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

from the seems-like-a-stretch dept

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

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

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

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

And that's a big problem for ICE.

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

Filed Under: copyright, direct infringement, embedding, homeland security, ice
Companies: channelsurfing.net

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  1. identicon
    Jose_X, 2 Feb 2011 @ 1:50pm

    Re: Re:

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

    Who might be primary infringers?

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

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

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

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

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

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

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

    No primary infringement by TD. Doubtful secondary infringement.

    Case dismissed.

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