Swedish Court: News Site Embedding A YouTube Video Guilty Of Copyright Infringement

from the ugh dept

Nearly a decade ago, just as YouTube was really getting popular, we questioned whether or not it would be considered infringement to merely embed a YouTube video if the content in that video were unauthorized. As we noted at the time, it seemed like a crazy idea that this should be considered infringing, given that embedding is just sticking a simple line of code on a website. No content ever actually is hosted or lives on that website. You're just telling a browser to go find content from the original YouTube source. For the most part, US courts have agreed that embedding is not infringing. And we'd thought that the EU had come to the same conclusion -- however that ruling was a bit vague, in that it focused on the embedding of authorized content, not unauthorized content.

Last month, however, there was the troubling EU Court of Justice ruling that found that mere links could be deemed direct infringement, especially if they were posted on a for-profit site. The ruling, somewhat dangerously, argued that any for-profit site that posted links should have the burden of checking to make sure the content they link to is not infringing, and it's fine to assume that they had the requisite knowledge when they link (this is, of course, crazy). And now we're seeing the reverberations of such a silly ruling.

Over in Sweden a court has taken that decision to say that a newspaper embedding an unauthorized YouTube video is infringing on the copyright in the video. Here are the details of the case, as summarized by the always excellent IP Kitten blog:
In 2012 the claimant (Rebecka Jonsson) filmed a bungee jumping session gone wrong in Africa.

Someone (not Ms Jonsson) uploaded the video on YouTube. On 9 January 2012 the YouTube video was embedded on the L'Avenir website run by the defendant, in the context of an article describing the incident.

The claimant had neither authorised the publication of the video on YouTube, nor its embedding in the L’Avenir article.

In her action before the Attunda District Court, Ms Jonsson claimed that L’Avenir had infringed copyright in her video by both embedding it on its website and publishing a frozen still of the video. She sought damages for EUR 1931 against the defendant, as well as award of litigation costs.
The court, looking at that bad ruling at the Court of Justice basically said, welp, L'Avenir is for profit, so it's infringing:
According to the court, it was “obvious” that L’Avenir had published the link to the claimant’s YouTube video with the intention of pursuing a profit [yet the court did not really explain what evidence supported the conclusion that in this case the defendant had a profit-making intention]. According to the court, L’Avenir had not been able to demonstrate that it had no knowledge of the unlicensed character of the video embedded on its website. Hence, L’Avenir was found to have infringed the claimant’s copyright by linking to the YouTube video without Ms Jonsson’s permission.
IP Kitten also notes that the court was supposed to then consider if L'Avenir was protected by various exceptions -- such as for news reporting -- but did not do so. This should be pretty troubling for all sorts of news sites online, who regularly embed videos or link to content without having the ability to determine whether or not they are infringing. This will make some fairly basic aspects of reporting online a huge liability risk. Linking to the wrong site or embedding the wrong video now puts you at risk of copyright infringement claims in the EU -- which is crazy. Copyright law is really broken.

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  • identicon
    Anonymous Coward, 28 Oct 2016 @ 9:59am

    If any copyright infringement was committed, it was committed by the original unloader, but then they probably do not have any money, unlike the newspaper.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2016 @ 10:05am

    Another failure mode under this ruling

    Yes, linking to the wrong site or the wrong video on the right site is a problem under this ruling. However, there is a related problem: linking to a URL that was correct when the author posted the link, but became wrong later. This could easily happen if someone was careless enough to use certain URL shorteners in the article (rather than following the shortened URL to its full value and putting that in the article), but could also happen if a video-hosting site made it sufficiently easy for the content of a URL to change afterward (e.g. if the original poster's account is closed and someone else can get that exact URL for their upload). In practice, the only safe thing to do would be to link only to videos where the author has affirmative assurances, in a form recognized by the court (meaning, not just a pseudonymous e-mail, but a signed letter, preferably notarized), that the video is authorized, and a sufficient description in the letter that can be used later to prove exactly what video is described as authorized. It would not be sufficient to say "this is a bungee-jumping video", but rather it would need to say "This is a bungee-jumping video having characteristics X, Y, Z", where X/Y/Z are specific enough that a later unauthorized video will not match those characteristics. Describing some contents of the video would be helpful, and including irrefutable metadata like length, file size, and digest would be ideal. Realistically, people are are not technical geeks will not just know to get this, and even if they did, getting the uploader to make those assurances is unlikely to be quick or cheap.

    reply to this | link to this | view in chronology ]

  • icon
    Nick (profile), 28 Oct 2016 @ 10:19am

    This seems extremely wrong. There would be no way of knowing that a video on youtube (which provides a way to share its content freely using widgets) was an unauthorized version. Especially a small, homecam video uploaded by a total nobody stolen from another total nobody.

    It's as if they expect the entire world to know:
    1. About the existence of this video taken by a person at a bungee jumping practice in a remote part of the world
    2. To know the youtube account name of the person who filmed it.
    3. To know that the person who uploaded it is NOT an alternate account of the person who filmed it.
    4. That the video itself is under copyright.
    5. That youtube - who is responsible for ensuring copyrighted material is not copied without the owners permission - hadn't already determined that the video was an authorized copy.

    If any of these are found to be wrong, this case should have been tossed out. I find it hard to believe that the court had proof that every one of these steps was true. The burden of proof should be on the accuser.

