Thanks to Andrew Mirsky for contributing research and feedback to this post.
Let’s say, like most of us, you run a Justin Bieber fan blog. You try to keep it up to date, especially with his latest songs and footage from recent concerts. This involves going on YouTube, finding the new single, and grabbing the embed code, to throw the video up on your site.
The question is… does embedding video (or photos, etc.) make you liable for copyright infringement?
In a word, the answer is yes, although recent major cases on the subject indicate that convincing a court of such infringement is an entirely different story.
A common defense against a claim of direct copyright infringement for embedded videos and images is that they are simply “inline links.” Using this defense, you would justify embedding a copyrighted video by saying that your blog simply used the HTML code that enables the video to be played from a site like YouTube. Technically, an inline link is just text, not the actual video, and therefore would not constitute direct copyright infringement.
Or at least that was the logic used by the U.S. Court of Appeals for the Ninth Circuit in its opinion on Perfect 10 v. Amazon.com, a 2007 ruling concerning copyrighted images. Perfect 10, an adult entertainment company, argued that Google directly infringed upon its copyrights when Google’s image search service showed thumbnails of images owned by Perfect 10. The court, however, upheld the district court’s finding in Perfect 10 v. Google that because the thumbnails on Google Images were inline links and not actually stored anywhere on Google’s servers, Google’s actions did not constitute copying and therefore did not infringe on Perfect 10’s copyrights.
Perfect 10 made similar claims against Amazon.com, which used Google’s search engine to display thumbnails, and the district court consolidated the actions against Google and Amazon into the Perfect 10 v. Google case. Both parties appealed the district court’s decision and thus we have the Perfect 10 v. Amazon.com ruling from the Ninth Circuit in which Google and Amazon.com subsidiary A9.com are also defendants.
Alas, this case seems like yet another example of the law being unable to keep up with technology. While embedded videos often indicate the website where they’re hosted (YouTube, DailyMotion, etc.), an inline link to an image generally does not. If you post an inline link to a copyrighted image on your blog, it looks no different than if you had downloaded and posted the same copyrighted image. From a practical standpoint, there’s really no difference. A visitor to your blog simply sees the image, whether you posted an inline link or an actual copy.
In Perfect 10 v. Amazon.com, the court’s distinction between inline linking and materially copying a work made for a significant legal loophole – one that worked in Google’s favor and could help others avoid direct copyright infringement liability in the future.
On the other hand, the court did state that Google could be held liable for contributory infringement, since its links to the images could easily lead to websites that directly infringe upon the rights of Perfect 10: “Google may facilitate the user’s access to infringing images.” Perfect 10 v. Amazon.com at 15461.
Think of it this way: if you search Google Images and click on a given image, you may very well be directed to a site that does not own the copyright to that image. Google could be held liable for providing you with a database full of such links.
Contributory liability would have required showing that Google “knew of infringing activities yet failed to take reasonable and feasible steps to refrain from providing access to infringing images.” Perfect 10 v. Amazon.com at 15489. Google could have defended a contributory copyright infringement claim with a defense under the Digital Millennium Copyright Act (DMCA) Section 512(d)’s protections for information services providers against liability (including contributory liability). Given that the district court had originally rejected Perfect 10’s claims of contributory liability, the appeals court in Perfect 10 did not rule on this question and asked that the district court reexamine the issue on remand.
The court did rule, however, on the question of fair use. The court found that Google’s display of Perfect 10 thumbnail images constituted a fair use of the works, even if they were hosted by sites that did not own the copyright and despite the fact that Perfect 10 intended to sell thumbnail size versions of its images to cell phone users. The court held that Google’s image search service was protected under fair use because displaying the thumbnails was “transformative” – i.e. so different from Perfect 10’s use that it could not constitute copyright infringement.
Google used the images for information retrieval whereas Perfect 10 used them for entertainment and artistic expression, a distinction the Ninth Circuit originally made in Kelly v. Arriba Soft Corporation. The court also determined that Google Images was of significant benefit to the public. Both of these factors – the purpose and the benefit to society – led the court to find that Google’s displaying Perfect 10 thumbnail images constituted fair use.
Remaining unresolved by the Ninth Circuit’s decision was the question of contributory infringement. The court suggested that the district court revisit this issue and try to determine whether Google was indeed entitled to protection under section 512 of the DMCA. Google would not be entitled to such protection if Perfect 10 could convince the court that it had sent Google infringement notices and Google had not acted expeditiously to remove the infringing material.
Since the case was sent back to the district court, Perfect 10 entered as evidence numerous infringement notices it sent to Google over the course of a few years, but Google successfully argued that most of these notices did not properly follow DMCA notice requirements. The struggle in court continues over this issue of notification and response.
