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

from the what-happens-when-you-have-no-one-technological-on-staff dept

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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Companies: facebook, flava works, google, mpaa, myvidster

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

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192 Comments
S (user link) says:

Re: Re: Re: The free speech angle

It’s not, but their entire EXISTENCE is based around the assumption it is.

I’ll reiterate that: controlling “infringement” is about controlling artists and their audiences.

The RIAA is not simply a profit-oriented organisation: if it were, it would seek to maximise profits; instead, it seeks to maximise control, even when that reduces profit, short or long term.

DannyB (profile) says:

Re: Re: The free speech angle

Everyone in the neighborhood knows that the house on *that* corner is a crack house.

Is telling someone this a crime?

What if they ask you? (As a web browser does.) “Where is the crack house?” “It’s over there on that corner.” Was a crime just committed? What if the question was for the purposes of avoidance instead of patronage?

Anonymous Coward says:

Re: Re: The free speech angle

First we have to agree that there is criminal activity. The MPAA doesn’t even care about individual songwriter’s copyrights. They’re whole purpose is to protect record labels. So this valiant crusade is less appealing when seen through the eyes of a musician who would rather not criminalize people for trading their music around.

Rottweiler says:

Re: The free speech angle

I think they will argue that embedding or linking to infringing material is the same thing as telling someone where to buy illegal drugs and I wouldn’t be surprised if they use that analogy in the future, I mean, if my memory serves me correctly, they argued in the past that it is like facilitating infringement.

MAFIAA “arguments” are always the same.

bob (profile) says:

Pitiful? No, it's a nuanced point.

You keep repeating that links are just speech. Okay. But speech itself is not fully protected. There are many types of speech that can land you in jail and it won’t matter how many times that you try to tell the judge the magic words “first amendment.” You can’t incite a riot, you can’t conspire to commit a crime, and you can’t assist in a crime. It doesn’t matter if your only contributions are words. You still go to jail.

So if you really want to believe that links are speech then you need to admit that sometimes posting a link or a series of links can be a part of a crime. If it’s true for regular words, then it’s true for your sainted links.

weneedhelp (profile) says:

Re: Pitiful? No, it's a nuanced point.

Hey boB, how the hell are ya? From the videos below, please tell us which ones are infringing and which ones are not:

https://www.google.com/search?q=beavis&oe=utf-8&rls=org.mozilla:en-US:official&client=firefox-a&um=1&ie=UTF-8&hl=en&tbo=u&tbm=vid&source=og&sa=N&tab=wv

If I decide to embed videos from that list, and one is infringing:
1) How would I know?
2) Explain why in the world should I be charged with direct copyright infringment.

Ill wait…

bob (profile) says:

Re: Re: Pitiful? No, it's a nuanced point.

Hey, if you’re going to be running a business, you need to make sure you’re following the rules. Doesn’t everyone want the small bloggers to be seen as just as serious as the big media companies?

If I were you, I would look for a reputable source of links just like a business that looks for a reputable distributor. If a store starts stocking stolen goods that “just fell off a truck”, it risks going to jail and no argument about size or ignorance will make a difference to the cops. Trafficking in stolen goods is trafficking in stolen goods.

I think it’s easy to find high quality links. Companies like Hulu have direct relationships with content producers. If you embed their content, you’re on good ground. But if you trust some search engine that brags about how it will accept content from just anyone no questions asked, well, you take your chances.

Bloggers can’t have it both ways. They can’t ask the world to respect them for their intelligence and then shrug their shoulders about the source of their video links.

“If, therefore, you are not trustworthy with dishonest wealth, who will trust you with true wealth?”

weneedhelp (profile) says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

Not what was asked of you boB. Can you follow simple directions? Answer 2 simple questions… boB.

If I were you – You’re not.
I am not a business, boB. just a guy with a little website where I host my kids pics, embed videos of interest, and [GASP] even have a few “albums” in mp3 format for me to listen to.

“If a store starts stocking stolen goods that “just fell off a truck”, it risks going to jail and no argument about size or ignorance will make a difference to the cops.” Then you would arrest everyone that bought something from that store? – FAIL boB, c’mon now.

Hulu – legal today, illegal tomorrow.

“But if you trust some search engine” – So you admit there is no way to tell? Appears so.

So now we played around with this little song and dance, please show us you at least have one shred of honesty(if you do) and answer the questions:
If I decide to embed videos from that list, and one is infringing:
1) How would I know?
2) Explain why in the world should I be charged with direct copyright infringement.

Simple enough, right?

bob (profile) says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

Of course I didn’t play your game because it’s just a distraction that has little to do with reality. There are plenty of guys in jail who’ve tried sophistries like that.

I gave you a perfectly good algorithm for getting good links– go to a reputable source. I’ve also told you that your game is wrong and has never been trusted in the past. If you get busted for trafficking in stolen goods, you can’t hold up two products to the judge and say, “I challenge you to tell me which one is from a legit source and which one isn’t.” The judge and jury will laugh at you.

