

MPAA Just Won't Quit: Argues Links & Embeds Are Infringing - daegloe
http://www.techdirt.com/articles/20120411/20434818458/mpaa-just-wont-quit-jumps-into-legal-dispute-to-argue-links-embeds-are-infringing.shtml

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RyanMcGreal
The Supreme Court of Canada recently rendered a decision on a lawsuit in which
the plaintiff accused the defendant of defamation for linking to third-party
content the plaintiff believed to be defamatory.

The plaintiff argued that linking constitutes republication, and that a link
to defamatory content was therefore defamatory.

The Court decided that a link is a _reference_ , not a _publication_ ,
"analogous to a footnote or a card index in a library and should not be found
to constitute republication of the defamation."

The decision also states: "A reference to other content is fundamentally
different from other acts involved in publication. Referencing on its own does
not involve exerting control over the content. Communicating something is very
different from merely communicating that something exists or where it exists."

The court concluded that putting such a legal burden on hyperlinks "would have
the effect of seriously restricting the flow of information and, as a result,
freedom of expression."

Obviously this was a case specifically related to defamation, not copyright
infringement, but it does seem to suggest a precedent with respect to the
argument that hyperlinking constitutes republication for copyright purposes.

~~~
netcan
It seems so ridiculous that we still need to say things like " _analogous to a
footnote or a card index_ ". A link is a link and its a common and standard
enough part of our world to be considered as its own thing.

How long do we have to play this stupid game? _A link is like a reference to a
site that's like a book that's hosted on something like a library which makes
this behavior kind of like stealing my left shoe._ It's like trying to
regulate highways based on laws about herding pigs in a national forest.

~~~
JumpCrisscross
The existing law deals with X set of events. In order to adjudicate on this
event a, different in form but one could argue not function from X, one must
first relate it to similar elements in X. X is the corpus of existing law, a
is the case at hand. This is, in a nutshell, part what the courts are for -
refining and logically extending the law.

~~~
netcan
Sure, if we had laws about books and we needed to to make a judgement about
pamphlets, that works. But we can't just pretend that we are extending some
sort of logical rules from first principals. A link or an embedded video is
not like a footnote in any way that matters.

~~~
RyanMcGreal
> A link or an embedded video is not like a footnote in any way that matters.

I would argue that for the purpose of copyright infringement, a link is
_exactly_ like a footnote - it's a reference to an external document. It just
happens that hypertext makes it much easier for the reader to look up the
reference.

~~~
netcan
I would say its more similar to a magic spell that conjurs up the book.

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mwally
These MPAA people are out of control.

Let's just limit copyright to something like 3-5 years, put these people in
their place.

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danielrhodes
This is actually legit. The DMCA only provides protection for service
providers, not individuals. There is also no differentiation between embedding
and linking to content and hosting the copyrighted content yourself.

A couple cases where this might be relevant:

* A site which allows users to embed videos could get a DMCA takedown request and would be obligated to remove the embed. In the case of YouTube videos it hasn't really been an issue so far because it makes more sense for the copyright owner to go directly to YouTube.

* If you have a blog where you post lots of embedded videos of pirated movies/shows, you could be sued as if you had uploaded and hosted the infringing videos.

~~~
nitrogen
The DMCA may not protect individuals, but what part of copyright law
criminalizes (or provides civil penalties for) pointing people in a particular
overseas direction? And if it does, how does one reconcile that with the
ridiculousness of the notion that linking is the same as copying?

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darasen
I hate to lose rep but I must say that I can see the point where embedded
content is concerned. Hear me out.

Certainly I understand the technical argument being made against the MPAA
here. But, when I provide the descriptor (embedded video) at the cost of
surrounding said video with ads then I am certainly attempting to profit from
the inclusion of the video. If said content is copyrighted I can understand
the copyright holder being displeased with others trying to profit from my
work.

To be fair the average user (not average HN user) never says "I saw this
awesome video via myVidster (site mentioned in article) though the content was
hosted by and embedded from ...". The content is almost always associated to
where it is found.

That said I wholeheartedly think the MPAA and RIAA need to be drug into the
21st century, even if it is kicking and screaming like a three old in cereal
aisle of Wal-Mart.

~~~
rhizome
_But, when I provide the descriptor (embedded video) at the cost of
surrounding said video with ads then I am certainly attempting to profit from
the inclusion of the video. If said content is copyrighted I can understand
the copyright holder being displeased with others trying to profit from my
work._

So what? There are already laws to deal with taking care of that at the
source. Don't make excuses for the lazy and evil.

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zeruch
The MPAA has become very aware that it is in a position that could go quite
south for them at any moment, so they are quite literally desperate to get any
"data" to support their positions, up to and including re-
contextualizing/redefining core concepts of how technology is perceived and
used.

They were a client of a company I worked for in a past life, and they were
fairly out of touch, but seemed to be aware enough that they were not going to
"win" by pure technology alone (they grokked that DRM had limited, if any,
real value). They are a policy farm at root, and they are going to leverage
that as strongly as possible from here on out.

My honest suggestion is a scorched Earth campaign against them. Follow the
money and start _real_ GOTV/support candidates who refuse to give in to the
nonsense.

Yes, I understand the argument about where linked content could be perceived
as violation based on pecuniary interest (but as stated elsewhere, a reference
to a source is not a source, even if it provides the full access to that
source), but I personally see that as a tenuous position and certainly lacks
merit overall in terms of the generally inchoate state of copyright law these
days.

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hobin
Not to be a cynic, but is this anything new? It seems to me that these are the
'reasons' the MPAA thinks TPB and other torrent sites are (supposed to be)
illegal.

~~~
Natsu
Not really new at all.

You know how geeks try to find technical solutions to laws, like the zero-
knowledge pastebin on HN now? MPAA lawyers try to find legal solutions to
disruptive technology.

~~~
ktizo
I wonder if there is a technical solution that circumvents industry lobbying?

~~~
Danieru
You cannot solve a cultural or political problem with a technical solution.

~~~
adrianbg
Actually technology is the best way to solve cultural and political problems.
The invention of the printing press solved (or contributed to solving) many
such problems, like the tyranny of the catholic church. Technology also had a
huge role in the Arab spring protests -- Facebook and plain old tv.

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rwmj
This seems to be aimed at those sites showing "videos from
Korea/Japan/China/etc" which work by embedding. I have a Japanese friend who
loves watching these while he's away from home, so now he won't be able to
watch his favourite Japanese TV dramas, as there is no alternative.

