Citizen journalists commonly embed video clips to illustrate a story or other posting. Sometimes, the posting itself (and its dissemination on YouTube) is the story. Have you ever wondered whether embedding that video clip might lead to copyright woes? If so, apparently you're not alone. There's been a good deal of discussion relating to this issue on various blogs and websites recently. The discussion took a humorous turn this week when a Seventh Circuit Court of Appeals judge inserted a link in an opinion directing readers to a YouTube video about George Brett's famous "pine-tar incident," only to find that the link was removed from YouTube due to a notice of infringement by Major League Baseball. (For more details see Eric Goldman's blog.)
The Blog Herald recently ran a story suggesting that, indeed, bloggers could be held liable for embedding an infringing video on their sites. The story quoted an IP attorney to the effect that "[a]ny time you incorporate a copyrighted work into a site without the rightsholders' consent, you're potentially liable. . . It doesn't matter where it's hosted." The story further indicated (on the opinion of the same attorney) that it does not matter if the person doing the embedding is aware of the infringing nature of the work because innocent infringement is just as actionable as intentional infringement.
Fred von Lohmann's informative post on EFF's Deep Links makes some good points that go a along way toward lightening up this rather gloomy picture. The post points out that an embedded YouTube video is just a link. So, there is "no copy of the YouTube video being stored on your server (only the HTML code for the embed)." A post on Techdirt last week made a similar observation, noting that "[a]ll you've done is put a single line of HTML on your page."
As von Lohmann writes, this makes embedded video just like any other in-line image links found on the web, including Google Image's search functionality. This is significant because an important recent case from the Ninth Circuit Court of Appeals, Perfect 10 v. Google Inc., held that Google Image's in-line linking of copyrighted photographic images posted on third-party websites did not constitute direct copyright infringement of the plaintiff's display or distribution rights because no copies of the plaintiff's photographic images were stored on Google's computers. The court wrote:
Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.
The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user's computer screen because the HTML instructions merely convey an address to the user's browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability. Perfect 10 thus provides good support for the proposition that embedding a video on your blog or website, which is essentially just an in-line link, does not expose you to liability for direct infringement. Of course, Perfect 10 is not the last word on this issue, but it is a recent decision from a prestigious court with a history of important copyright decisions. What's more, Perfect 10 's conclusions are consistent with the majority of copyright infringement cases involving linking, which have found that linking, whether it is simple, deep, or in-line linking, does not give rise to liability for direct copyright infringement. See The Internet Law Treatise's discussion of linking. We will be addressing linking issues in more detail in the forthcoming CMLP Legal Guide, which is still a work in progress.
This leaves liability for contributory copyright infringement, which is a species of liability for aiding the unlawful acts of others. According to the Supreme Court, "[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement." Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. This seems like a pretty demanding standard (and it is), but the 9th Circuit has softened it a bit, indicating that a party may be liable for contributory infringement if it "knowingly takes steps that are substantially certain to result in direct infringement" by others. Perfect 10 v. Google Inc. This "knowledge" standard is not a great departure from the holdings of other cases, and, as a practical matter, the question of a website operator's liability for contributory infringement (either due to the website linking to another site where infringing material is found, or due to website users posting infringing material to the website itself) may revolve largely around the kind and quality of notice that the copyright owner gives to the website in question, and how that website responds to that notice (as it did in Perfect 10, where the appeals court remanded for factual findings regarding the adequacy of Perfect 10's notices and the adequacy of Google's responses).
von Lohmann notes that the legal standard for contributory infringement "should leave plenty of breathing room for most bloggers," and he gives two handy rules of thumb for embedding: "(1) don't embed videos that are obviously infringing, and (2) consider removing embedded videos once you've been notified by a copyright owner that they are infringing." This is good advice, and bloggers and citizen journalists would do well to follow it. A word of caution is in order about the contributory infringement standard, however. There is a huge difference between Google using automated processes to search the far corners of the web and bringing back some infringing third-party materials in the bargain, and a blogger choosing to link to a questionable (or worse) video and then asserting lack of knowledge as a defense. Should the linked-to work actually prove to be infringing, the Googles of the world are going to have an easier time dodging contributory infringement than your average website operator or blogger who personally selected and embedded the link.
