Techdirt. Stories filed under "embedding"

Embedding And Linking Deemed Infringing In The Netherlands; Downloading... Not So Much

Mike Masnick — Thu, 27 Dec 2012 10:55:00 PST

Here are two copyright stories coming out of the Netherlands, one good and one bad. The first is that the Dutch government has rejected an effort to make downloading copyrighted works for personal use infringement. There is, of course, an existing "you must be a criminal" tax on blank media there, which is part of the reason why such downloads are considered okay. Of course, now we only have to wonder how long it will be until the Netherlands shows up on the US's Special 301 report for "naughty" countries who don't follow Hollywood's extreme maximalist positions.

Of course, the entertainment industry may be much happier about a different copyright issue in the Netherlands. A court ruling in The Hague found that "embedding or linking to radio-streams without a license constitutes a violation of copyright." This is particularly crazy because it includes linking to a station's own stream. Yes, you read that right. This isn't talking about pointing to infringing streams, but to legitimate ones. And the court still found it to be infringing.

‘Nederland.fm’ embeds radio-streams from other (official) radio websites, while ‘Op.fm’ offers hyperlinks to those streams. Buma/Stemra argued that the websites enable users to listen to the music offered on the streams, and that this should be constituted as a ‘publication’ of the music to the public. The court followed this reasoning, primarily based on the fact that ‘Nederland.nl’ and ‘Op.nl’ not only offer streams or links, but they capture the consumer on their page, by playing the music within their own environment and because this environment, including ads, stays visible after clicking the links and buttons of radio stations.

That makes no sense at all. Just because someone makes money in some other manner doesn't mean they automatically owe money to someone else when they were using their legal streams. Unfortunately, we keep seeing wacky rulings like this around the globe that just muddy the picture when it comes to creating sensible copyright policies.

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

Mike Masnick — Fri, 3 Aug 2012 10:22:45 PDT

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...

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MPAA Just Won't Quit: Jumps Into Legal Dispute To Argue Links & Embeds Are Infringing

Mike Masnick — Thu, 12 Apr 2012 11:15:00 PDT

It appears that the MPAA has jumped into a legal dispute that hits on a few different points, all of which are interesting, but the really crazy point is the fact that the crux of their argument is that merely embedding or linking (technically, the same thing) to infringing videos is infringement itself -- and someone setting up a site that lets people embed or link should also be guilty of infringement. This is, to put it mildly, crazy talk from an organization that still seems to have an institutional cluelessness about how the internet works. To be sure, there are a few different issues related to this case, which was really about porn company Flava Works suing the site MyVidster and its owner, Marques Gunter. MyVidster lets people link or embed videos from other sites. It did not host any of the content itself. In accordance with the DMCA's notice and takedown provisions, Gunter would take down any embeds or links when he received a notice. However, the judge said that the site lost its DMCA safe harbor provisions because he did not take any further action: specifically because he did not cut off repeat infringers:

“It is true that service providers are not required to police their sites for infringement, but they are required to investigate and respond to notices of infringement—with respect to content and repeat infringers,”

Now, it is absolutely true the DMCA requires that a site have a policy for terminating repeat infringers. But it does not go so far as to say that they then need to proactively "investigate" content related to repeat infringers as the court stated. EFF and Public Knowledge filed amicus briefs pointing out how this is not clear at all, and is quite problematic, since sites don't quite know what is and what is not infringing. This is a big issue, because the sheer vagueness of the law leaves plenty of sites exposed -- and as we recently noted, the way the DMCA (stupidly) works, is that if you fail to meet each and every complex condition of the safe harbors, you can lose them all entirely. That's ridiculous, but that's how the law is set up.

Google and Facebook also weighed in on the case, bringing up some of the same points, but raising the bigger issue of the pure insanity that Flava Works (and the judge!) appear to think that an embed/link is the same thing as hosting the content yourself. This case is in the 7th Circuit, but over in the 9th Circuit, there is a perfectly reasonable and logical decision in one of the many Perfect 10 cases, which establishes the totally common sense "server test." Basically, it's this: is the content distributed from your server? No? Then you're not the one guilty of direct infringement. This makes sense because it's correct. Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video. So, that's what Google and Facebook explained to the appeals court.