So you can continue on with your sophistry, but I can assure you that the real world has gone through this logical game before.

weneedhelp (profile) says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

Oh boB, boB, boB. So sad of you. Now I see why you get ridiculed so badly on this site. I am going to copy silverscarcats comment to you:
Hey, bob, what did I tell you?

Get off the internet before you hurt yourself.

Let the adults talk, you go outside and play in the street, okay?

900+ failed arguments and not one good point in all of that time, bob.

Give up, go away, and maybe some day you’ll return to being a human being.

“The judge and jury will laugh at you.” And we will laugh at the joke you are time and time again.

So much fail:
“If you get busted for trafficking in stolen goods” He he he such a joke. Your mom must facepalm every time she lays her eyes on you.

Se ya boBBy boy.

Anonymous Coward says:

Re: Re: Re:7 Pitiful? No, it's a nuanced point.

“And he apparently enjoys it because he keeps coming back for more.”

Gee, thanks pal, now all i keep imagining is techdirt trolls sitting infront of their computers in some sort of gimp rubber suit, rubbing one off (possibly using Chatroulette), fullfilling some sort of sick fantasy, experiencing a false sense of fullfillment, when they post their arrogance for the world to see

Thanks pal………was it worth it

Nahhhhhhh, just kidding pal, im sure their all a bunch of patron saints

Big Mook (profile) says:

Re: Re: Re:7 Pitiful? No, it's a nuanced point.

Bob: Is something on your mind?
TD: Just want to let you know you’re boggin’ up my blog.
Bob: Is that a fact?
TD: Yeah, it’s a fact.
Bob: Well, for a man who don’t go heeled you run your mouth kind of reckless, don’t you?
TD: No need to go heeled to get the bulge on a turd like you.
Bob: Is that a fact?
Wyatt Earp: Mm-hmm. That’s a fact.
[Bob types in all caps.]
Bob: Well, I’m real scared.
TD: Damn right, you’re scared. I can see that in your posts.
[TD tears apart any argument Bob tries even as Bob tries to reach for his keyboard.]
Bob: All right now.
TD: Go ahead. Go ahead, skin it. Skin that smoke wagon and see what happens.
Bob: Listen, mister, I-I’m gettin’ awful tired of your–
[TD slaps Bob hard in the bruised ego.]
TD: I’m gettin’ awful tired of your gas. Now jerk that mouse and go to work.
[Bob doesn’t do anything so TD slaps him in the lack of sound arguments again.]
TD: I said throw down, boy.
[TD slaps Bob harder and when Bob turns to look at TD his posts are the endless subject of ridicule and scorn.]
TD: You gonna do somethin’ or just stand there and bleed useless nonsense?
[Bob still doesn’t do anything.]
TD: No? I didn’t think so.

Obligatory Tombstone reference to the utter sissy, Bob.

Hail Xenu (and Seth)!

Anonymous Coward says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

If rules regarding stolen goods and infringing material were the same you’d have a point but they aren’t so you don’t and if you tried to say they were in court the judge and jury would laugh at you.

So will the real sophist please stand up?

Anonymous Coward says:

Re: Re: Re:5 Pitiful? No, it's a nuanced point.

There were never any criminal charges filed against Napster. Only commercial infringement (ie. unauthorized selling of copies) was a criminal matter prior to the DMCA which Napster predated. As Napster never sold anything, there was nothing commercial about it.

Anonymous Coward says:

Re: Re: Re:7 Pitiful? No, it's a nuanced point.

We were talking about criminal charges bob. Napster doesn’t have anything to do with criminal charges as there wasn’t any basis for a criminal case against Napster much less a criminal case. Furthermore, Napster lost the war of attrition, not on the basis of any court decision. They disappeared because they ran out of the funding necessary to continue to operate. Basically they were bullied to death by the RIAA abusing the legal system with a perverse twisting of the existing copyright laws at the time. Copyright infringement at the time was a civil matter where a holder could only sue in civil court for damages caused by the infringer. Napster didn’t infringe on anything. Users of the service did. Based on the laws at the time, their case HAD NO BASIS IN THE ACTUAL LAW.

Anonymous Coward says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

I know I shouldn’t feed the troll, but…

If you get busted for trafficking in stolen goods, you can’t hold up two products to the judge and say, “I challenge you to tell me which one is from a legit source and which one isn’t.” The judge and jury will laugh at you.

In your world, where infringement equals theft, hosting an infringing video would be trafficking in stolen goods. Linking to somebody else’s video would be, at best, trafficking in grey-market goods — beacuse, as has been demonstrated over and over, it’s not immediately apparent whether a video was posted with the consent of the copyright holder, or even who that copyright holder is. So, in your world, a linker/embedder would be like someone who stands up in court to testify that they bought a bicycle from a pawn shop; even if it turns out that the bicycle was originally stolen, the person who bought it from the trafficker is unlikely to be charged.

bob (profile) says:

Re: Re: Re:4 Pitiful? No, it's a nuanced point.

Unlikely?

