Judge Posner: Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them

from the at-all dept

Recently we've seen a number of cases, both civil and criminal, brought against websites that involve either links or embeds of videos hosted elsewhere. UK student Richard O'Dwyer is facing extradition and criminal charges for hosting a site that did exactly that. But, as many of us have wondered in the past, how is such a site infringing at all? After all, the videos themselves were uploaded by other people to other sites. The streaming occurs from those other servers. The embed just points people to where the content is, but it does that neutrally, no matter what the content might be.

A few months ago, we wrote about how the MPAA had jumped into a copyright infringement appeal involving porn producer Flava Works against a video "bookmarking" site called MyVidster. The MPAA argued that links and embeds are infringing, in support of a questionable district court ruling against MyVidster.

The appeals court ruling has now come out, written by Judge Posner, and it's absolutely worth reading (embedded below). Posner goes into great detail about how MyVidster's linking and embedding features don't even come close to infringing. They're not infringement and they're not contributory infringement. He goes through a pretty accurate description of how embedding works, and why MyVidster is separate from the uploading/hosting/streaming. But then he notes that those watching the videos aren't even infringing, so there isn't even any infringement for MyVidster to contribute to:
Is myVidster therefore a contributory infringer if a visitor to its website bookmarks the video and later someone clicks on the bookmark and views the video? myVidster is not just adding a frame around the video screen that the visitor is watching. Like a telephone exchange connecting two telephones, it is providing a connection between the server that hosts the video and the computer of myVidster’s visitor. 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, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies . . . of the copyrighted work to the public.” 17 U.S.C. §§ 106(1), (3). 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. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet.
Got that? It's actually important. He's saying that those who are watching a video that someone else uploaded are not infringing on the reproduction right under copyright. Only the uploader has potentially violated that right. So there can't be a contributory infringement claim over that right.

Of course, copyright includes a few other rights beyond reproduction. There's also the "public performance" right. After running through a few different theories there, Posner again finds no clear case of infringement.
Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement.... An employee of Flava who embezzled corporate funds would be doing the same thing—reducing Flava’s income—but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.
In other words, the person watching the video isn't doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it's not violating the public performance right either.

As we noted in our post about the original case, part of the ruling hinged on myVidster losing its DMCA safe harbor protections by not having a repeat infringer policy. But Posner notes that the DMCA safe harbor isn't even in question here because those viewing the videos have not infringed and thus there is no copyright infringement related to myVidster for showing the embeds:
myVidster received “takedown” notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn’t need a safe harbor.
This ruling makes it clear that watching embedded videos is not infringing and then neither is hosting the embed code. While limited to the 7th Circuit, this ruling could still be quite handy in a number of other cases, including O'Dwyer's and the Rojadirecta case, which also involves embedded videos. Eric Goldman is a bit more skeptical of the impact of the ruling, arguing that Posner reasoning isn't particularly clear (well, he calls it a "train wreck.") While I rarely disagree with Goldman, I'm not convinced that this is such a train wreck. While Posner's explanation is, at times, convoluted, he does clearly make the main point: if there's infringement, it's completely disconnected from the user watching the video and the site doing the embedding.

Either way, Posner vacates the lower courts ruling, and notes that there are a few other issues with the case (mainly having to do with some other aspects of myVidster's business), but the main fight shows no infringement. Oh yeah, and Posner doesn't even reference the MPAA's filing in the case, suggesting how compelling that argument was...


Reader Comments (rss)

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  1.  
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    Anonymous Coward, Aug 3rd, 2012 @ 10:43am

    Sadly, Judge Posner has come out as an activist judge, which makes this ruling entirely good for further appeal.

     

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    Anonymous Coward, Aug 3rd, 2012 @ 10:53am

    nice

     

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  3.  
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    Anonymous Coward, Aug 3rd, 2012 @ 10:56am

    I doubt the DOJ or Hollywood care what she said. Plus since their videos are targeted at everyone they seem to think it gives them more rights over copyrighted porn."Which is a fucking waste of money when finer bitches upload their shit for free"

    Flava is just pissed others are doodling their shit in his area of work.

     

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  4.  
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    DCX2, Aug 3rd, 2012 @ 11:02am

    Summary: the uploader/host is liable

    And only the uploader/host.

    In particular, I love the line about sneaking into a movie theater is not copyright infringement. It makes perfect sense.

     

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  5.  
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    bob, Aug 3rd, 2012 @ 11:04am

    See! Making a copy is theft...

    It's just not infringement. He said it's like taking a book and reading it. Then he says point blank that it's theft. And also that it's a bad thing.

    So let's prosecute them for theft and quit dancing around the idea that somehow this isn't the same as shoplifting or carjacking or smashing a jewelery store window.

    Let me say it again: theft, theft, theft!

     

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  6.  
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    lucidrenegade (profile), Aug 3rd, 2012 @ 11:06am

    Re: See! Making a copy is theft...

    Welcome back! We missed you, you crazy crackhead!

     

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  7.  
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    Anonymous Coward, Aug 3rd, 2012 @ 11:07am

    Re: See! Making a copy is theft...

    Did someone say crime? Beyond a reasonable doubt, so good luck with that.

     

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  8.  
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    Anonymous Coward, Aug 3rd, 2012 @ 11:09am

    Re: See! Making a copy is theft...

    Hi bob.

    No! No! No!

     

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  9.  
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    Another AC, Aug 3rd, 2012 @ 11:11am

    Re:

    Come again?

     

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  10.  
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    Baldaur Regis (profile), Aug 3rd, 2012 @ 11:16am

    Re: See! Making a copy is theft...

    Okay, call it theft. I downloaded and watched a movie that I could have bought for $20. What's my penalty? $150,000? $100? What's fair?

     

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  11.  
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    Anonymous Coward, Aug 3rd, 2012 @ 11:19am

    Re: See! Making a copy is theft...