So what did the MPAA in its luddite-soaked haze have to say about all of this? Yeah, it sarcastically dismisses common sense and launches itself headlong into crazy land by insisting that it's the folks who think the server test is reasonable who are out to lunch:

"Even assuming that Amazon.com’s novel 'server test' applied to the display right (and it should not), the statutory language clearly precludes application of that test to the separate performance right. myVidster users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the infringed work."

I realize that the MPAA isn't known for having any technological capability whatsoever, but it has to be said: this is just flat out wrong. Embedding does not directly infringe the performance right. They're linking to someone else's server entirely. That host may directly infringe the performance right, but the person who embeds/links to it cannot. Because they have no control over the work at all. They literally are writing an insanely short line of text (or, more likely, copying that tiny line of text) that literally just points your browser to some other server. That's it. When merely pointing someone to another server is seen as direct infringement of a performance right, we've got serious problems.

And it doesn't end there (of course). The MPAA also tries, again, to pretend that the DMCA requires proactive filtering. They complain that MyVidster:

... willfully blinded itself to infringements by failing to take steps, like filtering, to identify re-postings of the same infringing links that Flava had already identified.

Yes, the MPAA is trying to lie and back its way into a proactive requirement for sites to monitor by saying that failing to filter is "willfully blinding." That's wrong. It's obnoxiously wrong. It's the MPAA trying to rewrite the DMCA and add in SOPA filtering requirements on the fly, even though its lawyers already know this argument has failed over and over again. The MPAA just seems to believe if it keeps saying it, maybe it'll find a clueless court to agree.

This is what's so pitiful about the MPAA. When they lose, they don't realize they were wrong, they just keep arguing the same damn thing in court over and over again, and act shocked that anyone might argue otherwise, even though they've lost this argument in court over and over again.

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UPDATE: Brazilian Performance Rights Agency Demands Blogger Pay $204 A Month To Embed Videos

Tim Cushing — Thu, 8 Mar 2012 06:19:23 PST

Well, you can never say that performance rights organizations are unwilling to explore every option when attempting to snag a bit more income, ostensibly for their roster artists. American PROs (ASCAP, BMI, etc.) have attempted to collect from Girl Scouts, every cell phone owner with a ringtone and argued that a single person listening to their own music via the cloud is a "public performance." British PROs (PRS, mainly) have levied fees against pretty much any small business that has the audacity to play radios at an audible volume, as well as succeeding in collecting fees for "public performances" from hotels/motels who provide in-room radios for their guests. SABAM, Belgium's PRO arm, has managed to out-thug the rest of the world's PROs, demanding fees from truck drivers for listening to the radio in their cabs ("workplace") as well as collecting for bands that don't even exist.

There's a lot of competition out there in the dog-eat-dog world of performance rights double and triple-dipping, but it appears that Brazil's PRO, ECAD (Central Office of Collection and Distribution) is ready to play in the big leagues. Its strategy? Collect royalties from bloggers who embed videos. (As you may recall, ASCAP tried this a few years back to no avail, but Brazil's relationship with copyright could safely be described as "incomprehensibly inconsistent.")

~~(The following quotes come from a translated page, so they have been copied verbatim.)~~ [UPDATE: Eduardo, the author of the original post, has sent over a better translation of the quotations.)

The saga of unusual collections of the Central Office of Collection and Distribution (ECAD) has added another chapter last week. The boys from the blog Caligraffiti received last Tuesday in an email warning that the collecting society would have to pay royalties for videos from YouTube and Vimeo that appeared on the site.

The saga of unusual collections from the Central Office of Collection and Distribution (ECAD) gained another chapter last week. The boys from the blog Caligraffiti received last Tuesday an email from the collecting society warning that they would have to pay royalties for videos from YouTube and Vimeo embedded on the site.

This is surprising. ECAD already collects performance royalties from Youtube Brasil for its artists. In fact, it collects quite a bit from Youtube.

YouTube Brasil will have to pay 2.5% of its gross revenue per exhibition of songs protected by Ecad (Bureau of Revenue Distribution) in the country. If the amount of the stipulated percentage does not reach BRL 258,000 (US $146,250) in a year, the site must pay the value as "minimum annual fee".