The most interesting part of Lohmann's post relates to the DMCA. The post obliquely raises the prospect that the safe harbor provisions of the DMCA may insulate bloggers and/or website operators from liability for embedding infringing video content (via in-line linking). Despite my initial intuition to the contrary, this turns out to be a distinct possibility. Here's how. By taking certain steps required by the DMCA, a "service provider" may avoid liability for infringement in connection with various activities. The DMCA's definition of "service provider" is broad, and includes businesses or individuals that operate websites, especially those that have a chat board or bulletin board, allow users to post links or news items, or even allow users to comment on news items. See, e.g., Hendrickson v. Amazon.com, 298 F.Supp.2d 914 (C.D.Cal.2003); Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082 (C.D. Cal. 2001). One court has even said that "[a] plain reading of [17 U.S.C. 512(k)] reveals that 'service provider' is defined so broadly that we have trouble imagining the existence of an online service that would not fall under the definitions . . . ." In Re Aimster Copyright Litig., 252 F. Supp. 2d 634 (N.D. Ill. 2002), aff'd, 334 F.3d 643, 655 (7th Cir. 2003). Whether a blog hosted on blog-hosting site could qualify as a "service provider" is less certain, but there seems to be no reason why such a site wouldn't meet the definition of "service provider."
Section 512(d) of the DMCA bars liability for service providers, so long as they meet certain requirements (discussed below), for "infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including . . . hypertext link." 17 U.S.C. Sec. 512(d) (emphasis added). The plain language of this provision seems to provide bloggers and website operators who embed infringing video content with a means for avoiding liability. Going beyond the question of embedding, Section 512(c) of the DMCA could also be useful to you if you anticipate allowing users to post links or other materials on your site. 512(c) bars liability for service provides, so long as they meet the requirements discussed below, for infringement due to material stored on their servers or computers at the direction of a user. 17 U.S.C. Sec. 512(c).
There is a catch, however. There are several things you are required to do before you come under the safe harbor provisions. First, you must adopt and communicate to users a policy regarding copyright infringement, which includes a provision for terminating users or account holders who are "repeat infringers" (mostly relevant when you are allowing others to post material to your site, but it appears to be a requirement for anyone to take advantage of the safe harbor provisions). This policy should also explain that your site will respond expeditiously to notices of claimed infringement, and you may want to explain what form an infringement notice should take (tracking the requirements in Section 512(c)(3) of the DMCA). This may sound daunting, but the policy need not be overly complex and technical. There are some good examples posted on the web, such as at Dave's Daily, Hermyspace.com, and (of course) Google.
Second, you must designate an agent to receive DMCA take-down notices. This is done by filing an Interim Designation or an Amended Designation with the United States Copyright Office, along with an $80 filing fee.
Third, you must not have actual knowledge that the linked-to material is infringing (or awareness of facts making infringement apparent -- so remember not to embed videos that are obviously infringing), and you cannot receive any financial benefit directly attributable to the infringing activity in a case where you also have the right and ability to control it.
If you have met all these requirements and receive a DMCA take-down notice from a copyright holder, and if you have verified that this notice substantially meets the DMCA requirements (it is signed, it identifies the infringing material, it contains the copyright holder's contact information, it states that the use of the material is not authorized, and it states that the complaining party is, in fact, the copyright holder), you are required to:
expeditiously remove or disable access to the material that is claimed to be infringing (both in the case of a link from your site and when a user has posted allegedly infringing material);
notify your user or subscriber that the material has been removed so that they may file a counter-notice should they wish;
if proper counter-notice is provided, notify the copyright holder and provide a copy of that counter-notice; and
if proper counter-notice is provided and if the copyright holder does not file suit within 14 days, restore the removed material.
This is a lot of information to digest all at once, especially for a topic that seemed like such an entertaining question to begin with. But there is no reason that you cannot meet the requirements of the DMCA safe harbor provisions with relative ease once you get the hang of it. An extremely helpful resource in this regard is Chilling Effects' Frequently Asked Questions (and Answers) about DMCA Safe Harbor Provisions. The forthcoming CMLP Legal Guide will also deal with the DMCA safe harbor provisions and related questions.