (profile), Feb 2nd, 2011 @ 7:39pm

          Re: Re: Re:

          Oh wow... really? You're interpretation is that the law is applied in some particular order as it passes thru the constitution? Really?

          Hmm. Interesting, but stupid. The Bill of Rights are the Amendments. The first 10, in fact. The whole purpose of an amendment is to change and existing thing. So, the fact that the Amendments came later could (and should) be taken that they are more important than the first part because they are fixing or modifying something that someone (you know.. the founding fathers, our elected representatives) felt needed to be fixed.

          So, by the very definition of "amendment", the Bill of Rights does trump copyright law.

           

          reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Feb 2nd, 2011 @ 11:29pm

          Re: Re: Re:

          The First Amendment didn't even arrive until a few years later, so no, it doesn't trump Copyright Law.

          No, actually, legally, amendments are considered to have primacy over what came before them as they are considered to be corrections to the Constitution.

           

          reply to this | link to this | view in chronology ]

        •  
          identicon
          Jose_X, Feb 3rd, 2011 @ 5:21am

          Re: Re: Re:

          >> While you quoted the definition of fair use, you seem to not understand that basically none of the piracy cases we discuss on this blog are examples of fair use.

          I do not believe in mind readers. I don't see how you can know how a stranger is going to use information. If that stranger wants to create a superior work, learn, teach, create a parody, etc, those actions have a very good chance of being protected by the First Amendment (and fair use).

           

          reply to this | link to this | view in chronology ]

        •  
          icon
          Richard (profile), Feb 3rd, 2011 @ 4:44pm

          Re: Re: Re:

          Copyright is in the Constitution, Article 1.

          It is not.

          The constitution assigns the right to make copyright law to the congress ( preventing the chaos of multiple state level copyright regimes). It does not of itself make any copyright law.

          Besides, the general rule in these cases is that later laws trump earlier ones (the past cannot tie the hands of the future). That is fundamental to our (UK) constitution - I suspect it is to yours too.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Vic, Feb 2nd, 2011 @ 3:43pm

    ... and Mike, why do you still call them Homeland Security? Isn't it Hollywood Security?

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    bdhoro (profile), Feb 2nd, 2011 @ 4:04pm

    Tenchis toolbar

    I wonder if Tenchis Toolbar still works (the only reason not to uninstall internet explorer).

    I know many of its streams came from atdhe but they usually have multiple sources for every station.

    If anyone has been using the sites that have recently been taken down, I would recommend checking it out as your best alternative. You do have to download a toolbar which I always hate doing, but it generally allows you to watch streams of almost every station you could imagine.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Rekrul, Feb 2nd, 2011 @ 10:08pm

    And that's a big problem for ICE.

    It would only be a problem if the US government didn't think it was above the law. But since it obviously does, ICE can pretty much do whatever they want.

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This