Where have you been? I went into a bike shop to buy a cheap, used bike and the owner told me point-blank that he stopped selling used bikes because of the impossibility of telling whether they were stolen. Too many were stolen and he didn’t want to encourage it.

Here’s a guy who was found with 30 stolen bikes. He claimed he found them in a ravine and couldn’t tell that they were stolen. Did the police believe him?

http://blog.stolenbicycleregistry.com/2010/12/thieves-getting-nailed-left-and-right.html

So go on believing that the trafficker is unlikely to be charged.

Anonymous Coward says:

Re: Re: Re:5 Pitiful? No, it's a nuanced point.

They don’t arrest the pawn shop owner if the police find he’s in possession of a stolen bicycle. They simply take it from him and he loses the money he paid for it. The guy you are talking about is tired of taking the risk of losing his money not that he’s worried about being arrested.

bob (profile) says:

Re: Re: Re:6 Pitiful? No, it's a nuanced point.

Where do you get your legal theories? I just typed “pawn shop owner arrested” into Google and discovered plenty of stories with headlines like:

“JP pawn shop owner arrested for buying stolen jewelry”

“Pawn shop owner arrested in undercover stolen property sting”

“Naples pawn shop owner arrested during precious metals sting”

I feel like I’m doing you a favor and perhaps keeping you out of jail one day.

Anonymous Coward says:

Re: Re: Re:7 Pitiful? No, it's a nuanced point.

If you are caught with a bicycle that was stolen. They are going to ask you where you got it. If you can show that you bought it in good faith from some place, you won’t be charged. I know common sense isn’t your strong suit bob but Jesus.

Anonymous Coward says:

Re: Re: Re:5 Pitiful? No, it's a nuanced point.

And while we’re on the subject. Since the possibility that the items that are in a pawn shop could be stolen exists, and it is common for items that are sold by pawn shops to end up being stolen, by MPAA logic we need to close all the pawn shops because they are in the business of selling stolen goods. And since you shop at pawn shops to buy products cheap prices instead of going to the authorized dealer to purchase a new one at the full price, that would then make you just as much of a pirate as everyone else now wouldn’t it?

Anonymous Coward says:

Re: Re: Re:6 Pitiful? No, it's a nuanced point.

I know you just want to lob bombs into the discussion and add little, but you do understand that most cities have “hot lists” for pawn shops, and they do tend to come down hard on pawn shops dealing in stolen merchandise.

Pawnshops who deal in stolen merchandise generally find themselves out of business pretty quickly.

Anonymous Coward says:

Re: Re: Re:5 Pitiful? No, it's a nuanced point.

Yes, he ‘found’ 30 bikes in the bottom of a ravine, and instead of reporting them to the police he kept them. You do know how that sounds, don’t you? Especially considering that unclaimed property reverts to the finder after a specified amount of time. You’re just trying to pull a rabbit out of your hat, and keep coming up with turds.

TtfnJohn (profile) says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

Speaking of sophistries you’re doing a fine job of them yourself, you know.

Directing someone to Hulu as a trusted embedding source isn’t an algorithm by any stretch of the imagination. Algorithms are math not verbal direction.

And, one more time, infringement isn’t theft no matter how many times you say it is. The real world says so in the courts.

Nor, oh ignorant one, does Google or any other search engine “accept” links from anyone (or reject them if it comes to that) they send out little bots that help them index the Web so that when you search you’ll actually get something in return. Search engines make no moral or legal judgement on anything they find out there nor should they.

Nor has anything fallen off a potato truck in front of his blog. He’s asking a simple question for which you refuse to give a legitimate answer. Though you do use a fancy word in doing it.

Nor is there physical property here to be displayed in front of anyone just a link or an embedded video. Neither of which constitutes stolen anything as you can’t “steal” a copyright.

It’s not like I expected you to answer rather than attack. Attack you’re hood at. Answers not so good. In fact awful at.

It’s people like you that give IP extremists the well deserved bad rap they currently have. And you’re less and less amusing as each day passes;.

Anonymous Coward says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

“If a store starts stocking stolen goods that “just fell off a truck”, it risks going to jail and no argument about size or ignorance will make a difference to the cops.” Then you would arrest everyone that bought something from that store? – FAIL boB, c’mon now.

Unfortunately they could. It’s called ‘receiving stolen goods.’ Has not a damn thing to do with infringement, of course, but you can’t tell bob-a-roonie that.

DannyB (profile) says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

Following the rules is great as long as they have clear lines. So tell me, which file was infringing?

If the MPAA / RIAA members can’t even tell you whether a file is infringing, and they are the most likely to know, then nobody else should have that burden.

Put the liability on who uploaded it. Not the host that hosts it. And certainly not on someone who links to it.

If you got the hosted file taken down, then all links are taken care of automatically. You should stop wasting your time going after links, and go after what is linked to. Follow up by going after who uploaded it in the first place.

fiestachickens (profile) says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

So to be clear, a “reputable” company is a company that has a direct relationship with the content gatekeeper (I contend that many of the companies that have a relationship with don’t actually produce anything, they simply “own” the rights).

