Is Embedding Infringement? MPAA Sues Two Sites

from the we-may-find-out dept

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.

Filed Under: copyright, embedding, fair use, legal issues, linking
Companies: fomd, movierumor, mpaa

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  1. identicon
    Anonymous Cowherd, 30 Jul 2008 @ 3:06pm

    Linking and embedding

    This whole issue is ridiculous.

    Examine the HTML code some time. You will see that nobody who is linking to or embedding a copyrighted video (or still image, or audio, or whatever-else) is actually copying anything at all. All you'll find is a net address for a pre-existing copy somewhere in the code.

    Distributing that HTML code via a Web server is no different than standing in the mall and discussing something with a passer-by there, at one point during which you point at the bestseller rack visible at the entrance to the bookstore and mention Stephen King's new novel.

    If it's infringing to merely make reference to a copyrighted work and say that one is available at such-and-such a location, then it's infringing to have that conversation in the mall and point to Stephen King's book.

    If you argue that it's different because it's on the net, or because the contents of what you've said get interpreted by automation, well, you're wrong. Speech with a given content is speech with a given content, and either it is copying something and maybe infringing or it is not, regardless of where it occurs or how and by what it is interpreted on behalf of the listener.

    If you argue that it's different if the copy you point to is infringing, well, what if that bookstore had cheated the publisher in some way and the copies of Stephen King's book that it had were unauthorized in some way? Are you now infringing (or inducing, or facilitating, or contributing to infringement) by pointing to the book? Even if you know it's infringing? What if you're talking to a cop and pointing to the books and saying "Hey, I think those are infringing unauthorized copies"? Should you be on the hook in THAT case?

    This whole situation is ludicrous. But really, copyright itself is ludicrous. So is patent. So, arguably, is trademark; if it's for consumer protection, it's arguably the consumer that has a cause of action if deceptive labeling confuses them. (But in reality, it's probably easier if consumers have someone speak for them collectively, since individual separate consumer voices have little power; and the manufacturer's reputation may be harmed, which gives them a cause of action for defamation IF the trademark-misusing goods are of poor quality or otherwise bring the brand into disrepute. Making trademark actions something the consumer must bring would mean more money for class action lawyers, which might not really be the best outcome, and implies that you don't think malicious reputation damage should be a cause of action, though absent the ability to bring suit only the more powerful and wealthy would have much effective remedy against systematic and large-scale attempts to maliciously defame them. What could the little guy do against a big newspaper badmouthing him, otherwise? Put up a blog comment somewhere saying none of it's true? How could he even hope to reach a fraction of the audience the paper could?)

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