legal discussion: DMCA's and tube sites and embed codes

Linking to infringing content

The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent DRM (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.[4]

There have been no cases in the US where a website owner has been found liable for linking to copyrighted material outside of the above narrow circumstances.

IO Group Inc. vs. Veoh Networks Inc.

On June 23, 2006 IO Group, Inc. filed a complaint against Veoh Networks, Inc. in the U.S. District Court for California's Northern District.[8] IO Group alleged that Veoh was responsible for copyright infringement by allowing videos owned by Io Group to be accessed through Veoh’s online service without permission over 40,000 times between the dates June 1 and June 22.[9] Veoh is a Flash video site relying on user contributed content. IO Group argued that since Veoh transcoded user uploaded videos to Flash format it became a direct infringer and the materials were under their direct control, thereby disqualifying them for DMCA safe harbor protection. The ruling judge disagreed with the argument stating that "Veoh has simply established a system whereby software automatically processes user-submitted content and recasts it in a format that is readily accessible to its users. Veoh preselects the software parameters for the process from a range of default values set by the thirdparty software... But Veoh does not itself actively participate or supervise the uploading of files. Nor does it preview or select the files before the upload is completed. Instead, video files are uploaded through an automated process which is initiated entirely at the volition of Veoh's users." The Court has granted the Veoh’s motion for summary judgment, on the basis of the DMCA, holding that the defendant's video-sharing web site complied and was entitled to the protection of the statute's "safe harbor" provision.[10]

Fair Use

The court applied the 4 statutory factors from 17 U.S.C. 107 and held that Google's caching was fair use. The first factor, "the purpose and character of the use" weighed in Google's favor. The court stated that Google's use was transformative and did not merely supersede Fields use. The court explained that Fields use was to enrich the lives of others through poetry, while Google's use was to facilitate the operation of search engines. The court identified multiple characteristics that distinguished Google's use from Fields including: Google's use is for archival purposes; (2) Google's use allows users to track changes in websites; (3) Google's use allows users to figure out why a particular page resulted from a search. The court further held that Google's commercial status was of little importance because the Google's use was transformative.

The second factor, "the nature of the copyrighted works" also weighed in favor of Google because the works were available for free on Field's website.

The third factor, "the amount and substantiality of the use" weighed equally for both parties. Although Google cached the entire website, the fact that Field made the works available on his website and the difference in the use of the two made this factor neutral.

The fourth factor, "the effect of the use upon the potential market for or value of the copyrighted work" weighed in favor of Google. There was no market for Field's works and the caching did not impact any potential market for his works.

The court considered an additional factor, "Google's good faith in operating its system cache," which favored fair use. Google used industry standard procedures that allowed website operators to prevent caching. Google promptly removed the cache's to Field's work when it learned that Field did not want them.

[edit] DMCA Safe Harbor

The court held that Google qualified for the Digital Millennium Copyright Act's safe harbor provisions in 17 U.S.C. 512(b).