The No.1 Website for Pro Audio
 All  This Thread  Reviews  Gear Database  Gear for sale     Latest  Trending
Interesting Appellate Court Ruling on Copyright
Old 6th August 2012
  #1
Lives for gear
 

Interesting Appellate Court Ruling on Copyright

Judge Posner: Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them

Judge Posner: Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them | Techdirt

While this case is about video it could equally be applied to music.
Old 6th August 2012
  #2
Some folks are saying it's not that cut and dry.

Read the article on copyhype.com. It's a much more thorough and nuanced analysis, from an actual lawyer.
Old 6th August 2012
  #3
Quote:
Originally Posted by bgrotto View Post
... from an actual lawyer.
Saints preserve us.

Interesting that the decision separates the act of experiencing an artwork from infringing on its copyright. When I woulda thought that "copyright" and "control the viewing-right" were two halves of the same Oreo cookie?
Old 6th August 2012
  #4
Gear Addict
 

Quote:
Originally Posted by joelpatterson View Post
Saints preserve us.

Interesting that the decision separates the act of experiencing an artwork from infringing on its copyright. When I woulda thought that "copyright" and "control the viewing-right" were two halves of the same Oreo cookie?
In understanding that distinction, it's important to remember that copyright is solely a distribution right, and as such one can only violate it by engaging in an act of distribution. Possession (or viewing; or downloading) of copyrighted material is not in violation of any law at all; one may be undermining the economic principle of copyright if one so subverts it willingly, but such undermining could not be seen as copyright infringement.

Last edited by aroundtheworld; 6th August 2012 at 08:43 PM.. Reason: minor word choice correction
Old 6th August 2012
  #5
Lives for gear
 
AwwDeOhh's Avatar
 

Quote:
Originally Posted by aroundtheworld View Post
In understanding that distinction, it's important to remember that copyright is solely a distribution right, and as such one can only violate it by engaging in an act of distribution. Possession (or viewing; or downloading) of copyrighted material is not in violation of any law at all; one may be undermining the economic principle of copyright if one so violates it willingly, but such undermining could not be seen as copyright infringement.
but knowinly uploading or embedding a work is considered distribution...
Old 6th August 2012
  #6
Gear Addict
 

Quote:
Originally Posted by AwwDeOhh View Post
but knowinly uploading or embedding a work is considered distribution...
For clarity, I was responding to Joel's sentiment on the subject of culpatory infringement as it relates to the viewing of unlicensed material.

To your own remark: uploading a work without license to do so is copyright infringement. But as for whether embedding a link constitutes infringement or contributory infringement -- well, that's what this thread was about: a judge's decision that it supposedly does not. I haven't reviewed the facts of the case as of yet, so I have no personal opinion to express on the matter of embedding/linking, but viewing is not, and never was, any kind of infringement -- that much, at least, has never been under contention.
Old 6th August 2012
  #7
Moderator
 
narcoman's Avatar
 

Tech dirt have only reported n half of what Posner concluded. Look elsewhere for the full story and it most certainly isn't a report citing a time for free for all!! Tech dirt are missing the entire section where a ruling was made that the uploaded is culpable and that the hoster is a broadcaster.

The credibility of tech dirt, precisely because of these creative ommisions means that they are of no use in reporting such things. The Posner response is interesting and of value in the continued evolution of copying and broadcast law AND is vital in reforming and creating a third set of definitions for Internet use, but Techdirt, as always, have made a complete pigs ear of it.
Old 6th August 2012
  #8
Quote:
Originally Posted by bgrotto View Post
Some folks are saying it's not that cut and dry.

Read the article on copyhype.com. It's a much more thorough and nuanced analysis, from an actual lawyer.
you mean you don't get all your legal analysis on copyright from (er, ummm) techdirt? *cough* *cough*

Flava Works v Gunter: Injunction Vacated | Copyhype

Quote:
The headlines heralding a Seventh Circuit decision in Flava Works v. Gunter, written by Judge Richard Posner, one of the most widely cited judges and legal scholars, showcase some of the shortcomings consistently seen in legal reporting. They range from slightly incorrect — Embedding copyrighted video is not infringement, rules Posner — to wildly inaccurate — Embedding copyright-infringing video is not a crime, court rules — to facepalm-inducing absurdity — Embed all the Pirated Video You Want Because It’s Totally Legal.

