Credit: myVidster

The ruling in the recent copyright infringement case of pornography entertainment company, Flava versus Gunter has far reaching ramifications for the future of sharing -- especially if the amicus posted by the Motion Picture Association of America (MPAA) stops the reversal of the court ruling against myVidster.com which has appealed against the ruling.

An amicus curiae brief was posted last week in support of Flava Works. Amicus curiae was incorporated onto English law a thousand years ago. It is used to cover 'relevant matter' not dealt with by either of the parties which may be of considerable help to the decision.

In this case, the MPAA has submitted an amicus supporting Flava in its copyright infringement proceedings against myVidster.com.

Embedding not hosting

Flava is a gay ethnic adult company that produces adult entertainment products which are distributed through DVDs and streaming video. The social video bookmarking web site myVidster.com was created and managed by Marques Ronale Gunter.

More than half the videos on myVidster contain adult pornography. You can bookmark, or post videos on the site for free, or for $40per year, save backup copies of the videos on to its servers.

Flava alleged that myVidster infringed its copyright and trademarks by embedding links to its videos.

According to the amicus, ‘users who posted embedded links to video streams directly infringed the performance right even though they did not necessarily possess a copy of the work’. (p12)

If you post an embedded link to that Star Wars video, you are also directly infringing the performance right. The amicus also argues that ‘the broadcasting of television signals is closely analogous to the streaming of music over the internet.” So streaming TV is subject to copyright too.

The streaming argument is the reason that the extradition of Richard O’Dwyer to the US was approved by the UK government. O’Dwyer, a computer science student, set up TV-Shack, a TV streaming site. Content was streamed through links on TV-Shack, thereby infringing the performance rights of the artists.

Online infringement

Users who posted infringing embedded links on myVidster ‘participated in a step in the process of the unlawful performances and displays, and therefore directly infringed the display and performance rights’.

Online infringement like that occurring on myVidster ‘impairs the ability of copyright owners to recoup their investments in such forms of dissemination and thereby harms consumers, who are deprived of access to new legitimate offerings of expressive content’.

When users link to a video, myVidster crawls the website that hosts the video and embeds the video on its own site. On clicking the link, the video is played from within the myVidster site. The source link and embed code appear on the site. Videos can be tagged so that keyword searches for content can be made.

Initially Flava became aware that myVidster was displaying Flavas videos for free after users complained and myVidster was sent a takedown notice in accordance with the Digital Millennium Copyright Act (DMCA). Flava claimed lost sales when myVidster posted the embedded videos. Revenue was down 30 per cent from 2010 –- and it estimated a loss of between $100,000 and $200,000.

If you embed something on your own site are you also infringing copyright?

In most cases myVidster was not actually hosting the videos, but using the embed link to the source video. This is essentially what you do every time you embed a YouTube video on your blog, or Facebook, or link to it on Google+.

However, if a user posts a link to a video which had already been embedded by myVidster, then the embed code showed the myVidster server as the hosting sever.

Browser infringement?

Cached copies of images were also questioned. Perfect 10 sued Google's image search service arguing that Google’s indexing of photos and displaying thumbnail images on Google servers violated copyright law

The cached copies of images on our own browser are safe. Fortunately the court in the Perfect 10 case ruled that browsers are not ’infringing copyright because their computers automatically "cached" a copy of the photo in memory’

I hear sounds of I am Spartacus ringing out around the connected world as we collectively breathe a sigh of relief.

For now...

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