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Embedding Pirated Video Not a Crime, Judge Posner Rules

By Andrew Lu on August 14, 2012 | Last updated on March 21, 2019

Judge Richard Posner handed down a victory for search engines and indexers when he found that MyVidster did not violate any copyright laws by embedding videos on its site.

Issuing the decision for the U.S. Seventh Circuit Court of Appeals, Posner found that MyVidster, a social video bookmarking site, did not infringe the copyright of Flava Works, a porn company. MyVidster had embedded copyright-infringing versions of Flava Works videos from third-party websites, reports Gizmodo.

The decision overturned a preliminary injunction from last year that prevented MyVidster from embedding such videos.

Posner's opinion compared MyVidster to the New Yorker magazine's listing of theater names and addresses for theatrical performances. As these listings are obviously not illegal nor infringing on the copyright of the playwrights, Posner made the argument that MyVidster's embedding of third-party infringing videos was similarly not illegal, reports Gizmodo.

Posner reasoned that MyVidster was simply giving web surfers addresses where they can find entertainment, like what the New Yorker list does. Posner pointed out that MyVidster did not touch the data stream and did not host the infringing video. Instead, the company simply linked to versions hosted elsewhere.

While this case involved a small video bookmarking site and a porn company, the case garnered the attention of the big players like Google, Facebook, and the Motion Picture Association of America (MPAA). Sites like Google and Facebook supported MyVidster as a ruling against that company could have serious ramifications for these larger companies.

In contrast, the MPAA supported the porn company work by arguing that the indexing company engaged in, or supported, copyright violations.

It's interesting to note that in the MyVidster decision, Judge Posner did leave open the notion that "sideloading" is illegal. This means that indexers that archive a copy of the copyright-infringing work may be violating the law. As some large search engines do archive certain links, and it will be interesting to see if another lawsuit develops.

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