The appellate court, however, did no such thing. What it did do was vacate a preliminary injunction against video bookmarking site myVidster because the district court had applied the wrong standard.
Old 6th August 2012
  #9
Moderator
 
narcoman's Avatar
 

Even more reason to be ridiculing Techdirt as anything but random blurtings of a set of people who have no understanding of what they are reporting on. Either that or they a deliberately misreporting ( an offence in many nations). So now we learn that no such ruling has been made!!!
Old 7th August 2012
  #10
Lives for gear
 
freetard's Avatar
 

This ruling made me smile in some places. It was pretty good ruling overall. He really clarified copyright law in a positive manner, especially the weirdness of "you read/watched this, now you broke the law HA HA" kind of situations.

I'm personally glad that a lot of people are waking up to how broken this entire area of the law is, and now even people in high places. It's been pretty progressive year so far for copyright reform.
Old 7th August 2012
  #11
Moderator
 
narcoman's Avatar
 

Again, what ruling? Posner has made no such remarks as reported by Tech****e. As noted above, "What it did do was vacate a preliminary injunction against video bookmarking site myVidster because the district court had applied the wrong standard".

He certainly has NOT clarified any copyright law, quite the opposite... He has ASKED for clarification. He also hasn't said that there is no crime here. far from it. He has intimated that the user is not guilty of copyright infringement but they may be guilty of a criminal offence involving enjoying services without payment.... However, he hasn't made a ruling on this.
Old 7th August 2012
  #12
Lives for gear
 
freetard's Avatar
 

You can read it over here: List of Documents in case

Judge Posner did not create new law, but clarified copyright law, especially the acts of viewing/streaming content and embedding/linking content. It's not a surprising decision, but it is a good one none the less.

The key point is that simply consuming copyrighted content that wasn't authorized is not copyright infringement. IE: I can't sue you for reading this text that I wrote right now. If you copy the text and put it on your personal website, that's a different story.

The implications of this is it is impossible to commit copyright infringement by browsing videos on YouTube for instance. You can commit copyright infringement by uploading unauthorized videos, or using a tool to persist them onto your computer. It is also impossible to commit copyright infringement by linking or embedding a unauthorized video. The infringement liability is entirely on the original uploader.

Again this not all surprising, but it's good clarification to have since it seemed to be a quazi-gray area. He attacked the issue directly.

This is still a gray or even black area if anything in other countries in the world. One strange place for this is the United Kingdom, where visiting a website for any reason is still considered copyright infringement unless you get documentation that the site owner authorizes you to access his copyrighted material (ie. the site). That is, visiting this website (gearslutz) is probably copyright infringement if you live in the UK.
Old 7th August 2012
  #13
Moderator
 
narcoman's Avatar
 

exactly. He didn't make a ruling.

Rememebr - all commentary on this is only about the offence of copyright infringement. As it happens viewing ANY copyright violated material isn't an infringement in itself BUT it is still an offence if:

1.you haven't bought ticket for a legal source of viewing
2.you download material for keeping.
3. you distribute.

I can't see where anybody specifically cited that "It is also impossible to commit copyright infringement by linking or embedding a unauthorised video". All I can see is a reference to it being a removal of injunction - with no ruling on it's legality. Only that it can't hold an injunction. As it happens - it's very easy to agree with this - but it doesn't necessarily stop it being an offence - just not one of copyright infringement (more like sneaking into a cinema).