However, search engines that are in the fortune 500 (http://money.cnn.com/magazines/fortune/fortune500/2011/snapshots/11207.html) apparently are not reputable.

I… don’t think I’m understanding your definition of reputable.

And remember, theft does not equal infringement. If I peddle in stolen goods, someone lost the good and I benefit from it. If I link to some infringing work, no goods are stolen.

One final note. If I link to site Xs article which does not contain any infringing content, I’m good to go. However, later site X absolutely can change the article that I linked to so that the article now includes infringing works. And suddenly, through no fault of my own, I am no directly infringing. That. Is. Crazy. How do you justify that? Do I have to proactively monitor every link that I’ve ever used every moment of every day so I can avoid any possible liability?

silverscarcat says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

Stolen goods?

What’s getting stolen, bob?

Please tell me.

Because, the last time I checked, putting a link online is nothing more than posting an address.

You’re trying to tell me that posting an address is illegal?

Wow, you really are ass-backwards, aren’t you?

bob says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

Yes.

Oh sure there’s nothing wrong with posting a restaurant’s address with your review. No one would hold you responsible for stomach poisoning.

But if you put up a website called “stolengoodsBay.com” and you let thieves list addresses where stolen goods can be purchased cheaply, I find it hard to believe that any jury would let you go free.

If you put up a web site called “hotgirls.com” and you posted the addresses of hot girls without their permission, I can guarantee you that you would not stay in business long. Look how long it took for “Girls Around Me” to get shut down and they were using 100% public information that girls made a conscious decision to share.

http://www.bbc.co.uk/news/technology-17582975

Posting an address is not guaranteed to be an innocent act. It might be or it might not be.

bob (profile) says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

Yup.

Posting addresses can certainly get you in trouble. Oh, there’s nothing wrong with posting an address next to a restaurant review. No one would blame you for any stomach poisoning.

But I’m sure there would be trouble if you posted the addresses of girls. Look what happened to the creepizoids who created that app “Girls Around Me”. Apple shut that one down ASAP. No one cared that the information was 100% public and the girls decided to share their location. It was just too creepy.

So yes, posting an address can get you in trouble. I tell you what. You start up a web site called StolenGoods and let thieves post addresses for where the public goods can get stolen goods for cheap prices. Then you tell the judge your wonderful argument. If you get free, I’ll buy you a beer and admit that you’re right.

silverscarcat says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

Really, posting addresses gets me into trouble?

Well, gee, bob, I better remember that the next time I order a pizza or fill out a job application or deliver news papers.

Posting links (addresses) is NOT illegal, bob.

If it was, then every search engine would be guilty of something by putting those same links (again, addresses) up on the net.

But, they aren’t, despite what the MPAA and RIAA say.

So, try again.

Oh, and by the way, I count 10 failed arguments, so, that’s over 910 failed arguments from you.

You know, I think if I looked hard enough, the amount of failure that you’ve provided over the years would be…

http://www.youtube.com/watch?v=SiMHTK15Pik

Anonymous Coward says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

Yes, we should all follow paywall bob’s lead and make sure to be fearful of breaking rules that aren’t clear, uncertain of the sources for our content unless we know for absolute certain they’re paid up with the right MAFIAA, and constantly doubt anyone that attempts to submit their own content and any site that accepts such content.

bob (profile) says:

Re: Re: Pitiful? No, it's a nuanced point.

You might want to modify that HO:

“In the indictment, the US Attorney details how Ellerbe was paid by crack cocaine dealers to tell them when narcotics officers were getting close — right down to telling the drug dealers what cars narcotics officers would be driving.”

Again, just speech.

http://www.wral.com/news/local/story/163755/

One of the classic tricks from shows like The Wire involve putting the real drug dealer on the corner who then points to some underaged kids with the real drugs. The real dealers pretend they don’t know what’s going on and count on the kids to get reduced sentences. The courts have figured this out.

Anonymous Coward says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

But the case you site involves a conspiracy to commit a crime since the guy on the corner and the kids with the drugs were working together in the first place. If I add a link to some content on someone else’s server without their knowledge there is no conspiracy. Big Difference.

bob (profile) says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

No. It’s not a big difference. There are plenty of companies running web sites full of pointers to infringing content. They sell access to these pointers. That’s what the argument is about. It’s not about some clueless grandmother linking to the wrong file.

I think this kind of wink-wink linking is very much a conspiracy to commit a crime. So I have no problem with the analogy.

TtfnJohn (profile) says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

“I think this kind of wink-wink linking is very much a conspiracy to commit a crime.”

Three are two problems with this statement.
(1) Absent the active participation of those at the other end of the link to create these links and increase their traffic there isn’t a conspiracy. You need at least two participants to have a conspiracy.
(2) Try as you might, infringement is NOT a crime.

Niall (profile) says:

Re: Re: Re:3 Pitiful? No, it's a nuanced point.

It’s really more like someone saying “That house over there, they do strange stuff” – and then assuming that they should ‘know’ it’s a crack house. (Who knows, maybe it’s full of black kids in hoodies carrying Skittles?)

