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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Filed Under: cjeu, copyright, embedding, eu, for profit, rebecka jonsson, reporting, sweden
Companies: l'avenir, youtube


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  1. 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.

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