The grey area is the whole internet thing anyway. There is no such thing as a true broadcast - it always involves a cached download. BUT it doesn't contain a permanent version so it also isn't possession. This will go very hard against copyright infringers AT viewers in the long run because its going to bring in extra legislation. After that - cheap internet gets pricey!!
Old 7th August 2012
  #14
Gear Addict
 

Quote:
Originally Posted by freetard View Post
This is still a gray or even black area if anything in other countries in the world. One strange place for this is the United Kingdom, where visiting a website for any reason is still considered copyright infringement unless you get documentation that the site owner authorizes you to access his copyrighted material (ie. the site). That is, visiting this website (gearslutz) is probably copyright infringement if you live in the UK.
That's insane. It's funny that so many countries -- the UK included -- can continually push for more restrictive and punishing copyright law while ignoring (or at least excercising the full slowness of time in responding to) the antiquated existing law which, if ever enforced, would make a mockery of any ideal of justice.
Old 7th August 2012
  #15
Lives for gear
 
freetard's Avatar
 

narcoman,

He did in fact "rule" to remove the injunction against the defendant. But as I said, that wasn't important. In the USA, the opinions of judges affect future opinions, especially at the appellate and Supreme Court levels. That's why Google, Facebook, MPAA, and others got involved in this case, nobody cares about the obscure site, but the precedent that this case could set.

As I understand it, this is also true in the UK, where absent a Posner-like decision viewing a website without explicit authorization is copyright infringement. Your continued responses and participation in this site to me are very likely against your local copyright laws and you should consult a lawyer to make sure you are in compliance with UK law before replying again.
Old 7th August 2012
  #16
Gear Addict
 

Quote:
Originally Posted by narcoman View Post
I can't see where anybody specifically cited that "It is also impossible to commit copyright infringement by linking or embedding a unauthorised video". All I can see is a reference to it being a removal of injunction - with no ruling on it's legality. Only that it can't hold an injunction. As it happens - it's very easy to agree with this - but it doesn't necessarily stop it being an offence - just not one of copyright infringement (more like sneaking into a cinema).
In the United States, things aren't illegal until made legal. They are legal unless made illegal. There is no non-copyright law that would make the viewing of copyrighted material illegal, so it is legal by default. By extension, there is no liability for viewing material on a public facing website (private or otherwise secured websites could be a different matter; the liability would not stem from copyright, but from various "electronic trespass" laws).
Old 7th August 2012
  #17
Quote:
Originally Posted by freetard View Post
... in the UK.
Is this coming, someday? May be!
Old 7th August 2012
  #18
Lives for gear
 

Watching analogue tv broadcast or listening to analogue radio broascast is not illegal because you are not making a copy.

Recording tv or radio broadcast onto tape always has been illegal. I have never heard any broadcaster definitively explain that a viewer/listener be allowed the right to record a broadcast.

Watching youtube is illegal because it is not streaming. The way it works is that a file is copied and then viewed.

There is no way round this unless the law is changed or the technology is changed.

For the public, youtube may SEEM similar to watching analogue TV. But this is because of their technical ignorance and/or because youtube don't want to properly inform. I'm not saying this is a bad thing. But it is the current situation.

If a judge says that watching youtube should not be considered illegal (although technically it is) then surely you can take his descision and apply it to people using bit torrent as well? They use different protocols but at the end of the day data is just copying from one computer to another.

How could you stand in court and say copying of data is technically illegal via youtube and illegal via bittorrent, but via youtube it should not be considred illegal because to the user it SEEMS like they are not performing a file copy?
Old 7th August 2012
  #19
Quote:
Originally Posted by freetard View Post
The implications of this is it is impossible to commit copyright infringement by browsing videos on YouTube for instance. You can commit copyright infringement by uploading unauthorized videos, or using a tool to persist them onto your computer. It is also impossible to commit copyright infringement by linking or embedding a unauthorized video. The infringement liability is entirely on the original uploader.
not quiet. if you hyperlink a copyrighted image in a blogpost, and you did not clear the rights to that copyrighted image yourself, you are still liable, even if you did not upload it.

the jury is out on this. go to huffpo, every image on that site is accounted for either through a blanket license with getty, upi, etc, or they created/own the image, or they licensed it.

this is not so cut and dry.
Old 7th August 2012
  #20
I dunno, man... the cut seems pretty cut and the dry seems pretty dry.
Old 7th August 2012
  #21
Quote:
Originally Posted by joelpatterson View Post
I dunno, man... the cut seems pretty cut and the dry seems pretty dry.
to you perhaps... I'd re-read the analysis at Copyhype... I did consulting work for a beverage company last year. The company blog was forbidden from hyperlinking to third party images for specifically these reasons.