Even if the person says “I think it may be a crack house” doesn’t make knowing about it, believing about it or telling about it illegal. Even if it /is/ a crack house, people might have legit reasons to visit it (maybe it’s a social worker, or a friend of a family member). So stop assuming that actual illegality = civil infringement = everyone in the general vicinity committing a crime.

Anonymous Coward says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

And by the way did you notice that Ellerbe wasn’t charged with selling drugs but rather “one count of conspiracy to distribute crack cocaine and three counts of extortion.” How is me adding a link to something that is on someone else’s website a conspiracy when they don’t even know about it?

Anonymous Coward says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

Yes. Embedding and linking to infringing content is the same thing as taking children and having them sell fucking drugs for you.

Is there a depth of sleaze you could slink to lower than this? I mean I guess you could conflate embedding and linking with gang raping an infant but that’s about it. The mind boggles.

MrWilson says:

Re: Re: Pitiful? No, it's a nuanced point.

Arguing with trolls isn’t necessarily about trying to convince them. That will rarely, if ever, happen. But the comments are archived for posterity and it’s important that counterpoints are offered so that insane vitriol isn’t the only content that readers will find years later when they look at the article.

bob (profile) says:

Re: Re: Re: Pitiful? No, it's a nuanced point.

I agree. You guys are just trolls that suck me into your vortex. I don’t think I will able to shake the spell you’re under. You’ve chugged too much of Big Search’s koolaid. I just want you to understand that there are others out there who don’t agree. I want you to understand that Astroturfing Mike isn’t the only opinion in the world.

Here’s one suggestion: stop thinking of people who don’t agree with you as trolls. The first time you get in an argument with your spouse, you shouldn’t call him/her a troll. It will just make things worse.

silverscarcat says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

Your comment needs fixing, bob, lemme help you. πŸ™‚

“I agree. I’m just a troll that sticks around here because I’ve got nothing better to do. I don’t think I will able to stop trolling around here. I’ve chugged too much of Big Media’s koolaid. I just don’t understand why there are others out there who don’t agree with me. I want you to understand that the only opinion that matters is my corporate masters’ and Mike isn’t the only opinion in the world, and even if he was, he doesn’t count.”

See? Isn’t that more accurate?

Anonymous Coward says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

bob,

I for one have never called you a troll simply because you are not one. A misguided fool? Yes. But a troll? No. A troll simply comes in and spouts insults and nonsense with no attempt support their position. They don’t make arguments. You on the other hand at least ATTEMPT to make an argument and support your position. You fail miserably at it over and over again, but at least you try and for that we are appreciative. However it would be nice if you could maybe find some new angle every once and awhile to present or maybe that’s too much to ask of you. Then again, “if at first you don’t succeed…” Keep on trying bob. Some day you may find a clue.

Watchit (profile) says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

You know, after thinking about it, I guess I can be kinda grateful to boB for taking so much of his time arguing with us… Practice makes perfect after all, and with out someone to argue against we’d never get any better at it. So thanks boB, for being our very own devil’s advocate, sort of, even if you are a little misguided

Anonymous Coward says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

“I agree. You guys are just trolls that suck me into your vortex. I don’t think I will able to shake the spell you’re under. You’ve chugged too much of Big Search’s koolaid. I just want you to understand that there are others out there who don’t agree. I want you to understand that Astroturfing Mike isn’t the only opinion in the world.

Here’s one suggestion: stop thinking of people who don’t agree with you as trolls. The first time you get in an argument with your spouse, you shouldn’t call him/her a troll. It will just make things worse.”

And picking and choosing words or phrases, clearly, if you’ve been here a while, used by others, and mashing them up together to make it seem as if you alone came up with them, seems too be your fortei bob, and funnilly enough, politicians aswell…….infact, could’nt that be construed as some sort of infringement, or will that one be allowed because you say so

You want to convert us you say, let me ask you this, are YOU willing to convert?
No
Then dont be a fucking hypocrite, and stop justifying the means because the end suits your needs, it might suit YOUR needs, but dont be fucking arrogant to think that your needs should be the only NEED worth thinking about

Understand, that even if you think that you have something worth saying, all i see is some arrogant prick trying to dictate their ‘ideals’ on to me, i see this by your tone, the choice of words you use and the way you phrase them, not to mention the trolls resorting to shame, slander and outright insults to anyone who has the AUDACITY to disagree with them

Out of the two sides, specifically, techdirts commenters, seems to me, your side are more then willing to slander the other side, almost trigger happy infact, im sure some of you think you have the hand of god behind you……. to you no one can have a difference of opinion regardless, whether those opinions have merit, its your way or the highway

You want us to listen, send someone, whose NOT, that guy

Now go on, read, disect, and pick and choose your next line of attack, because you always seem to be two steps ahead………Note that last bit was sarcasm, directed at your, what i suspect, over inflated ego

TtfnJohn (profile) says:

Re: Re: Re:2 Pitiful? No, it's a nuanced point.

For sake of discussion let’s assume that Big Search is Google, not Yahoo or Bing.