Not only does Youtube Brasil pay a minimum mandatory fee yearly but ECAD has also hit the site with a BRL 645,000 (US $366,000) "subscription fee." The PRO collected roughly BRL 510,000 (US $289,000) in 2011. With Youtube already on the hook for the performance royalties, how does ECAD arrive at the conclusion that embedded video (just a link back to Youtube for all intents and purposes) should subject bloggers to performance royalty payments?

Well, according to ECAD, Youtube is the "transmitter" and of course, has to pay. But blogs embedding videos are "relays" and are also subject to these fees. Basically, ECAD has found a loophole in the existing law and is looking to exploit it. ECAD's spokesman:

[UPDATE: Translation via Eduardo, along with this splendid note -- "This second one has a very bad wording in portuguese as well, written by lawyers in their own language."]:

The right of public performance in digital mode is through the concept of transmission exists in law and in this art. 5 of section II of Law 9.610/98, which issue is the transmission or dissemination of sounds or sounds and images through of radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

The rights of public performance in digital media happen through the concept of transmission found in the article 5, section II of the law 9.610/98, in wich transmission or emission are the diffusion of sounds or images through radio waves, satellite signals, wire, cable or other conductor, optical or other electromagnetic process, so this includes the Internet.

ECAD also argues that the "transmitter" and the "relay" are completely different forms of use and as such, do not represent "double recovery." This is, roughly translated, complete horseshit. But it gets even worse. Bloggers are being charged a flat-rate based on a designation that ECAD itself decides. The cheapest option, most likely, is to be declared a "non-profit." But even that designation saddles the blog with crippling fees.

To blog [as] a nonprofit, the amount charged by Ecad is nothing lightweight: R $ 352.59 (US $204) monthly.

Caligraffiti is a niche blog dedicated to design and technology, with a hit count of 1,000-1,500 hits per day and is not profitable. Every contributor does something other than blogging for income. Despite this, ECAD has designated the blog as a "webcasting or broadcasting program originating from the internet," a category that is sure to increase the amount levied against it.

In response to this collection attempt, Caligraffiti was briefly taken offline. After some legal consultation, the bloggers decided to re-open and fight ECAD head on, stating that this is clearly an attack on the internet itself, which was built on open sharing and dissemination of information.

ECAD is also sticking to its guns, stating that although it has no collection arm "dedicated" to collecting from bloggers, anyone who "publicly performs music" (read: "embeds video") on their site is subject to these fees. Of course, ECAD isn't doubling up on royalties just to be greedy. Its focus is on "the awareness and enlightenment on the need for payment copyright," without which its covered artists would be "disrespected" by callous bloggers and their embedding code.

Eduardo has also confirmed that ECAD has gone after weddings with DJs for performance royalties (as Ninja pointed out in the comments) and pointed out that the BRL $359 amounts to roughly half a month's wages at minimum wage.

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The Web Is Saved: East Texas Jury Says Eolas Patents Are Invalid

Mike Masnick — Thu, 9 Feb 2012 15:50:33 PST

Okay, that happened much faster than I expected. Just a few hours ago, we wrote about Tim Berners-Lee telling an East Texas jury just how insane patent troll Eolas' patents were, along with their claims that all sorts of core web technologies were covered by their patents. We thought it might take some time before anything really happened in that case, but the jury took just a short while before completely invalidating Eolas' patents. Damn! Apparently the jury recognized that when the inventor of the web talks about how obvious a technology was at the time, he probably knows what he's talking about.

I wonder just how silly the long list of companies who "settled" with Eolas before the trial started feel right now.

Of course, all of that settlement money means that Eolas still has a big bank account. That means it'll appeal this ruling, and the case may still go on for a few years. But it's going to have to clear a big hurdle, and in the meantime it won't be able to sue anyone else using these patents. Score one for obviousness and a jury that recognized a patent troll trying to put up an innovation toll booth to try to demand loads of cash it didn't deserve.