Remember, Fair Use is a defense, not a statute.
Old 7th August 2012
  #22
Lives for gear
 
AwwDeOhh's Avatar
 

Wasn't there a ruling (in the US) not too long ago that considered streaming similar to downloaing?
As far as penalties for hosting such, anyhow?
(no sleep lately... )
Old 7th August 2012
  #23
Quote:
From here, the Seventh Circuit begins a meandering discussion that is peppered with speculation, obtuse analogies, and musings on copyright law. Some of it is entertaining...
Right up my alley for sure...
Old 7th August 2012
  #24
Gear Addict
 

Quote:
Originally Posted by jimdrake View Post
Watching analogue tv broadcast or listening to analogue radio broascast is not illegal because you are not making a copy.
...
Watching youtube is illegal because it is not streaming. The way it works is that a file is copied and then viewed.

There is no way round this unless the law is changed or the technology is changed.
...
How could you stand in court and say copying of data is technically illegal via youtube and illegal via bittorrent, but via youtube it should not be considred illegal because to the user it SEEMS like they are not performing a file copy?
You are arguing from a fairly ancient standard; the law was changed with The Digital Millennium Copyright Act of 1998. Read the sections "Limitation for Transitory Communications" and "Limitation for System Caching."

Quote:
Originally Posted by Digital Millennium Copyright Act, 1998
The limitation [of liability] applies to acts of intermediate and temporary storage, when
carried out through an automatic technical process for the purpose of making the
material available to subscribers who subsequently request it.
Temporary files and their usage are a codified element of any modern copyright law. All data that any computer ever displays or accesses must reside at least temporarily on the local system and it is long since settled that mechanically created temporary files are not an act of infringement.
Old 7th August 2012
  #25
Lives for gear
 

Quote:
Originally Posted by rack gear View Post
not quiet. if you hyperlink a copyrighted image in a blogpost, and you did not clear the rights to that copyrighted image yourself, you are still liable, even if you did not upload it. ...
I'll remind you of that the next time you post pages of copyrighted graphs and tables that you claim support your arguments.
Old 7th August 2012
  #26
Lives for gear
 
jrhager84's Avatar
 

What an exciting thread!

Sent from my SAMSUNG-SGH-I777 using Gearslutz App
Old 7th August 2012
  #27
Moderator
 
narcoman's Avatar
 

Quote:
Originally Posted by freetard View Post
narcoman,

He did in fact "rule" to remove the injunction against the defendant. But as I said, that wasn't important. In the USA, the opinions of judges affect future opinions, especially at the appellate and Supreme Court levels. That's why Google, Facebook, MPAA, and others got involved in this case, nobody cares about the obscure site, but the precedent that this case could set.

As I understand it, this is also true in the UK, where absent a Posner-like decision viewing a website without explicit authorization is copyright infringement. Your continued responses and participation in this site to me are very likely against your local copyright laws and you should consult a lawyer to make sure you are in compliance with UK law before replying again.
hahah.

No - its not true. Another made up "fact" by techdirt. . It's all okay!!
Old 7th August 2012
  #28
Moderator
 
narcoman's Avatar
 

Quote:
Originally Posted by aroundtheworld View Post
In the United States, things aren't illegal until made legal. They are legal unless made illegal. There is no non-copyright law that would make the viewing of copyrighted material illegal, so it is legal by default. By extension, there is no liability for viewing material on a public facing website (private or otherwise secured websites could be a different matter; the liability would not stem from copyright, but from various "electronic trespass" laws).
Correct but i suspect you've misinterpreted my point. But there are other laws other than copyright infringement to consider. Not paying "entry fee" for example for something that may only have a continued communication to the public license upon receipt of a $$ fee. Its not all about copyright (in fact in this instance I agree - there is no copyright breech by VIEWNG anything - that isnt the issue.... I endorse the idea of making the uploader responsible and that, in fact, fits the frame for every copyright infringement case in the UK and Europe. The case here was a wrong one and should have involved illegal upload, no right to broadcast and no right to distribute) .
Old 7th August 2012
  #29
Moderator
 