And let’s further assume that there is evidence of active collusion between Big Search and sites hosting infringing material or links to said material.

Just where is the evidence?

(Ad Sense doesn’t count.)

Nice new nickname for Mike, by the way. And if we’re sucking you into some sort of vortex why come here?

silverscarcat says:

Re: Pitiful? No, it's a nuanced point.

Hey, bob, what did I tell you?

Get off the internet before you hurt yourself.

Let the adults talk, you go outside and play in the street, okay?

900+ failed arguments and not one good point in all of that time, bob.

Give up, go away, and maybe some day you’ll return to being a human being.

Anonymous Coward says:

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.

Mike Masnick (profile), Jun 1st, 2011 @ 11:16am:

Are you claiming that embedding a video would not be considered a public performance? It certainly looks like it would be based on my reading of the law.

Anonymous Coward says:

Re: Re: Re:

Nope. Mike was talking about the language of the current law, not the language of a proposed bill.

Here’s the original comment:

Are you claiming that embedding a video would not be considered a public performance? It certainly looks like it would be based on my reading of the law.

To perform or display a work ?publicly? means ?

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

That certainly seems to encompass linking/embedding.

That language comes from 17 USC 101.

Anonymous Coward says:

Re: Re:

Wow.

I don’t know what’s more shocking: the fact that Mike screwed up (apparently, unless I’m missing something), or the clearly obsession you have for him.

I mean, only some sort of nutcase would remember something like this from 10 months ago. A nutcase, or someone with an agenda.

jupiterkansas (profile) says:

Re: Re:

A public performance from the source, not from the embed itself. If I embed a Youtube video, Youtube is still doing the “performance” by streaming the video to the viewer.

The infringer is the individual uploading the content, not the person watching the content, or the website hosting the content. It’s the uploader putting the original copy online.

Niall (profile) says:

Re: Re: Re:2 Re:

Because they need to be able to shop out (alleged) terrorists like Abu Hamza, so they need a ‘strong’ extradition treaty for that. O’Dwyer is obviously some poor patsy who is either being used to say “look, we do extradite other people than just terrorists”, or is just collateral damage.

What I find sickening, is that O’Dwyer, innocent of anything in Britain, gets sent over without a whimper, whereas potential terrorists get to fight every step of the way complaining that their ‘human rights’ (and I am /very/ pro-human rights) will be affected by being in jail…

Anonymous Coward says:

Re: Re: Re:

to techflaws.org

the UK didn’t volunteer O’Dwyer to be extradited, the request came from the US at the behest of the entertainment industries. i bet you they will use him as an example that linking must be wrong because he is being extradited. any excuse is good enough for these ass hats!

Anonymous Coward says:

I look forward to many years of the MPAA trying to twist anything and everything a website does into “willful blindness” after the 2nd Circuit was kind enough to tell us in Viacom v YouTube that the standard can be used to show the requisite knowledge under the DMCA, but utterly failed to define what sort of activity would meet that threshold.

Anonymous Coward says:

Links and embeds are really infringement – depending on how they are done and the intent.

Link sites that feature nothing but links to DVD ripz and pirated material downloads are clearly aware of what they are doing, and they should not be exempt.

Blog style sites that include nothing but embeds of infringing material should be the in the same boat, knowing that it is illegal should be enough. Further, since many of these site owners upload the material themselves to third party “cloud hosting” and “video sharing” sites to avoid prosecution, they really are responsible for their actions.

The term “conspiracy to commit” comes to mind – intent is a very important thing, and thus you cannot blindly say “link sites are not responsible” and “embedding sites are not responsible”, because their intent should go a long way to defining their guilt.

Anonymous Coward says:

Re: Re:

Really?
And how do you define a blog that has nothing but infringing material?

Have you asserted the illegality of each and every link?
Nope you couldn’t
Have you asserted the intentions of the guy who owns the blog?
Apparently not since you speculate that since it is supposedly full of links that you assume are all illegal he must know unfortunately for you the law doesn’t work that way, you must show some proof first or get the fuck out of court.

Anonymous Coward says:

Re: Re:

The courts have already ruled on the conspiracy thing by setting the precedent in the ruling on BitTorrent swarms.

http://www.techdirt.com/articles/20120402/04022118323/court-says-bittorrent-users-connected-to-same-swarm-are-not-involved-any-conspiracy.shtml

You have to prove that there was an agreement between the parties to prove conspiracy. Adding links to a site that I have no other connection to and they are not aware of does not constitute a conspiracy.

Anonymous Coward says:

“Anyone with even an ounce of technological knowledge understands that embedding a video is not the same as hosting a video.”

let’s take this one on too. I have way more than an ounce of technological knowledge, and I am smart enough to know that, for the end user (website visitor) there is no real difference. The point of an embedded video is to make it appear to be part of your site, and not part of someone else’s site. Putting an embedded video on your site is a choice, no different from writing words or choosing an image from your own library of images. You may not directly control the content delivery, but by embedding it, you are making it part of your webpage.