    Appeal to autority fallacy LOOK IT UP!

     

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  12.  
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    bob, Aug 3rd, 2012 @ 11:20am

    Re: Re: See! Making a copy is theft...

    Who knows? That's for the jury to decide. There are people in jail for life on the three strikes laws.

    The fact is that very, very few people are even prosecuted under the criminal laws because the cops look the other way. But now that we've got a Federal Appealate judge saying that it's "stealing", we might have more luck.

    I'm happy with Jamie Thomas getting the same amount of time as some shoplifter who takes 1000 CDs.

     

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  13.  
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    bob, Aug 3rd, 2012 @ 11:22am

    Re: Re: See! Making a copy is theft...

    Actually, the IP address is much better evidence than we have in many other cases. Do you know that the defendant actually confessed in 80% of the cases when people are exonerated by DNA. Do you realize how often eyewitnesses are wrong?

    The IP address is better evidence than we used to convict many of the folks on death row.

    So I think we'll be able to get beyond a reasonable doubt to prosecute these folks for "stealing".

     

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  14.  
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    weneedhelp (profile), Aug 3rd, 2012 @ 11:23am

    Re: Re: See! Making a copy is theft...

     

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  15.  
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    Ninja (profile), Aug 3rd, 2012 @ 11:23am

    Oh yeah, and Posner doesn't even reference the MPAA's filing in the case, suggesting how compelling that argument was...

    You can't take an outfit that claims imaginary losses based on numbers that would make a full iPod worth 8 billion dollars seriously. But if I were the judge I'd give the MPAA a pony.

     

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  16.  
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    bob, Aug 3rd, 2012 @ 11:24am

    Re: Re: Re: See! Making a copy is theft...

    I'm sorry I forgot to add this. An appropriate sentence would be jail time. Many of the black kids who get caught shoplifting get jail time especially when it's a repeat offense. Teaches them a lesson. Why should white kids get out of jail, just because they're using computers?

     

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  17.  
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    Anonymous Coward, Aug 3rd, 2012 @ 11:24am

    Re: See! Making a copy is theft...

    ... theft, theft, theft!

    I think the problem with this conclusion is you can't prove who stole it or whether it was stolen at all! Theft is a criminal offense and you must prove it beyond a reasonable doubt.

     

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  18.  
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    bob, Aug 3rd, 2012 @ 11:26am

    Re: Re: Re: See! Making a copy is theft...

    Hey bub, in court it doesn't matter if the judge is right or wrong. The authority of the judge always trumps everything in court.

    But hey, you can feel secure because some Harvard Law Professor agrees with you. Not that you would be appealing to authority then.

     

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  19.  
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    Milton Freewater, Aug 3rd, 2012 @ 11:30am

    Re: See! Making a copy is theft...

    "It's just not infringement. He said it's like taking a book and reading it. Then he says point blank that it's theft. And also that it's a bad thing."

    I know you're pulling our leg, Bob, but just for the record, here is what the judge actually said:

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

    He says point blank that it's the EQUIVALENT to theft - in other words, it's not legally theft but it's morally just as wrong.

    I agree that hacking PPV streams is wrong and I don't do it, although comparing that to a physical attack on property is too rich for my blood.

     

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  20.  
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    weneedhelp (profile), Aug 3rd, 2012 @ 11:32am

    Re: Re: Re: See! Making a copy is theft...

    I have 20 open access points within a mile radius. I have 3 of 5 open to me at my home. IP address mean nothing.

    Do you know that the defendant actually confessed in 80% of the cases when people are exonerated by DNA. - citation boBBy boy.

    "The IP address is better evidence than we used to convict many of the folks on death row." - So you agree the judicial system is fucked.

    "So I think we'll be able to get beyond a reasonable doubt to prosecute these folks for "stealing"."

    I think
    appears
    most likely
    may be

    I love to use those terms when I have no clue. I think It appears you do too, and most likely it may be your lack of rational thinking.

    Yeah ok boB.

     

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  21.  
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    Ninja (profile), Aug 3rd, 2012 @ 11:34am

    Re: Re:

    He already came once, you'll have to wait at least 10 minutes before he can come again. It depends on the age, obviously.

     

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  22.  
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    Milton Freewater, Aug 3rd, 2012 @ 11:34am

    Re: Re: See! Making a copy is theft...

    It's pretty obvious nothing was stolen. The theft simile is really clunky, because theft is wrong for reasons that have nothing to do with getting something for free. Sneaking into a movie theater is a better analogy.

     

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  23.  
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    weneedhelp (profile), Aug 3rd, 2012 @ 11:35am

    Re: Re: Re: Re: See! Making a copy is theft...

    Pssst. Have you heard?
    b b b boB is the word

     

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  24.  
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    Ninja (profile), Aug 3rd, 2012 @ 11:37am

    Re: Re: Re: Re: See! Making a copy is theft...

    Because there's no shoplifting? If you read the article carefully you'll see that the judge blames who got the paid content and made it available via streaming, not the viewers or the indexer?

    You truly need classes to improve your reading comprehension.

     

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  25.  
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    Rikuo (profile), Aug 3rd, 2012 @ 11:38am

    Re: Re: Re: See! Making a copy is theft...

    "Who knows? That's for the jury to decide. There are people in jail for life on the three strikes laws. "

    I'm sorry (no I'm not actually) bob, but your brain cells must have imploded, or at least I hope they did after writing that piece of shit sentence. There are people in JAIL? For LIFE? on 3 strikes laws? You do know that the proposed 3 strikes (which by the way aren't laws, but supposedly voluntary agreements between ISPs and the copyright cartel, and thus, you can't be arrested over them) have the end result of you losing your net access.

    Not of going to JAIL. Despite what's happening to Richard O'Dwyer.

