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 @ 10:04am

    Re: Re: Re: Re:

    " It makes it hard to prosecute *innocent bystanders*,"

    It's too bad that they aren't innocent bystanders, they are people linking to and embedding something that was obtained illegally, and are attempting to profit from it (by making more money, getting more visitors, whatever).

    "Ah, so you admit that tools already exist to take the material down without the need to prosecute innocent 3rd parties. What were you complaining about again?"

    That is for the third parties. The problem is that it is "post offence", which means that unless someone says "take it down", they keep running it. The liablity should be attached as soon as it is posted, not after they have run it for a while, gotten a DMCA, and finally gotten around to taking it down. They profit from it, they should be liable. That is the reason the safe harbors are not working!

    "Ironically, the rules you call for will at least stop your ability to be an anonymous jackass online. I wonder if you'll be the same asshole without the shelter of anonymity to hide behind?"

    Paul T (you are the only one, right dickhead?), I don't sign my name here because it isn't a requirement. Why should I? I don't see your full name, address, phone number, and such attached to your posts. Like it or not, you are a prick because you too are anonymous right now. Are you going to be such a prick if you had to do that?

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