Now, of course, the standard argument is “the HTML says it’s another site… it’s just a pointer”. That would be true, but that would also be a very narrow, very “can’t see the forest for the trees” way of looking at things. Most consumers don’t read html, they browse the website. Your intent in embedding the video is to make it part of your site, and thus, it should be considered an infringement.

This is even more clear in the current file host / video host situation. You upload the video to them anonymously, embed it in your site, and suddenly like magic, all of your liablity disappears. POOF! It’s like a magic wand.

Putting a video on a third party site to host for you should not limit your liability. Why should it?

silverscarcat says:

Re: Re:

“Your intent in embedding the video is to make it part of your site, and thus, it should be considered an infringement.”

Stopped reading right there, because you, sir, are a moron.

Embedding a video is nothing more than allowing people to watch a video on your website without having to go to OTHER websites to watch.

Does that mean that the embedded video is hosted on the website you see it on?

NO! Of course not!

Also, it’s pretty hard to believe, for one second that an embedded video is part of a website when the video itself has TONS of reference points saying where it’s from.

Maybe if you had any sort of knowledge about how embedding really worked, I’d believe you, but, since you don’t, I can ignore you.

Anonymous Coward says:

Re: Re: Re: Re:

So where, AC 145, does it end? Where is the cutoff point of liability in your distorted view? Without a clear demarcation, what you’re asking for is quintillionth-person liability, which would criminalize the earth’s entire population.

You don’t really realize how interconnected the internet is, boyo. What you’re asking for is to make illegal the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link to the link…

…and so on, and and so on, to the content you don’t like. Just how far do you expect liability to go? Or you could admit you’re wrong and realize the absolute absurdity of holding people responsible for content not under their control.

Anonymous Coward says:

Re: Re: Re:2 Re:

Gah! You people are really dense.

If I link to a file locker with a download for “avatar dvd rip” as the link, the intent is to give people access to pirated material. I should not get a legal walk because I am one step away from it – the intent is clear as day.

Think of it like pimping – you don’t have to actually be the hooker to be guilty. Call it “living off the avails of piracy”.

” you could admit you’re wrong and realize the absolute absurdity of holding people responsible for content not under their control.”

If you embed a file in your site, or include a link to it, you have some responsibility. These things do not happen by themselves.

Anonymous Coward says:

Re: Re: Re:4 Re:

No, because you are linking to the site in general, and not specific content.

WAKE UP! It’s about linking content, not a site in general.

Now, if that site in general is called “DVD RIPZ ILLEGAL DOWNLOADS” and you link it with that text, honestly, you are an idiot and deserve to be arrested for being stupid.

John Fenderson (profile) says:

Re: Re:

for the end user (website visitor) there is no real difference

This is completely irrelevant with regards to the point of who committed infringement.

no different from writing words or choosing an image from your own library of images

Actually, it’s very different. When you write words or choose an image, you are the one hosting that content. When you link to a video, you are not. What it looks like to the website viewer is irrelevant.

This is even more clear in the current file host / video host situation. You upload the video to them anonymously, embed it in your site, and suddenly like magic, all of your liablity disappears.

Not even close to true. You’ve committed the infringement when you uploaded the video, and are liable for that. Linking to that video is not the infringing act, though.

The introduction of anonymity only affects whether or not they can find you, not whether or not you’re guilty. And it doesn’t affect the equation at all, since you can just as easily run a website anonymously as upload a video anonymously.

Anonymous Coward says:

Re: Re:

>for the end user (website visitor) there is no real difference

So if that’s the case, let’s apply that to everything and everyone. Since most profit or income has its roots in money and money has been used for various nefarious purposes (bribery, cheating, laundering, illegal deals, whatever) we should all be punished to the maximum extent of what the law allows.

After all there’s no real difference, right? We’re still profiting off whatever crime that MAY have occurred, right?

Karl (profile) says:

Re: Re:

You upload the video to them

And thus become liable for direct infringement.

Nobody is arguing that someone who themselves uploads content to a third-party host, then links to it, is committing copyright infringement.

But the infringement is not in “linking,” it’s in uploading the video with the intent to distribute it.

If you did not upload anything, but simply linked to it, then you are not infringing:

Further, hyperlinking does not itself involve a violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. The customer is automatically transferred to the particular genuine web page of the original author. There is no deception in what is happening. This is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.

Ticketmaster v. Tickets.com

Anonymous Coward says:

The funny part in all of this is that, without those websites linking the industry also loses the capability to track infringement since it is not being crowdsourced by others, linking actually may decrease the cost of policing their own shit, but who cares, instead they want others to start using several others places that are untraceable oh that is just perfect.

Doubt?

Here:

Youtube: Man on a Ledge (2012) full movie it is gone now but it was posted on Youtube and advertised on an anonymous forum LoL

The great thing about new movies is that none of them have a fingerprint on Youtube so all the uploads pass, and people get to other forums that can’t be traced and post the links there, now how are the idiots from the industry are going to track thousands of uploads each day?

Answer:
They will not be able to, what apparently the idiots from the industry and the government want is to create the illusion of stability, so the first step against all this BS is to show them in no uncertain terms how piracy occurs and how they are powerless to do anything about it without pissing off the entire nation.