     

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  26.  
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    Rikuo (profile), Aug 3rd, 2012 @ 11:42am

    Re: Re: Re: Re: See! Making a copy is theft...

    Because we here at Techdirt have time after time after time destroyed the lie that downloading and copyright infringement = theft.

    IT IS NOT.

    Also...just explain to me bob, why it is you're so happy with the fact Jammie Thomas may end up in economic servitude to the RIAA for what may be the rest of her life for simply sharing a few songs. What has made you so bitter of a person that sharing a few mp3's means you should be punished for the rest of your life?

     

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  27.  
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    Rapnel (profile), Aug 3rd, 2012 @ 11:49am

    this just in...

    Common Sense Invades the Bench!

    Supreme Court Put On Notice!

    Copyright Infringers Ranks Thin Overnight!

    Will common sense prevail?

    Will crimes be defined in reality?

    Do judges purrfer cats? Can dogs fling poo?

    Stay tuned for the next riveting episode of... Internets of Our Lives

     

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  28.  
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    harbingerofdoom (profile), Aug 3rd, 2012 @ 11:49am

    Re: Re: Re: See! Making a copy is theft...

    allow me to create a nice large dent in your theory:

    IP spoofing.

     

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  29.  
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    Baldaur Regis (profile), Aug 3rd, 2012 @ 11:55am

    Re: Re: Re: See! Making a copy is theft...

    Jammie Thomas never served jail time, bob. She was found liable in a civil lawsuit for willful copyright infringement of 24 songs.

    24 songs, bob. No jail time. Sorry if that makes you not so "happy with Jamie Thomas getting the same amount of time as some shoplifter who takes 1000 CDs."

     

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  30.  
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    Anonymous Coward, Aug 3rd, 2012 @ 11:56am

    Re: Re: Re: See! Making a copy is theft...

    So you think an IP addess whic is not tied to a person is more accurate than DNA which IS tied to a person?


    YOU. ARE. RETARDED.

     

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  31.  
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    Rikuo (profile), Aug 3rd, 2012 @ 11:57am

    Re: Re: Re: See! Making a copy is theft...

    "Actually, the IP address is much better evidence than we have in many other cases. Do you know that the defendant actually confessed in 80% of the cases when people are exonerated by DNA. Do you realize how often eyewitnesses are wrong?"

    Citations needed, idiot.

     

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  32.  
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    bob, Aug 3rd, 2012 @ 12:03pm

    Re: Re: Re: Re: See! Making a copy is theft...

    http://falseconfessions.org/fact-a-figures

    Now where's your citation for calling me an "idiot"?

     

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  33.  
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    bob, Aug 3rd, 2012 @ 12:04pm

    Re: Re: Re: Re: See! Making a copy is theft...

    DId I say we have DNA is most cases? Nope. I just said that the IP address is better evidence than we have in many cases.

    Go back and parse.

     

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  34.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:06pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    The citation is every post you've ever made.

     

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  35.  
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    The Groove Tiger (profile), Aug 3rd, 2012 @ 12:06pm

    Re: Re: Re: See! Making a copy is theft...

    The "theft" is only used as something that wasn't done by the defendant, nor facilitated to the user, but a completely different third party.

    Basically it's saying "I steal something, put it on display, you go to jail for reading it, and the company that makes your eyeglasses goes to jail for helping you."

     

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  36.  
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    bob, Aug 3rd, 2012 @ 12:06pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    No. He said that the person who made it available was guilty of infringement. The person who watched it was guilty of stealing. And he also said that watching it was a bad thing.

    "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. "

     

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  37.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:06pm

    Re:

    Judge Posner has come out as a judge! Oh no.

     

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  38.  
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    bob, Aug 3rd, 2012 @ 12:08pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    Well, Mr. Posner's on my side now. He says it's stealing and it's bad.

    And remember that Posner's opinion on infringement only applies to the person who downloaded Thomas's songs. The person who made them available was guilty of infringement.

    So choose your poison: infringement or theft.

     

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  39.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:09pm

    Re: Re: Re: See! Making a copy is theft...

    IP addresses are reliable as eyewitnesses :)

     

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  40.  
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    bob, Aug 3rd, 2012 @ 12:09pm

    Re: Re: Re: See! Making a copy is theft...

    Who cares if it's clunky. The judge said it was stealing and it was bad.

     

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  41.  
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    bob, Aug 3rd, 2012 @ 12:11pm

    Re: Re: See! Making a copy is theft...

    Uh, he didn't use the word "morally". He didn't say it was just an abstract concept. He said it's equivalent to stealing a book. Many laws operate under a doctrine of equivalence.

     

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  42.  
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    Rikuo (profile), Aug 3rd, 2012 @ 12:13pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    No, I meant citations on cases where an IP address is considered better evidence than DNA.

     

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  43.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:13pm

    Re:

    Whan was he an activist judge as it relates to copyright?

    I only recall him saying patents are broken.

     

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  44.  
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    pbarker (profile), Aug 3rd, 2012 @ 12:20pm

    1000 Cd's ?

    okay.

    1k cd's hmm.... an estimate for a cd case + plus cd is around 2 oz. do the math - you get about 125lbs.

    Hard to run from the po po carying that much weight.

    /sarc

     

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  45.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:23pm

    And you know, bob, in your haste to say, "See, it's theft." That is not what the judge is saying at all. Reading it slowly and carefully, what he is specifically referring to in this case is watching the video that is normally behind the paywall, which he DOESN'T actually say is theft, but he compares it to someone walking into a store and taking a book.

    Copyright infringement though, as has been noted and pointed out repeatedly is NOT theft. It's just not. No amount of saying otherwise will make it so.

