Did You Embed The Leaked Trailer For Dark Knight Rises On Your Blog? Under SOPA, You May Face Jail Time

from the the-dark-knight-rises,-indeed dept

You may have heard that, over the weekend, the trailer for The Dark Knight Rises was leaked (eventually leading to the official release of the trailer). As tends to happen with these kinds of things, they spread pretty quickly and the video (which, let us remember, is an advertisement for the movie) went pretty viral, and lots of people were sharing it. Now, if you're normal and clueful, this is a good thing. If you're lawyers for Warner Bros., you flip out and start sending out legal notices. Rob Sheridan received one of these notices after he included the embed of one of the videos of the trailer on his Tumblr site. He pointed out how ridiculous it is that he's getting hit for merely embedding a video, since he doesn't host it at all, and it seems like the takedown notice should have gone to the folks actually hosting the video instead. Unfortunately, it's become equally popular to go after those who link to infringing content, usually relying on 512(d)'s requirements that "information location tools" "disable access" to the material once notified. Thus, Warner Bros notifies Tumblr, and there goes the video. Personally, this seems silly. A simple link or embed should never be seen as infringing, especially when it's easy enough to go after those actually hosting the video.

That said, this whole incident should be a damn good reminder of why the felony streaming portions of SOPA in the House and S.978 (the felony streaming bill) in the Senate are pretty scary. Under those bills, Sheridan could have potentially faced many years in jail for his helping to promote this movie. Remember, the point of these bills is to make a willfully infringing "public performance" of such works a potential felony. It has to be for commercial advantage or private financial gain, but those can be broadly interpreted: if the purpose is to get people to your site and advertise yourself and your work.. that can be commercial advantage. It's willful, because everyone knew the video was leaked, and not legit at the time. But is it a public performance? Hell yes.

Courts have determined that links can be public performances, noting that:
the most logical interpretation of the Copyright Act is to hold that a public performance or display includes each step in the process by which a protected work wends its way to its audience.... Using the same approach, the court determines that the unauthorized “link” to the live webcasts that Davis provides on his website qualifies...
So forget about worrying about Justin Bieber going to jail... start worrying about merely embedding the trailer for The Dark Knight Rises.

Is this really the kind of law that America needs right now?

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  1. identicon
    Anonymous Coward, 21 Dec 2011 @ 7:52am

    Re: Re:

    Actually, pre-DMCA, it was illegal already, only the old safe harbor provision makes it very hard to prosecute. No matter how much Mike tries to push embedding a video as "not hosting it", it is still an act to add that item to your website and present it as part of your website.

    Put another way, under the current laws, a DMCA complaint would require you to remove the embed from your website, which is clearly an indication of it's legal standing.

    "SO when a law comes in that says you can't criticize the government or you will be thrown in jail, it's OK because you just "don't break the law, and you have nothing to worry about", right?"

    When we get to that point in the US, there will have already been an armed revolution. Sorry to bust your bubble, but people aren't going to take up arms to protect your right to be a dickhead online.

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