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Tim Berners-Lee In Court To Try To Prevent Patent Troll Eolas From Patenting Key Web Concepts

Mike Masnick — Thu, 9 Feb 2012 11:58:07 PST

Remember Eolas? We've written about this infamous patent troll many times, mostly focusing on its big patent fight with Microsoft over the idea of browser plugins -- a case it eventually settled. In 2009, however, Eolas came back and basically sued the web, claiming that all sorts of very basic web technologies were, in fact, infringing on a brand new, ridiculously broad patent (built on the earlier patent), 7,599,985.

However, that case has finally gone to trial, and Wired has sent Joe Mullin -- hands down the best reporter on all things concerning patents -- to cover the case. His initial report is worth reading. Unfortunately, he notes that many of the companies Eolas sued chose to settle, helping to fund Eolas' ability to take this to court. Eight companies remain fighting. Eolas is asking for $600 million from these companies -- including over $300 million from Google and Yahoo.

As he had done nearly a decade ago, web inventor Tim Berners-Lee was called to explain to the court that Eolas' claims are ridiculous and the patents should be tossed out due to tremendous amounts of prior art. Berners-Lee also pointed out that these patents "could be a serious threat to the future of the web." He didn't mince words, noting that all of this stuff was widely known in the community of technologists working on these issues well before Eolas ever came along.

Last summer there was tremendous attention paid to the problem of patents within the tech space, but much of that furor died down after the patent reform bill became law -- even though it addressed almost none of the actual complaints about how the patent system hinders innovation. Once fall came, a lot of focus shifted back to copyright issues around SOPA. But people should be very, very worried about the outcome of this case, because if it goes badly, it could lead to a massive tollbooth on internet innovation.

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

Mike Masnick — Wed, 2 Feb 2011 12:37:00 PST

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.

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The Guardian Makes It Super Simple For Blogs To Repost Its Content

Mike Masnick — Mon, 12 Jul 2010 20:11:20 PDT

We've pointed out a few times that The Guardian newspaper in the UK is not just a believer in the value of keeping its content free online, but is also doing a lot of very interesting experiments. As we hear daily about newspapers and organizations like the Associated Press threatening to sue blogs that repost some of their content (even for commentary purposes), The Guardian is going in the completely opposite direction. As part of its Open Platform program, it has created a tool that lets any Wordpress-based blog repost any Guardian article for free. Yes, this is the complete opposite of what most publications are doing. Rather than whining about "freeloaders" and "copycats" and "aggregators," The Guardian has decided to embrace them and take advantage of the situation.

The only conditions are that you have to republish the full article in the exact format provided (including "text, links and images"). That's because The Guardian is also embedding ads with those syndicated stories. Assuming the ads are not particularly intrusive or annoying, then I would imagine that many blogs find this to be a perfectly reasonable deal. And, yes, if you were wondering, the site doing the syndication is free to include their own ads elsewhere on the page. However, according to The Guardian's explanation of this offering, you can add your own commentary -- it just needs to go above The Guardian's content.

Basically, the Guardian seems to be realizing what so many other newspapers have failed to grasp: that people republishing your stuff are helping to promote your work and spread your work in useful ways. Rather than breaking out the lawyers and the nastygrams, why not figure out a way to make everyone better off?

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Viral Video Producers Want To Charge You To Embed Their Videos

Mike Masnick — Fri, 12 Mar 2010 16:48:46 PST

You may have seen some of the rather popular videos by Common Craft, which has built a rather large following based on these videos about technology and social media using paper diagrams on whiteboards. What the videos are really good at is simplifying things in a way that's easy for people to understand. For example, the video, Twitter in Plain English has received nearly 1.7 million views and is often sent around to people who are trying to understand Twitter.

Like most viral video efforts, the videos are hosted on YouTube, which makes them easy to embed and share. Except, apparently, that's not working within Common Craft's business model. An anonymous reader sent over a story about how the company has set up a new licensing scheme for embedding its videos on websites, and the fees get pretty high pretty quickly. Digital Inspiration notes that embedding one of those videos on a popular website or blog could cost thousands, since the prices are based on views. Lee LeFever, of Common Craft, responded in the comments that this was targeted at companies, rather than "bloggers." However, it's not clear if this means the videos will remain on YouTube -- in which case, companies can just embed them automatically -- or if they'll keep them off of YouTube.