     

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  46.  
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    RD, Aug 3rd, 2012 @ 12:23pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

     

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  47.  
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    Rikuo (profile), Aug 3rd, 2012 @ 12:25pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    You didn't answer my question. Why are you so happy that Jammie Thomas faces lifelong economic slavery to the RIAA for sharing a few songs?

     

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  48.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:25pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    Err, nowhere does it cite any IP related numbers... So how is this even relevant?

     

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  49.  
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    Rikuo (profile), Aug 3rd, 2012 @ 12:28pm

    Re: Re: Re: See! Making a copy is theft...

    If they're equivalent bob...why is it that the penalties for copyright infringement are so much harsher than actual theft? I steal a few CDs from a store, I get a fine of a few hundred to a few thousand and maybe some jail time.
    Copyright infringement, on the other hand no! That's when, after sharing a few songs, I may have to sell my house and all my worldly possessions to pay the fine.

     

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  50.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:30pm

    Re: Re: Re: Re: See! Making a copy is theft...

    Unless you are Judge Vaughey, and your "ruling" is deemed unconstitutional:

    http://pjmedia.com/tatler/2012/07/06/competent-judge-throws-convicted-felon-bre tt-kimberlins-peace-order-out/

    Cause, you know, the judge is ALSO ruled by law.

    Not what he feels like. Or what boB feels like.

     

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  51.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:32pm

    Re: Re: Re: Re: See! Making a copy is theft...

    Is it stealing if I walk into the theater and see the movie without paying?

    What if my friend downloaded the movie, and I came to his house the night he was showing it. Would I be stealing?

    Thanks for playing.

     

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  52.  
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    Rikuo (profile), Aug 3rd, 2012 @ 12:34pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    "No. He said that the person who made it available was guilty of infringement. The person who watched it was guilty of stealing. And he also said that watching it was a bad thing."

    Even if we agree that bypassing a paywall is now equivalent to theft...what about cases where you don't know? I can click on Youtube and watch as many videos as I want, and most of the time, I don't know if they're "legal". More and more people are deliberately putting up their own work. There are full movies to be found there, uploaded by the studios. How is the average person supposed to know that the movie they're viewing at Link A is infringement? Remember when Universal sued Youtube over videos it had itself uploaded deliberately?

     

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  53.  
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    Rapnel (profile), Aug 3rd, 2012 @ 12:43pm

    Re: Re: Re: Re: See! Making a copy is theft...

    winner.

    Bob, the concept you might actually be reaching for, or brushing past, is justice. Not this stuffing of square peg of someone's temper tantrum induced desires into z round hole of a just penalty.

     

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  54.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:50pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    First let me say that I appreciate the comments. Including Bob's. This is a good discussion.

    I do think Posner's analogy is flawed, however. Nothing is taken, or stolen. It's more like reading a photocopy of a book in a bookstore, and then leaving it there when you are finished. It seems like a minor ethical dilemma for those that know that the photocopy is unauthorized. But you wouldn't jail someone over it.

     

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  55.  
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    Anonymous Coward, Aug 3rd, 2012 @ 12:53pm

    I'd look at more like someone handing you a book to read. You don't know where it came from, or if they bought it. But you get to read it. If I put a song up on youtube, or toss it in a torrent, you have no way of knowing if I'm authorized to do so. It could be my song. I could be a label exec uploading it for promotion, or I could be some guy who got the CD, ripped it, and uploaded it. You're just downloading it to listen to.

     

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  56.  
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    Anonymous Coward, Aug 3rd, 2012 @ 1:08pm

    Re: See! Making a copy is theft...

    http://www.merriam-webster.com/dictionary/theft
    Says that theft is: "the act of stealing; specifically : the felonious taking and removing of personal property with intent to deprive the rightful owner of it b : an unlawful taking (as by embezzlement or burglary) of property"

    The electronic ones and zeros that make up the movie are not property.
    Copying them does not deprive the rightful owner of said property.

    The Judge is wrong in his analogy.
    Watching the streaming movie is more like going to the bookstore and reading the book at the store but not purchasing it.

    Maybe they could have you arrested for loitering but that would be about the only crime that took place and that does not translate to "on the Internet" because one can not be arrested for loitering in the comfort of their own home.......

     

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    Rikuo (profile), Aug 3rd, 2012 @ 1:13pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    Thanks, but I don't feel proud of myself. I used something that bob has never heard of: logic. I considered all the angles and noticed incongruities.
    I can say that according to everything bob has written here in the comments on this site, he's never done such a thing in his life.

     

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  58.  
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    Anonymous Coward, Aug 3rd, 2012 @ 1:15pm

    Re: Re: Re: Re: Re: See! Making a copy is theft...

    |Is it stealing if I walk into the theater and see the movie without paying?
    No, that would be called trespassing

    |What if my friend downloaded the movie, and I came to his house the night he was showing it. Would I be stealing?
    Do you regularly steal from your friends when they invite you over to watch a movie?

     

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  59.  
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    Rikuo (profile), Aug 3rd, 2012 @ 1:18pm

    Re: Re: See! Making a copy is theft...

    Which is something I've done once or twice. I've gone down to my local bookstore, picked up a graphic novel, sat down in a comfy chair and read it all the way through. Then put it back on the shelf. I was allowed walk right out the front door, with nary a glance in my direction and nothing said.

    In my defense, I don't feel that what I did was wrong. There is a clear difference between reading the book once and putting it back, versus paying for it and bringing it home. I don't have those graphic novels to hand, to re-read as many times as I want. The graphic novel is more than the story within: its the ink, the pages, the fact its a physical object. I chose not to pay the price and thus I didn't get to keep this physical object.

     

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  60.  
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    Anonymous Coward, Aug 3rd, 2012 @ 1:23pm

    I agree with Goldman in this case. The opinion doesn't address the key issues that other, similar cases have been decided on, and is really just one in a long series of wacky copyright opinions from Posner.