In another recent, unrelated but analogous case also involving Perfect 10, the U.S. District Court for the Southern District of California denied a preliminary injunction against file-sharing site RapidShare (Perfect 10 v. RapidShare). Perfect 10 had sought the injunction against RapidShare to prevent further infringement on Perfect 10’s copyrighted images and videos on RapidShare, a site that allows users to upload content and then share a unique URL where other users can download the files.
Perfect 10 argued that RapidShare was violating Perfect 10’s distribution rights by offering Perfect 10 images and videos to RapidShare users, including those who paid RapidShare a monthly subscription fee. (Rapid Share has both free and premium membership options. The premium option offers users more online storage space).
In refusing to grant the injunction, Judge Marilyn L. Huff accepted RapidShare’s defense against direct copyright infringement, agreeing that RapidShare users make Perfect 10’s copyrighted images available, not RapidShare itself. Judge Huff also noted that unlike Napster, another file-sharing site that was held liable for copyright infringement (A & M Records, Inc. v. Napster Inc.), RapidShare did not maintain an index or a searchable database of files uploaded by its users. Thus, users could not simply visit RapidShare’s site, search for a Perfect 10 video or image, and then download it.
As for contributory infringement, the court cited the Ninth Circuit decision in Perfect 10 v. Amazon.com, stating that “a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.” Perfect 10 v. RapidShare at 9. The court decided that Perfect 10 had not adequately shown RapidShare failed to take simple measures to prevent further infringement of Perfect 10’s images and videos. In fact, the court found that RapidShare was taking active steps, both independently and working with Perfect 10, to identify and remove the infringing materials.
Perfect 10 also tried to argue that RapidShare induced users to infringe on its copyright because the site had no functional purpose other than infringement. The court sided with RapidShare on this issue as well, accepting RapidShare’s arguments of legitimate, non-infringing uses for its service.
So how is Perfect 10 v. Amazon.com different from Perfect 10 v. RapidShare and how is it similar?
To a degree, file-sharing cases are a whole different ball game than inline links and embedding. If you download a song for free from a file-sharing program, it could be that you’re downloading it from another user who does not own the copyright. That involves downloading an actual copy of the work rather than posting an inline link to a copyrighted photo or an embedded video.
The similarities between the cases though, are telling of how courts handle copyright infringement online. While the courts did not hold these companies liable for direct infringement, they all found that it was possible the companies could be liable for contributory infringement. Each court indicated that the major factor in determining contributory infringement would be notification – both how Perfect 10 notified the companies of infringement and how the companies acted in response to such notices.
Thus, the burden for enforcement rests primarily with copyright owners, as we can see from the official policies of a major video-hosting site like YouTube. YouTube states that it will immediately take down a video once informed of a copyright violation and that the site cannot grant rights to third party content, but it cannot guarantee any copyright protection beyond that and does not feel obligated to do so by law.
Given today’s widespread proliferation of embedded videos and photos, it seems impractical for copyright owners to police the entire web. Instead, copyright owners may consider trying to benefit from others infringing upon their works. Some companies already do this through YouTube by deriving advertising revenue from videos that infringe upon their copyright. As the New York Times recently reported, an increasing number of companies are now choosing to leave up videos posted without their permission and have YouTube place ads on them. YouTube and the copyright owner then split the ad revenue.
As for those of us with blogs and websites, there are a few commonsense steps we can take to avoid copyright infringement through embedding a link:
- If you think (or know) the video you’re embedding is copyrighted, ask for permission from the copyright owner. This can be as easy as sending a message to the YouTube user. If you’re embedding a video that’s obviously copyrighted and was posted by a user who does not appear to be the copyright owner, err on the side of caution and either don’t post it or try and track down the actual copyright owner to ask for permission.
- Consider the nature of your reason for embedding a video. If an owner could argue that you are somehow turning a profit with the help of their copyrighted video, you should probably think twice about embedding it. Even if you only make a few bucks a month using Google ads on your blog where you embed a video, that could be construed as taking away from the distribution rights of the video’s copyright owner.
- You also may plausibly argue “Fair Use.” If you’re using an embedded video for educational purposes, for example, then you may very well not be infringing upon the owner’s copyright.
If you’re a copyright owner concerned about protecting your videos or images, keep the following in mind:
- When uploading a video to YouTube, note that you have a choice as to whether or not others can have the embed code. If you don’t want people embedding your video, don’t allow them to do so.
- If you’re going to send someone a DMCA takedown notice because they’re infringing on your copyright, make sure you do it properly. Take the time to look at a how-to for sending this notice. Remember Perfect 10 sent Google hundreds of infringement notices, but the court found that only a handful were legitimate under DMCA standards.
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