Either way, it's difficult to see this working out. I'm sure some companies will pay, but on the whole, it seems to break the value chain here. Common Craft could, instead, offer up the ability to make custom videos for companies, but on its website, it says that they'd rather just focus on their own videos -- and points anyone who wants custom videos to a series of other video producers. The thing is, if you want your video to be viral, you can't also charge for it. There are three options that I can see, and none of them seem that good:

They leave the videos on YouTube as embeddable, and just hope that companies will pay them anyway.

In this case, many companies would likely embed the videos anyway, not even realizing that CC wanted them to pay up. That leads to confusion and no legal basis for CC's request. After all, it put the video on a video sharing site and allowed embedding. That seems like a pretty clear authorization to embed the video.
They leave the videos on YouTube, but not as embeddable, and make companies pay to embed

As we saw with the band Ok Go, when EMI disabled embedding for the band's videos, traffic plummeted 90%. You don't go viral if you don't allow embeds.
They stop using YouTube altogether, and don't release the videos publicly themselves

It's hard to be viral when the videos aren't anywhere online.

So with all of that, I'm still confused as to how this offering works. It seems like an attempt at the honor system to pretend that an abundant resource isn't abundant. Instead of doing that, why not focus on the scarcities -- such as creating custom videos (as mentioned), consulting (scarce knowledge) or advertising/sponsorship (selling the scarcity of attention). It just seems like other models would make a lot more business sense.

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EMI Gets State Farm To Sponsor Embedding Ok Go Video -- But Should You Need A Sponsor To Embed?

Mike Masnick — Mon, 22 Feb 2010 16:16:00 PST

We were just writing -- yet again -- about EMI's short-sighted decision to block all embedding of Ok Go's videos (even ones that the band produced entirely on their own). This is despite the fact that it was the widespread embedding of the famed treadmill video that helped Ok Go become as well known as it has -- earning EMI a lot of money. Now comes the news of a "resolution" to the issue, as EMI will allow an Ok Go video to be embedded thanks to an as-yet-unexplained "sponsorship" by State Farm. While this shows, in some way, how different business models can step in and help pay for content, it worries me that EMI now seems to think a video needs to be directly sponsored to allow for embedding. Does EMI truly not understand that embedding is what helped Ok Go become so well known? There's no reason why they couldn't have allowed the regular embedding to remain and still have done a sponsor deal on top of it.

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Dutch Judges Plagiarize, Potentially Infringe, Blog Post In Decision About Copyright

Mike Masnick — Fri, 29 Jan 2010 10:30:00 PST

A little while ago, we had a rather long and heated discussion over the question of whether or not embedding/hotlinking is infringement when the original content is hosted/served from elsewhere (in an authorized manner). I cannot see a truly defensible legal explanation for how that is infringing (the content exists solely in two places -- the original server and the browser of the user, both of which are authorized). However, some lawyers clearly disagree. Over in the Netherlands, in fact, a court has disagreed and claimed that embedding is, in fact, infringement. While I think this is a poor ruling that makes little sense, there's something more interesting in this particular ruling (sent in by an anonymous reader). It turns out that, in explaining why embedding should be considered infringing, the judges plagiarized the exact wording of a blog post by a Dutch lawyer.

Now, plagiarism and copyright infringement are two different (though sometimes overlapping) things, but it does seem a bit ironic -- and even under Dutch copyright law, this bit of copying could be seen as infringement as well. Apparently, the judges directly cut and pasted the following two sentences:

"in case law and legal literature it is generally held that an embedded link constitutes a publication. After all, the material can be viewed or heard within the context of the website of those who placed the link, and placement causes the material to reach a new audience."

The exact quote above came from a blog post by lawyer Douwe Linders, who had no idea the judges were going to copy it. While it seems like a simple quote like this should be perfectly legal in any context, let alone a legal decision, the discussion of this notes that while Dutch copyright law does let you quote short bits of content from others for a variety of reasons, it requires attribution. In this particular case, no attribution was provided.

What makes it even worse, of course, is that the quoted/plagiarized/infringing bit might not even be accurate. As we discussed in our own post on the subject, there appears to be significant disagreement over whether or not embedding authorized content could be seen as infringing -- and apparently, there is a widespread debate about it in Dutch legal circles as well, saying that it is far from readily agreed upon in the legal literature.