    It is, of course, no surprise that Mike would disagree with Goldman in this case, since Mike is a results-oriented guy. Posner is too. But judges don't get to make up the law the way they think it ought to be, when the statute and the long history of case law contradicts that result.

    The opinion glosses over the most critical point by saying "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 [of reproduction.]" Yet, most other opinions dealing with this issue go into detail to explain that, when you view a web page, you DO make a temporary copy, therefore putting the right of reproduction in play.

    Posner simply ignores this temporary copy aspect. If the record shows no temporary copy is made in this case, explain that! If the record doesn't show one way or another, then reverse or remand on those grounds. Don't just ASSUME the facts that every (or nearly every) other court bases their opinions on aren't applicable here.

    A couple other minor points:

    A copyright license is not necessarily "just a type of contract" since it requires no consideration, or even agreement between parties (this is probably immaterial to the result, but not a strong start to this opinion).

    Additionally, bypassing a paywall is only somewhat like, but is not "equivalent to stealing a copyrighted book from a bookstore and reading it." This much should be uncontroversial to Techdirt aficionados.

     

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  61.  
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    Anonymous Coward, Aug 3rd, 2012 @ 1:24pm

    Re: Summary: the uploader/host is liable

    Except for the fact that viewing something online, in many cases, necessarily encompasses making a temporary copy on your computer.

     

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    Anonymous Coward, Aug 3rd, 2012 @ 1:27pm

    Re:

    He says it is "equivalent to stealing..."

    Which is nonsense. Not surprisingly, people are happy to latch on the Posner's nonsense they agree with, while averting their eyes from the nonsense they don't agree with.

     

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  63.  
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    Anonymous Coward, Aug 3rd, 2012 @ 1:28pm

    Re:

    From a copyright perspective, though, reading a book doesn't make a copy, whereas downloading something does.

     

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  64.  
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    Anonymous Coward, Aug 3rd, 2012 @ 2:00pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    Idiot bob........ has a nice ring to it

     

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  65.  
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    John Fenderson (profile), Aug 3rd, 2012 @ 2:01pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    It's not. It's just bob.

     

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  66.  
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    Anonymous Coward, Aug 3rd, 2012 @ 2:08pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    Thats either a typical high and mighty comment, or an attempt at comedy?

     

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  67.  
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    ltlw0lf (profile), Aug 3rd, 2012 @ 2:41pm

    Re: Re:

    Which is nonsense. Not surprisingly, people are happy to latch on the Posner's nonsense they agree with, while averting their eyes from the nonsense they don't agree with.

    Theoretically it could be theft of service or defrauding an innkeeper (though Defrauding an Innkeeper usually only works for walking out on a bill at a restaurant or at a hotel.)

    It is nonsense, since it is not equivalent to either these things...since, as noted by others, it is more like walking into a bookstore or library, reading a book, and then walking out without paying for the book. Even walking into a movie theater and watching a movie without paying can be perfectly legal in some cases, and when it isn't, it is usually charged as trespass (for example, CA PC 602(m)), not theft.

     

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  68.  
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    ltlw0lf (profile), Aug 3rd, 2012 @ 2:45pm

    Re: Re:

    From a copyright perspective, though, reading a book doesn't make a copy, whereas downloading something does.

    Which Posner covers in his comment. Streaming(*) is not downloading, and so long as the person does not make a copy of it locally, they are not committing copyright infringement.

    (*) - which does include copying bits into a temporary buffer in order to display on the screen, but does not keep an entire copy of the work.

     

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    Anonymous Coward, Aug 3rd, 2012 @ 3:02pm

    Re: Re: Re:

    Where does Posner address that? I saw that addressed precisely nowhere in the opinion, and it was not apparent that the conduct at issue was limited to streaming.

    Then again, I was reading the opinion rather quickly.

     

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    DC (profile), Aug 3rd, 2012 @ 3:51pm

    What Posner is doing is technically rewriting the law by ignoring one class of copying, without going into detail as to why it should be ignored for purposes of copyright law.

    The courts have actually been doing this since the dawn of digital media.

    If this were not the case, then playing a legitimately purchased DVD, even in my legitimately purchased DVD player, would be copyright infringement. All streaming would be infringement. Digital media, let alone all digital computing requires copies, and nowhere on the media you purchase will you find authorization for those copies.

    In fact, you find an FBI warning telling you that all copying is infringement, subject to a scary big fine.

    It would sure be nice if those critters in Washington would finally get their act together and allow copyright and, you know, digital computing, to coexist in a functional and legal fashion.

    While I generally dislike judges ignoring the law or writing new law via precedent not supported by the text of the law, sometimes it's required in order to allow basic things to work because Congress does not work. Checks and balances and all.

    So until Congress figures out they have no clue, starts including the technology sector in the discussion, and corrects the laws so that things can, you know, work. I'm afraid I would rather judges allow a wide range of unauthorized copying rather than enforce the infringement that occurs when I play the DVD I bought in the DVD player that I bought, neither of which I have modified.

     

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  71.  
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    Anonymous Coward, Aug 3rd, 2012 @ 4:30pm

    Re:

    If this were not the case, then playing a legitimately purchased DVD, even in my legitimately purchased DVD player, would be copyright infringement.


    The pre-existing law of implied license —which predates VCRs— covers the case of licensed DVDs in DVD players. Now you could argue that implying a license in this situation required an extension of the law, because some early opinions held that implied license only covered the relationship between author and publisher—but it's not a large jump.

    Alternatively, in a world where judges had a little bit of engineering imagination about technological details, 17 USC 117 could be extended to cover the microprocessor(s) in your DVD player.

     

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  72.  
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    Anonymous Coward, Aug 3rd, 2012 @ 4:46pm

    Re: Re:

    From a copyright perspective, though, reading a book doesn't make a copy, whereas downloading something does.