narcoman's Avatar
 

Quote:
Originally Posted by aroundtheworld View Post
That's insane. It's funny that so many countries -- the UK included -- can continually push for more restrictive and punishing copyright law while ignoring (or at least excercising the full slowness of time in responding to) the antiquated existing law which, if ever enforced, would make a mockery of any ideal of justice.
its also utter nonsense!! Thee is no UK mandate saying that viewing websites is copyright infringement. The UK legal system does not work that way - it's content is held under copyright (as it is in every nation) but viewing a webpage made public doesn't even carry a copyright definition in UK law. It is not illegal a all.

to quote the REAL article (and not the rather Tory method of spin employed by Techturd)

"The court has clarified that it is not the case that every recipient and/or user of Meltwater News will inevitably infringe the copyright so as in all cases to require a licence or consent from the publisher.

The court also ruled that it will be very rare that headlines are copyrightable. Going back 200 years no court has ever found a title worthy of copyright protection, and the Court of Appeal endorsed this legal precedent.".
Old 7th August 2012
  #30
Gear Addict
 

Quote:
Originally Posted by narcoman View Post
Quote:
Originally Posted by aroundtheworld View Post
In the United States, things aren't illegal until made legal. They are legal unless made illegal. There is no non-copyright law that would make the viewing of copyrighted material illegal, so it is legal by default. By extension, there is no liability for viewing material on a public facing website (private or otherwise secured websites could be a different matter; the liability would not stem from copyright, but from various "electronic trespass" laws).
Correct but i suspect you've misinterpreted my point. But there are other laws other than copyright infringement to consider. Not paying "entry fee" for example for something that may only have a continued communication to the public license upon receipt of a $$ fee. Its not all about copyright (in fact in this instance I agree - there is no copyright breech by VIEWNG anything - that isnt the issue.... I endorse the idea of making the uploader responsible and that, in fact, fits the frame for every copyright infringement case in the UK and Europe. The case here was a wrong one and should have involved illegal upload, no right to broadcast and no right to distribute) .
To the bold: that's really the only factor that I was speaking toward in my quoted reply which was itself responding to your post about [by my interpretation] viewers still potentially being liable under other laws. If the potential remaining liability that you spoke toward (that is to say, aside from any held by the viewers) was rather in reference to that which might apply to the uploader, then it sounds like we're actually in agreement with this sub-point that the viewers have no liability. Again, I take no position currently on whether embedding or linking can constitute infringement in this particular circumstance (in the general case, I would not be inclined to consider it such, however), and my remarks are solely aimed at the [absence of] liability for the viewer where we appear to agree.

Quote:
Originally Posted by narcoman View Post
its also utter nonsense!! Thee is no UK mandate saying that viewing websites is copyright infringement. The UK legal system does not work that way - it's content is held under copyright (as it is in every nation) but viewing a webpage made public doesn't even carry a copyright definition in UK law. It is not illegal a all.
to quote the REAL article...
I can't find the "real article" you are taking those quotes from -- can you link it directly (no, this isn't UK infringement entrapment [ironic or otherwise], I just can't locate those quotes in any page that was linked here or from any following child links)? This is a tangent from the original topic, but I find it interesting enough to pursue.

If your interpretation is correct -- that UK users do not face liability by loading pages and circulating links -- how then would you respond to this Out-Law article that appears to be the basis of Techdirt's post referenced earlier in this thread? Out-Law discusses the proposed amendments to UK copyright law that would indemnify users from infringement liability by linking and loading webpages which was allegedly established by a Court of Appeal ruling from last year. Is your contention that the explicit exemption (as carved out by the proposed ammendment) is unnecessary to protect web users from browsing liability; that it is perhaps prophylactic rather than palliative?
Thread Tools
Search this Thread
Search this Thread:

Advanced Search
Forum Jump
Forum Jump