More on linking: the US says linking to infringing content is ok

Chicago looks at the world of linking
© mikeyexists

Further to the recent Canadian decision saying that linking to legally uploaded photographs is not an infringement, a decision was handed down in the US yesterday which says that it is not an infringement to embed a copyright-infringing video on another website (Case 113190).

This case was between MyVidster, a social video bookmarking site, and Flava Works which is a porn production company. MyVidster embedded infringing videos of Flava Works' content from third party websites, and this was found by the US Seventh Circuit Court of Appeals not to be infringing. In so ruling, Judge Richard Posner overturned a preliminary injunction from 2011.

This is an interesting case because unlike the Canadian decision which said that linking to a legally uploaded work is permissible, here the Courts have said that linking to copyright-infringing works is ok too. According to the judge, because MyVidster did not touch the data stream it did not host the infringing video; it merely linked to versions of the video hosted elsewhere on the internet. Further he said that MyVidster was not encouraging swapping, which in turn encourages infringement.

The Court used the logic that MyVidster is giving addresses to internet users enabling them to find entertainment, which (the Court says) is analogous to the New Yorker listing plays and giving the name and address of the theaters where they are being performed. In doing so the New Yorker is not performing the plays and is not "transmitting or communicating" them.

Posner said "To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and contributory infringement and by doing so make the provider of such information an infringer even if he didn’t know that the work to which he was directing a visitor to his website was copyrighted."

Linking is a hot potato at the moment. As far as this blogger can see the US has said it is ok, Canada has said it is ok in relation to legally uploaded material (Warman and National Post Company v Fournier), and in a summary decision the UK courts have held that linking to unlawful content could incur liability (McGrath v Dawkins). So where does all this leave Richard O'Dwyer, who is to be extradited from the UK to the US on copyright infringement charges?