    Also.... That was fast. The event was supposedly filmed in 2012, and by jan 9 on 2012 it had already been uploaded by ANOTHER person, and that second video was linked to by a website? Sounds fishy.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Oct 2016 @ 10:51am

      Re:

      It would seem that only the actual poster of the content would be able to know for certain if it was authorized or not.

      Even with paid content...how would a Netflix subscriber know if Netflix actually has the rights to all their content. Subscribers just have to assume that they do but if somehow they ever had any content that they didn't have the rights to, is the subscriber going to be responsible if they watched that content?..Same with any other streaming service/download service.

      reply to this | link to this | view in chronology ]

      • icon
        Nick (profile), 28 Oct 2016 @ 1:25pm

        Re: Re:

        Exactly why you cannot blame consumers of a video service on a web site for the illegality of the video. If the site allows sharing of the product, it is still the fault of the service.

        I don't see how this is a thing.

        reply to this | link to this | view in chronology ]

        • icon
          Wyrm (profile), 31 Oct 2016 @ 9:40am

          Re: Re: Re:

          Exactly why you cannot blame consumers of a video service on a web site for the illegality of the video. If the site allows sharing of the product, it is still the fault of the service.

          Close but not quite. It's the fault of the original uploader, not the service.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2016 @ 10:28am

    Once again embarrassed to be Swedish. Usually I can say "hey, at least I'm not AMERICAN" but in this case... Sadface.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Oct 2016 @ 11:22am

      Re:

      Yupp, and so close to the embarrassing drone camera ruling ... (although a bit more understandable, it is the legislators mess to clean up). Oh well, it is a district court, have they ever been right about new "complex" issues?

      reply to this | link to this | view in chronology ]

    • identicon
      Bruce C., 30 Oct 2016 @ 6:28am

      Clearly a money-grab

      If she just wanted the video taken down, a DMCA claim to YouTube would suffice to take down both the original and the L'Avennir site...and potentially caused some embarrassment to L'Avennir by having the "sorry this video is not available" message to appear on their link.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 28 Oct 2016 @ 10:38am

    According to the court, L’Avenir had not been able to demonstrate that it had no knowledge of the unlicensed character of the video embedded on its website. Hence, L’Avenir was found to have infringed the claimant’s copyright by linking to the YouTube video without Ms Jonsson’s permission.

    Wait. Are these guys seriously in trouble, in a court of law, for literally failing to prove a negative?!?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Oct 2016 @ 11:19am

      Re:

      No sure if you are asking that question seriously or what.

      The Holy Grail of government is to be able to prosecute citizens at any time for any thing. The foundation of America was truly unique in that the law originally started with the premise that you are innocent until proven guilty. This means that L'Avenir has no need to prove that they had no knowledge, instead it on the prosecutor to prove that they DID have knowledge. As far as I know Europe has generally been a guilty until proven innocence society since forever... well everyone except America for a short time that is. America has become the same way which is why its police state looks much like the rest of the worlds now with only the exception of the Jury.

      So yea, they are seriously in trouble for failing to prove a negative, and this isn't even hardly a bit of surprise as that is actually just exactly how most of this stuff goes down and pretty much every court depends on it to keep their wheels greasy!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Oct 2016 @ 8:42am

        Re: Re:

        " As far as I know Europe has generally been a guilty until proven innocence society since forever"

        Except that the Roman law was based on innocent until proven guilty and that was 2000ish years ago. The term "in dubio pro reo" was used at around 1500ad.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Oct 2016 @ 2:15pm

      Re:

      > Wait. Are these guys seriously in trouble, in a court of law, for literally failing to prove a negative?!?

      Yeah, beautiful, ain't it? Prove your innocence or you're guilty. Makes for a more "efficient" system.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2016 @ 10:44am

    just something else that the entertainment industries have got banned on their way to getting complete control of the internet! wont be long now and we'll have to get permission off of those industries before we can even access the net! think i'm crazy? just wait and see! almost every government is siding with whatever these industries say and do (for a price though, i'll bet!) totally screwing every citizen of every country that used to condemn places like China but are now doing the same, if not worse themselves!! two faced ass holes!!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2016 @ 11:55am

    The copyright monopoly is destroying the internet, day by day.

    reply to this | link to this | view in chronology ]

  • identicon
    PRMan, 28 Oct 2016 @ 12:03pm

    We do the same thing in America, Mike...

    Try linking to a video of the Olympics or a recent UFC fight and see what happens.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2016 @ 12:12pm

    Was a DMCA notice sent to the L'Avenir website requesting the removal of the embed video due to copyright infringement grounds and did the website act on the DMCA notice or did they ignore the DMCA notice?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Oct 2016 @ 12:23pm

      Re:

      If no DMCA notice was sent to the website requesting the removal of the embed video due to copyright infringement grounds then how would the website know that the embed video was copyright infringement if they were never notified by way of DMCA notice or by any other notification that the embed video was copyright infringement?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Oct 2016 @ 1:03pm

      Re:

      DMCA is US law, and assuming it applies in Sweden shows signs of ambition to Empire.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2016 @ 8:59am

        Re: Re:

        Directive 2000/31/EC Section 4 serves much the same function as the DMCA in Europe. However, Section 4 generally doesn't apply to site owners, only to service providers.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2016 @ 6:16am

    Can publisher do some due diligence before publishing? Is that too difficult?

    reply to this | link to this | view in chronology ]


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