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Ok Go Explains Video Embedding Issue, Blames YouTube (Partly) And EMI (Only A Bit); Sells Uniforms

Mike Masnick — Tue, 19 Jan 2010 14:59:00 PST

So last week we discussed how EMI was seriously harming the ability of the latest Ok Go video to go viral, by putting on geoblocks and forbidding embedding. The band had said it was upset about this and pointed people to a Vimeo version -- despite the fact that EMI is suing Vimeo for posting music videos (um, oops) and Vimeo supposedly hates commercial content.

The band has now come out with a more detailed explanation that puts more of the blame on YouTube, while also explaining how the band gets to "snort drugs off the Queen of England" (so it's got more important things to deal with). Well, specifically, the band points out that way back when, Google agreed to give record labels a bit of money every time someone watched one of their videos on YouTube. That much is well-known, of course. However, the band claims that this little bit of money is only paid on videos that are seen directly via YouTube, rather than on embedded videos. Why? Well, because advertisers on YouTube only let ads be shown on YouTube itself, so they're not suddenly showing up on some random website (though, of course, those same advertisers probably have no problem using Google AdSense, which does the same thing, but....). So the band suggests the issue is more with YouTube and its refusal to count embedded videos in the views... though it claims it's been arguing with EMI to allow the video anyway.

This still seems backwards and shortsighted by EMI. Even if it's not getting paid for the embedded videos, it seems quite likely that the embeds actually lead to more views on YouTube itself, as people click through. Instead, now, all of the views are going to go to Vimeo. The company EMI is suing. Sensible.

In the meantime, though, Ian from Topspin alerts us to the news that Ok Go is using the Topspin platform to offer up, as a part of its "reason to buy," the uniforms and props from the video shoot. Of course, I would imagine those things would be in higher demand if EMI let people embed the video in the first place...

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EMI/Capitol Records Works Hard To Make Ok Go's Viral Video Less Viral

Mike Masnick — Thu, 14 Jan 2010 12:40:00 PST

You probably know of the band Ok Go's famous treadmill video: It helped attract a ton of attention to the band. The band's lead singer, Damian Kulash, has been quite outspoken about why bands need to be fan friendly, and even took to the pages of the NY Times to discuss the evils of DRM, and has spoken before Congress on music industry issues as well. The band has always done quite a lot to try to connect with fans and not hinder them in any way -- which is part of why it has such a huge following.

So, with the band coming out with a new quirky video, you would think that it would be readily available all over the place. However, Martin points us to the news that the video was put up on YouTube by the band's label, Capitol Records, a subsidiary of EMI, but it did so with geoblocking and with embedding disabled. In fact, if you go to the original treadmill video, you'll see that Capitol Records has disabled embedding on that video as well. Notice that I have it embedded above? That's because I used the embed code from an earlier post back when embedding was allowed. Yet now, go and click on the video... and it gives you an error message saying embedding has been disabled. All those people who helped spread that video? Capitol Records broke them all. Nice of them. It's impossible to fathom what the folks at EMI/Capitol are thinking here. They are making it more difficult to make a viral video viral. Both blocking it from being viewed in various regions and blocking embeds makes no sense at all.

Of course, the band recognizes this and are pissed off about it:

As for the issue of geoblocking, we're incredibly upset that the youtube versions of our videos can't be embedded. Just one more example of major labels accelerating their own demise. We (and every individual band out there) have exactly zero leverage in this particular battle, however. So we post to other sites as well.

In fact, the band itself has now put the video up on Vimeo as well, which does allow embedding: Of course, given that Vimeo has these bizarre and nonsensical rules against commercial use, and this is obviously a commercial video, you have to wonder why this is allowed. Oh yeah, also, it's worth remembering that Capitol Records just sued Vimeo for copyright infringement -- so I can't see the label being all that thrilled about this. Either way, the video is going up in a variety of other places in embeddable format, but not by Capitol Records, meaning that it gets more fragmented, less viral, and hurts Capitol Records. And people wonder why EMI and the other major labels are collapsing.