    From a copyright perspective, a “copy” —like a “work”—   is a term of art.

    With a copyright perspective, we are speaking in the context of a limited, statutory monopoly: The important definitions are creatures of the law.

     

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  73.  
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    Anonymous Coward, Aug 3rd, 2012 @ 5:19pm

    Re: Re:

    Here's an example:

    http://bulk.resource.org/courts.gov/c/F2/847/847.F2d.412.87-2663.html

    Basically imports a "teacher exception" from the 1909 Copyright Act into the modern Copyright Act 'cause he thinks it's a good idea, even though the Copyright Act has nothing suggesting such an exception.

     

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    Anonymous Coward, Aug 3rd, 2012 @ 5:21pm

    Re: Re: Re:

    Yes...and did you have a point?

     

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  75.  
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    Anonymous Coward, Aug 3rd, 2012 @ 5:24pm

    Re:

    "If this were not the case, then playing a legitimately purchased DVD, even in my legitimately purchased DVD player, would be copyright infringement."

    Yeah, that's just not true. Not all copying = infringement.

    But Posner's opinion should explain why one type of copying (by someone watching the video) isn't infringement, rather than just assuming that it doesn't happen.

    I'm not a fan of Posner's results-oriented jurisprudence, regardless of whether the results make sense.

     

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  76.  
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    Anonymous Coward, Aug 3rd, 2012 @ 5:30pm

    Re: Re: Summary: the uploader/host is liable

    Yeah because that streaming video is automagically being saved to a file on my desktop that doesn't get deleted except by my choosing so I can double click and watch anytime I want.

    Good job with the half truth, idiot.

     

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  77.  
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    DC (profile), Aug 3rd, 2012 @ 6:58pm

    Re: Re:

    So you would rather have results that make no sense, regardless of how many decades Congress takes to make the law make sense?

     

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    DC (profile), Aug 3rd, 2012 @ 7:00pm

    Re: Re:

    Please expound on how there is pre-existing law for implied license that covers all of this necessary copying, but how the **AAs and their defenders are citing the necessary copying as being evidence of infringement.

     

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  79.  
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    Anonymous Coward, Aug 3rd, 2012 @ 7:38pm

    Re: Re: Re:

    Please expound on how there is pre-existing law for implied license...

    What's to expound? In the absence of an explicit license, when the law would appear to require a license, the courts will infer a license from conduct. That's straight-forward, and not really controversial.

    I was just recently reminded of that while researching § 204(a) caselaw. However, implied licenses are peripheral to signed writings, so...

     

    ... but how the **AAs and their defenders...

    Dude.

    The **AAs try to push the law in all kinds of crazy directions.

     

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    G Thompson (profile), Aug 3rd, 2012 @ 11:07pm

    Re: Re: See! Making a copy is theft...

    You realise that you have no pissed off every crazy crackhead by alluding they are similar to bob.. Shame on you!

    Please can't someone think of the poor crazy crackheads!

    :)

     

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    Violated (profile), Aug 3rd, 2012 @ 11:33pm

    Nice

    This ruling is sure nice to hear and I only hope it stands up on appeal. I am also somewhat surprised to hear such a ruling in this age of blame everyone else but the actual infringer like ISPs and linking or announcement sites.

    What also comes to mind is a certain movie streaming site I know that streams infringing movies hosted on other servers and what I considered to be a prime MPAA target. Well what do you know when based on this ruling neither their linked streaming nor the visitor viewing is actual infringement when only the original uploader and server owner could be.

     

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  82.  
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    Violated (profile), Aug 3rd, 2012 @ 11:36pm

    Re: Re: Re:

    Most men recharge in about 2 hours but getting your vitamins would help.

     

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    Lawrence D'Oliveiro, Aug 4th, 2012 @ 5:35am

    Re: Okay, call it theft. I downloaded and watched a movie that I could have bought for $20. What's my penalty? $150,000? $100? What's fair?

    What kind of “theft” is punishable by a fine?

     

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    Anonymous Coward, Aug 4th, 2012 @ 7:39am

    Re: Nice

    ... I only hope it stands up on appeal.

    This decision by the United States Court of Appeals for the Seventh Circuit was the decision on appeal: The Seventh Circuit vacated the preliminary injunction entered earlier by the United States District Court for the Northern District of Illinois, Eastern Division.

    Seventh Circuit is the appellate court. District is the trial court.

    The chances that the Supreme Court will grant certiorari range between the proverbial slim, none, and less than zero.

     

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    skinny poppy (profile), Aug 4th, 2012 @ 8:09am

    Remember DVD X Copy?

    That was a legitimate piece of software intended for making a backup copy of a DVD so the real one wouldn't get annihilated by the kids the first time out of the box. That got shot down pretty fast by MPAA, although I still have a copy...

    Anyway, Judge Posner's ruling applies to an ephemeral copy of a work that is held temporarily in a buffer. No copyright infringement on the part of the viewer here. Somewhat like borrowing a DVD from a public library and watching it, or like the old Borland software license (install on as many computers as you want, but you can only use it on one ccomputer at a time).

    This isn't that hard, people.

     

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  86.  
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    Anonymous Coward, Aug 4th, 2012 @ 8:32am

    "Oh yeah, and Posner doesn't even reference the MPAA's filing in the case, suggesting how compelling that argument was..."