Anonymous Coward says:

Come on guys, this is the only way were going to stop all this stealing, the authors, artists, and performers dont deserve their work to be stolen, and this is why measures like these need to be made, and this seems like a perfectly acceptable way of going about it, the same way one might use a nuke in a fireworks display in order to get the biggest result, come on, whats wrong with that.

Right, sarcasm aside, yes, this would most definately work for them, give em more control, and they get a position to shape the internet to their will, problem with that, control issues aside, is that yes, there would probably be less posting of infringing content, but heres the kicker, the CONSEQUENCE, you know, the thing they they dont give a shit about, is that there will be less of EVERYTHING because of the tip toeing around, the indecisiveness this will cause.
Can i post this?
Should i post this?

Its a real possibillity that the internet would fundamentally change, that we’d end up with a crippled internet,

i can imagine a granpa grandson converstation somewhere, at somepoint, going along these lines

“i remember when the internet used to, BE something, where we paid internet providers only ONE monthly subscription and we’d have access to every internet service imagineable, like email and skype and what not.
Not like now, where you have to pay again for the services not covered by isp’s, and who’s bright idea was that internet tax malarky……… i dont know, in my day, things were better thats for sure”

True story

harbingerofdoom (profile) says:

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.

sounds like those high up in the ivory tower are not actually aware that they have been getting ruled against. i wonder if they are being fed a load when the underlings are reporting how things are going in the trenches…
…its happened before.

Anonymous Coward says:

Only those whom desire the dead of the internet need apply..

The thing that keeps coming to my mind about this is that if embedded links to infringing material is an infringement in itself then we will have effectively ‘broken’ then Internet, because the only way you can safely put anything on is to make it yourself.

No comment posting, because that could contain an infringing link. No linking to another site, because that could contain something that infringes on someone else?s work (or be changed to something infringing later on). Good bye, review sites, social networking, and most everything the internet is actually used for.

You will need the equivalent of a phone book to find what you want, because there would be no search engine, since that would then link to any infringing site out there.

On the plus side, I’m sure that legacy ‘Content’ gatekeepers will be happy; they will have their old business model back.

Bengie says:

ehh

They want talking about movies illegal?! Logical reference, like hyper-links and talking, is something they want to get rid of?

Lets extend this.

They have to consider “advertising” right to distribute if linking is “distributing”. If my local cable company runs a commercial for them, advertising their movie, this now means my cable company now has fully right to distribute.

James T (profile) says:

Pure crazy is right

The main reason why embedding isn’t direct infringement is because the site MyVidster can’t alter the content directly. If they did that might technicially make them liable. Just giving a link to another site, or offering an applet that loads the file from another site which has no office relation to MyVidster is not infringment from MyVidster. If the laws are changed then we could make this a form of infringement.

Simply put the file is located elsewhere, that server could change the video file at anytime. MyVidster is just pointing the customers PC to that channel. It’s like a specialized remote control to point out content that is just plain available.

Now it gets more complicated with Akamai but then in those cases there is a contract. If a content distributor like Akamai served up a file I suspect they could be directly liable as well as the contracting company who is pushing the file out there.

AC Cobra says:

Willfull Liers

It’s clear that the MPAA (or more accurately it’s lawyers) is not technically clueless at all. They understand how the Internet works and know perfectly well that their arguments are spurious and their assertions are lies. They are hoping that the judge will not understand how the Internet works and thus fail to understand how to correctly apply the law. All too often they succeed.

James G. Witte (profile) says:

security mean anything?

Personally, there is an responsibility on me to protect my own property. What do I mean? If the court case has been going on for a while, and the link still works, that shows that I don’t care about protecting my own property. And even if I have removed that 1 video or renamed the 1 video and I can simply change the URL to the directory the file is in and see ALL of the directories contents, I must want people to take everything I have. This may sound like a stupid argument, but if I’m not making an effort to protect my stuff, do I really wan my stuff protected?

And if you don’t agree, then what responsibility do I have to protect my clients credit card numbers?

What if I have a glass house and I choose to have sex in every room and then sue anyone who watches me have sex? See my point?

Jeffrey Fichtelberg (profile) says:

Flava Works

The simple fact is that if we take a very carefull look at PHillip Bleicher CEO of Flava Works it becomes clear that his only interest in the law is using it for profit. The important question in this case is why the judge did not consider that the exposure on the web-site created additioal profits for Flava Works and call it a wash.

Flava Works is sueing everyone who touches this product. If a distributor sells his product to a retailer who rents them out, the are facilitate piracy If as an example a retail store buys his dvds and rents them out they by defiinition are pirating the material. If you watch his product with a friend you are pirating his material.

There is one simple and logical conclusion regarding the Flava Works products. Prior to purchasing or viewing this product be sure you have $10,000.00 or more that you want to spend for an attorney to defend you rather than enjoy. On line viewers are particularly at risk, rumor has it that he was responsible for the down loads and sharing he is sueing some for.

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