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Hulu Telling Sites To Stop Embedding So Much

Mike Masnick — Tue, 24 Nov 2009 06:46:00 PST

Once again, we're left wondering how Hulu can survive, given that its ownership has too much interest in restricting what its customers want to do. Following braindead efforts to block specialized browsers, even though they access Hulu content just like regular browsers, combined with blocking anonymous proxies, even those used for perfectly legitimate reasons, Hulu is apparently now cracking down on sites that embed a lot of its videos -- yes, despite having embed functionality specifically allowed.

You may recall that one of the key reasons why YouTube became so popular in the first place was a little javascript hack that made it incredibly easy to embed the video directly into any other website (while still hosting the content on YouTube). Suddenly, rather than having to link to the video, it was easy to have video on any other website. Hulu of course recognized the value of that and included embed code functionality as well, but quickly found itself unsure how to deal with the fact that people actually used it. Back when Hulu was still in private beta, requiring invites to access the sites, some other sites quickly decided to just embed all the videos on their own sites, pulling in the traffic that Hulu could have generated for itself. Many sites apparently are still embedding lots of Hulu shows, and Hulu has simply decided to tell those sites to stop. As NewTeeVee notes in the link above, nothing good will come from this policy. It comes across as being rather against how the web works and how people expect the web to work. In the end it just appears like yet another "but we can stop people from doing what they want to do" move that all too often comes from those in legacy industries.

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Great Moments In AP Protectionism: Demands Takedown Of Videos It Purposely Shared With Affiliate

Mike Masnick — Thu, 9 Apr 2009 10:18:00 PDT

A bunch of folks are submitting the latest and greatest in the Associated Press's attempt to become the RIAA of news. The AP, smartly, has a YouTube channel, where it puts up a bunch of AP videos, with the embed code enabled. An AP affiliate in Tennessee reasonably embedded some of those videos... and were promptly accused of "stealing" the AP's licensed content and ordered to take it down. There are so many things wrong with this situation it's difficult to know where to start:

It's the AP's own YouTube channel.
This radio station is an AP affiliate.
The AP turned on the embedding function
When told all of this, the AP exec demanding the takedown had no idea it had a YouTube channel.

This is clearly part the right hand not knowing what the left hand is doing... but it's also a sign of how out of touch the AP remains. When it purposely offers up content for sharing, it did something smart. Demanding that anyone take down content that was specifically designed to be shared in this manner is just amazing.

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Is Embedding Infringement? MPAA Sues Two Sites

Mike Masnick — Wed, 30 Jul 2008 07:28:00 PDT

While we still need to wait for the end result of the YouTube/Viacom case to learn whether hosting infringing videos is infringement itself, there's another open question about whether or not linking to or embedding infringing videos is also infringing. It seems difficult to understand how it could be infringing, as it's no different than pointing someone to freely available content (and, technically, linking and embedding are no different at all -- it's just some HTML). The person (or computer) doing the linking or embedding has no idea whether the content being linked or embedded is infringing -- and it seems reasonable to believe that if it's available online, there's nothing wrong with linking to it.

Yet, here we have the MPAA suing two sites that both link to and embed various movies. The two sites in question, FOMD (Found Online Movie Database) and MovieRumor, don't host the movies themselves. They merely point people to various movies that are publicly available online. It would seem like a rather drastic stretch of copyright law to claim that is also infringement, but don't be too surprised at how this will be argued. The MPAA will play on emotional, rather than rational, arguments -- and it may actually work, given some similar cases in the past.

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We Can't Quote The AP... But Can Embed Its Videos?

Mike Masnick — Mon, 23 Jun 2008 12:17:15 PDT

The Associated Press is still insisting that bloggers shouldn't be excerpting its articles online without a license -- but apparently no one told the folks pushing AP videos. Jon Ashley wonders about this difference, noting that the AP has its own YouTube Channel, where it appears that the videos all have embedding enabled. This, of course, takes us right back to the question we asked last week concerning whether or not embedding videos can be seen as infringement. In the meantime, since the AP insists it really wants to be a part of the "conversation," can it explain why embedding videos is great, while quoting is not?