    Finally some good news

     

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  87.  
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    Anonymous Coward, Aug 4th, 2012 @ 10:19am

    Of course, copyright includes a few other rights beyond reproduction. There's also the "public performance" right. After running through a few different theories there, Posner again finds no clear case of infringement.
    Flava contends that by providing a connection to websites that contain illegal copies of its copyrighted videos, myVidster is encouraging its subscribers to circumvent Flava’s pay wall, thus reducing Flava’s income. No doubt. But unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement.... An employee of Flava who embezzled corporate funds would be doing the same thing—reducing Flava’s income—but would not be infringing Flava’s copyrights by doing so. myVidster displays names and addresses (that’s what the thumbnails are, in effect) of videos hosted elsewhere on the Internet that may or may not be copyrighted. Someone who uses one of those addresses to bypass Flava’s pay wall and watch a copyrighted video for free is no more a copyright infringer than if he had snuck into a movie theater and watched a copyrighted movie without buying a ticket. The facilitator of conduct that doesn’t infringe copyright is not a contributory infringer.
    In other words, the person watching the video isn't doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it's not violating the public performance right either.


    Oh Mike--

    That section you quoted from pp. 8-9 of the opinion is NOT where Posner addresses the public performance right. There, he's clearly talking about the reproduction and distribution right. He says that "myVidster isn't increasing the amount of infringement" because no one's making a copy. That has nothing to do with the public performance right.

    More yellow journalism?

    In other words, the person watching the video isn't doing a public performance (though the hosting server may be). But since myVidster is only helping the person watching the video, then it's not violating the public performance right either.

    Nope. Not what he said. He's not even talking about the public performance right in that quote. If you read the actual part of the opinion that does in fact address the public performance right, you'd see that Posner says that myVidster might be liable for contributory infringement--if in fact users used myVidster to watch Flava Works's works:
    [T]here is an argument that even though the video uploader is responsible for the transmitting and not myVidster, myVidster is assisting the transmission by providing the link between the uploader and the viewer, and is thus facilitating public performance . . . .
    Had the record actually shown that people were using the links, the outcome would likely have been different. So keep dreaming of there being no liability for people that knowingly provide links to infringing works.

     

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  88.  
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    Anonymous Coward, Aug 4th, 2012 @ 11:28am

    Re: Re: Re: See! Making a copy is theft...

    As a former book store employee, thank you for putting it back after you read it. I had no issue with folks sitting around reading material they didn't purchase for whatever reason, it was those who left a fecking pile of unbought crap on the floor for me to clean up that was infuriating.

     

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  89.  
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    Anonymous Coward, Aug 4th, 2012 @ 11:59am

    Re: Re: Re: See! Making a copy is theft...

    Defendants confessing in 80% of the cases before exoneration by DNA says more about the disgraceful way some police go after, lean on, and even terrorize easy targets instead of actually working the crime and getting the facts like they're paid to do than it does about... uh, I dunno, not sure what your point is... IP address evidence fallibility?

    But of course there's a 98.583% chance you pulled that statistic out of your ass, so whatever.

     

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  90.  
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    Corby (profile), Aug 4th, 2012 @ 2:31pm

    Re:

    "Had the record actually shown that people were using the links, the outcome would likely have been different. So keep dreaming of there being no liability for people that knowingly provide links to infringing works."

    The outcome may likely have been different if the record actually shown that people were using the links. The record didn't actually show that people were using the links and until then and shown otherwise the verdict by this judge stands. It will have to be proved that people were using the links and that is something that the plantiff will have to prove if they still wish to continue or bring a case against the defendant.

     

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    bob's own logic, Aug 4th, 2012 @ 6:24pm

    Re: Re: Re: Re: Re: Re: See! Making a copy is theft...

    bob,

    Do you get permission from me to read this? If not, you are a thief.

     

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  92.  
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    Anonymous Coward, Aug 5th, 2012 @ 11:02am

    Re:

    It is, of course, no surprise that Mike would disagree with Goldman in this case, since Mike is a results-oriented guy.

    "Results-oriented" is the nice way of saying that he works backwards. He doesn't care if the reasoning is sound so long as the conclusion is "right."

    Funny how Mike doesn't mention that Posner actually says that myVidster could be a contributory infringer for the embeds. Funny too how Posner says myVidster is directly liable for the backups, but Mike doesn't mention that.

    Not only does he work backwards, he ignores all the parts he doesn't like. Nothing dishonest about that.

     

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  93.  
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    Anonymous Coward, Aug 5th, 2012 @ 8:11pm

    Re: Re: Re:

    A "teacher exception" is a great idea! THINK OF THE CHILDREN!

     

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    Anonymous Coward, Aug 6th, 2012 @ 1:19am

    Dodd didn't like this.

     

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    Tim Griffiths (profile), Aug 6th, 2012 @ 3:02am

    Re: See! Making a copy is theft...

    His point about the book is that reading it after it's been stolen is not the crime, stealing it is. In the same way that watching the uploaded content is not the copyright infringement, reproduction without the right is.

    You may as well try and take his "sneak in to a film" analogy and claim that he means that copyright is the same as trespassing. After all it's actually a term that makes far more sense if we are going to take the stupid step of equating "intellectual property" (A term used to describe a set of disparate laws, not actually a legally defined term in it's self as far as I know) to physical property. Given that the "property" remains both with the owner and the person who copied it then using the term "theft" is illogical but implying the copier is "trespassing" on property we have something closer (if still stupidly wrong) to describe the action.

    But I doubt we'll see "trespassing" gain as much traction as "theft" because it's not as good a term of manufacturing moral outrage via legacy industry PR campaigns.

     

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    Tim Griffiths (profile), Aug 6th, 2012 @ 3:13am

    Re: Re:

    Full quote please so we can have context.

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

    His point is that crime, in this case theft, is not reading the reading of the book but how it was taken. He goes on to say that watching the uploaded video is not the copyright infringement, taking it and uploading it was.

    While I think he could have phrased it better given the way the legacy industry insists on the false use of "theft" while framing this debate it's clear he wasn't saying "copyright infringement = theft". Unless you are attempting to read in to it something that isn't there of course.

     

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    the other Jason, Aug 6th, 2012 @ 9:03am

    Doublespeak

    Let's tell the truth, Coward.

    When you say, "imports a 'teacher exception' from the 1909 Copyright Act," what you imply is that the first law had a written exception and the same lack of the written exception in the new law decisively erases the old law.

    The truth is the exception wasn't written in originally, but was adjudged in repeated case law and established as good judicial practice in deciding in these situations. It's then up for judicial consideration whether the same jurisprudence applies from the original exception to the original law as seen in the form of the new law.

    When you say, "cause he thinks it's a good idea" you imply that he's simply legislating from the bench.

    What really happened is that he considered the same jurisprudence applied in the earlier case law and carefully weighed whether the conditions where the same and decided that with no applicable difference in the two laws as to the case at hand, that stare decisis should rule and the earlier jurisprudence still applies.

    You want us to believe that the current law intentionally changed the practice as to the issue at hand, even though the Copyright Act has no material difference from earlier law as regards this exception.

    If anything Posner's ruling is one of conservatism rather than activism.

     

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    Jason, Aug 6th, 2012 @ 9:11am

    Re: Re: Summary: the uploader/host is liable

    The same is true when playing a full price dvd on your computer.

     

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    Jason, Aug 6th, 2012 @ 9:34am

    Re: See! Making a copy is theft...

    bob, Posner also said that reading a book from the bookstore without paying was stealing, but I read books at the bookstore all the time right in front of the store staff and managers.

    The last time I was in there, the store manager came over and thanked me for coming in. When he saw the book I was reading, he suggested another I might like. He had read it during his breaks over the last two weeks and was really thinking of buying it.

     

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    Jose_X, Aug 6th, 2012 @ 10:31am

    Re: Re: Re: Summary: the uploader/host is liable

    I don't see how that changes the story. I think I have seen licenses where it is clarified that such copying is allowed but is recognized as copying nevertheless.

    I think the argument should be on fair use or something else. If you went into the theater and put a camcorder in front of your eyeballs, you'd be creating a copy. In this case with the Internet+computer, the copy is necessary to even see it in the first place (as perhaps your brain+eyeballs might possibly be creating a "copy"), but it's still copying. I think the reasoning will need to be adjusted.

     

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    Anonymous Coward, Aug 6th, 2012 @ 10:45am

    Re: Re: Re: Re:

    Whether it's a good idea or not doesn't make it part of the law, though.

    That's sort of the definition of an "activitist" judge: thinks something is a good idea and/or *ought* to be part of the law, therefore rules that it *is* part of the law.

     

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  102.  
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    Anonymous Coward, Aug 6th, 2012 @ 10:52am

    Re: Doublespeak

    I don't think that's an accurate characterization of either the 1909 jurisprudence, the current text of the Copyright Act, or Posner's reasoning for maintaining the "teacher exception."

    A good summary of the law here, which rejects the 7th Circuit's indulgence of this teacher exception, is in Morales-Cruz v. Univ. of P.R., 792 F. Supp. 2d 205
    (D.P.R. 2011). Unfortunately a quick Google couldn't find a link, but maybe you can find it.

    Anyway, you can point to any basis in the 1976 Copyright Act for an exception to the explicit work-made-for-hire framework, I'm interested.

    I think Posner himself actually sums it up nicely, when discussing the text of the 1976 Copyright Act (before departing to carry forth an exception with no basis in the text of the Act): "Section 201(b) of the Copyright Act provides that "in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author ... and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." Since one of the definitions of "work made for hire" is "a work prepared by an employee within the scope of his or her employment," 17 U.S.C. Sec. 101; since the plaintiffs were employees of the school district; and since there is no signed (or other) writing that purports to entitle them to copyright a work for hire, the conclusion may seem inescapable that their manual was a work for hire and the copyright was therefore owned by the school district."



    Stare decisis has no place here, because he was interpreting a new law, where

     

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

  103.  
    identicon
    Anonymous Coward, Aug 6th, 2012 @ 10:55am

    Re: Re: Re:

    "His point is that crime, in this case theft, is not reading the reading of the book but how it was taken"

    Ok, but in his "avoiding the paywall" scenario, nothing is taken, which makes the analogy bad, and the use of "equivalent" flat out wrong.

     

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

  104.  
    identicon
    Anonymous Coward, Aug 6th, 2012 @ 10:58am

    Re: Re: Re:

    I would rather the courts not usurp the power of the other branches of government.

    That may include some undesirable results, which you are going to get no matter what, because nobody agrees with Congress 100% of the time.

    Courts interpreting acts according to their text have been the motivation for Congress to clarify their meaning. I'd rather Congress not slap some crappy language together and figure "eh, the courts will figure it out if we screwed up."

     

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

  105.  
    identicon
    Anonymous Coward, Aug 6th, 2012 @ 11:00am

    Re: Re:

    ""Results-oriented" is the nice way of saying that he works backwards. He doesn't care if the reasoning is sound so long as the conclusion is "right.""

    Well, yes. I'm more of a process/principles oriented guy myself.

     

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

  106.  
    identicon
    James Plotkin, Aug 8th, 2012 @ 8:21am

    overly simple interpretation

    I admit I haven't had a chance to read the case a second time (just skimmed it once), but it seems Mike has oversimplified he ruling. Posner's decision was much more narrow than this post suggests. For a more complete analysis see Barry Sookman: http://www.barrysookman.com/2012/08/08/understanding-flava-works-v-myvidster-does-inline-linking-inf ringe-copyright/

    I may weigh in on my own blog upon giving the case a more thorough read.

     

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

  107.  
    identicon
    Anonymous Coward, Nov 3rd, 2012 @ 4:20am

    Re: Re: Re: Re: See! Making a copy is theft...

    He means the real 3 strikes laws, the ones about felonies, not the proposed agreements with ISPs about copyright infringement. He is citing a pretty harsh and cruel practice from "real life", I think in order to create a desensitization effect about going to jail.

     

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


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