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Blog Receives Takedown Notice For Embedding A Video With Authorized Embed Code

Mike Masnick — Wed, 18 Jun 2008 10:45:00 PDT

A year and a half ago, I wondered outloud if embedding an infringing video would be considered infringement as well. Technically, it's no different than just linking to infringing content. However, imagine an even more ridiculous scenario: what if a website puts up its own videos with an embed code, but then sends out takedown notices to anyone who embeds it? Russ writes in to let us know that's exactly what happened with an Iowa sports blog that was trying to raise awareness of the floods in Iowa (a good thing) and embedded a video from the website of the Des Moines Register using the very embed code offered by the Des Moines Register. So what happens? The Des Moines Register sends a takedown notice claiming copyright infringement. After complaining about this on the blog, and getting some attention over it, someone from the Register apologized and said that it was an overeager staffer who was unfamiliar with the fact that videos on the site included embed codes.

While it's great that the Des Moines Register quickly recognized its mistake, apologized and promised to make sure it wouldn't happen again, it still does raise some questions that are almost certain to show up in the future. It's still not clear if a site is responsible for embedding infringing videos. But what if the video's copyright holder doesn't like how a video is being used? What if, for example (and this is not what happened in this case) a site had used that same video of the Iowa floods to mock the victims? I would imagine that it would be tempting in that case to send out the takedown notice, even though the embed code had been offered up. We're almost certainly going to see this happen in the near future. Someone who puts up a video with an embed code is going to be unhappy with how that content is being used, and will claim infringement, even though the content was freely offered up.

The copyright implications of embedding are not at all clear -- and that means you can be sure that lawsuits are on their way.

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Viral Weezer Video Not Allowed To Be Viral

Mike Masnick — Tue, 17 Jun 2008 12:12:00 PDT

The band Weezer has been getting a lot of buzz for its latest video for the song Pork and Beans, which takes a bunch of viral video "YouTube stars" and has them reprising their roles in its own video. Others have done similar things, so perhaps it's not that unique. However, a Techdirt reader named Mike noticed something quite odd about the Weezer video on YouTube. For a supposedly "viral" video -- Weezer or Universal Music has disabled the ability to embed the video in other sites (see update below). Embedding these kinds of videos, of course, is exactly how they go viral. Specifically disabling that feature on a video that's entirely based on viral videos seems backwards.

It's difficult to believe that Weezer did this themselves -- as the band has long been seen as embracing the internet and new technologies and distribution means. Hell, just doing this type of video shows how connected to the internet scene they are. So it makes you wonder if it was the band's label, Universal Music, that has stopped the embedding. If they're going to do this, why not follow Viacom's footsteps and ask the video to be taken down completely.

Update: Aha! Within hours of us posting this, the embed feature was re-enabled. No explanation as to what happened. Someone from Weezer or Universal care to comment?

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Viacom's New Argument Against YouTube: Embedding Videos Removes Safe Harbors

Mike Masnick — Wed, 28 May 2008 19:37:37 PDT

While we already discussed Google's latest response to Viacom's lawsuit against YouTube, Cynthia Brumfeld has picked up on an interesting point that's been overlooked: Viacom's amended complaint includes a slightly different argument as to why Google/YouTube are not protected by the DMCA's safe harbors, effectively claiming that YouTube takes an active role in transmitting the content. This is somewhat similar to an earlier argument that some made that YouTube is disqualified from the safe harbors because it transforms video from its original format into flash, but stretches it even further.

Even worse, Viacom brings up the issue of embedding videos. Of course, YouTube's embedding feature that allows anyone to easily embed a video in any webpage was one of its big selling points. Last year, we had raised the question (that still hasn't been answered) whether or not it was copyright infringement to embed an infringing video into your own site (even though you don't host the content at all). Viacom seems to be claiming that by enabling this act of embedding is infringing. Why? Because it's YouTube serving up the video, rather than the original uploader.

That's a huge stretch by any imagination and hopefully the court will toss it out. Otherwise, it effectively nullifies the entire safe harbor provision of the DMCA. The point of the safe harbors are to protect the platform provider for the infringement of its users. If the court accepts Viacom's claim here, then it completely throws out that clear meaning of the safe harbor provision. It basically says that any service provider who "hosts" content that is accessed via another site is now guilty of copyright infringement, even if the company is never alerted that the content infringes. That goes against the clear meaning and purpose of the safe harbor provisions.

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